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2013 Section 7: Abortion Institute of Bill of Rights Law at the William & Mary Law School
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Copyright c 2013 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VII. Abortion
In This Section:
New Case: 12-1168 McCullen v. Coakley p. 454
Synopsis and Questions Presented p. 454
“ABORTION CLINIC BUFFER ZONE GETS U.S. HIGH COURT REVIEW ” p. 468 Greg Stohr
“MCCULLEN V. COAKLEY: ABORTION IS HEADING TO THE SUPREME COURT p. 469 AGAIN” Alexandra Ma
“COURT UPHOLDS MASS. ABORTION CLINIC BUFFER LAW” p. 471 Martin Finucane
“ABORTION OPPONENTS: ‘BUFFER ZONES’ AT ABORTION CLINICS VIOLATE p. 473 FREE SPEECH” Elizabeth Flock
New Case: 12-1094 Cline v. Oklahoma Coalition for Reproductive Justice p. 475 (looking ahead)
Synopsis and Questions Presented p. 475
“SUPREME COURT TELLS OKLAHOMA TO REVIEW ABORTION PILL LAW” p. 477 David G. Savage
“ABORTION-DRUG CASE ON DOCKET FOR NOW” p. 478 Louise Radnofsky & Brent Kendall
“THE NEXT ABORTION CASE IS HERE” p. 480 Linda Greenhouse
“OKLAHOMA ABORTION LAWS UNCONSTITUTIONAL, STATE SUPREME p. 485 COURT RULES” Tim Talley
“SUPREME COURT AGREES TO REVIEW OKLAHOMA ABORTION PILL CASE” p. 487 Warren Richey
New Topic: Abortion-Restricting Laws (looking ahead) p. 489
452 “STATE LAWS LIMITING ABORTION MAY FACE CHALLENGES ON 20-WEEK p. 489 LIMIT” Julie Rovner
“ABORTION RESTRICTIONS BECOME LAW IN TEXAS, BUT OPPONENTS WILL p. 491 PRESS FIGHT” Manny Fernandez
“CALIFORNIA ABORTION BILL SHOWS GULF WITH OTHER STATES” p. 494 Michael B. Marois & Esme E. Deprez
“ANTI-ABORTION LAWS TAKE DRAMATIC TOLL ON CLINICS NATIONWIDE” p. 496 Laura Bassett
453 McCullen v. Coakley
12-1168
Ruling Below: McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013), cert granted, 2013 WL 1218466 (U.S. 2013).
Massachusetts residents who regularly engaged in pro-life counseling outside reproductive health care facilities brought action against Massachusetts' Attorney General, challenging revised Massachusetts statute, which made it a crime for speakers other than clinic employees acting within the scope of their employment to be on a public sidewalk within thirty-five feet of an entrance, exit, or driveway of a reproductive health care facility. The United States District Court for the District of Massachusetts, upheld the act. Residents appealed. The First Circuit held that law of the case doctrine precluded revisiting facial challenges; employees loitering in buffer zone did not reflect a viewpoint preference of the state; and residents had adequate alternative means of communication.
Question Presented: (1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law under the First and Fourteenth Amendments, on its face and as applied to petitioners; and (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.
Eleanor McCULLEN et al., Plaintiffs, Appellants, v. Martha COAKLEY et al., Defendants, Appellees. United States Court of Appeals, First Circuit Decided on January 9, 2013 [Excerpt; some footnotes and citations omitted.]
SELYA, Circuit Judge
This case does not come to us as a stranger. One might have thought that the matter At the turn of the century, the Massachusetts would end there, but it did not. In 2007, the legislature passed a law that created fixed legislature revisited the statute and amended and floating buffer zones around abortion it to create a fixed thirty-five-foot buffer clinics. We rejected serial challenges to the zone around the entrances, exits, and constitutionality of that law. The Supreme driveways of abortion clinics. The revised Court denied certiorari. statute drew renewed fire and, in 2009, we upheld it against a facial challenge. This decision left open the plaintiffs' as-applied
454 challenge, and they unsuccessfully pursued The Act states in pertinent part that “[n]o that initiative in the district court. person shall knowingly enter or remain on a public way or sidewalk adjacent to a The plaintiffs again appeal. They advance a reproductive health care facility” (RHCF) salmagundi of arguments, old and new, within a designated and clearly marked some of which are couched in a creative buffer zone. The buffer zone spans recalibration of First Amendment principles. a radius of 35 feet of any portion of an Few subjects have proven more entrance, exit or driveway of a[n RHCF] controversial in modern times than the issue or within the area within a rectangle of abortion. The nation is sharply divided created by extending the outside about the morality of the practice and its boundaries of any entrance, exit or driveway of a[n RHCF] in straight lines place in a caring society. But the right of the to the point where such lines intersect the state to take reasonable steps to ensure the sideline of the street in front of such safe passage of persons wishing to enter entrance, exit or driveway. healthcare facilities cannot seriously be questioned. The Massachusetts statute at Four categories of persons identical to those issue here is a content-neutral, narrowly enumerated in the 2000 version of the law tailored time-place-manner regulation that are exempted: protects the rights of prospective patients (1) persons entering or leaving such facility; and clinic employees without offending the (2) employees or agents of such facility First Amendment rights of others. We acting within the scope of their employment; therefore affirm the judgment below. (3) law enforcement, ambulance, I. BACKGROUND firefighting, construction, utilities, public *4 works and other municipal agents acting We briefly recount the historical background within the scope of their employment; and and travel of the case and then describe the (4) persons using the public sidewalk or particular circumstances concerning the street right-of-way adjacent to such facility three clinic locations that lie at the epicenter solely for the purpose of reaching a of the plaintiffs' as-applied challenge. destination other than such facility.
A. Travel of the Case. On January 25, 2008, the Massachusetts Attorney General sent a letter to a wide The centerpiece of this saga is Mass. Gen. audience, including RHCF personnel and Laws ch. 266, § 120E 1/2 (2007) (the Act). law enforcement agencies. The text of the The provenance and pertinent provisions of letter is reproduced as an appendix to our the Act are set out in some detail in opinion in McCullen I. Its stated purpose is McCullen I and we assume the reader's to summarize the provisions of the Act and familiarity with that account. We rehearse offer “guidance to assist [ ] in applying the here only what is necessary to place into four exemptions.” perspective the issues on appeal.
455 On January 16, 2008, the plaintiffs brought channels of communication at the this action against the Massachusetts challenged facilities. Following a bench Attorney General in the federal district trial, the court upheld the Act as applied. court. Invoking 42 U.S.C. § 1983, they alleged a plethora of constitutional claims. B. The Three Sites.
The district court bifurcated the case, We rehearse the evidence anent the relevant separating the plaintiffs' facial challenge clinic locations. As a prelude, we note that from their as-applied challenge. In due each of the plaintiffs engages in season, the court addressed the facial communicative activities outside one of challenge and upheld the Act. these three RHCFs.
On appeal, we affirmed, holding the Act to 1. Boston. The Boston clinic is situated in a be content-neutral, viewpoint-neutral, and a free-standing building at 1055 valid time-place-manner regulation. At the Commonwealth Avenue (a main same time, we rebuffed the plaintiffs' thoroughfare in the Brighton section of overbreadth claim, citing Hill v. Colorado, Boston). Its front door faces Commonwealth in which the Supreme Court upheld a Avenue; its rear garage entrance faces Colorado statute regulating communicative Gardner Street. All clinic patients enter activities within 100 feet of healthcare through the front door and must use the facility entrances. We likewise rejected the twenty-five-foot-wide public sidewalk along plaintiffs' vagueness claim (which focused Commonwealth Avenue. Buffer zones, on the Attorney General's letter), explaining marked with yellow arcs and posted signs, that such an attempt at interpretive guidance are appurtenant to each entrance. cannot alter the meaning of a law that is Three of the plaintiffs (McCullen, Cadin, clear on its face. Finally, we ruled that the and Zarrella) regularly engage in “sidewalk Act did not constitute an unlawful prior counseling” at the Boston clinic. McCullen restraint on protected speech. parks her car on Commonwealth Avenue When the dust had settled, the district court and festoons it with pro-life signage; took up the plaintiffs' as-applied challenge. Zarrella sometimes prays aloud; and Cadin As a threshold matter, it invoked the law of from time to time holds aloft a large pro-life the case doctrine and resisted the plaintiffs' sign. attempt to reargue the facial constitutionality A fourth plaintiff, Smith, has demonstrated of the Act. Next, it granted the defendants' outside the Boston clinic for many years. He motion for judgment on the pleadings with has displayed a crucifix, sung religious respect to seven as-applied counts. Turning hymns, and prayed aloud. His prayers are to whether the Act, as applied, constituted a meant to be heard by passersby in hopes of valid time-place-manner regulation, the persuading them to opt against abortion. He court concluded that the only trialworthy sometimes brings a loudspeaker to amplify issue concerned the adequacy of alternative group prayers that occur outside the clinic
456 on the second Saturday of every month and There are buffer zones marked with painted on Good Friday. white arcs and posted signs on both Pleasant Street and Dewey Street. More than eighty- The plaintiffs insist that they have achieved five percent of all patients arrive by car, success in their counseling efforts: they park in the clinic's lot, and walk directly to speak with prospective patients, elicit the main door (without setting foot on any responses, and hand out literature. In some public way). instances, they have persuaded women to decide against terminating pregnancies. Two of the plaintiffs (Bashour and Clark) McCullen estimates that, during the period engage in sidewalk counseling at the between November 2007 and May 2011, her Worcester clinic. They try to divert women sidewalk counseling convinced to Problem Pregnancy, a “pro-life pregnancy approximately eighty women to refrain from crisis center” located across the street. seeking abortions. Bashour prays quietly outside the clinic, sometimes alone and sometimes with others. Despite their accomplishments, the plaintiffs For her part, Clark often displays a large argue that the buffer zones prevent close pro-life sign. personal contact with their intended audience and, thus, impede their ability to Here, too, the plaintiffs claim to have communicate effectively. By way of achieved some success in their counseling illustration, Zarrella asserts that, although efforts. They speak with patients, distribute women “always” respond to her offers of literature, and persuade women to refrain enlightenment and assistance, she has not from seeking abortions. Notwithstanding been able to convince any of them to opt out these successes, the plaintiffs aver that the of an abortion since the 2007 buffer zones physical set-up renders their attempts to were put in place. communicate “ineffective” by impeding their ability to view and approach 2. Worcester. The Worcester clinic is individuals entering the front door, to make situated in a stand-alone building at 470 eye contact with patients, and to Pleasant Street. Its main entrance is “demonstrate a caring demeanor.” As they accessible from Pleasant Street and also recall it, virtually no patients who park in from a private parking lot behind the the clinic's private lot respond to their building. The public sidewalk on Pleasant overtures or “make the effort” to venture Street is nearly fifty-four feet from the main outside the clinic's premises. The buffer door and staggered metal fences shield the zones preclude them from speaking at “a front of the building and the private normal conversational distance” with, or pedestrian walkway that runs between these placing literature near, the vast majority of points. Neither the fencing nor the walkway patients entering the clinic. is on public property. The entrance to the parking lot is on Dewey Street and all 3. Springfield. The Springfield clinic is vehicular traffic must use that entrance. situated in a multi-tenant medical complex
457 at the corner of Main Street and Wason found that the law of the case doctrine Avenue. The building contains at least eight barred relitigation of this issue. We agree. separate medical offices. It is bordered on two sides by private parking lots; a third side The law of the case doctrine has two abuts another building; and the fourth side branches. The first, which embodies the so- neighbors an open expanse that contains called mandate rule, “prevents relitigation in railroad trackage. Approximately ninety the trial court of matters that were explicitly percent of individuals patronizing the or implicitly decided by an earlier appellate complex arrive by car and park in one of the decision in the same case.” The second lots. “binds a successor appellate panel in a second appeal in the same case to honor There are five driveways leading to and fully the original decision.” Both branches from the complex, two of which have been of the doctrine apply here. painted with white arcs and posted to establish buffer zones: one on Main Street To be sure, the law of the case doctrine and one on Wason Avenue. The remaining admits of certain exceptions. But the three driveways have painted white arcs but circumstances giving rise to those no signs. They are not, therefore, buffer exceptions are narrowly circumscribed: zones authorized by the Act. Consequently, A party may avoid the application of the they have no legal effect. law of the case doctrine only by showing that, in the relevant time frame, A plaintiff (Shea) prays aloud and engages controlling legal authority has changed in sidewalk counseling outside the clinic. He dramatically; or by showing that habitually displays a large sign that reads significant new evidence, not earlier “They're Killing Babies Here.” He laments obtainable in the exercise of due that, from and after the creation of the buffer diligence, has come to light; or by zones, he has not seen literature provided to showing that the earlier decision is blatantly erroneous and, if uncorrected, anyone in a vehicle. He estimates that only will work a miscarriage of justice. five percent of those who arrive by car leave the clinic's parking lots either to accept pro- Although the plaintiffs allude in desultory life literature or to investigate the possibility fashion to the third exception, they make no of counseling. reference to the second exception and their only colorable claim concerns the first II. THE LAW OF THE CASE exception.
We start our appraisal of the merits with the The plaintiffs base their claim on recent plaintiffs' exhortation that we revisit decisions of the Supreme Court standing for McCullen I, in which we held that the Act, the wholly unremarkable proposition that on its face, is a constitutionally valid time- content-based and speaker-based speech place-manner regulation. The district court restrictions are disfavored. In their view, these neoteric decisions have so
458 reconfigured the First Amendment others.” But they yank this statement from landscape as to justify a departure from the its context and they neglect to mention that law of the case. This impressionistic the Court cites Bellotti—a case that argument, though ingenious, elevates hope substantially predates McCullen I—for this over reason. The propositions for which the proposition. The Court's reliance on Bellotti plaintiffs cite those cases are no more than is not a mere fortuity. After all, the Citizens conventional First Amendment principles United Court described its decision as a recited by the Supreme Court in the context return to classic First Amendment of factual scenarios far different than the jurisprudence rather than a departure scenario at issue here. therefrom. The Court did not retreat from its well-settled abortion clinic/buffer zone The decision on which the plaintiffs rely jurisprudence. Seen in this light, we cannot most heavily—Citizens United—is read Citizens United as undermining the emblematic of this point. Citizens United First Amendment foundation on which our overruled Austin v. Michigan Chamber of rejection of the plaintiffs' facial challenge Commerce, which had held that corporate rested. entities, as opposed to other speakers, could be prohibited from engaging in political So, too, Snyder, in which the Court held that speech. The plaintiffs contend that Citizens the First Amendment precludes tort liability United announced, for the first time, a against persons who had peacefully blanket ban on all speaker distinctions, protested, on public property, at the funeral whatever the setting. This categorical ban, of a Marine. Once again, the Court did no they say, should serve to invalidate the Act more than apply long-recognized First as a speaker-specific restriction. Amendment principles. And while it reiterated the special status of public streets This is an imprecise reading of Citizens as the “archetype of a traditional public United. The Citizens United Court held that forum,” it proceeded to confirm that even government cannot entirely prohibit public fora are subject to reasonable time- corporate political speech. In support, it place-manner regulations. It is especially invoked the “central principle” laid out in telling that, in making this point, the Court First National Bank of Boston v. Bellotti, to referred specifically to the abortion clinic the effect “that the First Amendment does buffer zone that it had upheld in Madsen. not allow political speech restrictions based on a speaker's corporate identity.” The Act, The plaintiffs' reliance on Sorrell is equally of course, makes no such distinction. mislaid. The Sorrell Court invalidated a Vermont law that restricted the sale, The plaintiffs, however, are undaunted. disclosure, and use of pharmacy records for They seize upon an isolated statement in marketing purposes. The law, on its face, Citizens United: “Prohibited, too, are was content-based and speaker-based, and restrictions distinguishing among different had been enacted with the avowed purpose speakers, allowing speech by some but not of “diminish[ing] the effectiveness of
459 marketing by manufacturers of brand-name The short of it is that the First Amendment drugs.” principles underpinning our core holdings in McCullen I have not been materially altered, The case before us could not be more let alone abrogated, by any subsequent different. As we explained in McCullen I, Supreme Court precedent. Accordingly, the the Act is both content-neutral and speaker- district court did not err in declining the neutral. Moreover, the legislature enacted it plaintiffs' invitation to set the law of the case to serve a valid, non-speech-related purpose: doctrine to one side and revisit the plaintiffs' public safety. facial challenge to the Act.
In a Rumpelstiltskin-like effort to turn straw III. JUDGMENT ON THE PLEADINGS into gold, the plaintiffs dismiss these important differences and focus instead on The plaintiffs challenge the district court's the Sorrell Court's statement that “the entry of judgment on the pleadings on inevitable effect of a statute on its face may several fronts. We review de novo an order render it unconstitutional.” But this hoary granting or denying judgment on the legal precept (with which we agree) is not pleadings. To withstand a motion for novel. The “inevitable effect” language judgment on the pleadings, a “complaint derives from the Court's decision in United must contain sufficient factual matter to States v. O'Brien, which comfortably state a claim to relief that is plausible on its predates both our decision in McCullen I face.” and the Supreme Court's abortion clinic/buffer zone jurisprudence. A. Viewpoint Discrimination.
More to the point, the Sorrell precept is in The plaintiffs' principal challenge to the no way inconsistent with our holding in entry of judgment on the pleadings relates to McCullen I. The “inevitable effect” of the their claim of viewpoint discrimination. Act is to limit the communicative activities They argue that Planned Parenthood of all demonstrators (whether pro-choice or employees and agents have abused the pro-life) to exactly the same extent. buffer zones and that this activity constitutes viewpoint discrimination under the First The plaintiffs have also marshaled other Amendment. The district court rejected this recent Supreme Court cases in their argument on the pleadings, holding that the ambitious effort to reinvent First plaintiffs had not alleged sufficient facts to Amendment doctrine. It would serve no support the claim. useful purpose to canvass these cases. For present purposes, it suffices that these In their complaint, the plaintiffs aver that decisions, by no stretch of even the most “pro-choice advocates [ ] surround, cluster, fertile imagination, sully either the reasoning yell, make noise, mumble, and/or talk loudly or the doctrinal infrastructure of McCullen I. to clinic clients for the purpose of disrupting or drowning out pro-life speech and thwart Plaintiffs' efforts to distribute literature.”
460 They further aver that clinic “employees policy of enforcing the Ordinance ... only and/or agents stand idly on the public [against] efforts to persuade women sidewalks and streets inside the [buffer] approaching [RHCFs] ... not to receive zone”—sometimes smoking, speaking with abortions or other reproductive health each other or on mobile phones, or drinking services, and not [against] communications coffee—“even when clinic clients are not seeking to encourage entry into the clinic for present.” the purpose of undergoing treatment.”
Because this issue was resolved at the This case is at a considerable remove from pleading stage, we assume arguendo that the Hoye. The Hoye court's finding of uneven raw facts are as the plaintiffs have alleged. enforcement was inevitable in light of the The question remains, however, whether the city's frank admission that it consciously depicted conduct can fairly be characterized “enforces the Ordinance in a content- as viewpoint discrimination attributable to discriminatory manner.” In contrast, the the state. The plaintiffs say that it can. The plaintiffs here have not pleaded any facts Attorney General demurs. that might suffice to ground a claim of uneven enforcement. We begin with the basics. The Act, on its face, is viewpoint-neutral. Although it The conduct described, without more, has contains a “clinic employee” exemption, that nothing to do with the First Amendment. exemption does not purport to allow either While loitering in a buffer zone by an advocacy by an exempt person or exempt person is not expressive in nature interference by an exempt person with the and arguably does not serve the purposes of advocacy of others. the Act, such conduct, simpliciter, does not prefer one viewpoint over another. The plaintiffs strive mightily to overcome this obstacle. They call our attention to the What is more, the employees and agents decision in Hoye v. City of Oakland. There, about whom the plaintiffs complain are not a municipal ordinance prohibited, within a state actors but—unlike the municipal police 100–foot zone around entrances to RHCFs, officers in Hoye—are agents of a private any knowing or willful “approach within entity (Planned Parenthood). The Act allows eight feet of an individual seeking entry to these individuals to be in buffer zones under the clinic if one's purpose in approaching the clinic employee exemption. But to the that person is to engage in conversation, extent that they have tried to use their protest, counseling, or various other forms exempt status either to advocate a particular of speech.” The Ninth Circuit concluded that point of view or to drown out the plaintiffs' the ordinance was constitutional on its face message, there is no allegation that such but unconstitutional as applied. It predicated behavior has been sanctioned by the state. this conclusion on a determination that the city did not evenly enforce the ordinance; Another point is worth making. If the rather, the city's actions manifested “a firm plaintiffs believed themselves to be
461 aggrieved by the employee/agent behavior of many more applications than those that they describe, the commonsense remedy immediately before the court.” would have been to complain to police officers or other state authorities. The In the case at hand, the parties spar over pleadings are barren of any allegation that whether there is such a creature as an as- such a complaint was ever made. applied overbreadth challenge. We need not grapple with this conundrum because, even The bottom line is that, to be cognizable, a if some overbreadth challenges may contain claim of uneven enforcement requires state an as-applied component, this one does not. action. Whatever actions the clinic employees and agents may have taken, this In explaining the district court's supposed record reveals no basis for a plausible claim error, the plaintiffs repeat their complaint, that those actions reflect a viewpoint rejected on their facial challenge, that all preference of the state. communicative activities (as opposed to, say, purely violent or aggressive activities) B. Overbreadth. are banned within buffer zones. In attempting to convert this previously The plaintiffs assign error to the district rejected challenge into a viable as-applied court's entry of judgment on the pleadings challenge, they posit that McCullen I cannot with respect to their overbreadth claim. control because it did not specifically Although they concede that we rejected a conclude whether the Act is substantially substantially similar overbreadth claim in overbroad at the Boston, Worcester, and McCullen I, they suggest that the Act may Springfield locations. Withal, they offer no be overbroad in particular applications. accompanying factual allegations, other than pointing to what they identify as five buffer Overbreadth doctrine invalidates statutes zones at the Springfield location. As we “not because [the plaintiffs'] own rights of already have explained, only two free expression are violated, but because of a enforceable buffer zones exist around the judicial prediction or assumption that the Springfield clinic. Thus, our Springfield- statute's very existence may cause others not directed analysis considers only those two before the court to refrain from zones. constitutionally protected speech or expression.” But overbreadth must be both We need not tarry. Here, as in Hill, “the “real” and “substantial,” as assessed “in comprehensiveness of the statute is a virtue, relation to the statute's plainly legitimate not a vice, because it is evidence against sweep.” “Where an overbreadth attack is there being a discriminatory governmental successful, the statute is obviously invalid in motive.” The plaintiffs have not pleaded all its applications, since every person to facts sufficient to suggest that our earlier whom it is applied can defend on the basis holding in McCullen I does not control their of the same overbreadth.” Thus, the present claim. Accordingly, the claim fails appropriate analysis “requires consideration under the plausibility standard. It follows
462 that the district court did not err in granting [E]ven in a public forum the government judgment on the pleadings on the may impose reasonable restrictions on overbreadth claim. the time, place, or manner of protected speech, provided the restrictions are C. Other Claims. justified without reference to the content of the regulated speech, that they are The plaintiffs attempt to resurrect a number narrowly tailored to serve a significant governmental interest, and that they of other claims that the district court laid to leave open ample alternative channels rest in its entry of judgment on the for communication of the information. pleadings. There are two principal problems. The district court found that the issues of First, the plaintiffs have not pleaded an content neutrality and narrow tailoring were adequate factual predicate. In the absence of definitively resolved by McCullen I. The pleaded facts sufficient to distinguish the plaintiffs lament that this approach plaintiffs' as-applied challenge on these “improperly narrowed the required grounds from their failed facial challenge, constitutional analysis.” the latter controls the former. We reject this lamentation. The facts Second, the plaintiffs do not pursue this proffered by the plaintiffs in support of their battery of claims with developed as-applied challenge do not raise new or argumentation or in any other meaningful different issues but, rather, repeat in relevant way. We routinely have held, and today part the same fact patterns envisioned in our reaffirm, that theories presented on appeal in adjudication of their failed facial challenge. a perfunctory fashion are deemed It is black-letter law that a plaintiff cannot abandoned. So it is here. rewardingly prosecute an as-applied challenge to the constitutionality of a statute IV. THE AS–APPLIED CHALLENGE based on the same legal arguments and We turn next to the red meat of this appeal: factual predicate that underpinned an earlier the plaintiffs' as-applied challenge to the (unsuccessful) facial challenge. operation of the Act at the three specific The congruence between the plaintiffs' facial RHCFs described above. The district court and as-applied challenges cannot be spurned this challenge; it concluded that gainsaid. The plaintiffs now attempt to raise because there are adequate alternative precisely the same arguments about content channels of communication open to the neutrality and the significance of the plaintiffs at each location, the Act comprises governmental interest involved that were a valid time-place-manner regulation. We squarely raised (and squarely repulsed) in review this conclusion de novo. the course of their facial challenge. The With respect to time-place-manner same can be said of the narrow tailoring regulations, the Supreme Court has inquiry. In any event, to the extent that the explained: as-applied challenge in this case implicates particularities of the three clinic locations,
463 those particularities are swept into—and The record makes plain that communicative appropriately addressed by—the inquiry into activities flourish at all three places. To the availability of adequate alternative begin, the plaintiffs and their placards are means of communication. visible to their intended audience. Through their signs and demonstrations, the plaintiffs This brings us to the pivotal question of disseminate their message and elicit whether the Act, as applied, leaves open audience reactions. Their voices are audible. adequate alternative means of They have the option (which they sometimes communication. Each of the plaintiffs have exercised) of using sound amplification engages in communicative activities outside equipment. When they and their cohorts one of the three designated RHCFs. deem it useful to do so, they congregate in According to the plaintiffs, these groups outside a clinic, engage in spoken communicative activities are intended to prayer, employ symbols (such as crucifixes influence individuals seeking or considering and baby caskets), and wear evocative abortions as well as “those who approve or garments. They sometimes don costumes perform abortions.” (dressing up as, say, the Grim Reaper).
The plaintiffs vouchsafe that they prefer to To be sure, the Act curtails the plaintiffs' communicate their message through up- ability to carry on gentle discussions with close, gentle conversations, accompanied by prospective patients at a conversational smiles and eye contact. They insist that the distance, embellished with eye contact and buffer zones authorized by the Act force smiles. But as long as a speaker has an them to engage in shorter, louder, and less opportunity to reach her intended audience, personal exchanges. They fear that, without the Constitution does not ensure that she the ability to “make eye contact and always will be able to employ her preferred demonstrate a caring demeanor,” their method of communication. In the last communications are ineffectual. As they see analysis, “there is no constitutional it, the need to stop at the edge of the buffer requirement that demonstrators be granted ... zone is devastating; this restriction compels particularized access” to their desired them to raise their voices, precludes them audience. As long as adequate alternative from handing literature to prospective means of communication exist, the First patients in many instances, detracts from Amendment is not infringed. their message, and somehow makes them seem “untrustworthy.” Our inquiry into the adequacy of alternative means of communication is, of course, site- Notwithstanding the plaintiffs' specific. At the Boston clinic, all prospective importunings, the court below concluded patients must traverse a public sidewalk to that adequate alternative means of gain entry. Given this reality, many channels communication exist at all three sites. Our of communication remain available to the inquiry focuses on this set of conclusions. plaintiffs. Those alternative channels are
464 adequate to offset the restrictions inherent in political protests. Nor does it guarantee to the buffer zones. the plaintiffs the same quantum of communication that would exist in the total The analysis is somewhat different with absence of regulation. A diminution in the respect to Worcester and Springfield. At amount of speech, in and of itself, does not these sites, it is not the buffer zones that translate into unconstitutionality. So long as constitute the main impediment to adequate alternative means of communicative activity; instead, it is the communication exist, no more is prospective patients' unwillingness to constitutionally exigible. venture off the clinics' private property. Most prospective patients arrive by car, park We add a coda. Even if the plaintiffs' in private lots, and use non-public walkways audience is diminished in some respects by to enter the facility. The fact that these the existence of the buffer zones, that patients are not readily accessible to the diminution is not constitutionally fatal. The plaintiffs is more a function of the physical fact that a regulation “may reduce to some characteristics of the sites than of the degree the potential audience for [the operation of the Act. plaintiffs'] speech is of no consequence,” as long as adequate alternative means of This is a critically important datum. The law communication exist. does not require that a patient run a public- sidewalk gauntlet before entering an In an effort to change the trajectory of the abortion clinic. That patients choose to stay debate, the plaintiffs tout the Supreme on private property or not to stop their cars Court's decision in City of Ladue v. Gilleo. on approach is a matter of patient volition, That decision is inapposite here. not an invidious effect of the Act. First Amendment rights do not guarantee to the Gilleo involved a municipal ordinance that plaintiffs (or anyone else, for that matter) an broadly banned residential signs. Analyzing interested, attentive, and receptive audience, the ordinance as a time-place-manner available at close-range. regulation, the Court assumed the validity of the city's content-neutral justification and One additional observation seems acknowledged its valid governmental appropriate. In the context of abortion- interest in limiting “visual clutter.” But the related demonstrations, the Supreme Court Court took account of the peculiar has specifically recognized the interest of characteristics of home-lawn signs and the clinic patients both “in avoiding unwanted “special respect for individual liberty in the communication” and “pass[ing] without home” and concluded that the ordinance obstruction.” Consistent with this interest, failed to leave open adequate alternative the First Amendment does not compel means of communication. Of particular prospective patients seeking to enter an pertinence for present purposes, the Court abortion clinic to make any special effort to explicitly contrasted the home-lawn sign expose themselves to the cacophony of context with “the government's need to
465 mediate among various competing uses, a motion to amend a complaint. As a general including expressive ones, for public proposition, a denial of a motion for leave to streets.” The case at hand falls solidly within amend “will be upheld so long as the record the latter context and, thus, outside Gilleo's evinces an arguably adequate basis for the precedential sweep. court's decision,” such as “futility, bad faith, undue delay, or a dilatory motive on the One further point must be made. The movant's part.” decision in Gilleo predates the Court's abortion clinic/buffer zone line of cases. The The order challenged in this case falls within Court's majority in these cases never even the rubric of undue delay. The district court mentions Gilleo. It would make no sense to took a balanced approach. It allowed the wrest Gilleo from its contextual moorings plaintiffs to make amendments at the and use it as a wedge to subvert the Court's margins of their complaint (for example, the later decisions addressed to the much addition of the three district attorney different problem of how the First defendants), but it refused to allow the Amendment operates when the special plaintiffs to introduce a new theme at so late concerns of public-sidewalk protests around a date. abortion clinics are at stake. The plaintiffs' original complaint focused We summarize succinctly. On this record, it exclusively on the Act. The Attorney is readily apparent that, notwithstanding the General issued the guidance letter within buffer zones authorized by the Act, adequate two weeks of the filing of the complaint, yet communicative channels remain available to the plaintiffs chose to ignore it. Not until the plaintiffs, including oral speech of September 17, 2010 did the plaintiffs seek to varying degrees of volume and enlarge their target to include the Attorney amplification, distribution of literature, General's letter. That was more than two- displays of signage and symbols, wearing of and-one-half years after the docketing of evocative garments and costumes, and their original complaint. They have offered prayer alone and in groups. The Act is, no compelling explanation for the delay. therefore, a valid time-place-manner Given the passage of this inordinate period regulation as applied to the Boston, of time, we cannot say that the district court Worcester, and Springfield RHCFs. abused its discretion in drawing the line and refusing to allow the plaintiffs to refocus V. LEAVE TO AMEND their attack. The plaintiffs had ample time to get their ducks in a row, and the district In a last-ditch effort to save the day, the court was under no obligation to give them plaintiffs asseverate that the district court more. erred in denying them leave to amend their complaint to include a direct challenge to VI. CONCLUSION the Attorney General's letter. We review for abuse of discretion a district court's denial of
466 We need go no further. For the reasons the district court. elucidated above, we affirm the judgment of Affirmed.
467 “Abortion Clinic Buffer Zone Gets U.S. High Court Review”
Bloomberg Greg Stohr June 24, 2013
The U.S. Supreme Court accepted a case clinics. The new law makes it a crime to that promises to redefine the speech rights of “knowingly enter or remain” in an area abortion opponents, agreeing to rule on a within 35 feet of a clinic entrance, exit or Massachusetts law that creates a 35-foot driveway. The measure exempts clinic buffer zone around clinic entrances. employees and people entering or leaving the facility. The justices today said they will hear an appeal from abortion foes seeking to The high court’s membership has changed overturn the Massachusetts law as a significantly since the 2000 decision. Most violation of the First Amendment. The notably, two members of that 6-3 majority, challengers say they have a right to hand out Chief Justice William Rehnquist and Justice leaflets and start conversations with women Sandra Day O’Connor, are no longer on the entering abortion clinics. court. Their successors, Chief Justice John Roberts and Justice Samuel Alito, are often A Boston-based federal appeals court upheld sympathetic to free-speech claims. the measure, pointing to a 2000 Supreme Court decision that upheld Colorado The justices will hear arguments and rule in restrictions on abortion clinic protests. their 2013-14 term, which starts in October.
Massachusetts enacted the law in 2007, The case is McCullen v. Coakley, 12-1168. strengthening an existing measure that had required a 6-foot buffer zone at abortion
468 “McCullen v. Coakley: Abortion Is Heading to the Supreme Court Again”
PolicyMic Alexandra Ma June 18, 2013
On Monday, the Supreme Court agreed to opponent John C. Salvi III shot two clinic hear out a challenge from anti-abortion workers to death and wounded five others. activists. This time, it is not about the mothers or their wombs, but about the Many legal challenges had been rejected freedom of speech. prior to this case, but they were revived in 2007 when Governor Deval Patrick signed a The challenge from seven anti-abortion bill extending the buffer zone from 18 to 35 petitioners is directed at the Massachusetts feet. abortion clinic buffer law that was enacted in 2000, which bans demonstrations within In 2008, the First Circuit Court of Appeals 35 feet of entrances and driveways of upheld the law in its ruling in McCullen v. abortion clinics. The petitioners claim that Coakley, stating that the law upholds both the Massachusetts law discriminately free speech and abortion patients' rights. The violates their First and Fourteenth First Circuit acknowledged, "The nation is Amendments; in their petition to the sharply divided about the morality of the Supreme Court, they write that "The law practice and its place in a caring society ... restricts the speech of only those who wish But the right of the state to take reasonable to use public areas near abortion clinics to steps to ensure the safe passage of persons speak about abortion from a different point wishing to enter health care facilities cannot of view." seriously be questioned."
The petitioners are backed by anti-abortion Speaking since the Supreme Court's grant of activists, many of whom offer "sidewalk a writ of certiorari on Monday, counseling" to women on their way to the Massachusetts Attorney General Martha clinics. They claim that the law unfairly Coakley reiterated her belief that the law keeps them from engaging patients in "ensure[s] a women's right to safe access to conversation at a closer distance. Similarly, health care facilities while preserving First Philip Moran, the petitioners' lawyers, said, Amendment rights... We look forward to "You can't stand outside 35 feet and defending this vitally important legislation communicate with people ... You have to before the Supreme Court." have eye contact." Equally hopeful are the anti-abortion The Massachusetts buffer zone laws were activists, who believe that the buffer zone established after a tragic attack was carried laws are a "clear case of viewpoint out in 1994 outside an abortion clinic in discrimination." Executive director of the Brookline, Massachusetts, when abortion Life Legal Defense Foundation Dana Cody
469 also expressed her optimism that the On one hand, given SCOTUS's sympathetic Supreme Court will not only overturn the stance towards abortion-seekers, this hearing law, "but also revisit some of its own prior may serve as a once-and-for-all ruling that precedents that led lower courts to believe upholds McCullen, thereby setting a that, as a matter of law, pro-life speech is precedent for lower courts to allow buffer less deserving of protection." Moran also zones protecting women who seek abortion. mentioned that he and his clients were On the other hand, SCOTUS may strengthen "delighted" that SCOTUS agreed to hear the scope of the First and Fourteenth their case. "We think we have a good shot," Amendments, allowing anti-abortion he said on Monday. activists to exercise their freedom of speech anytime, anywhere. In the past, SCOTUS has rejected a number of cases, most notably from Indiana and So, watch this space. Given the fine line Colorado, which would have effectively between protecting abortion seekers' rights reopened the debate on abortion, so their and the fundamental freedoms provided by reason for reopening McCullen would be the First and Fourteenth Amendments, this interesting to explore. Given the optimism is definitely another SCOTUS judgment for from both sides of the case, SCOTUS's which we should keep our eyes peeled. decision is not going to be easily predictable.
470 “Court Upholds Mass. Abortion Clinic Buffer Law”
Boston Globe Martin Finucane January 9, 2013
A federal appeals court has again upheld the “The same rules have to apply to all buffer zone law for Massachusetts abortion speakers. The government cannot put clinics, saying that the regulation protects peaceful pro-life speakers in jail, but give the rights of patients while, at the same time, Planned Parenthood free rein on the same allowing others to express their opinions. sidewalk,” he said in a statement.
“Few subjects have proven more The law creates a 35-foot fixed buffer zone controversial in modern times than the issue around the driveways and entrances of of abortion,” the US Court of Appeals for clinics. The lawsuit, Eleanor McCullen et al the First Circuit said in its ruling on v. Martha Coakley et al, was brought by Wednesday. “The nation is sharply divided seven people who regularly engaged in about the morality of the practice and its antiabortion counseling outside the three place in a caring society. But the right of the clinics. state to take reasonable steps to ensure the safe passage of persons wishing to enter “We are pleased that the court has once health care facilities cannot seriously be again upheld the Commonwealth’s buffer questioned. zone law which provides safe access to reproductive health care facilities while “The Massachusetts statute at issue here is a preserving freedom of expression,” Attorney content-neutral, narrowly tailored time- General Martha Coakley, whose office place-manner regulation that protects the defended the law, said in a statement. “We rights of prospective patients and clinic have always believed, and the court agreed, employees without offending the First that the buffer zone leaves open the Amendment rights of others,” said the opportunity for civil engagement on public opinion, written by Judge Bruce M. Selya, areas around these facilities while ensuring who heard the case, along with two other that patients and health care providers can judges. safely access these facilities.”
The appeals court ruling affirmed a decision The challenge to the law was the latest in a by US District Judge Joseph L. Tauro last series. “This case does not come to us as a February. stranger,” the appeals court said, leading off its decision. Mark L. Rienzi, a lawyer representing the plaintiffs, said they expected to appeal the The court twice upheld an earlier version of decision to the US Supreme Court. the law, in 2001 and 2004. After the Legislature revised the law in 2007, the
471 appeals court upheld it again in 2009. More appealed, leading to the court’s decision challenges were launched in Tauro’s court. today. Tauro rejected them, but the plaintiffs
472 “Abortion Opponents: 'Buffer Zones' At Abortion Clinics Violate Free Speech”
US News Elizabeth Flock June 25, 2013
The Supreme Court has said it will Massachusetts Citizens for Life also works reconsider the constitutionality of protest online to persuade women away from zones abortions; its website's homepage reads: "Pregnant? Need Help?" and leads to a list The Supreme Court announced Monday it of Christian missions in Massachusetts that would hear an appeal from abortion provide counseling on how to avoid an opponents on the constitutionality of a 2007 abortion. Massachusetts law that requires protesters to stand at least 35 feet from abortion State lawmakers first approved the law for clinics, according to the Associated Press. protest zones in 2000, motivated in part by fears of violence at abortion clinics. Just Chief among those opponents is the several years prior, an abortion opponent, Massachusetts Citizens for Life, an anti- John Salvi, had walked into two Boston-area abortion group that's been challenging the Planned Parenthood reproductive health law for years as a violation of their free clinics and opened fire, killing two speech rights. receptionists and wounding five more.
"We consider it a First Amendment issue, "People seeking health services should be because it's a law that targets very certain able to do so without fear of violence, facilities, just abortion facilities," says Anne harassment or intimidation," Planned Fox, the group's president. Protests outside Parenthood League of Massachusetts corporate buildings or by animal rights President Martha Walz said in a released activists, for example, do not have protests statement Monday. "buffer zones." Fox says the zones also make it nearly impossible for anti-abortion But Fox says she doesn't believe buffer activists to speak freely to women walking zones can effectively prevent violence at into clinics to get an abortion. clinics.
"At many [clinics] people would like to "If you're going to have violence, a 35-foot counsel a woman who would like to know buffer zone wouldn't help. The only people her options... and this law makes it abiding this are the peaceful protesters," she extremely difficult. You don't want to yell at says. "And there are probably four incidents someone, but you really can't get near of violence at abortion clinics a year. It's them," she says. much less likely to have violence at a clinic than at a McDonalds."
473 According to the National Abortion In 1978, the Federal Election Commission Federation (NAF), which tracks anti- questioned whether corporate donations had abortion attacks, abortion clinics have seen helped the group print 100,000 pamphlets less than four attacks per year for the last calling out the pro-abortion voting records several years. of candidates. The case went to the Supreme Court, which ruled in favor of Massachusetts Citizens for Life, which is Massachusetts Citizens for Life, saying a optimistic the Supreme Court will strike ban on corporate electoral spending was down the buffer zone law, has had success at unconstitutional. the highest court before.
474 Cline v. Oklahoma Coalition for Reproductive Justice
12-1094
Ruling Below: Oklahoma Coalition for Reproductive Justice v. Cline, 292 P.3d 27 (Okla. 2012), cert granted, 2013 WL 867379 (U.S. 2013).
Coalition of reproductive rights organizations brought action challenging constitutionality of state statute prohibiting prescription of abortifacient medication. The District Court held statute unconstitutional and enjoined enforcement thereof. State appealed.
Question Presented: Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat eptopic pregnancies. Further proceedings in this case are reserved pending receipt of a response from the Supreme Court of Oklahoma.
OKLAHOMA COALITION FOR REPRODUCTIVE JUSTICE, on behalf of itself and its members and Nova Health Systems, d/b/a Reproductive Services, on behalf of itself, its staff, and its patients, Plaintiffs/Appellees, v. Terry CLINE, in his official capacity as Oklahoma Commissioner of Health, Lyle Kelsey, in his official capacity as Executive Director of the Oklahoma State Board of Medical Licensure and Supervision, Catherine V. Taylor, in her official capacity as the President of the Oklahoma State Board of Osteopathic Examiners, Defendants/Appellants.
Supreme Court of Oklahoma Decided on December 4, 2012 [Excerpt; some footnotes and citations omitted.] Per curiam
This is an appeal of the trial court's Because the United States Supreme Court summary judgment which held House Bill has previously determined the dispositive 1970, unconstitutional. Upon review of the issue presented in this matter, this Court is record and the briefs of the parties, this not free to impose its own view of the law. Court determines this matter is controlled by The Supremacy Clause of the United States the United States Supreme Court decision in Constitution provides: Planned Parenthood v. Casey, which was applied in this Court's recent decision of In This Constitution, and the Laws of the re Initiative No. 395. United States which shall be made in Pursuance thereof; and all Treaties
475 made, or which shall be made, under the Constitutions to “follow the mandate of the Authority of the United States, shall be United States Supreme Court on matters of the supreme Law of the Land; and the federal constitutional law” Judges in every State shall be bound thereby, any Thing in the Constitution or The challenged measure is facially Laws of any State to the Contrary unconstitutional pursuant to Casey. The notwithstanding. mandate of Casey remains binding on this The Oklahoma Constitution reaffirms the Court until and unless the United States effect of the Supremacy Clause on Supreme Court holds to the contrary. The Oklahoma law by providing: “The State of judgment of the trial court holding the Oklahoma is an inseparable part of the enactment unconstitutional is affirmed and Federal Union, and the Constitution of the the measure is stricken in its entirety. United States is the supreme law of the land.” Thus, this Court is duty bound by the ALL JUSTICES CONCUR. United States and the Oklahoma
476 “Supreme Court tells Oklahoma to Review Abortion Pill Law”
Los Angeles Times David G. Savage June 27, 2013
The Supreme Court told the high court of Parenthood vs. Casey, which upheld a Oklahoma on Thursday to clarify a new woman’s right to choose abortion, but said state law restricting the use of the RU-486 states may regulate the practice, so long as abortion pill, setting the stage for a possible they do not put an “undue burden” on the future ruling on how far states can go in patients or their doctors. regulating the practice of abortion. The justices did not closely define what Legislators in several states, including regulations were permitted, and they have Oklahoma, have passed laws to strictly largely stood aside since then. Their only regulate the practice of abortion. Among major abortion ruling in recent years upheld them are measures that require all women the federal law that prohibited late-term seeking abortions to undergo an ultrasound abortions. test. Oklahoma also adopted a law restricting the use of RU-486. Besides Oklahoma, Louisiana, Texas and North Carolina have adopted laws requiring But the Oklahoma Supreme Court blocked women to undergo ultrasound tests for these laws from taking effect, saying they nearly all abortions, even if they and their conflicted with a 1992 Supreme Court doctor object. decision on abortion. The two sides in the Oklahoma case differ The justices, in their last meeting until late sharply on the law regulating mifepristone, September, granted in part an appeal from or RU-486. The state says it wants doctors Oklahoma Atty. Gen. Scott Pruitt on and patients to follow the federal guidelines Thursday, but then sent the case back to in using the drug. State lawmakers said they Oklahoma for the state court to further were seeking to protect the health of women. explain how the RU-486 law would work in practice. Lawyers for the Center for Reproductive Rights said the regulations, if put into effect, The court’s action will put off consideration would prevent women from using the of the issue until the state court acts. abortion pill. “The statute at issue here effectively bans all abortions using At issue ultimately is the meaning of the medication, rather than by surgery,” they high court’s 1992 decision in Planned told the high court.
477 “Abortion-Drug Case on Docket for Now”
Wall Street Journal Louise Radnofsky & Brent Kendall June 27, 2013
The U.S. Supreme Court on Thursday invasive than surgical abortions, can be expressed interest in examining an taken privately and can be made available in Oklahoma law restricting the use of areas where there are few or no abortion abortion-inducing drugs, raising the prospect providers. of a ruling on an increasingly prevalent form of abortion. An Oklahoma law requires doctors to use FDA protocol when they administer RU-486 The high court hasn't previously considered and other abortion-inducing drugs. The law's what kind of rules on drug-induced challengers—an abortion-rights group and a abortions might pass constitutional scrutiny. medical clinic—said in court documents that In the 1973 Roe v. Wade ruling and the state law effectively bans all abortions subsequent decisions modifying it, the performed using the medication because Supreme Court has said women have a right doctors have developed better methods for to an abortion, while upholding certain state administering the drugs that don't follow the restrictions, such as waiting-period original FDA protocol. requirements. After Oklahoma enacted the law in 2011, The justices announced in a short written state courts struck it down as order that they would review the Oklahoma unconstitutional, prompting Oklahoma case, but added an asterisk: Before the court Attorney General E. Scott Pruitt to appeal to would move forward, it wished to hear the the U.S. Supreme Court in a bid to save the Oklahoma Supreme Court's views on how measure. the state's law works. That left open the possibility that the high court could delay Mr. Pruitt said the state was trying to protect action or drop the case altogether after the women from off-label use of abortion- Oklahoma court responds. inducing drugs, which Oklahoma officials say has led to eight deaths. Oklahoma says it The appeal before the Supreme Court isn't trying to ban drug-induced abortions centers largely on RU-486, which was outright. approved by the Food and Drug Administration in 2000 for use in "We look forward to the opportunity to terminating pregnancies. defend Oklahoma's right to protect its citizens," Mr. Pruitt said. Abortion-rights supporters say the drug and others like it expand women's access to Antiabortion activists praised the high abortion, because they are cheaper and less court's indication it would consider the issue. "The Supreme Court has taken a first
478 step toward protecting women and girls Some 39 states require abortion-inducing from the abortion industry's callous drugs to be prescribed by a licensed disregard for their health and safety when physician. Four states—Arizona, North using life-ending drugs," said Charmaine Dakota, Ohio and Oklahoma—have passed Yoest, president of Americans United for laws restricting physicians to follow the Life. FDA protocol.
Abortion-rights supporters say state Twelve states have required the prescribing restrictions on the drugs may tie doctors' physician to be present when the drug is hands and pose an undue burden on access taken, barring the use of telephones or video to abortion. "This method has clearly been conferencing, although not all of those laws under attack," said Morgan Meneses-Sheets, are currently in effect. program manager of the Reproductive Health Technologies Project. "Our opponents have been very creative and successful at carving away access."
479 “The Next Abortion Case is Here”
The New York Times Linda Greenhouse September 4, 2013
Justice Anthony M. Kennedy, author of the annually. The Oklahoma law doesn’t ban the 5-to-4 opinion in June that struck down the medical procedure. Rather, it requires Defense of Marriage Act, may well be a doctors to follow the dosage and other hero to the gay rights community, and instructions on the F.D.A. label. Viewed deservedly so. But he’s also the author of outside its context in the battle over the 5-to-4 opinion that upheld the federal abortion, the law looks perfectly sensible, a ban on so-called partial birth abortion back routine state regulation of medical practice. in 2007, and abortion-rights advocates have (Spoiler alert: it isn’t.) viewed with something close to dread the prospect that he could play a similarly Further muddying the waters, the case is decisive role in the Supreme Court’s next procedurally messy. While accepting it, the abortion case. justices deferred scheduling it for argument until they receive clarification from the state That case has arrived. court about what medications the somewhat ambiguously worded statute applies to. A It’s understandable if you haven’t heard of request to another court for clarification, Cline v. Oklahoma Coalition for known as a certified question, is not Reproductive Justice, which has received unheard-of at the Supreme Court, but it is relatively little attention since the court unusual. It gives the court’s order granting accepted it on June 27, the day after the term review a tentative look, as if the justices are ended. The lack of attention is itself less than fully committed to deciding the understandable. case. It’s possible that after receiving the state court’s answer (there is no deadline, The case is an appeal by the state of but the state court has invited briefs from Oklahoma from a ruling by its Supreme interested groups and is likely to hear Court striking down a law that limits argument in October), the justices will doctors’ ability to prescribe the pills used to decide not to proceed. terminate early pregnancies. The medical abortion regimen, often referred to as RU- Possible but not, I think, likely. This case 486, was approved by the Food and Drug simply presents too tempting a target, for the Administration in 2000 as a safe and very reasons that lie behind the emergence effective alternative to surgical abortion of this seemingly technical dispute about early in the first trimester. It has been used medical practice. At issue is the Supreme since then by close to two million American Court’s own unstable abortion doctrine, women, currently about 200,000 a year out specifically on where five justices might be of some 1.2 million abortions performed willing to draw a line between acceptable
480 and impermissible obstacles to access to three years, and many women live hundreds abortion. of miles from the nearest provider) and as women entering clinics often have to run a While not everything about the case is clear gauntlet of protesters seeking to “counsel” yet, one aspect is perfectly obvious: the them (in its new term, the Supreme Court court’s grant of review was no casual matter. will hear a First Amendment challenge to a Some justice or group of justices (it takes Massachusetts “bubble zone” law that keeps four votes to accept a case) spotted this case speakers 35 feet away from the entrance to a as a potential vehicle for saying something “reproductive health care facility”), medical bigger about abortion and its regulation. By abortion offers an end-run around the the same token, it’s no accident that medical obstacles that for years have been a core part abortion (or medication abortion, as it is also of opposition strategy. known) is the latest flash point in the abortion debate. That may be That’s why, for example, 17 states have counterintuitive, given the prolonged hand- recently passed laws or issued regulations wringing over “partial-birth” and other barring doctors from using video “late-term” abortions; medical abortion is conferencing — “telemedicine” — to most effective in the first six or seven weeks prescribe the abortion pills. Although video of pregnancy (by which time the embryo is conferencing is increasingly popular in other about the size of a pencil eraser) and doesn’t medical settings, abortion is the only context work after nine weeks (still in the first in which states have sought to ban it. For a trimester, which is when about 90 percent of medical abortion, a nurse examines the all abortions take place). woman by ultrasound as the doctor views the results over a video link. Having But if you think about it, it’s evident why determined the stage of the pregnancy, the opponents of abortion have begun to focus doctor then advises the woman on what to on the early nonsurgical procedure. Medical expect from the medication and dispenses abortion is the ultimate in women’s the pills by sending a command that opens a reproductive empowerment and personal drawer in the office. After taking the privacy. All it takes are two pills: sequence of pills, the woman returns two mifepristone, sold as Mifeprex, which weeks later for a follow-up visit. blocks the hormone progesterone, without which a pregnancy can’t continue, and Some 8,000 women in Iowa have used this misoprostol, taken two days later, which procedure, which was pioneered in the state causes the uterus to contract and expel the by Planned Parenthood and authorized in early pregnancy. In many states, women can 2011 by the Iowa Board of Medicine. The take the second pill at home. board reversed itself last week. It acted on a petition from anti-abortion groups and with As abortion clinics are forced to close the support of Gov. Terry Branstad, an because of onerous state regulations (54 abortion opponent whose appointees to the clinics in 27 states have closed in the last board include a Catholic priest, Msgr. Frank
481 Bognanno. Governor Branstad’s declaration unnecessary trip. The 200-milligram that the video ban will “protect the health regimen is so widely accepted that the 600- and well-being of Iowa women” had a milligram dose is now considered bad familiar ring. Protecting women is always medicine, and many doctors would refuse the stated rationale for new restrictions on the procedure entirely rather than follow the abortion, even when the rationale is — as in old guideline. Iowa, and as in the Oklahoma case before the Supreme Court — hogwash. Post-approval modifications in the way doctors use drugs are known as off-label The law at issue in the Supreme Court case uses. Off-label usage is extremely common, wasn’t drafted in Oklahoma. It was written permitted by federal law. Prescribing anti- in Chicago by an influential anti-abortion depressants to treat nerve pain and organization, Americans United for Life, menopausal hot flashes is one current and included as the “Abortion-Inducing example. What’s unusual about the medical Drugs Safety Act” among 30 model laws abortion situation is that doctors are simply made available for sponsorship by state prescribing less of an approved drug for its legislators. In the name of patient safety, the approved use, rather than turning a drug to a statute makes it a crime for doctors to different use altogether. deviate from the dosage and other instructions published by the Food and Drug In the Oklahoma case, a state trial judge, Administration when it approved the Donald L. Worthington, reviewed the medication in 2000. evidence and found that the lower dose of Mifeprex was being used “in a great The problem is that after 13 years, with majority of cases of medication abortions in millions of medical abortions having been the United States” and had been provided in Europe and Asia as well as the “demonstrated by scientific research to be United States, medical opinion about the safer and more effective” than the original appropriate dosage and other aspects of F.D.A.-approved dose. Requiring doctors to administering the drugs has evolved, as it use the higher dose, the judge concluded in often does after a new medication enters an opinion in May of last year, was “so widespread use. Instead of 600 milligrams completely at odds with the standard that of Mifeprex, doctors now use only 200. governs the practice of medicine that it can While the original F.D.A. label specified serve no purpose other than to prevent that the drugs should be used only up to 49 women from obtaining abortions and to days of pregnancy, doctors have found the punish and discriminate against those regimen safe and effective for up to 63 days women who do.” The Oklahoma Supreme — nine weeks of pregnancy. Instead of Court affirmed the decision last December. requiring a second office visit for the second drug, as specified by the F.D.A., doctors Unlike the trial judge’s eight-page opinion, now often give the patient the second drug however, the state high court’s unanimous to be taken at home, saving her an three-paragraph opinion offered no analysis.
482 It simply declared that “this matter is It didn’t to Justice Kennedy when he wrote controlled by the United States Supreme the partial-birth abortion majority opinion in Court decision in Planned Parenthood v. 2007. He accepted as fact a claim for which Casey,” a decision that “remains binding on there was no valid basis: that the prohibited this court until and unless the United States procedure placed women at special jeopardy Supreme Court holds to the contrary.” for acute post-abortion regret, “grief more anguished and sorrow more profound,” as he Planned Parenthood v. Casey was the 1992 put it. As evidence, he cited a brief filed on decision that reaffirmed the basic right to behalf of “180 Women Injured by abortion while also permitting states to Abortion,” a document filled with personal adopt new restrictions. In its opinion, which “affidavits” by women who described Justice Kennedy joined, the court said it vividly how sorry they were for having had would permit restrictions that did not impose terminated their pregnancies (notably, few an “undue burden,” defined in the opinion as actually discussed any particular method of “a state regulation that has the purpose or abortion). effect of placing a substantial obstacle in the path of a woman seeking an abortion of a Lo and behold, the new case has brought nonviable fetus.” More than two decades with it to the Supreme Court a “Brief of later, all the important words in that Women and Families Hurt by RU-486,” definition of undue burden remain contested. filed in support of the state’s appeal by the What kind of obstacle is “substantial”? What same lawyer who organized and filed the is a prohibited “effect”? To the present earlier brief. It, too, contains personal point: does the court really care about testimonies, although not one actually says “purpose” — the real purpose behind an anything on the question before the court of abortion restriction — or is it satisfied by a more Mifeprex or less. state’s counter-factual claim that the purpose is to protect women? Not knowing Oklahoma judicial politics, I can only guess at the reason for the state In a brief he filed three weeks ago to the court’s failure to analyze the case instead of Oklahoma Supreme Court, E. Scott Pruitt, invoking Planned Parenthood v. Casey is a the state’s attorney general, said the purely conclusory fashion. At the least, the legislature’s purpose “was to solve the three-paragraph opinion was odd. Were the problem of physicians using potentially Oklahoma justices simply ducking for cover dangerous unapproved protocols.” Really? under the shadow of Casey? Or were they Requiring doctors to prescribe three times inviting, even prodding, the Supreme Court more of a drug than they think is called for to reconsider Casey? Along with Justice is a safety improvement? When Gov. Mary Kennedy, Justice Sandra Day O’Connor was Fallin signed the bill in May 2011, she was also a member of the five-justice majority in more candid, calling it “a critical part of our 1992. With Justice O’Connor replaced by effort to promote the cause of life.” Does Justice Samuel A. Alito Jr., there may no candor matter to the Supreme Court? longer be a majority on the court to strike
483 down any burden on access to abortion, even standard can be said to mean today — is one that is obviously and purposefully stare decisis, respect for precedent. As the “undue.” All that binds the current court to Roberts court begins Year 9, that may not the Casey standard — whatever that count for much.
484 “Oklahoma Abortion Laws Unconstitutional, State Supreme Court Rules” Huffington Post Tim Talley December 4, 2012
Oklahoma laws requiring women seeking represent a "sweeping and unequivocal" abortions to have an ultrasound image rejection of the Legislature's attempt to placed in front of them while they hear a restrict the reproductive rights of women. description of the fetus and that ban off- label use of certain abortion-inducing drugs Nancy Northup, the center's president and are unconstitutional, the state Supreme CEO, said Oklahoma has been a testing Court ruled Tuesday. ground for a national network of organizations she said are hostile to women, The state's highest court determined that doctors and the rights of both. lower court judges were right to halt the laws. In separate decisions, the Oklahoma "But despite their best efforts to chip away Supreme Court said the laws, which at women's fundamental rights, the courts received wide bipartisan support in the have consistently rejected these extreme Legislature, violated a 1992 U.S. Supreme assaults on reproductive freedom," Northrup Court case. said in a statement.
The Oklahoma court said it has a duty to State Attorney General Scott Pruitt, whose "follow the mandate of the United State office appealed lower-court decisions that Supreme Court on matters of federal invalidated the laws, said he is considering constitutional law." appealing to the U.S. Supreme Court.
The Legislature passed the ultrasound law in "We disagree with the court's decision, 2010. Oklahoma is one of several states that particularly with the fact that the question on have passed laws requiring doctors to both whether Oklahoma's Constitution provides a perform an ultrasound and provide a verbal right to an abortion was left unanswered," description of the fetus before an abortion. Pruitt said in a statement. The other law was approved in 2011. The ultrasound law was struck down in The New York-based Center for March by District Judge Bryan Dixon, who Reproductive Rights challenged both laws, ruled that the statute was an unconstitutional and Oklahoma County judges had halted special law that could not be enforced their enforcement while the court cases because it addressed only patients, made their way through the judicial system. physicians and sonographers dealing with abortions without addressing other medical Michelle Movahed, a staff attorney for the care. abortion-rights group, said the rulings
485 Tony Lauinger, chairman of the anti- The law also required doctors to examine abortion group Oklahomans for Life, said he women before prescribing the drugs, believes the state Supreme Court has document certain medical conditions and misinterpreted the 1992 U.S. Supreme Court schedule follow-up appointments. decision. He said the Oklahoma ultrasound measure provides a level of informed Pruitt said he was disappointed with the consent for women seeking abortions, court's decision. something he said the federal decision "There is overwhelming evidence that the permits. off-label use of abortion-inducing drugs "The ultrasound law does not prohibit leads to serious infections and death for abortion. It regulates abortion," Lauinger many healthy, unsuspecting women. This is said. not OK," Pruitt said.
The other state law was rejected in May by All nine justices on the court joined in the District Judge Donald Worthington, who decision involving the abortion-inducing ruled it violated "the fundamental rights of drugs, while eight justices concurred in the women to privacy and bodily integrity." ultrasound ruling. Justice Noma Gurich, a former Oklahoma County judge who issued The law required doctors to follow strict an injunction blocking enforcement of that guidelines authorized by the U.S. Food and law in July 2010, recused herself from the Drug Administration and prohibited off- decision. label uses of certain abortion-inducing drugs such as RU-486. Such moves include Earlier this year, the state Supreme Court changing a recommended dosage or halted an effort to grant "personhood" rights prescribing it for different symptoms than to human embryos, citing the same 1992 the drug was initially approved for. U.S. Supreme Court case. The U.S. Supreme Court refused to take up the case on appeal.
486 “Supreme Court Agrees to Review Oklahoma Abortion Pill Case”
Christian Science Monitor Warren Richey June 27, 2013
At issue is whether an Oklahoma law examine whether the Oklahoma Supreme requires women and their doctors to follow a Court ruled correctly when it invalidated the protocol that effectively limits access to 2011 state law that had mandated that all chemically induced abortions. But first, the drug-induced abortions in the state follow a Supreme Court wants clarification on what, specific protocol. exactly, the state law outlaws. Under the law, abortion providers were The US Supreme Court on Thursday agreed required to follow instructions approved by to wade into a dispute over the Food and Drug Administration back in an Oklahoma regulation of the abortion- 2000 when chemically induced abortions inducing drug RU-486. were first approved.
In a brief order, the justices agreed to take The Oklahoma Coalition for Reproductive up the case, and then asked the Oklahoma Justice challenged the law, arguing that the Supreme Court to determine whether the 2000 protocol had since become obsolete disputed state law bars the application of and had been replaced by newer time-tested certain drugs used in chemically induced procedures and doses that were safer, more abortions. effective, and less expensive.
The court said that further proceedings in The new procedures allow a woman to self- the case would be reserved pending receipt administer a second drug at home rather of a response from the Supreme Court of than in a clinic. They also extended the Oklahoma. effective use of the chemically induced abortion process from 49 days into the The action came in an appeal filed on behalf pregnancy to 63 days. of the Oklahoma attorney general asking the justices to reinstate an Oklahoma law Mr. Wyrick said the state legislature was regulating RU-486 abortions that was struck justified in favoring the older protocol down by the state high court in December. because eight otherwise healthy young women have died from bacterial infections The law sought to limit chemically induced following chemically induced abortions abortions to a protocol of procedures that using one of the newer protocols. In critics said were outdated and would contrast, he said, no women have died effectively ban the procedure. following use of the older protocol.
In his brief to the court, Oklahoma Solicitor The state solicitor general said the General Patrick Wyrick asked the justices to Oklahoma law merely regulates the manner
487 in which abortion-inducing drugs were representing the Oklahoma Coalition, said in administered and does not ban the use of her brief that the Oklahoma law goes too far those drugs. in restricting access to abortions.
A state court judge struck the statute down, She said the Oklahoma legislature had because it was deemed to impose a enacted several laws in recent years seeking substantial obstacle to a woman obtaining an to restrict abortions in the state. The state abortion. Supreme Court has upheld some, but overturned others as too restrictive. The judge concluded in part that the state law “is so completely at odds with the “The statute at issue here effectively bans all standard that governs the practice of abortions performed using medication medicine that it can serve no purpose other (rather than by surgery), no matter how early than to prevent women from obtaining in the pregnancy,” Ms. Movahed wrote in abortions, and to punish and discriminate her brief. against those who do.” “The statute’s only practical consequence is On appeal, the Oklahoma Supreme Court to force a woman who wishes to terminate a ruled that the state law was unconstitutional pregnancy to undergo a surgical procedure under the US Supreme Court’s abortion even though a safe, effective, non-invasive, precedent, Planned Parenthood of and widely used alternative is available,” Pennsylvania v. Casey. she said.
Wyrick said the state high court was wrong. Movahed said the newer protocols were “House Bill 1970 does not prohibit any type legal and common. She said nationwide of abortion,” he said in his brief to the court. protocols other than FDA approved protocol “It merely requires that abortion inducing from 2000 are being used in at least 96 drugs be administered in the manner percent of chemically induced abortions. approved by the FDA.” The case is Terry Cline v. Oklahoma Michelle Movahed, a lawyer with the Center Coalition for Reproductive Justice (12- for Reproductive Rights, which is 1094).
488 “State Laws Limiting Abortion May Face Challenges on 20-Week Limit”
NPR Julie Rovner July 22, 2013
Banning abortions after a specific point in the number of weeks measured from the last pregnancy has been a popular trend in the menstrual period." states this year. Last week, GOP Gov. Rick Perry made Texas the 12th state to ban most Last menstrual period, or LMP, is generally abortions after 20 weeks. how doctors refer to the weeks of pregnancy. Forty weeks LMP is considered But how states define the starting point for full term for a normal pregnancy, even that 20 weeks may cause headaches for though at that point fertilization occurred women and their doctors — and ultimately only 38 weeks before. So why do doctors affect whether these laws pass constitutional use a measurement that's so imprecise? muster. That standard developed in the old days Like all but one of the abortion bans passed before ultrasound was widely used, so far in the states, the Texas law starts its Grossman says. "The last menstrual period 20-week calendar at fertilization. But that's was something that was knowable and was not the same as saying 20 weeks of measurable, whereas it wasn't always known pregnancy, because that's not how doctors when fertilization took place." measure pregnancy. With few exceptions, however, that's not "When we refer to the weeks of pregnancy, how the state laws — and a bill that passed weeks of gestation, we measure pregnancy the U.S. House last month — are being from the date of the last normal menstrual written. period," says Dr. Daniel Grossman. He's an assistant professor of obstetrics, gynecology "What we're seeing with these laws is that and reproductive sciences at the University they are pegging the beginning of pregnancy of California, San Francisco and a vice to fertilization," says Elizabeth Nash, who president of IBIS Reproductive Health, a tracks state issues for the Guttmacher reproductive rights advocacy group. Institute, an abortion rights think tank.
"For a woman who has a normal menstrual "So when we talk about a law that bans period, ovulation or fertilization would abortion at 20 weeks post-fertilization, we're generally occur two weeks later, after that really talking about a law that bans abortion start of that normal menstrual period," at 22 weeks of pregnancy," she says. Grossman says. "The age of the embryo or Why is it, then that people keep referring to the fetus is essentially two weeks less than these as 20 week laws?
489 Nash says it's not that hard to figure out. of these laws makes its way to the justices, "That's the term that is used in the bill, and they might change their minds. oftentimes when you see a term used in the bill it becomes the headline," she says. Similar doubts were raised about about the constitutionality of an earlier ban few But whether the laws seek to ban abortion at thought would survive court scrutiny, 20 weeks or 22 weeks, one thing is clear, according to Douglas Johnson of the says Daniel Grossman. The ban they would National Right to Life Committee. impose is earlier than what's currently considered viability, or when a fetus can "The Partial Birth Abortion Ban Act was survive outside the womb. struck down by every lower fed court that considered it," Johnson said last week at a "I think there's definitely consensus that press conference on the federal version of viability doesn't happen before 24 menstrual the 20-week ban. "Three U.S. District weeks," he says. "So when we're talking Courts; three U.S. Courts of Appeals all about banning abortion at 20 or 22 weeks ruled it was in clear violation of U.S. even, that's clearly at least two weeks before Supreme Court precedent. But when it the earliest point in pregnancy where reached the U.S. Supreme Court they said viability would be a concern." otherwise. And they upheld it."
That's important, because current Supreme So whether you count to 20 or 22, the Court precedent says states can't ban ultimate number that will matter most is five abortion before viability. But those pushing — the number of Supreme Court justices these laws clearly hope that by the time one needed for a majority.
490 “Abortion Restrictions Become Law in Texas, but Opponents Will Press Fight”
The New York Times Manny Fernandez July 18, 2013
Six months after declaring his goal to make Only five abortion clinics — in Austin, San abortion at any stage “a thing of the past,” Antonio, Dallas and Houston — meet those Gov. Rick Perry signed a bill into law standards. The requirement that doctors Thursday giving Texas some of the toughest performing abortions have admitting restrictions on abortion in the country, even privileges at nearby hospitals could force the as women’s rights advocates vowed to closing of some clinics that use visiting challenge the law’s legality in court. doctors or that are located where local hospitals refuse to provide such privileges. Surrounded by Republican legislators and abortion opponents in an auditorium at the Mr. Perry and other Republicans said the Texas Capitol in Austin, Mr. Perry said they law would improve patient safety and hold were celebrating and cementing “the abortion clinics to safer standards. foundation on which the culture of life in Opponents said that it amounted to an Texas is built upon.” As he spoke, the chants unconstitutional attack on legal abortion in and shouts of “Shame! Shame!” by the bill’s Texas and that many of the restrictions were opponents, gathered outside the auditorium, found to be medically unnecessary by could be heard. physicians groups.
The measure, House Bill 2, bans abortions “The fight over this law will move to the after 20 weeks of pregnancy, requires courts, while the bigger fight for women’s abortion clinics to meet the same standards access to health care in Texas gains steam,” as hospital-style surgical centers and said Cecile Richards, the president of the mandates that a doctor have admitting Planned Parenthood Federation of America privileges at a hospital within 30 miles of and the Planned Parenthood Action Fund, the facility where he or she performs and a daughter of Ann Richards, the former abortions. Texas governor. “People are enraged by this law, and it has created a whole new Abortion rights advocates and Democrats generation of activists who are in it for the said the law could force a majority of the long run to elect leaders who will protect state’s 42 abortion clinics to close. The new women’s health.” provision that clinics be licensed as ambulatory surgery centers would require The law does not take effect immediately. costly renovations or relocations to meet the The admitting privileges restriction and the architectural and equipment standards. ban on abortions after 20 weeks take effect 90 days after a special legislative session
491 ends later this month. Abortion clinics have The provision banning abortions at 20 weeks until September 2014 to comply with the after fertilization and later is based on a surgical-center standards. Opponents of the medically disputed theory that a fetus can law said they were evaluating their litigation feel pain at that stage. The Supreme Court options, and it appeared likely that lawsuits has ruled that women have a right to an would be filed before any of the restrictions abortion until the point at which the fetus is take effect. viable outside the womb — usually around 24 weeks after a woman’s last menstrual Similar restrictions that have been enacted in period, or 22 weeks after fertilization. other states have been tied up in legal challenges. Bans on abortions after 20 Mr. Perry addressed the issue of fetal pain at weeks have been adopted by 11 other states, the bill-signing ceremony on Thursday. “At but in three of those states — Arizona, five months, many studies indicate that these Georgia and Idaho — courts have blocked children feel pain,” he said, adding that it the laws from taking effect. The requirement was Texans’ responsibility “to give voice to that doctors have admitting privileges at a the unborn individuals whose survival is at nearby hospital has been blocked by courts stake.” in Mississippi, Alabama and North Dakota. The ceremony was a procedural coda to the The United States Supreme Court has ruled heated battle over abortion that has played that states can regulate abortions so long as out at the Capitol. Thousands of men and the rules do not pose an “undue burden” on women — on the both sides of the debate, a woman’s right to an abortion. Opponents though opponents of the bill largely of the law are likely to argue that the outnumbered supporters — have testified, surgical-center standards and their effect on rallied and protested there since June, when women seeking abortions across the state Mr. Perry added the bill to the Legislature’s pose an undue burden and are thus agenda. unconstitutional. The bill failed to pass during the regular “The A.C.L.U. is involved in litigation in 5 session, which ended May 27, so Mr. Perry of the 10 states where similar abortion added it on June 11 to a special session in an restrictions have been enacted, and we are effort to get it passed. But at the end of the evaluating our options in Texas,” said Terri special session on June 25, an 11-hour Burke, the executive director of the filibuster by State Senator Wendy Davis, American Civil Liberties Union of Texas. Democrat of Fort Worth, helped kill the bill, “What makes Texas different is our size: turning her into a national political celebrity. House Bill 2 leaves 35 percent of the population without access to abortion care Mr. Perry responded by calling a second and those are rural and, often, poor women.” special session, and the Republican- dominated Legislature quickly passed the restrictions last week. Though their efforts
492 to block the bill had ultimately failed, in campaign contributions in two weeks. She Democrats have been emboldened by the received more than 15,000 individual filibuster and the battle over abortion. In contributions, many from people who gave June, Ms. Davis received nearly $1 million her $50 or less.
493 “California Abortion Bill Shows Gulf with Other States”
Bloomberg Michael B. Marois & Esme E. Deprez August 28, 2013
To see the growing gulf over abortion 2010, according to the institute. The laws between California and other states, look no have made it more difficult for women to get further than the Colorado River that marks abortions, despite the U.S. Supreme Court’s the state’s border with Arizona. 1973 decision in Roe v. Wade that legalized a woman’s right to terminate her pregnancy. On the California side, a bill heading soon to Democratic Governor Jerry Brown would Five States make it easier for rural women to terminate pregnancies by allowing nurse practitioners If signed into law by Brown, California and midwives to perform abortions in the would be the fifth state to permit non- first 12 weeks, now provided only by physician abortions, joining Montana, New doctors. Hampshire, Oregon and Vermont, according to a study by the University of California, Across the river in Arizona, Republican San Francisco. Thirty-nine states require a Governor Jan Brewer effectively banned licensed physician. nurse practitioners from doing the procedures in 2011. Five Planned The author of the California bill, Assembly Parenthood clinics stopped offering Majority Leader Toni Atkins, a San Diego abortions when doctors couldn’t be found, Democrat, said the legislation was needed to according to Cynde Cerf, a spokeswoman. help women in the half of the state’s counties without a doctor to perform California “completely bucks the trend that abortions. The Senate version of the bill will we’ve been seeing in other states in the past go back to the Assembly to reconcile three years, which is to adopt abortion amendments before it’s sent to Brown. restrictions en masse,” said Elizabeth Nash, state issues manager for the New York- Arizona’s law signed by Brewer two years based Guttmacher Institute, which ago prohibited the state nursing board from researches and compiles reproductive health determining whether abortion care was data. “This is moving in a completely within the scope of practice for nurse different direction than what we are seeing practitioners. in other states.” The effect was immediate. There are seven The California measure, approved this week abortion clinics in the state today, down by the Democrat-controlled state Senate, from 19 in 2010 because of the measure and contrasts with at least 178 laws restricting other restrictive laws, according to NARAL abortion that other states have passed since Pro-Choice Arizona, which opposes the limits.
494 Local Facilities restrictions have been blamed for closing at least a dozen clinics in states including Eighty-seven percent of U.S. counties have Michigan, Ohio and Pennsylvania. no local facilities for abortion, according to the University of California study. Those A University of California study published areas are home to more than a third of in January in the American Journal of Public women aged 15 to 44, the study showed. Health found that complications from abortions by nurse practitioners, nurse A similar California bill failed last year after midwives or physician’s assistants were some Democrats said they were concerned “clinically equivalent” to those performed that abortions performed by non-physicians by doctors. wouldn’t be as safe. That measure was amended to allow nurse practitioners and “I can’t think of a single national trend that other clinicians to dispense abortion- California isn’t bucking,” said Brian inducing drugs, and was signed Brown. Johnston, the Western Regional Director at the National Right to Life Committee. “The Many of the anti-abortion laws passed in reality is that a human life must end for this recent years have been argued on the basis to be an abortion and so this is an issue of that they improve health and safety. They huge significance, and other states recognize have also proven effective at shuttering that.” providers: In addition to Arizona,
495
“Anti-Abortion Laws Take Dramatic Toll On Clinics Nationwide”
Huffington Post Laura Bassett August 26, 2013
More than 50 abortion clinics across the A comprehensive survey by The Daily Beast country have closed or stopped offering the found that as of January 2013, 724 abortion procedure since a heavy wave of legislative clinics remained operational across the U.S. attacks on providers began in 2010, according to The Huffington Post's While some of the 54 closures were due to nationwide survey of state health unrelated factors, the states that have lost the departments, abortion clinics and local most clinics over the past three years are the abortion-focused advocacy groups. same ones that have seen draconian new abortion restrictions and the biggest cuts to At least 54 abortion providers across 27 family planning funding. In Texas, which states have shut down or ended their has lost nine clinics, lawmakers have abortion services in the past three years, and slashed family planning funding in the state several more clinics are only still open budget, required abortion clinics to become because judges have temporarily blocked ambulatory surgical centers and required legislation that would make it difficult for abortion doctors to have admitting privileges them to continue to operate. Nebraska and at a local hospital. Arizona lawmakers Massachusetts have each added one clinic passed similar legislation and pushed out a since 2010, and the other 21 states and the total of 12 providers; the state had 18 District of Columbia, most of which have abortion clinics in 2010 and now has only not passed new anti-abortion laws since six, according to NARAL Pro-Choice 2010, were unable to accurately count their Arizona. clinics because their health departments do not license abortion providers separately "This has turned into a nightmare," said Kat from other kinds of medical providers. The Sabine, executive director of NARAL's Huffington Post's tally did not include Arizona affiliate. "The kind of efforts the hospitals that provide abortions. women have to take to get family planning or abortion services are just incredible, and "This kind of change is incredibly you can only get care if you can get out of dramatic," said Elizabeth Nash, state issues the community to do it. If you're on a manager at the Guttmacher Institute, a reservation or rural part of the state, unless reproductive health research organization. you have reliable transportation, you're not "What we've been seeing since 1982 was a going to get care." slow decline, but this kind of change ... [is] so different from what's happened in the In Lake Havusu, Ariz., there are several past." anti-abortion Crisis Pregnancy Centers and a
496 Catholic charity hospital that does not offer require abortion clinics to undergo extensive abortion care, but women have to travel over and costly renovations in order to become 150 miles to either Phoenix or Las Vegas to ambulatory surgical centers, which are find the nearest abortion or family planning essentially mini-hospitals. clinic, Sabine said. The situation mirrors problems rural women face in other states. Anti-abortion advocates, meanwhile, argue Mississippi, North Dakota and South Dakota that TRAP laws are designed to protect have only one abortion clinic each, and the women's health by forcing clinics to widen first two are hanging onto their only clinics their hallways, install specific ventilation pending court decisions. Other larger states, systems and build locker rooms for like Alaska and Texas, do not have nearly physicians. Kristi Hamrick, a spokesperson enough providers to respond to the needs of for Americans United for Life, told HuffPost women in rural areas, because the clinics are that the new restrictions are not the reason concentrated in a few major cities. clinics are shutting down. "It was the choice of the abortion industry to locate their Compounding the problem, 26 states require profitable abortion businesses in older women to wait at least 24 hours between buildings that would never pass muster for their consultation sessions and abortion other outpatient surgical centers," she said. procedures, making it twice as difficult for "It was their choice to ignore the laws of any rural and low-income women to access given state on building requirements for abortion care. outpatient medical facilities -- set by that state in line with a national standards board, "These restrictions have an uneven impact," not AUL -- and choose locations that were Nash said. "Women who have resources, not as safe." have a car, have some money in the bank, can access childcare and take time off work Hamrick added that the fact that most of the can obtain an abortion, and women who are available information on abortion clinic less well-off and don't have those kinds of closures comes from the clinics themselves resources are not able to access abortion is evidence of the fact that states do not services." regulate the clinics enough. While some state health departments have specific While states have been passing abortion licenses for abortion providers, states vary restrictions since long before 2010, the widely in how they count providers. Some recent legislative trend has been to directly only license ambulatory surgical centers that target abortion providers and make it harder provide abortions, and others have no for them to operate. In addition to passing separate category for abortion providers, mandatory waiting periods and mandatory making it difficult to get an accurate count ultrasounds, states are passing so-called of how many providers there are without "TRAP" laws -- the Targeted Regulation of thumbing through the phone book. Abortion Providers. These laws often
497 "While the abortion industry has claimed "Most states said that they conduct regular that their businesses have suffered, we have inspections of abortion clinics, or of only their word on that," she said. hospitals, ambulatory surgical centers, or other types of facilities where abortions can The murder trial of Kermit Gosnell, the be carried out," RH Reality Check reported. abortion provider in Pennsylvania who "And most states said they were aware of performed illegal, late-term abortions and very few — if any — incidents of patients allegedly "snipped" the spines of fetuses being harmed as a result of an abortion." born alive, has fueled the drive to regulate abortion clinics even further. A group of Still, Republicans at the state and federal House Republicans wrote letters to the level are proposing new ways to restrict health departments and attorneys general of abortion every time a legislative session all 50 states in May, citing the Gosnell trial begins, giving women in their states fewer and asking what exactly states are doing to and fewer options when faced with an "protect the civil rights of newborns and unplanned or unhealthy pregnancy. their mothers." "These restrictions do nothing to reduce the RH Reality Check obtained 38 states' need for abortion or to reduce unintended responses to that inquiry and published pregnancy," Nash said. "I would say that them. The publication's analysis of the those that are promoting these very documents concluded that abortion clinics in burdensome clinic regulations have as an most states are aggressively regulated and end goal the elimination of legal abortion. extremely safe. They don't have women's health in mind."
498