PETRIE-FLOM YEAR IN REVIEW:

WOMEN’S HEALTH Aziza Ahmed

Professor of Law Northeastern University School of Law

Abortion / Self-Abortion

■ Ongoing Use of Targeted Regulation of Abortion Providers (TRAP) Laws by Conservatives to Limit Access to Abortion Services

■ Supreme Court 2016: Whole Women’s Health v. Hellerstedt

■ Indiana: Purvi Patel v. State of Indiana

■ What can we expect going forward?

TRAP laws – Summary by Guttmacher Institute (2017)

■ 21 states have onerous licensing standards many of which are comparable or equivalent to the state’s licensing standards for ambulatory surgical centers.

■ 20 states have specific requirements for procedure rooms and corridors, as well as requiring facilities be near and have relationships with local hospitals.

– 11 states specify the size of the procedure rooms. – 10 states specify corridor width. – 10 states require abortion facilities to be within a set distance from a hospital. – 8 states require each abortion facility to have an agreement with a local hospital in order

to transfer patients in the event complications arise. (Including requirements on clinicians a total of 21 states require a provider to have a relationship with a hospital.)

■ 11 states place unnecessary requirements on clinicians that perform abortions. – 11 states require abortion providers to have some affiliation with a local hospital. ■ 4 states require that providers have admitting privileges. ■ 7 states require providers to have either admitting privileges or an alternative arrangement, such as

an agreement with another physician who has admitting privileges.

TRAP Laws: Targeted Regulation of Abortion Providers ■ ACOG – “Cease and repeal legislation that creates barriers to abortion access and interferes

with the patient–provider relationship and the practice of medicine, including for example telemedicine bans, medication abortion restrictions, mandatory counseling and delays, and Targeted Regulations of Abortion Provider (TRAP) laws.”

■ APHA – “Admitting privilege restrictions have demonstrated serious, tangible consequences

for patients seeking care as a result of clinic closures cutting off their access and entry points to reproductive health care.”

Whole Woman’s Health

Whole Women’s Health

■ Challenging 2013 law HB2 – doctors who provide abortion

services must obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic; and

– every health care facility offering abortion care must meet building specifications to essentially become mini-hospitals (also known as ambulatory surgical centers, or ASCs).

Regulations are seen as unnecessary by experts (despite claims of Texas DHHS) ■ Regulatory proposals are framed almost entirely in terms of aiming to make healthcare

better for women from the perspective of experts – Brief of Texas Department of State Health Services – “Texas’s admitting-privileges and ambulatory- surgical-center (ASC) requirements raise

the standard of care for all abortion patients. Medical experts in this case testified to the benefits of these requirements and explained how they will improve the health and safety of women.”

• Brief for ACOG H.B. 2’s ASC requirement and privileges requirement are contrary to accepted medical practice and are not based on scientific evidence. They fail to enhance the quality or safety of abortion-related medical care and, in fact, impede women’s access to such care by imposing unjustified and medically unnecessary burdens on abortion providers. Accordingly, without this Court’s review, H.B. 2 would deprive women in Texas of quality, evidence-based medical care and their recognized rights under the U.S. Constitution.

The undue burden test (Casey v. Planned Parenthood, 1992) ■ Does a state regulation have the purpose or effect of

placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus?

Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992

■ Pennsylvania enacts the Pennsylvania Abortion Control Act – Five abortion clinics and one physician sue in U.S. District Court

■ At issue were five provisions of Pennsylvania Abortion Control Act of 1982

– Woman must give informed consent prior to the abortion procedure – Woman must be provided with certain information 24 hours before the

abortion is performed – For a minor parental permission is required (with judicial bypass) – Married woman must tell her husband of the intended abortion – Reporting requirement

■ Key holdings: does away with trimesters, new focus on viability of the fetus, introduces the undue burden standard – “an undue burden on a woman’s ability to make this decision”; all are found constitutional except for the requirement for disclosure to one’s husband

Purvi Patel

GOP Platform 2016 ■ Through Obamacare, the current Administration has promoted the notion of

abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well- being of women, and we stand firmly against it.

■ We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics. We applaud the U.S. House of Representatives for leading the effort to add enforcement to the Born-Alive Infant Protection Act by passing the Born-Alive Abortion Survivors Protection Act, which imposes appropriate civil and criminal penalties on healthcare providers who fail to provide treatment and care to an infant who survives an abortion, including early induction delivery whether the death of the infant is intended. We strongly oppose infanticide…

What you can and cannot do under the GGR ■ Foreign NGOs, some private clinics and hospitals – You CANNOT perform, counsel, refer or advocate with non-US government sources ■ You can provide referrals in rape, incest, or if the mother’s life is endangered – You can do post abortion care: “injuries and illnesses caused by legal or illegal

abortions.” – May not lobby the government for liberalization of abortion laws (may not

participate in public debates). – Does not apply to HIV/AIDS assistance

Reagan – Mexico City 1984

■ The United Nations Declaration of the Rights of the Child [1959] calls for legal protection for children before birth as well as after birth. In keeping with this obligation, the United States does not consider abortion an acceptable element of family planning programs and will no longer contribute to those of which it is a part. Accordingly . . . the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.

January 22, 2001

■ It is my conviction that taxpayer funds should not be used to pay for abortions or advocate or actively promote abortion, either here or abroad. It is therefore my belief that the Mexico City Policy should be restored. Accordingly, I hereby rescind the "Memorandum for the Acting Administrator of the Agency for International Development, Subject: AID Family Planning Grants/Mexico City Policy," dated January 22, 1993, and I direct the Administrator of the United States Agency for International Development to reinstate in full all of the requirements of the Mexico City Policy in effect on January 19, 1993.

January 23, 2009

“These excessively broad conditions on grants and assistance awards are unwarranted. Moreover, they have undermined efforts to promote safe and effective voluntary family planning programs in foreign nations. Accordingly, I hereby revoke the Presidential memorandum of January 22, 2001, for the Administrator of USAID (Restoration of the Mexico City Policy), the Presidential memorandum of March 28, 2001, for the Administrator of USAID (Restoration of the Mexico City Policy), and the Presidential memorandum of August 29, 2003, for the Secretary of State (Assistance for Voluntary Population Planning). In addition, I direct the Secretary of State and the Administrator of USAID to take the following actions with respect to conditions in voluntary population planning assistance and USAID grants that were imposed pursuant to either the 2001 or 2003 memoranda and that are not required by the Foreign Assistance Act or any other law: (1) immediately waive such conditions in any current grants, and (2) notify current grantees, as soon as possible, that these conditions have been waived. I further direct that the Department of State and USAID immediately cease imposing these conditions in any future grants.”