//  5/22/19  //  In-Depth Analysis

Take Care is pleased to host a symposium on Reproductive Rights and Justice Storiesan important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law. 

“Whose health? Our health!” is a chant of protestors outside the legislative halls of states considering heartbeat bills, which ban abortion after the detection of a fetal heartbeat—typically around six weeks of pregnancy. Legislators in Missouri and Georgia have passed such bills in the last two weeks, following three other states – Kentucky, Mississippi, and Ohio.  And heartbeat bills are not the most extreme restriction recently adopted by state legislatures. As widely covered in the news, a new Alabama statute bans abortion at almost every stage of pregnancy, except when the pregnant woman is at serious risk of dying.

These bills reflect a renewed optimism among anti-abortion advocates that the Supreme Court will overturn Roe v. Wade (or, more accurately, Planned Parenthood v. Casey). As the book’s chapters on Roe, Casey, and Harris v. McRae observe, abortion opponents have invested in a decades-long strategy to chip away at abortion rights through laws that make abortion provision difficult and costly.  Serena Mayeri recounts that the decision in Casey surprised many by upholding Roe, but the “undue burden” standard it announced expanded state power to restrict abortion in the name of respecting fetal life and protecting pregnant women’s health (139).

In hearing challenges to the recent spate of new legislation, our newly-configured Supreme Court may decide that the Constitution does not, in fact, protect a right to abortion. As the book’s introduction notes, the confirmation of Justice Kavanaugh surely will shape that decision. But the road to overturning abortion rightsis not as certain as some commentary suggests.  I want to focus on one response to the attack on abortion rights: the increasing importance of public health research, specifically as marshalled by reproductive justice advocates.

To help with this task, I turn to Cary Franklin’s thoughtful chapter on Whole Woman’s Health v. Hellerstedt, the Supreme Court’s latest word on abortion.  In that case, the Court struck down a Texas law requiring that abortion providers maintain privileges at hospitals and that clinics be fitted as ambulatory surgical centers. In recounting the state legislative debate before the passage of the Texas law, Franklin makes plain what abortion rights advocates long have argued: state justifications grounded in protecting women’s health are typically thinly-veiled anti-abortion measures (231). Legislators could cite no relevant health data in support of the Texas law. In litigation over the law’s constitutionality, state medical and hospital associations wrote amicus briefs arguing that no health justifications for the law existed (232). Opponents of the Texas law offered public health data to show how many women, specifically low income and rural women, would lose access to a range of reproductive health care services if clinics were forced to close.  Amicus briefs detailed how closing down family planning and abortion clinics would worsen the already “abysmal state of women’s health and healthcare in Texas” (234).

In Whole Woman’s Health, the Supreme Court, applying Casey’s undue burden standard, instructed courts to assess whether the state’s interest in protecting health is actually served by a law.  The Court held that the Texas law did nothing to advance women’s health, and, in fact, threatened women’s wellbeing – an analysis rooted in what Franklin calls “women’s lived experience of exercising the right to abortion” (241).  The bills moving through statehouses that ban pre-viability abortion offer no health justifications; they are explicit in their invocation of fetal life.  But public health arguments could shape how courts and others perceive the consequences of their decisions.

Lawyers and legal academics have relied on the work of public health researchers in this regard.  Take, for example, the work of my co-investigators at the Center for Reproductive Health Research in the Southeast, housed at the Emory University School of Public Health.  The Center’s research has been at the forefront of the campaign against the Georgia heartbeat bill, demonstrating how abortion restrictions exacerbate the health care crisis in the state, especially for rural women and women of color.  The same has been true in responses to the Alabama ban with attention focused on the state’s high maternal mortality rate and acute OB/GYN shortage. 

Evidence of how abortion restrictions contribute to the deep health disparities and a broken health care system also has been prominent in litigation over the Trump Administration’s Title X rule, which denies federal funding to any organization that makes referrals for abortion care.  Earlier this month, a federal court in Oregon granted a preliminary injunction against the rule, citing the importance of providing holistic care under Title X, which the court explained as the health care safety net for low income women.  A federal district court in Washington state issued a preliminary injunction of the Trump policy nationwide also citing public health data.  Other state and federal decisions have relied on public health research in striking down abortion regulations or interpreting state constitutions.

To be sure, women’s health has always been part of the conversation about abortion. Abortion rights advocates have long emphasized the health consequences for women who resort to unsafe abortion in the face of legal restrictions. Concerns about public health may not sway those opposed to abortion, and the Court’s willingness to assess evidence of how abortion laws affect health outcomes may be short lived. 

From a movement perspective, however, public health reasoning illustrates the shifting priorities of those supportive of abortion rights.  This is no doubt one contribution of reproductive justice – to advocate for an entire life cycle of reproductive health care and to view prenatal care, sexuality, contraceptives, or ART, for instance, as interconnected.  Abortion is only one of the many reproductive health services that people need and it should be treated and regulated in the same way as comparable health care services.

Public health justifications signal that constitutional recognition of abortion is not just a battle between pregnant women’s rights and a fetus’s right to life, as anti-abortion advocates have argued.  At stake are the worsening of health care deserts, in which some populations of people will have no access to a variety of reproductive health care services. That deficiency of care will impact many people’s short-term and long-term health, our national economy, and the wellbeing of future generations.  And that is a legacy, I would hope, any Supreme Court Justice is hesitant to embrace. 


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7/15/19  //  Commentary

Know-Nothing judges may drape themselves in the robes of judicial modesty, but they are activists to the core. And they may decide the fate of health reform.

Nick Bagley

University of Michigan Law School

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Silver bullets, blue pencils, and the future of the ACA

7/10/19  //  Quick Reactions

Yesterday, the Fifth Circuit heard oral argument in the case challenging the constitutionality of the Affordable Care Act. It didn't go well.

Nick Bagley

University of Michigan Law School