In the Courts: The year ahead for reproductive rights (1/22/2008)
Last year’s decision
by the U.S. Supreme Court upholding a federal abortion restriction that fails to
include protections for women’s health sent shockwaves through the reproductive
rights community. For the first time in more than 30 years, the Court
turned its back on the bedrock principle that abortion restrictions cannot
endanger women’s health. The decision significantly shifted the legal
landscape for reproductive freedom.
The full import of this decision has yet to be felt. Several important
reproductive rights cases are currently pending before the courts, and others
will likely be filed in the event that anti-choice politicians succeed in their
efforts to further curtail women’s reproductive freedom.
Below are brief discussions of the pending reproductive rights cases to watch
in the coming year:
Protecting access to abortion care
Feminist Women's Health Center, et al. v. Burgess, et al.
In 2003, the
ACLU filed a lawsuit in Georgia state court to require Georgia Medicaid to cover
abortions a doctor determines a poor woman needs to protect her health.
Currently, Medicaid provides assistance for a broad range of medical services
necessary to protect the health of low-income people, but only covers abortions
when a woman’s life is endangered or her pregnancy is the result of rape or
incest. If a woman needs an abortion to protect her health, Medicaid
refuses to cover this basic health care. After several years of procedural
tie ups, the case is currently pending in the trial court.
This case is part of a larger effort to restore Medicaid coverage for
medically necessary abortions throughout the country. Currently only 17
states fund abortions for low-income women on the same or similar terms as other
pregnancy-related health services. Four of these states provide funding
voluntarily (HI, MD, NY, and WA), and in 13, courts interpreting their state
constitutions have ordered nondiscriminatory public funding of abortion (AK, AZ,
CA, CT, IL, MA, MN, MT, NJ, NM, OR, VT, and WV).
Acuna v. Turkish
In 1998, Rosa Acuna brought a medical malpractice lawsuit
against a doctor in New Jersey, claiming that he had failed to properly inform
her at the time of her abortion that the embryo was a “complete, separate,
unique and irreplaceable human being” with whom she had “an existing
relationship,” and his failure to do so caused her emotional distress. In
2007, the New Jersey Supreme Court dismissed the case. Ms. Acuna’s
attorney is expected to file a petition in the coming months to ask the U.S.
Supreme Court to hear the case.
Planned Parenthood v. Rounds
In 2005, South Dakota amended its law to
require doctors to tell women seeking abortion care that the abortion ends “the
life of a whole, separate, unique, living human being” with whom she has a
preexisting relationship protected under the law. The case is currently
pending in the U.S. Court of Appeals for the Eighth Circuit.
These two cases are part of a wave of recent attempts by anti-choice
advocates to force doctors to give a non-medical, value-laden speech to their
patients before performing an abortion. If allowed to stand, such
requirements would gravely interfere in medical practice and women’s personal
decision making.
Planned Parenthood v. Taft
In September 2006, after the ACLU of Ohio and
Planned Parenthood Federation of America brought a lawsuit, a federal court in
Cincinnati permanently blocked an Ohio law prohibiting doctors from prescribing
Mifepristone (also known as RU-486, the abortion pill) according to their best
medical judgment. The case is currently on appeal in the U.S. Court of
Appeals for the Sixth Circuit.
We have seen similar attempts on the federal level to interfere with the
ability of women to obtain the abortion pill. In September 2000, after
more than a decade of careful study, the FDA approved mifepristone as a safe and
effective early-option abortion pill. Mifepristone’s approval represented
a significant breakthrough in reproductive health care for American women,
allowing them access to a safe, private, and early option for ending a
pregnancy. A decision in this case can protect access to this important
reproductive health option for women and prevent lawmakers from interfering in
medical decision making.
Doe v. Arpaio
In May 2004, Maricopa County Jail officials denied a
pregnant woman access to abortion care for weeks, insisting that she first
obtain a court order before they would transport her to a nearby health care
facility. The ACLU filed a lawsuit challenging what amounted to the
prison’s unwritten abortion policy. The jail transports prisoners without
a court order for all other necessary medical care, including prenatal care and
childbirth. The lower state courts struck down the jail’s policy, and in
2007 the Arizona Supreme Court announced that it would refuse to hear the
case. The county has appealed the ruling to the U.S. Supreme Court.
The Court will decide in the coming months whether it will review the case.
Roe v. Crawford, et al. DECIDEDIn 2005, prison officials in Missouri went to
extreme lengths to deny a woman prisoner abortion care. The ACLU
intervened, and a court ruled that the woman must be transported by prison
officials for an abortion. The case was subsequently certified as a
class-action lawsuit on behalf of all incarcerated pregnant women in Missouri
seeking abortions. In July 2006, the U.S. District Court for the Western
District of Missouri ruled that women prisoners do not lose their constitutional
right to abortion care, and as with all other serious medical needs, prison
officials must transport prisoners offsite for treatment if necessary. The
state appealed the ruling, and the case is currently pending in the U.S. Court
of Appeals for the Eighth Circuit.
Despite the fact that courts have made clear that women do not lose their
right to abortion if they become incarcerated, it is not uncommon for women
prisoners to face serious obstacles when seeking abortion care. Decisions
in the above cases could further ensure that women in prison have meaningful
access not only to abortion care, but to the full-range of pregnancy related
care, including prenatal and childbirth services.
Ensuring Access to Contraception
News reports increasingly include stories about pharmacists or pharmacies
refusing to sell contraception based on a religious objection. Below are
summaries of two cases whose outcomes could help protect women’s access to
contraception at pharmacies throughout the country:
Stormans v. Selecky
In July 2007, two individual pharmacists and a
pharmacy owner sued the State of Washington over recently adopted rules
protecting patients’ access to lawful prescription medications and medications
with restricted distribution. Under the rules, pharmacies must dispense
medications regardless of pharmacists’ personal feelings about a particular
medicine. Pharmacists may ask another pharmacist on duty to provide the
medicine, but in all cases the pharmacy must fill the prescription in a timely
manner. The Washington State Pharmacy Association, which represents the pharmacy
profession, participated in the rule-making and supported the rules during the
rule-making process. Later that year a U. S. District Court issued a
preliminary injunction suspending the rules. The case is now on appeal in
the U.S. Court of Appeals for the Ninth Circuit.
Noesen v. Wisconsin Dept. of Regulation & Licensing Pharmacy Examining
Board
In 2002, pharmacist Neil Noesen refused – based on a religious
objection – to refill a woman’s prescription for birth control pills and impeded
the woman’s efforts to fill the prescription at another pharmacy. As a
result, the woman missed the first dose of her medication and was forced to use
a back-up method of contraception. The Wisconsin Department of Regulation
and Licensing Pharmacy Examining Board took disciplinary action against Noesen
for his failure to adequately inform his employer of his religious objections to
filling prescriptions for contraception and for his refusal to promptly transfer
this prescription to another pharmacy. In February 2006, a lower court
ruled that the department’s discipline of Noesen was constitutionally
permissible. The case is currently on appeal.
Ending Discrimination in Reproductive Health Care
Benitez v. North Coast Medical Group
Doctors at North Coast Medical
refused – based on their personal religious beliefs – to provide infertility
treatment to Guadalupe Benitez after learning that she was a lesbian.
While doctors may in some circumstances refuse to provide certain kinds of
health care services, they may not simply refuse to provide care to some
patients because of their race, gender, sexual orientation, disability or
religion. The case is currently pending before the California Supreme
Court.
A favorable decision in this case could help ensure that doctors cannot use
their particular religious beliefs to justify discrimination against their
patients.
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