Reproductive Rights in the Courts: 2009

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While we celebrate the promise of a new administration that understands the importance of reproductive health care in women’s lives and the role of government in ensuring access to care, we know that the courts continue to be an important avenue for restoring and protecting reproductive freedom.

Below are brief descriptions of some of the most important pending reproductive rights cases to watch in the coming year.

Ensuring the Balance between Religious Liberty and Access to Care

National Family Planning and Reproductive Health Association v. Leavitt
On January 15, 2009, the ACLU, on behalf of the National Family Planning & Reproductive Health Association, filed a lawsuit challenging the Bush administration’s midnight Health Care Denial Regulation. The rule threatens access to basic reproductive health services, including contraception and counseling for abortion care. For years, federal law has carefully balanced protections for individual religious liberty and patients’ access to reproductive health care. This rule takes patients’ health needs out of the equation.

The case was filed in the U.S. District Court for the District of Connecticut, along with two other legal challenges: one brought by the state of Connecticut, joined by California, Illinois, Massachusetts, New Jersey, New York, Oregon, and Rhode Island; and the other, by Parenthood Federation of America and Planned Parenthood of Connecticut.

ACLU of Massachusetts v. Leavitt
On January 12, 2009, the ACLU asked the U. S. District Court for the District of Massachusetts to require the Department of Health and Human Services (HHS) to ensure that funds distributed through the Trafficking Victims Protection Act are not being used to impose religiously based restrictions on reproductive health services.

Human trafficking is a form of modern-day slavery. Every year, more than 14,000 individuals, predominantly women, are brought into the United States and exploited for their labor, including in the commercial sex industry. Many experience extreme violence and sexual assault at the hands of their traffickers. Some become pregnant as a result of rape; some contract sexually transmitted infections, including HIV.

Since April 2006, HHS, which administers funds allocated by the federal Trafficking Victims Protection Act, has awarded the United States Conference of Catholic Bishops (USCCB) grants ranging from $2.5 million to $3.5 million annually to support organizations that provide direct services to trafficking victims. As part of its sub-granting program, USCCB prohibits, based on its religious beliefs, grantees from using federal funds to provide or refer for contraceptive or abortion services. Our lawsuit asks the court to stop this misuse of taxpayer dollars and to protect the health and safety of trafficking victims.

Protecting Access to Reproductive Health Care in Prison

Doe v Arpaio
The ACLU continues to defend the reproductive rights of women in prison. Despite the fact that the Arizona courts had clearly ruled that women in prison have a right to access abortion care as they do other health care services, Maricopa County jail officials continued to obstruct women prisoners’ access to timely, safe, and legal abortions. In August 2008, the ACLU asked the court to hold Maricopa County Sheriff Joseph Arpaio, “America’s Toughest Sheriff,” in contempt for defying the ruling when jail officials continued to refuse to voluntarily transport women prisoner to obtain abortion care. In addition, the ACLU asked that all jail employees and prisoners be made aware of the county’s obligation to uphold prisoners’ rights and ensure access to health care.

Nelson v Norris
In September 2008, the full Eighth Circuit Court of Appeals heard Arkansas inmate Shawanna Nelson’s claim that being kept shackled during labor violated her constitutional right against cruel and unusual punishment under the Eighth Amendment. Three ACLU legal projects – Reproductive Freedom, National Prison, and Women’s Rights – and the ACLU of Arkansas worked with Ms. Nelson’s lawyer on this first federal appeal addressing the practice of shackling pregnant inmates while they are giving birth.

These two cases vividly illustrate that though women in prison have the same right as other women to pregnancy-related care, including abortion and child birthing services, in practice, officials too often restrict their access to this care. We remain vigilant in our efforts to protect the health and rights of women prisoners.

Protecting Access to Abortion Care

Planned Parenthood v Rounds
In 2005, South Dakota passed a law that requires doctors to tell a woman seeking an abortion that ending her pregnancy will “end the life of a whole, separate, unique, living human being” and end her legally protected relationship with that “human being.” In June 2008, the U.S. Court of Appeals for the Eighth Circuit allowed the law to go into effect pending review by the U.S. District Court for the District of South Dakota.

The ACLU believes that every woman should have even-handed information so that she can protect her health and make the best decision for her circumstances. This South Dakota law, however, is political interference in a woman’s most personal, private medical decisions and her trusted relationship with her doctor. We are hopeful that the court will recognize this and hold the law unconstitutional.

Rogers v. Planned Parenthood of Cincinnati Region (formerly known as Planned Parenthood v Taft)
An Ohio law severely curtailing the ability of doctors to prescribe Mifepristone (also known as RU-486 or the abortion pill) remains blocked while the Ohio Supreme Court resolves questions about the law’s interpretation. The ACLU of Ohio and Planned Parenthood Federation of America brought the lawsuit in 2004.

Richmond Medical Center for Women v Herring
After a panel of the U.S. Court of Appeals for the Fourth Circuit struck down a law that would have made it virtually impossible for doctors to perform second-trimester abortions in Virginia, the state asked the full court to review the decision. The full court heard the case in October 2008. At issue is whether Virginia’s law, which contains no exception for the health of the pregnant woman, is broader and more restrictive than the federal abortion ban upheld by the U.S. Supreme Court in Gonzales v. Carhart.

Nova Health Systems v. Brad Henry
A sweeping Oklahoma law, passed last April, requires health care providers to perform an ultrasound in almost all circumstances before a woman has an abortion, and requires the woman to listen to a description of the fetal image. Among other things, the law also limits a woman’s ability to sue her doctor if he or she intentionally withholds information about the fetus, such as a severe developmental defect, and curtails the ability of doctors to administer Mifepristone (also known as RU-486 or the abortion pill). The Center for Reproductive Rights filed a legal challenge to the law in the District Court of Oklahoma County, State of Oklahoma, in October 2008.

Protecting Patient Privacy

Roe v Planned Parenthood Southwest Ohio Region
The parent’s of a teenager in Ohio sued Planned Parenthood of Southwest Ohio after they learned that their daughter had obtained an abortion there. The lawsuit demands to see the medical records of teenagers who sought abortion care at the facility over a ten-year period. Representing a variety of medical, social work, youth, and domestic violence groups, the ACLU filed a brief arguing that making patient records available in a private lawsuit would violate doctor-patient privacy and deter teens from seeking and getting necessary medical care. The case was heard before the Ohio Supreme Court in October 2008.

Ensuring Access to Contraception

Stormans v Selecky
A decision is still pending in a Washington State case challenging the state’s rules protecting patient access to certain drugs at the pharmacy, including contraception. In July 2007, two pharmacists and a pharmacy owner sued to block the rule’s requirement that pharmacies have a duty to dispense all medications. A federal district court held that the rule doesn’t apply to pharmacists and pharmacies that refuse to provide EC as long as they provide the patient with a referral. The state, as well as patients who had intervened to defend the regulation, appealed the court’s decision to the U.S. Court of Appeals for the Ninth Circuit. Oral arguments were heard in July of 2008.

Morr-Fitz, Inc. v Blagojevich
On December 18, 2008, the Illinois Supreme Court ordered a lower court to hear a challenge to Illinois’ rule requiring pharmacies to fill all valid prescriptions for contraception. Two pharmacists and three pharmacies challenged the rule, which Illinois adopted after women faced delay and harassment in trying to fill prescriptions for contraception. The regulation makes clear that the pharmacy must ensure that customers can obtain their contraception in a timely manner, despite any objections by a pharmacist or pharmacy. Lower courts had dismissed the case. The ACLU of Illinois filed a friend-of-the-court brief in the case, arguing that the regulation strikes the appropriate balance between protecting individual religious belief and patient access to reproductive health care.

Tummino v von Eschenbach Though emergency contraception (EC) – also referred to as the “morning after pill” or Plan B – has been shown to be a safe and effective method of contraception for women of all ages, the Food and Drug Administration (FDA) has restricted over-the-counter access to women 18 and over with government proof of age. The ACLU has argued that the arbitrary age restriction infringes on privacy rights, while the requirement of government-issued proof of age impedes access for women of all ages. In January 2005, the Center for Reproductive Rights filed a case in the U.S. District Court for the Eastern District of New York on behalf of the Association of Reproductive Health Professionals, the National Latina Institute for Reproductive Health, and individuals from the grassroots advocacy group, the Morning-After Pill Conspiracy. The case seeks to make EC available to all women, regardless of age or possession of government-issued identification.