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Reproductive Rights & Challenges To Them In The U.S.

abortion family planning reproductive rights repro rights prolife prochoice

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#1 sierraleone

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Posted 25 November 2018 - 12:30 AM

I decided against bumping a relevant post 2016 election thread, but there was really only
What are the Republicans up to now?, and
SCOTUS rulings and news.

With the recent confirmation of Brett Kavanaugh to SCOTUS I found the first thread to be too broad, and the second thread to be too narrow.

It seem perennially that some prolife Republican politician proposed some anti-choice legislation. Whether it as politicking to shore up their base and/or they really believe in whatever informed their anti-choice ideology. But it used to be that anti-choice legislation didn't pass the house/senate/governor(if state). Or if it did it was limited in scope. Or that the courts would strike it down, or the the state govt would either stop appealing or run out of appeals as a higher court refused to hear their case.

It feels like something has changed. If feels like this challenges set up for the courts are getting more brazen, more common. With the appointment of Brett Kavanaugh it seems as if the pro-life movement feels like they have a solid chance that the SCOTUS will uphold abortion restrictions 5-4. That doesn't even seem unreasonable, considering how most of those 5 strong conservatives on the court have voted regarding abortion cases before.

I can't even really keep up with the reproductive-rights news spewing forth from the U.S. on a seeming weekly basis. I tried to stick to court cases that came up instead of just proposed or pass legislation. Reading this Nov 15 article I was able to make a bit of a list of whats going down.


So lets start with the abortion laws the least cumbersome to Reproductive Rights, at least presently...



TRIGGER LAWS

These are constitutional amendments or laws at the state level that it is known that abortion bans are entirely unforceable due to Roe v. Wade... but say that if SCOTUS ever changes their mind this abortion ban law will come into effective immediately, basically overturning any laws the states have on the books allowing abortion currently due to Roe v. Wade being the law of the land.

Five states made such laws before Brett Kavanaugh was nominated:
Mississippi, Louisiana, North Dakota, South Dakota, and Tennessee

An additional 10 states simply haven't gone the work to repeal pre Roe v. Wade abortion laws/bans on the book, which means they could be enforced if the state governments wants to if Roe v. Wade gets overturned.

In the midterms this year two more states had a voter ballot initiative to have their state constitution amended with the same trigger law -
Alabama (58%), West Virginia (51.7%).



MANDATORY REPORTING

Idaho -
Legislators are fighting Planned Parenthood in court over a law they passed. The claim that it was just to track abortion complications in the state. However the state would aggregate the information in an annual report which would be made available to the public. They say individual identifying information would not be disclosed, but other information they require to be reported is woman's age, race, how many children she has, if any of their children have died and how many abortions they've had in the past, plus where the abortion was performed.

Opponents, including PP, claim that the law is unconstititional and intened to stigmatize women seeking medical care, since it is only require to report on the procedure of abortion. They also worry it doesn't do enough to protect women's private medical information from being released to the public, that with all the other data being collection that people in Idaho will be able to connect the dots and identify people.



OTHER T.R.A.P LAWS ( TRAP = Targeted Regulation of Aborton Providers)

TRAP laws require abortion facilities to meet medically unncessary regulation, such as to have/maintain admitting privileges at local hospitals, to meet licencing requirments for ambulatory surgical centers (that other medical clinics don't have to), to not be within a certain distance of a school. Some have gone so far as to make exacting requirements, such as above building code size for hallway and door width. And no option for open clinics to "grandfather" in and keep their original building specs or location.

While Texas's attempt to regulated abortions like hospitals instead of like other medical clinics was found unconstitutional in the SCOTUS case 2016 Whole Woman's Health v. Hellerstedt that hasn't stopped states from keeping or implementing TRAP laws. Currently 27 states have some sort of TRAP law according to this article.

Heck, Texas has a law requiring abortion providers have all their staff take a 4 hour class on human trafficking, even though other health facilitaties that survivors are human trafficking is likely to present such a class is not required.

I would probably put laws regulating that fetal remains, instead of being treated as medical waste, have to be buried or cremated in a certain fashion, sometimes very similar to how born people are. It increases costs which abortion providers might need to pass onto patients. Ohio first past such a law in 1978! But it was oveturned by SCOTUS in 1983. There has been at least 2 states that introduce such legislation this year, Ohio (again Ohio?) and Mississippi.

Kentucky -
Gov Matt Bevin ® is expected to appeal a Federal court ruling that finds unconstitutional the Kentucky state law requiring aborton clinics to have written transfer agreements with ambulance services and hospitals.



2ND TRIMESTER ABORTION PROCEDURES

Up to 9 weeks a medical abortions (abortions via pill) can generally be done. However, many places make obtaining a medical abortion hard, so many women have to wait until 9 weeks and get a surgical abortion.
From 9 to 14 weeks a suction aspiriation, or vacuumn-aspiriation, or Dilation and curettage (D & C) are commonly done.
After 15 weeks the only two available safe procedures are an "intact D & E" (aka "D & X), and a regular D & E.

An "intact D & E" (aka "D & X") most people would probably know by it's prolife misnomer "partial birth abortion". This proceedure was banned on the Federal level in 2003, and upheld by SCOTUS in 2007, after the retiring of Sanda Day O'Conner. Part of that opinion specifically said it was allowable to ban that because pregnant people had an option of a D & E.

However, D & E bans have been signed into law over time in 9 states. In 7 of those states their bans have been blocked or temporarily enjoined (blocked) as the case winds thru the courts.

Keep in mind the controlling SCOTUS opinion is Roe v. Wade, which said abortion could not be banned before viability, ~23-24 weeks, which means any law that bans the only procedure available at any week preceding viability is unconstitutional... Until SCOTUS says overwise (which would requiring overturning Roe v. Wade, or some bad faith arguments).

D & E Banned -
2015: Kansas, Oklahoma
2016: Alabama, Louisana, Mississippi, West Virginia
2017: Arkansas, Texas
2018: Kentucky

D & E Ban not blocked nor enjoined -
Kansas, West Virginia

Regarding Alabama -
It's D & E law is before the courts, as indicated above. It is reported in the article I linked above that the 11th circuit court of appeals upheld a lower court decision to block the ban, but apparently did so very reluctantly, their decision reads as a beseechment of SCOTUS to overturn Roe v. Wade. The Attorneys for the State of AL plan to appeal to SCOTUS.

Later Abortion Bans, and "Fetal Pain Bills"

Some ~18 states have banned abortions at 20 or 22 weeks, either because they think that bans so close to viability are easier to get away with and less likely to be challenged.... and/or they argue that abortions should be banned after a fetus can feel pain. However science doesn't support that a fetus can feel pain until 27 weeks, a little after viability, and a little before the 3rd trimester starts at 29 weeks.

90% of abortions after done by 13 weeks. 98.5% by <20 weeks.
The vast majority of people that have knowingly carried a pregnancy to 20 weeks want to carry to term and have a baby.
The problem with the bans after 20 weeks is it impact pregnant people in the most tragic circumstances, and adds to their anguish and hardships.
It may be the pregnant person has a severe maternal morbidity (~1 in 71 pregnancies) issue that could lead to death or disability...
Waiting until viability isn't always an option, and doing so at such risks should be up to the person pregnant.
It may be that the pregnant person just got test results showing the fetus has a disabling severe condition.
This could range from what some might call a heartless unreasonable ableist decision (aborting for Trisomy 21, aka Down Syndrome, which ~70% facing that condition do), to the heart-rending (conditions that determine that the fetus will not live past their 1st month, 1st year, or 1st decade, post-birth).



HEART-BEAT BILLS, AN ABSOLUTE ABORTION BAN

Prolifers like to try to emotionally manipulate people into thinking a embryo is a person because they both have heart beats, and therefor when an abortion doctor stops the beating heart of an embryo then they are committing murder.
An embryo's heart beat can be measured ~4 weeks after conception, or 6 weeks into pregnancy as measure by the last period. To ban abortion at that stage is essentially banning all abortion. When a person has an unintended pregnancy they most likely don't even realise they are pregnant at 4/6 weeks.

(Also, prolifers apparently don't realize medicine measures life by brain activity now... and complex sustained brain waves showing minimal brain function start around viability....).

These ideas perennially proposed and never seem to go anyways. Well one is near certainly to go through this year.

Ohio - the state House passed a bill, 60-35, that would ban abortion in all cases expect the life of the mother, after a heart beat can be detected... (yes, no rape/incest nor fetal condition allowed).  

In 2016 Governor John Kasich vetoed a very similar bill, and there was no veto-proof majority to override it. Now both the state House and Senate have a veto-proof Republican majority. If Kasich doesn't signs it into law, the new Governor who takes office in Jan, Mr. DeWine can sign it, and he has said he would.

During the debate over the bill state representative Christina Hagan brought her infant twins on the floor and said
"Motherhood isn't easy but it's necessary"
(do I even need to say which party she is from?)

That statement is so insulting on so many levels.
Really? You think so many women are abandoning becoming a mom that we need to forced them to gestate?
Hello, most women getting abortions *already have kids*
Of the minority of woman getting abortions who don't have kids... most *go on* to have kids later.
Sacrifice (gestating/parenting) as a gesture of willing love really only means something if it is voluntary.
NOTHING about fatherhood? Is parenthood to be largely a woman's burden, even after pregnancy, IYO?

There of course are a lot of assinine comments from the Republicans on abortion.


FEDERAL GOVERNMENT, meanwhile, has had an ORR (Office of Refugee Resettlement) Director, Scott Lloyd, who has been forced to be taken to court numerous times for preventing unaccompanied pregnant minors from accessing abortions. ORR has been force to admit in court that they get ~30 pregnant unaccompanied minors a month (I can't remember the amount that enquire about abortion). I can't remember if ORR got permanently enjoined to stop that behavior or not... Even if not, that case could be in limbo, as Scott Lloyd leaving ORR and becoming a senior advisor to HHS’s Center for Faith-Based and Neighborhood Partnerships.

This doesn't even address attempts to cut funding for Planned Parenthood all over the place, nor, where they successfully shifted their money elsewhere (I think Texas?) that the community health programs that was supposed to seamlessly replace PP did a lot worse than not seamlessly replace PP. Also early one Trump reinstated the Mexico City policy which means aid programs overseas can't not just not provide abortions, but can't even discuss abortion, with the marginalized at-risk people they are helping.




MISSISSIPPI'S RECENT COURT DECISION

One reason why this topic came to the forefront of my mind recently was a court opinion handed down regarding Mississippi's TRAP laws. District Judge Carlton W. Reeves *shredded* the people behind pushing this law. Chances are Mississippi is going to appeal this law. But his decision is so worth reading (including the lengthy footnotes), and for the most part it is an easy read. It is 17 pages, but with legal documents margins being wide it is not as long as it sounds, shouldn't take more than 20 minutes to read. Here is the link and some exerpts:

https://www.reproduc...rrier-Order.pdf


Quote

In that spirit, the court concludes that the Mississippi Legislature's professed interest in "women's health" is pure gaslighting.

Quote

The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.

Edited by sierraleone, 25 November 2018 - 11:32 AM.

Rules for surviving an Autocracy:

Rule#1: Believe the Autocrat.
Rule#2: Do not be taken in by small signs of normality.
Rule#3: Institutions will not save you.
Rule#4: Be outraged.
Rule#5: Don't make compromises.
Rule#6: Remember the future.
- Masha Gessen
Source: http://www2.nybooks....r-survival.html

#2 sierraleone

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Posted 30 January 2019 - 08:31 PM

I know I've left the POTUS year 3 thread to languish ;) I've been busy with a getting and having a roommate, and with taking second language courses.

Anyways, I am in here to drop a post in here.


People may recall the case Whole Woman's Health v. Hellerstedt, went to SCOTUS and was decided in the summer of 2016, just a few months after Scalia's death, making it an 8 member court. That case was about Texas's TRAP laws, including requiring abortion doctors to get admitting privileges at a local-ish hospital.

SCOTUS struck down the TRAP laws, saying they caused an undue burden. This was a 5-3 decision, with Kennedy being the swing voter voting with the 4 person "liberal wing" (Breyer, Ginsburg, Sotomayor, Kagan) of SCOTUS. Roberts voted with the "conservative wing" (Thomas, Alito, and had he been alive, Scalia).


It is 2 and a half years later and a very different court, and now has the same type of case, this one called June Medical Services v. Gee, is before them, since a district court ignored the above precedence.

A very similar, almost identical, TRAP law regarding admitting privileges was passed in Louisiana. Its been fought thru the courts. The majority opinion of the district court twisted procedure and facts and such to uphold the TRAP law. The dissent was scathing. And now there is an emergency appeal to SCOTUS to prevent the imminent full implementations of this TRAP law.

So we still have the 4 person "liberal wing" that struck down a near identical TRAP law 2.5 years go (Breyer, Ginsburg, Sotomayor, Kagan).
However, the swing vote, Kennedy, is gone.

The chief Justice is Roberts, who voted to uphold the TRAP law 2.5 years ago, and was fairly reliably conservative under Kennedy's court.
And there is the original solid "conservative wing" of Alito and Thomas. They have been joined by Gorsuch and Kavanaugh, nominated by Trump.


So, what are Roberts' choices here AFAIK? (assuming Gorsuch and Kavanaugh don't surprise us)

A) Not hear it:
Roberts could decide that SCOTUS won't even take up the case to hear it, despite it being a good candidate since it a) has different federal circuits having different rulings on these TRAP laws, b) the circuit court decisions flies in the face directly contravening and thumbing their nose at a SCOTUS decision only 2.5 years that binds all lower courts.... (Whole Woman's Health).
This would let this law, with the problems just mentioned, stand, and show that SCOTUS will allow Roe v Wade to die via a thousand cuts, as they won't protect their own precedent and authority on this matter. Probably many states would follow quickly, thinking SCOTUS will look the other way, as different circuits come up with different decisions and disrespecting the precedent of Roe v Wade thru to Whole Woman's Health will not be push back against by SCOTUS.

- Decide to hear it (likely next court term/year), and decide that while waiting to hear it:
B) Place a stay/hold:
To not allow the law to be implemented while the case is awaiting its hearing in court.
C) Not place a stay/hold:
Allow the law to be implemented as intended by the state of Louisiana. This means likely 2 out of the 3 abortion clinics in Louisiana would be shut down since the doctors have not been able to obtain admitting privileges at nearby hospitals.

- After SCOTUS hears June Medical Services v. Gee (if option A is not taken) SCOTUS can decide to together
D) Uphold the TRAP law in the majority. Even if they don't explicitly saw Roe v. Wade is overturned it essentially is in all but name, and undue burdens are allow to be legislated into existence again.
E) Overturn the TRAP law in the majority, which they did (with different Justices) just 2.5 years ago. This would require a reversal from Roberts (from his dissent in Whole Women's Health), and/or an unexpected surprise from Gorsuch, or Kavanaugh (lets not kid ourselves about Alito and Thomas...)


Roberts has a choice to make between
- upholding his vaunted legacy and stare-decisis (Whole Womens' Health v. Hellerstedt), or
- circuit courts disrespecting SCOTUS precedent only 2.5 years old and sticking with his own dissent (Whole Womens' Health v. Hellerstedt).

Edited by sierraleone, 31 January 2019 - 05:21 PM.

Rules for surviving an Autocracy:

Rule#1: Believe the Autocrat.
Rule#2: Do not be taken in by small signs of normality.
Rule#3: Institutions will not save you.
Rule#4: Be outraged.
Rule#5: Don't make compromises.
Rule#6: Remember the future.
- Masha Gessen
Source: http://www2.nybooks....r-survival.html

#3 gsmonks

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Posted 05 February 2019 - 02:48 PM

Those that like to interfere with reproductive rights are trolls that think they have the right to stick their filthy noses into other people's business.
Capitalism is a pyramid scheme run by the 1%.

#4 sierraleone

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Posted 17 February 2019 - 06:54 PM

So SCOTUS first did a short 1 week stay. Very unusual because that just means they have to decide on whether to do a longer stay a week later. It seems like that time was needed for Justice Keg-Stand to write his dissenting opinion opposing the stay.

It was a 5-4 decision for leaving the stay in place.

So, Roberts, voted for upholding the stay. Hard to read tea-leaves into this. IIUC he has *never* voted for abortion rights in his career. But he hasn't voted on the constitutionality, he has voted for a stay so that the status quo remains until SCOTUS can actually hear the case and decide the constitutionality.

I've already discuss how it would be a brand new thing for Roberts to actually support legal abortion rights. I saw a couple interesting thoughts on-line about how they feel Roberts is navigating this.

Chief Justice John Roberts loves institutional norms, wants to protect institutions, the independence of the courts, and the view of the court as a legitimate institution, not a partisan one. So he views the lower courts that made their decision as threatening all of those, since their decision was at odds with all of that.

He views it as the prerogative of SCOTUS to mess with Whole Woman's Health if it decides too (or Roe if a personhood bill gets that far), and it's not the lower court's place to make that call. As now the swing justice he knows that it will be his prerogative that decides SCOTUS direction, but he doesn't want up-start lower courts getting ahead of SCOTUS or himself.

I hope he realizing how bad overturning Roe would be (or even just sending it back to the states), but I have doubts he is concerned enough to not whittle away around the edges of Roe considering his previous voting history on abortion court cases.
Rules for surviving an Autocracy:

Rule#1: Believe the Autocrat.
Rule#2: Do not be taken in by small signs of normality.
Rule#3: Institutions will not save you.
Rule#4: Be outraged.
Rule#5: Don't make compromises.
Rule#6: Remember the future.
- Masha Gessen
Source: http://www2.nybooks....r-survival.html



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