Post Roe Abortion Problems

[Slim Cognito]

Don't give them ideas.

[Volkonski]

Texas Medical Board proposes new guidance for abortion medical exceptions

https://www.texastribune.org/2024/03/22 ... -guidance/

The Texas Medical Board proposed a broad definition for what constitutes an emergency medical exception under the state’s otherwise strict abortion ban at its meeting Friday, disappointing some abortion rights advocates who were seeking a specific list of conditions that would qualify.

The board’s proposal follows pressure from the Texas Supreme Court — in addition to doctors and patients across the state who have been calling for guidance in navigating the abortion ban as cases of Texans forced to carry to term nonviable pregnancies have emerged over the past year in the wake of the overturning of Roe v. Wade.

The board’s proposed rule defined “medical emergency” as “a life threatening condition aggravated by, caused by or arising from a pregnancy that is certified by a physician places the woman in danger of death or a serious impairment or a major bodily function unless an abortion is performed.”

Reproductive rights advocates hoped the board’s draft rule could provide a shield for doctors at risk of being sued for performing abortions. However, the board said its process would be “separate and independent” from any in a criminal trial.

“You got people that are scared, and they're facing death,” said Steve Bresnen, one of the lobbyists who initially petitioned the board for guidance. ”We think that you can do more than it seems that your proposed rule was. In that sense, we're disappointed.”

A statement released from Dr. Zafraan after the meeting said the Board "has a narrow lane to operate in" and "does not have authority to regulate or prohibit abortion."

[W. Kevin Vicklund]

So their "guidance" is repeating the law verbatim? Utterly useless.

[Tiredretiredlawyer]

https://arkansasadvocate.com/2024/03/25 ... eid=363258

U.S. Supreme Court to hear oral arguments Tuesday on abortion pill limits

The same U.S. Supreme Court that overturned the constitutional right to an abortion will hear oral arguments Tuesday over access to mifepristone, a pharmaceutical used in both medication abortion and miscarriage care.

The nine justices will then decide whether to leave access to the drug intact or require the U.S. Food and Drug Administration to revert prescribing instructions to what were in place before 2016.

The court decision will affect the entire country, including states that have sought to shore up access to reproductive rights following the Dobbs ruling less than two years ago.

The Supreme Court opinion, likely not to come until late spring, will land in the middle of a presidential campaign in which Democrats are elevating the question of reproductive rights. The debate is also likely to affect GOP efforts to grow their majority in the U.S. House and flip the Senate red.

Alliance Defending Freedom suit

The case about to go in front of the Supreme Court, Food and Drug Administration v. Alliance for Hippocratic Medicine, began in November 2022 when Alliance Defending Freedom sued the FDA on behalf of four anti-abortion medical organizations and four anti-abortion doctors.

In the original lawsuit and numerous briefs since then, ADF argued that mifepristone leads to problematic situations for doctors who have to assist patients with complications from medication abortions. They’ve also made claims about safety, which have been repeatedly refuted by major medical organizations.

The lawsuit had called for the judicial system to overturn the FDA’s original 2000 approval of mifepristone, which U.S. District Court for the Northern District of Texas Judge Matthew Joseph Kacsmaryk essentially agreed with, in his April 2023 ruling.

The 5th Circuit Court of Appeals in New Orleans, Louisiana, heard oral arguments in the federal government’s appeal of that ruling in May 2023 before issuing its decision a few months later in August.

That three-judge panel said mifepristone could stay on the market, but that when and how patients can access the drug should go back to what was in place before the FDA began making changes in 2016.

[Slim Cognito]

This terrifies me.

[Ben-Prime]

I'm assuming that these doctors have standing because they were forced to prescribe the stuff? Because I can't see any other grounds.

[W. Kevin Vicklund]

Their standing is based on the concept that they might have to treat complications from others prescribing it, which could cause them to have to provide less than standard of care to other patients if they were already at capacity.

[bob]

Their standing is based on the concept that they might have to treat complications from others prescribing it, which could cause them to have to provide less than standard of care to other patients if they were already at capacity.

The 5th Circuit's standing analysis raised some eyebrows.

Just "suddenly" conservative justices don't seemed bothered by the niceties of standing; e.g., someone thinking about creating a web-design business can be injured by the prospect of a gay potential client.

[Tiredretiredlawyer]

https://www.cbsnews.com/news/supreme-co ... epristone/

Supreme Court seems poised to reject abortion pill challenge after arguments over FDA actions

The justices focused most of their questions on whether the doctors who filed the lawsuit against the FDA had shown that they may be injured by its actions, and whether those alleged injuries could be traced to the FDA's easing of the rules. If the court decides that the doctors do not have legal standing to sue, it could order the case dismissed without deciding whether the FDA acted lawfully when it relaxed the requirements for obtaining mifepristone.

In one exchange with Erin Hawley, a lawyer with the Alliance Defending Freedom who represented the medical associations and doctors, Justice Sonia Sotomayor said there is an "infinitesimally small" chance that a pregnant woman who may need medical attention after taking mifepristone would end up in a hospital where one of the member physicians is working.

Hawley pointed the justices to declarations from two doctors, filed in an earlier stage in the case, that she said showed they had been complicit in terminating a pregnancy for a patient who experienced complications from a medication abortion. But Justice Amy Coney Barrett pushed back, and said it didn't appear that either doctor actually participated in the procedure.

Justice Elena Kagan pressed Hawley to point the court to one individual who could show they would be harmed by the FDA's rules for mifepristone.
"You need a person to be able to come in and meet the court's regular standing requirements," she said. "Who is your person?"

Justices Neil Gorsuch and Ketanji Brown Jackson indicated they struggled with the reach of a decision that would roll back the FDA's 2016 and 2021 changes nationwide. Jackson said there is a "significant mismatch" between the injury claimed by the doctors and the remedy they sought — a nationwide order blocking the FDA's latest actions.

"They're saying because we object to having to be forced to participate in this procedure, we're seeking an order preventing anyone from having access to these drugs at all," she said.

Gorsuch echoed Jackson's point, observing that there recently have been a "rash of universal injunctions."

"This case seems like a prime example of turning what could be a small lawsuit into a nationwide, legislative assembly on an FDA rule," he said.

Chief Justice John Roberts questioned why the courts couldn't provide narrow relief that applied only to the doctors involved in the lawsuit, as opposed to targeting the FDA more broadly.

Access to mifepristone has remained unchanged while legal proceedings in the case have continued, since the high court issued an order last April preserving its availability. That relief will remain in place until the Supreme Court hands down its decision, expected by the end of June.

[Uninformed]

“Comstock Act: A 19th Century law firing up anti-abortion push”:
https://www.bbc.co.uk/news/world-us-canada-68580015

“US anti-abortion activists, including allies of Donald Trump, have a strategy to ban abortion nationwide - one that bypasses Congress and the American people. It's a plan that hinges on Mr Trump's re-election in November and the use of a little-known 19th Century law.”

“Comstock will be raised before the Supreme Court this week as part of arguments from a group of anti-abortion activists and doctors who want federal approval of the abortion drug mifepristone to be withdrawn.”

[Uninformed]

Thought this was (surprisingly) a quite good video:

[bob]

US anti-abortion activists, including allies of Donald Trump, have a strategy to ban abortion nationwide - one that bypasses Congress and the American people. It's a plan that hinges on Mr Trump's re-election in November and the use of a little-known 19th Century law.

Comstock will be raised before the Supreme Court this week as part of arguments from a group of anti-abortion activists and doctors who want federal approval of the abortion drug mifepristone to be withdrawn.

"For completeness," the Comstock Act (technically, Acts) prohibits the use of common carriers (including the mail) to ship across state lines various items. Including, notably, abortifacients:

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934), for carriage in interstate or foreign commerce . . . any drug, medicine, article, or thing designed, adapted, or intended for producing abortion . . . Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

Pre-Dobbs, this provision of the statute was presumed unconstitutional and not enforced.

And Ho's dissent in the 5th argues, post-Dobbs, the Comstock Act applies. The majority didn't answer this question because it concluded the federal courts lacked jurisdiction due to the plaintiffs' lack of standing.

So this talk about next president's "using Comstock" implies executive orders to direct various executive agencies to enforce the Comstock Act. Which would avoid the pesky standing issue. But also would lead to more litigation, but this time by abortion providers and seekers, who undoubtedly would have standing if such enforcement actions ever were contemplated.

[Rolodex]

Can Congress get rid of Comstock? I guess they voted it in back in the olden days, so why not vote to get rid of it?

[bob]

Can Congress get rid of Comstock? I guess they voted it in back in the olden days, so why not vote to get rid of it?

Yes; or at least amend it to remove the references to abortion.

Congress could; this Congress won't; neither will the next one; etc.

[W. Kevin Vicklund]

I found out this morning that two of the studies relied on by the plaintiffs suing to get mifepristone removed from the market (the case currently before SCOTUS) were retracted last month for a multitude of sins, including misleading graphs, improper medical codes (e.g., using a code for ectopic pregnancy instead of the code for an abortion), and ethical concerns such as failing to report conflicts of interest (all authors are members of anti-abortion groups and they personally knew the peer-reviewer). These studies are from 2021.

[raison de arizona]

Well golly gee, it's hard to believe those anti-abortion folks were full of crap.

[RTH10260]

Her abortion experience was ‘bizarre and painful’. Now she’s suing Tennessee
Kathryn Archer could not terminate her pregnancy in her home state and, instead, had to wait more than three weeks for an emergency abortion at an out-of-state abortion clinic

Carter Sherman
Thu 4 Apr 2024 13.00 CEST

In January 2023, whenever Kathryn Archer took her young daughter out to the local playground in Nashville, Tennessee, strangers often noticed her visibly pregnant stomach and wanted to make small talk.

“When are you due?” they would ask Archer. “Do you know if you’re having a boy or a girl?” “Oh, I bet your daughter’s so excited to be a big sister.”

Archer did not know how to tell them the truth: in early January, Archer’s fetus had been diagnosed with several serious anomalies that made a miscarriage likely. If Archer did give birth, her baby could only be treated with surgeries and lifelong help – pain that Archer was unwilling to put a newborn through. Without those surgeries, which the infant might not survive, Archer’s baby would die shortly after birth.

But due to Tennessee’s near-total abortion ban, Archer could not terminate her pregnancy in her home state and, instead, had to wait more than three weeks for an appointment at an out-of-state abortion clinic.

“I don’t want to confide in a stranger that I’m having to get an abortion because my baby can’t survive outside of my womb and I can’t get the care that I need as soon as I need it,” Archer recalled thinking. “Those three weeks were really bizarre, challenging, painful – beyond what it needed to be.”

In the nearly two years since the US supreme court overturned Roe v Wade, 16 states have implemented near-total abortion bans. In theory, these bans have exceptions that permit people to get medically necessary abortions – but in practice, doctors and patients say, these exceptions are worded so vaguely that they are unworkable, prompting doctors to delay care out of a fear of running afoul of the law. Dozens of women from states like Texas, Idaho and Oklahoma have come forward to say that they were denied abortions they should have been legally entitled to.

Archer is now one of seven women in Tennessee who, along with two doctors, have sued the state, asking a court to clarify the scope of the state’s exception for medically necessary abortions.

Currently, Tennessee doctors can use their “reasonable medical judgment” to perform abortions in severe emergencies, but abortion-rights supporters say that the standard is vague and subject to interpretation, leaving well-meaning doctors vulnerable to prosecution. Lawyers from the Center for Reproductive Rights, which is representing the women, instead hope to establish that doctors can use their “good faith medical judgement” to perform an abortion when continuing a pregnancy would be unsafe. They also want to allow abortions if a fetus is unlikely to survive a pregnancy and sustain life after birth – as in Archer’s case.



https://www.theguardian.com/us-news/202 ... ortion-ban

[raison de arizona]

Former Congressman Trey Gowdy (R-SC): “Americans don’t want women or doctors imprisoned over abortion. Republicans in my state are advocating for the death penalty for a rape victim who gets an abortion.”

[AndyinPA]

https://lawandcrime.com/abortion/severe ... rtion-ban/

The Indiana Court of Appeals issued a bold and unanimous ruling Thursday blocking the state’s near-total abortion ban as a violation of a religious freedom law long championed by conservatives.

The appellate court was unambiguous that the roots of its decision can be found in a framework set up by the U.S. Supreme Court when it overruled Roe v. Wade:

The United States Supreme Court set the stage for this appeal two years ago when it ruled that the federal constitution “does not confer a right to abortion.” In so ruling, the Dobbs Court placed the ability to regulate abortions not protected by federal law squarely in the states’ laps.

[Tiredretiredlawyer]

It's an interesting opinion as it recognizes abortion as a religious right based upon the Hobby Lobby case. The panel narrows the injunction to stop the ban from applying to those who claim religious rights to abortion. The only male on the panel wrote a stinging rebuke of the male legislators who drafted and passed the abortion ban legislation while also calling out the many ways men harm women in our society.

[AndyinPA]

https://www.theguardian.com/us-news/202 ... n-decision

Arizona supreme court upholds 1864 law banning almost all abortions

Justices rule to hold off on requiring state to enforce ban for 14 days, to allow advocates to ask lower court to pause it again
Carter Sherman
Tue 9 Apr 2024 13.18 EDT
Last modified on Tue 9 Apr 2024 13.19 EDT

The Arizona supreme court ruled Tuesday to let a law banning almost all abortions in the state go into effect, a decision that could curtail abortion access in the US south-west and could make Arizona one of the biggest battlefields in the 2024 electoral fight over abortion rights.

The justices agreed to let Arizona enforce a 1864 near-total abortion ban, first passed before Arizona became a state, that went unenforced for decades after the US supreme court legalized abortion nationwide in the 1973 decision Roe v Wade. However, the justices also ruled to hold off on requiring the state to enforce the ban for 14 days, in order to allow advocates to ask a lower court to pause it again.

Voters may be able to weigh in on the issue in November: abortion rights supporters in Arizona have spent months gathering signatures for a ballot measure to enshrine abortion rights into the state constitution, and the Tuesday decision raises the stakes for their efforts significantly. If it succeeds, the ballot measure would declare that people in Arizona have a “fundamental right to abortion” and that the state will not try to curb that right before a pregnancy reaches fetal viability, which is generally pegged to about 24 weeks of pregnancy.

Although ballot measures need to amass 383,923 signatures by July to get on the ballot, the organizers behind the Arizona measure announced last week that they have gathered more than 500,000 signatures. They said that they planned to continue gathering signatures.

[Dr. Ken]

That's just fucking crazy. They upheld a law before statehood

[bob]

As many have noted, the presumptive Republican presidential nominee yesterday essentially said, "let the states decide."

Now that a swing state has decided, there may be a backlash at the polls come November.

[AndyinPA]

I thought yesterday it was stupid of tfg to come out with that statement. Today, he proved it.

[raison de arizona]