October 13, 2015
"Arkansas Urges Roberts Court To Rethink 'Roe,'" Jessica Mason Pieklo, RH Reality Check: The fetal viability standard, which "has been the one immovable legal fixture holding ... back" state attempts to restrict abortion access, could be at risk in this Supreme Court term, now that "Arkansas filed a petition ... with the Roberts Court urging it to step in and uphold an Arkansas law [Act 301] that bans abortions at 12 weeks' gestation," Mason Pieklo writes. She outlines the state's appeal, noting that Arkansas essentially "wants the Roberts Court to overturn Roe v. Wade while pretending it's not overturning Roe v. Wade." She explains that Arkansas is "fram[ing] their request as an incremental one," by asking the Supreme Court "to explain just why fetal viability has been a legal standard for the past four decades." However, "the State of Arkansas is not really looking for the Court to explain the nature of pregnancy," but instead is asking the high court "to confirm the power of the government to regulate it," Mason Pieklo writes. According to Mason Pieklo, the state is suggesting that the viability standard be replaced by the "judicial standard of 'reasonableness,'" arguing that "a woman who misses her window of 'reasonableness'" could "surrender [her] newborn to the state without facing criminal prosecution" under the state's safe haven law. However, citing statistics on the state's foster care system and health indicators for pregnant women, Mason Pieklo explains that the "state is not equipped to handle" such a system. She notes that while it is not clear if the Supreme Court will consider the Arkansas case, "[i]t's entirely clear ... that conservatives plan to keep trying to erode abortion rights all the way through the 2016 election, providing a steady drumbeat of anti-Planned Parenthood, anti-choice propaganda for the Court's deliberation" (Mason Pieklo, RH Reality Check, 10/9).
"One State Finally Cracked Down on Deceptive Anti-Abortion Pregnancy Centers," Molly Redden, Mother Jones: "California on Friday became the only state to target anti-abortion pregnancy centers with a law (AB 775) cracking down on deceptive practices some have used to prevent or dissuade women from having an abortion," Redden writes. She writes that the law marks "the first time reproductive rights groups have succeeded in pushing regulations on crisis pregnancy centers across an entire state; only a handful of cities or counties have passed similar laws." According to Redden, the law "requires pregnancy-related service providers that are not medically licensed to disclose that fact to patients" and mandates that "reproductive health clinics, including [CPCs], that are licensed ... provide patients with information about California's financial assistance for family planning services, prenatal care, and abortion." Redden notes that Amy Everitt, director of NARAL Pro-Choice California, and California Attorney General Kamala Harris helped draft the law to protect it from First Amendment legal challenges, which have been used to overturn similar laws. According to Redden, abortion-rights opponents tend to argue "regulating [CPCs] is a violation of their right to express opposition to abortion," while "[r]eproductive rights advocates counter that the regulations are permissible because states have some latitude to regulate speech that is deceptive or coming from professionals licensed by the state." Redden notes that "Everitt is confident the law would survive a court challenge" and she "hopes the new law will become a national model" (Redden, Mother Jones, 10/12).
"Jailed for Using Drugs While Pregnant," Ada Calhoun, The Atlantic: In a recent victory for women's rights advocates, a U.S. District Court in Wisconsin denied a state request to throw out a case brought by Tammy Loertscher, "who had been jailed for 18 days after admitting to having used drugs early in her pregnancy," Calhoun writes. She notes that the case "is now heading to trial." According to Calhoun, there has been an increase in recent years "in prosecutions of women on the grounds that their [fetuses] must be protected," with "[w]omen who are found to have used drugs during pregnancy" -- including prescription medication -- at risk of being "subject to child welfare involvement, jail time, or both, depending on the laws in their state and the prosecutors in their county." She writes that Loertscher "is one of the few to fight back," having filed a lawsuit in 2014 contending that the 1997 Wisconsin law under which she was prosecuted is unconstitutional. Calhoun notes that the lawsuit "raises legal and moral questions," including whether such laws, by "punish[ing] pregnant drug users far more harshly than non-pregnant ones ... effectively make it a crime to be pregnant" and whether "these fetal-protection laws [are] effectively anti-abortion laws." She writes that the "stakes of Loertscher's lawsuit are high," noting, "Though there are no specific statistics on the number of" prosecutions under the Wisconsin law, "if the single-year numbers provided in a report from Wisconsin's [Department of Children and Family] are representative, then since 2005, as many as 3,000 pregnant women may have been prosecuted for 'unborn child abuse' in Wisconsin" (Calhoun, The Atlantic, 10/12).