In the Courts: The year ahead for reproductive rights

Document Date: January 22, 2008

Roe v. Wade & civil liberties >>


ACLU staff discuss the importance of reproductive freedom in ensuring the full-range of civil liberties

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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. DECIDED
    In 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.