Abortion Rights: A Tale of Two States (ep. 69)

October 17, 2019
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While abortion restrictions have left six states with only a single clinic standing, other states are finding ways to expand access. We speak with Heather Gatnarek, a staff attorney at the ACLU of Kentucky, who is helping fend off sustained attacks on what remains of reproductive care in that state. And we hear from Zach Heiden, legal director of the ACLU of Maine, where abortion was just made more affordable and accessible.

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EMERSON SYKES:

[00:00:04] From the ACLU, this is At Liberty. I’m Emerson Sykes, a staff attorney here at the ACLU and your host.

The Supreme Court recently agreed to hear a challenge to a Louisiana law requiring abortion providers to have admitting privileges at a local hospital. If upheld, that law would leave a single abortion clinic in the state. That’s already the case in six other states in the US, where onerous restrictions have shuttered all but one clinic.

NEWSCAST:

[00:00:37] Kentucky only has this one clinic left, down from seventeen in 1978. Its new Republican governor wants to take that number to zero, and the protestors agree.

EMERSON:

Yet even as some state legislatures work to get rid of abortion access altogether, others are bucking that trend. Today we’ll hear from two ACLU attorneys, one from Kentucky and one from Maine, working in two very different landscapes for reproductive rights.

We’ll begin with Heather Gatnarek, a staff attorney at the ACLU of Kentucky who’s on the frontlines of the fight to protect abortion.

Heather, welcome to the podcast.

HEATHER GATNAREK:
[00:01:12] Hi. Nice to be here. Thank you.

EMERSON:
[00:00:26] So the slew of restrictions that we've seen in Kentucky are not exactly a news story, but they've intensified over the last couple of years. Can you tell us what's happened since about January of 2017?

HEATHER:
Sure. Yeah.

Since January 2017, we've seen one law after another coming through our general assembly. And these have restricted abortion access in a number of ways, beginning with mandating abortion providers to narrate ultrasounds and provide certain information that the state requires in the course of that ultrasound for every patient. We saw a ban after about twenty weeks of gestation. We saw a ban on the most common second trimester abortion procedure, D&E. We are currently litigating the most recent bans that have passed, which were a ban after approximately six weeks of pregnancy, and a ban based on patient's reason for the abortion -- if the reason was related to the race, sex, or disability status of the fetus or embryo.

And we've also seen some other restrictions, as well. We've got a current lawsuit that challenges the state's requirement that the clinic have a transfer and transport agreement with the local hospital and ambulance company. And we've also got what we now call a “trigger ban.” So Kentucky passed a law that says if Roe v. Wade is overturned, in whole or in part, and the right to restrict abortion is given back to the states, then abortion would be immediately outlawed in Kentucky. So our legislators have been hard at work sort of across the board restricting abortion access in any way they can.

EMERSON:
[00:02:54] That really is a slew of restrictions that have been put in place. But that's only the most recent wave. Can you just tell us, if someone is in Kentucky and wants to seek an abortion, what are the steps that they need to go through to get one?

HEATHER:
Yeah. So Kentucky is one of the states in the country that has one abortion provider, and that is EMW, our client, which is located here in Louisville.

And so, first things first, is that patients from around the state need to make an appointment with EMW and get here. Before even coming here, they have to have an informed consent, face-to-face conversation with someone at the clinic. That can happen via teleconferencing capabilities. But then the patients from around the state have to get to Louisville. And we have places in Kentucky that are three and four hour drives from Louisville. It’s certainly not easily accessible across the state.

So we know that, you know, three-quarters of abortion patients are living at or near the poverty line. And so that means for a lot of these patients they have to find transportation, take time off work, if they're able to, which means lost wages oftentimes. We know that most of the patients that get abortions are already already have children at home, so often they have to find child care. And that's not even counting things like if they need an interpreter or just money to pay for the abortion. Of course, there is no social service that will cover abortion care. So folks have to come up with the money themselves in cash. And luckily we have some groups on the ground that can help with that, but it certainly is a barrier that some people just can't overcome.

EMERSON:
[00:04:35] I understand that at the clinic there are also protesters and you have to get parental consent if you're under 18. There are all sorts of other hoops that one might have to jump through as well.

HEATHER:
Oh yeah. Yes, that's all true. We are a parental consent state. So we do have a provision for minors. If they are unable to get parental consent, they could get a judicial bypass, but that means finding an attorney and going to court and actually getting a judge to decide that a minor is mature enough to make the decision themselves to get the abortion.

And then yes, the clinic that's here in Louisville is right downtown and it does not have unfortunately a designated parking lot. So patients and their companions do have to come through the front door off the sidewalk through protesters and the number of protesters outside the clinic varies day-to-day. They are there every day with most of them present on Saturday. And it can be an incredible gauntlet that people have to walk just to get in the front door at the clinic. And many patients do report that actually walking through those protesters is the worst part of the experience for them.

EMERSON:
Well, as you mentioned there's only one clinic left, our client. But can you tell us a little bit about the people that work there. They have to walk that gauntlet on a daily basis.

HEATHER:
[00:05:47] Yeah, the people at EMW are certainly some of the most professional and committed people that I've ever met and that is true of the doctors, of the nurses, the other medical staff and the clinic director as well. A lot of the folks have been working at the clinic for years and years and they are completely dedicated to making sure that patients have access to this care, even though it means that they themselves get unwanted attention from protesters.

And we've had issues in the past few years with anti-abortion groups targeting doctors’ home addresses or, you know, if the doctors have other medical offices, protesters target those offices as well. We've seen flyers that get spread throughout the neighborhoods where the clinic staff live, all in an attempt to really intimidate people out of this work. But I have been nothing but impressed by the extent to which folks at the clinic are dedicated to providing this care.

EMERSON:
And were they already the last clinic standing when they became our client? How has your relationship with them developed over time?

HEATHER:
Yes, they have been the last clinic standing since we've seen this recent onslaught of cases, which began in January 2017. Prior to that there was another clinic owned by one of the same doctors that shut down the year before, 2016.

And over the years it has been the case that the ACLU and EMW have certainly been in communication and in touch about these issues. But I think that it's safe to say that for the last few years our relationship with them has gotten a lot more intense. We are in much more regular communication. And we have a lot more that we need to be working on with them.

[00:07:29] Several of these lawsuits have been really discovery-intensive, which means that folks at the clinic need to sit for depositions and testify at trial. We've had to provide documents to the state. I mean, it has been an incredibly invasive experience, and that's above and beyond what they do just to provide care to patients.

I keep saying that I can't think of another profession where you know you you get your degree and you go to medical school and you do a residency all to be able to provide a certain type of care. And then, on top of that, your job requires you to spend an incredible amount of hours on something like being a plaintiff in a lawsuit. I mean, I can't think of a corollary to that, because it seems so outrageous to me. But that's the situation that doctors have found themselves in.

EMERSON:
So what exactly changed in January 2017 that brought on this new wave of restrictions?

HEATHER:
The new governor came in in the at the end of 2015. What happened in 2016 is that, in addition to having that new anti-choice governor, we also saw our General Assembly flip. So with the election of 2016, Republicans gained a supermajority control over both the House and Senate in the Kentucky General Assembly, which is not to say that abortion votes are along partisan lines in Kentucky, because they're not. There are plenty of Democrats that vote for these measures here as well. However, before the Republicans had a supermajority, there were enough legislators to vote against these bills that they just didn't pass through.

But there were bills being introduced year after year after year in the General Assembly. And then once the chambers flipped and there was a supermajority, we just saw them come sailing through. That has been the case since the first days of the General Assembly in January 2017.

EMERSON:
[00:09:14] You've listed all of the many different types of restrictions that have been introduced, many of which have then been signed into law. But not all of them are in place, thanks to your work and the work of your colleagues and our coalition partners. Can you tell us what's in place now in Kentucky and what's being blocked?

HEATHER:
So every single one of the lawsuits that we have currently pending, those laws are not in effect. That includes the narrated ultrasound law, the transfer-transport agreement, the D&E ban, and the most recent six-week ban and reason ban. All of those are not in effect.

Here in Kentucky, all of these laws that go through the General Assembly are passed with an emergency clause, so that means that they take effect immediately upon the governor's signature. Unfortunately, though, we don't have notice of that. And I believe that that's done intentionally on the part of the governor's office. So what happens is that every single time one of these passes, there is a brief but important window of time where it is just chaos and confusion because we don't know for sure and our client doesn't know for sure whether a bill has actually become law.

And that has impacted the ability of some patients to get care. I mean, the clinic has had to reschedule appointments or cancel appointments, in some instances, before we've been able to get relief from the courts. But thankfully, in all of the cases that I've mentioned we do have in place either preliminary or permanent injunctions from the court. So those laws are not in effect. We've got several before the Sixth Circuit right now and we just filed cert about a week ago to the Supreme Court on the ultrasound case.

EMERSON:
Cert, meaning you're asking the Supreme Court to review the decision of the lower court.

HEATHER:
[00:10:58] Yes, exactly. So with the ultrasound case, which is the first of all of these laws we're discussing, we won a permanent injunction in the district court here in Kentucky. The state of Kentucky appealed up to the Sixth Circuit. And the Sixth Circuit reversed the lower court. So we have filed a cert petition to the Supreme Court asking them to review that case.

EMERSON:
It sounds like you're playing quite formidable defense. Who is it that's on the other side really driving this agenda?

HEATHER:
That's a great question. There are many members of, you know, what consider themselves to be the pro-life caucus in the Kentucky General Assembly. And again, that's a pretty bipartisan caucus. So there are certainly plenty of legislators in both parties who vote for these laws. And of course we do have a governor who has identified himself as being unapologetically pro-life.

So he is certainly an influence I think behind a lot of these bills. He has said publicly several times that he would be glad to see Kentucky be the first state in the nation where there was no abortion clinic, where there was no access to abortion. So I think it's probably a pretty you know across-the-board effort from from those individuals, both in the legislative and the executive branch.

You know, Kentucky of course doesn't exist in a vacuum and a lot of the bills that we've seen here are nearly identical if not identical to bills that have been introduced in other states as well.

So the sort of deep red, conservative Southern states that are pushing through a lot of these abortion restrictions are taking them from what I believe is a singular playbook. And Kentucky is just picking them up piecemeal, as the other states have been doing as well.

EMERSON:
[00:12:42] You mentioned that you're applying for cert from the Supreme Court on the ultrasound law. But the Supreme Court also recently decided to hear the Louisiana law that requires admitting privileges for doctors who are performing abortions.

But it seems like all of these different efforts and all of these states are pointing towards one goal, in many ways: which is to overturn Roe v. Wade in one way or another either piece by piece or wholesale.

What do you think will happen in Kentucky if Roe is in fact overturned?

HEATHER:
Well, as I mentioned before we have now what we refer to as a “trigger ban,” which means that if the Supreme Court were to overturn Roe, abortion would automatically be outlawed here in Kentucky. So that is already on the books here.

We all know, of course, that patients need to access abortion care, no matter what the state law says about it. So we certainly are cognizant that even if abortion becomes outlawed in Kentucky that patients will need to go somewhere for this care. And we are located not too far from Illinois, which is a place where patients can access care if they need to. But that means you know driving even farther, taking even more days off work, and getting child care for even longer.

So the kinds of logistical supports that we have here on the ground are going to be called upon I think tenfold in order to provide the resources that patients need to travel even farther for the care that that they're going to need to access. And I think it's important of course to note that, you know, Kentucky is a state -- there are others across the country -- where even though Roe has not been overturned by the Supreme Court, abortion has been harder and harder to access here.

[00:14:25] So this is an example of a place where the ability to access this care can be whittled away, even short of reversing Roe itself. Unfortunately, we are sort of a poster child for that problem. So far, these restrictions are struck down pretty pretty across the board but we'll see what happens once they make their way up to the Supreme Court.

EMERSON:
How do you sustain your energy in the face of all these challenges statewide? And what gives you hope to continue this fight?

HEATHER:
I joined the ACLU in March of 2017 and I just had no idea how much of my time over the next few years would be spent strictly on abortion cases. I joined thinking we'd have a much more diverse docket.

But I certainly do love this work and getting to know both the folks in the ACLU’s Reproductive Freedom Project, who are the experts on these issues, and especially our clients here in Kentucky, it's been an incredible world for me to join. I can't speak highly enough about the folks that we have here in Kentucky who, against all odds, have been working to provide this access, both employees of the clinic and then also groups that we have on the ground that fund patients’ ability to access abortion care and provide other resources and logistical resources that people need.

[00:15:45] And the folks that we have doing that are just some incredible, incredible people. Very inspirational. And so to the extent that I ever got tired or started to feel somewhat hopeless, I think being a part of this community is certainly enough to lift me up. But then you know, of course, I mean this is a fight that my mother fought when she was in college, and it wasn't one that I necessarily anticipated having to fight myself as an attorney. But it is certainly the circumstance we found ourselves in and I am just really really thankful to be a part of it and to be able to fight alongside the experts in the field to make sure that people still have access to this care.

EMERSON:
[00:16:23:20] Well we're really thankful for all of your energy and all of your efforts and all of your success so far in defending people's right to access abortion. And thank you also very much for taking the time out of your busy schedule to speak with us today. We really appreciate it.

HEATHER:
Sure, sure it's great to talk with you. Thanks so much.

EMERSON:
[00:16:41] And now we head north.
NEWSCAST:
It will be the single-most important events since Roe vs. Wade in the state of Maine.
EMERSON:
As certain states do everything they can to ban abortion, others, like Illinois, New York, and Vermont, are expanding access. Recently, the ACLU of Maine was instrumental in doing away with barriers to reproductive care. Zach Heiden, the legal director of the ACLU of Maine, is on the line to explain how they did it. Zach, welcome to the podcast.
ZACH HEIDEN:
[00:17:11] Hey thanks Emerson. Great to be here.
EMERSON:
So switching from Kentucky, where things are quite difficult, to Maine, where it's a slightly different story, but not always easy. You recently sued over abortion access in your state. Can you tell us about what happened?
ZACH:
Sure. Things are very different here in Maine than in much of the country. Just this year, the Maine legislature and the Maine governor expanded access to abortion in two really important ways.
They authorized the payment of state funds to cover people who were Medicaid eligible to get abortion care and they removed a barrier to people who are not physicians, like advanced practice clinicians, nurse practitioners, physicians’ assistants, to perform abortions. Those changes, though they were legislative, came about because of two lawsuits that we had filed here at the ACLU that we'd initiated: one in 2015 and one in 2017. So things are definitely going in a different direction here in Maine than they are in much of the country.
EMERSON:
And in those lawsuits what were you asking for and what were you trying to address?
ZACH:
[00:18:17] So in 2015, we filed a case called Mabel Wadsworth Center vs. Mayhew. And that was a challenge to Maine's ban on Medicaid coverage for abortion. The Mabel Wadsworth case was a challenge to the legality and constitutionality of Maine's decision not to provide abortion coverage for people who use Medicaid.
Now, as you probably know, the U.S. Supreme Court said, under the federal constitution, there's no problem with denying people access to abortion care who use Medicaid. But since then -- 1980 -- numerous states have tried to reach different results under their state laws or their state constitutions. And we were trying to do that here in Maine with the Mabel Wadsworth case, which we filed almost four years ago.
The second case is Jenkins vs. Lynch, which we filed in 2017. And that was a challenge to a Maine law that blocked nurse practitioners and advanced practice clinicians from performing abortions.
In Jenkins, we argued that Maine's restriction on advanced practice clinicians performing abortion was unconstitutional because it had no medical or scientific basis. It was simply a prejudice against fully qualified primary health care clinicians performing procedures or providing medical care that was well within their scope of practice.
So that was a federal case and the Mabel Wadsworth case was a state case. And those cases were both working their way through the court system when the Maine legislature stepped in to address these issues through the political process.
EMERSON:
It's an amazing story and echoes how influential the legislature in Kentucky is as well.
The courts are playing a role, but the legislature is obviously playing an enormous role. And when Maine's legislature decided to improve access to abortion, what was the impact for women in Maine? How did how did their access change in real life?
ZACH:
[00:20:23] The impact of these two pieces of legislation is tremendous. The issues in both of these lawsuits really has a tremendous impact on people, particularly people who are low-income people, who are otherwise in vulnerable situations. Maine is a huge rural state, so people that live far away from cities and far away from a lot of medical care were were impacted and their access to health care and particularly abortion care was dramatically improved by these two changes.
First, many people in Maine who rely on Medicaid, who use Medicaid for their health insurance, are from disadvantaged groups, marginalized groups, people who are living in poverty. And now they're going to be able to access abortion care on the same level as other pregnancy-related care, if the if the law is implemented in the way that we think it ought to be implemented.
And second and no less significantly, people who live in rural areas or people who are poor are more likely to depend on nurse practitioners and other advanced practice clinicians for their medical care. And now they're going to be able to use those clinicians to rely on them for abortion care as well, in addition to all of their other regular medical care. So they don't have a disconnect between who's providing abortions and who's providing their general medical care.
NEWSCAST:
Maine Speaker of the House Sara Gideon, a Democrat, presented the bill, which Governor Janet Mills supports.
SARA GIDEON:
Now we have advanced clinicians, people like nurse midwives and physicians’ assistants and nurse practitioners, whose scope of practice includes similar services and who are very, very capable of safely performing these services.
EMERSON:
[00:22:14] Well of course, the ACLU and the ACLU of Maine have filed a lot of lawsuits over the years challenging all sorts of things in the area of abortion but also in all sorts of other areas. It's not every lawsuit that leads to a change in law and dramatic increase in access to abortion. How did you have such success with this campaign? Any lessons that we can learn from this from this effort?
ZACH:
Our goal was not only to expand access here in Maine, but to expand access, in addition to the normal work, the day-to-day work, which too often is playing defense. Right? And we do a tremendously good job at playing defense.
But in states like Maine, and there are other states like this across the country, where there is an opportunity to expand access. We need to take that opportunity. Right?
We need to take advantage of that and show that we're not going to simply be content with the status quo, because the status quo means for many women the right to access abortion only exists on paper. It's not a real meaningful right, because either they can't afford an abortion or because they live too far away from a doctor who can perform an abortion. So both of these cases were really about expanding, not just fighting against contraction.
Without these lawsuits there's no way that the legislature would have been as interested in these issues and there's no way that the public would have known about these problems, which we had to document very deliberately and conscientiously for the lawsuits.
Bringing the lawsuits was helpful for the litigation -- and that would have, you know, I think we would have ultimately been successful if we hadn't gotten the legislation -- but it was also a very powerful tool to organize around and to raise awareness and to communicate with the public through the press. So I think that's one of the wonderful things about the ACLU, where we have access to organizing and legislative advocacy and litigation advocacy and we can work on all those things together to solve a problem.

EMERSON:
[00:24:18] And playing offense in this way is all the more important, in some ways, because the status quo, which is problematic as it is, is also eroding. I mean, there's a lot of effort by some of our opponents to chip away at or even overturn altogether Roe v. Wade. And so these states, like Maine, that are playing offense are becoming potential havens in a way for access to abortion. What happens in Maine if Roe v. Wade is actually overturned?
ZACH:
So in Maine, if Roe vs. Wade is overturned, if the U.S. Supreme Court decides that there's no longer a federal protection for the right to access abortion, Maine has a law on the books that says Maine will continuem as a matter of public policy, to prevent restrictions on access to abortion. And other states have these so-called “reproductive privacy acts.” We used that in this case, in the Medicaid case, to argue that that was Maine's public policy and that this Medicaid restriction was contrary to that public policy.
But, you know, there are states, like Maine, that have adopted this legislatively and for states that haven't but where the political climate might be supportive of such a thing, it might be something to consider. Now, we don't want to think that like geography is destiny and that people who live in Maine are going to continue to have access to abortion care but other parts of the country aren't. You know we're one country with one constitution, one federal constitution, that should protect this for everybody.
But we know how determined our opponents are to chip away as you say access to abortion and we have to make sure that whatever backstop there is in whatever states is possible, that that exists.
EMERSON:
[00:26:05] And just to complicate the picture a bit. There's still all sorts of barriers to access in terms of, as you mentioned people living in rural areas far from the few cities and medical providers. Are there any other sort of challenges to access to abortion that you think are still to be overcome in a place like Maine?
ZACH:
You know, I think it's a day-to-day challenge to make sure that people who are marginalized, people who are having a very difficult time of life already, people for whom the system is already stacked against them, have access to the basic necessities of life. And that includes medical care, certainly, in addition to education and other sort of basics of life. You know, the system, as our country gets more and more unequal, it becomes more and more difficult for people who are really struggling to access those basic necessities. We're not talking about luxuries. We're talking about the basics of of life. You know, looking for systemic issues is certainly something that we at the ACLU try to tend to focus on.
But at the community level and at the individual level those barriers are still there, still exist. And I think even with these incredible advances and these laws are gonna make a huge difference. But despite that, there's still going to be people who don't have all that they need.
EMERSON:
Well Zach, we appreciate all that you've done and all that you've accomplished so far and also all that you still have to do. And we're sure that you will be equally successful in the future. And thanks also for taking the time to speak with us. We appreciate it.
ZACH:
[00:27:40] Thanks. It's been my pleasure.
EMERSON:
[00:27:45] Thanks very much for listening. If you enjoyed this conversation please be sure to subscribe to At Liberty wherever you get your podcasts, and rate and review the show. We really appreciate the feedback. ‘Till next week, peace.

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