Justice Kennedy and the Undue Burden

By Catherine Roseman

Next year the U.S. Supreme Court, or more precisely swing vote Justice Anthony Kennedy, will decide whether to defend safe, legal, and equitable access to abortion in the United States or to restrict its availability to wealthy women in blue states.

In its 2016 session, the Court will hear Whole Woman’s Health v. Cole, a case that challenges the constitutionality of HB2, an omnibus anti-abortion bill passed in Texas in 2013. Wendy Davis blocked the first vote on this bill with her famous 11-hour filibuster in pink tennis shoes, but shortly thereafter then-Governor Rick Perry called a special legislative session and the bill passed. HB2 includes many provisions that restrict abortion access, including limiting the ability to administer medication abortion to physicians, banning telemedicine abortion, and banning abortion past 20 weeks gestation.

Two provisions will be considered by the Court: ambulatory surgical center (ASC) requirements, which mandate that any clinic providing abortions be built to strict hospital-like standards; and admitting privileges, which require that doctors providing abortions be able to admit patients to a hospital within 30 miles of their practices. Both of these provisions reflect an increasingly common legislative strategy called Targeted Regulation of Abortion Providers (TRAP) to limit abortion access. Enacted under the weak guise of protecting women’s health, these laws are medically unnecessary and put women at greater risk for complications. Abortion is one of the safest medical procedures in the United States: fewer than 1% of all patients who undergo it have complications that require hospitalization.

Under the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, states may impose a range of requirements on women seeking abortion, but they may not impose obstacles so great as to place an “undue burden” on women. The Court ruled that states are free to regulate abortion to protect women’s health, but not in order to hamper their access to abortion. In Whole Woman’s Health, the Court is expected to examine whether the admitting privileges and ASC requirements of HB2 constitute an undue burden on women seeking abortion.

Before HB2, there were 41 abortion clinics in Texas; there are now 17, which are almost all located in major cities. If the Court upholds both the admitting privileges and ASC requirements, there will be 10 clinics in the entire state of Texas. The average county in Texas is 111 miles from a clinic, nearly double the national average of 59 miles. Women in west Texas counties must travel an average of 250 miles. A fifth of all counties in Texas are over 100 miles further from a clinic today than then they were in 2012, before HB2 was enacted.

Seven additional clinics will close if the Court upholds HB2. These seven closures would not drastically change the travel distance for an abortion beyond the large increases wrought by the initial spate round of closures, but it would increase the average cost by 15% to an average of $701 per procedure (including travel costs but not accounting for expenses incurred through lost wages and childcare). This is because those seven clinics offer less expensive procedures than the clinics that are already licensed as ASCs. Converting a freestanding clinic to an ASC can cost over $1 million upfront and increase yearly operating costs anywhere from $600,000 to $1 million.

Furthermore, as the number of clinics decreases, the time patients must wait for an appointment increases. As women move later into their pregnancies, they pay more for the procedure. Some end up past Texas’ 20-weeks gestation limit and cannot obtain a procedure safely and legally. A recent study by the Texas Policy Evaluation Project at the University of Texas at Austin concluded that anywhere from 100,000 to 240,000 Texas women have attempted to self-induce abortion without medical assistance. The methods commonly used to self-induce are taking misoprostol, which is the second of two drugs used in a typical, legal medication abortion regimen in the U.S. (Texas women can obtain it in Mexico or on the black market); or attempting to use herbs, alcohol, illicit drugs or even a punch in the abdomen. Misoprostol is often an effective and safe method, but some of the others are neither effective nor safe.

The burden that HB2 places on Texas women is not only undue, it is unjust and unsafe. The purported purpose of HB2 is to protect women, but it does exactly the opposite. Because of dwindling clinic numbers, women are forced to travel long distances and take extra time off work, arrange and pay for childcare (a common factor given that 61% of women obtaining abortions already have at least one child), have the procedure later in their pregnancy than they wanted (appointment wait times in Texas have increased from average of 5 days to 20-30 days) or resort to unpredictable, unsafe and/or illegal methods of self-induced abortion. HB2 blatantly places undue burden on women seeking abortion. The real question is, to what extent will Justice Kennedy enable Texas (and other states) to continue to use TRAP laws to oppress a woman’s right to choose safe and legal abortion?

Catherine Roseman is an Administrative Assistant in the Healthcare Division at Planned Parenthood Federation of America. The views expressed in this piece are solely her own.







Photo courtesy of RH Reality Check.

Leaving Didn't End His AbuseOne Woman's Battle Against Revenge Porn

She left him one afternoon, taking only her children and a basket of clothes.

But leaving didn’t end his abuse.

The threats began swiftly. He sent her an intimate video of them that she didn’t know existed—a video taken without her consent—and threatened to post it online, starting with the Facebook page of her employer. He also threatened to post explicit photos of her. Though some of the photos were taken consensually, they were never intended to be viewed by others.

“When a person takes photos in the privacy of her own home, with her husband, the father of her children, [she] is not being dumb or making bad choices,” says Karen.

He was arrested—not for threatening her, but for violating the protection order she had obtained against him. But she knew the video and photos would haunt her as long as they were in his possession. While he was incarcerated, Karen was granted an order from the court requiring his family to give her the computer with the photos, but she never received the device. As a single, working mother, she didn’t have the time or resources to fight him and his family in a civil suit.

By the following year, her life seemed to be turning around. She had moved her family to safety, was engaged to a caring, supportive man, and was on the job hunt. She had a job interview that went really well, and was all but guaranteed a follow-up meeting. She left full of promise, but the next day she received a suspiciously curt email declining her as a candidate for the position. Her heart sunk; she knew something was wrong.

It only took one Google search for her life to fall to pieces. The pages were full of intimate images of her, posted for the world to see.

“If anyone were to Google my name at that time, there is no way they would miss my naked body plastered all over the Internet,” Karen told Seattle Met earlier this year. “By a man I had trusted, that I had called my husband.”

Some of the images were taken with her consent, some were taken without, and some images featured her face on other women’s bodies. Her abuser had created a blog to share the photos, tagging her by name—including her maiden name, married name, and her fiancé’s last name that she would eventually take as her own—and divulging personal details of her life. She knew why she didn’t get that job. And she immediately feared for her safety.

“I had to remind myself to breathe,” says Karen. “I was so scared, and so overwhelmed. I had to remind myself to take breaths, and to be there for my children.”

She sought help, but instead found a cold truth: no one treated his actions as a crime. But we were working to change that.

Karen was referred to Legal Voice in her search for a family law attorney who understood domestic violence and abusive litigation issues; we connected her with an attorney, but her story stuck with us. We later invited her to testify before the Washington Senate in support of the nonconsensual pornography bills for which we advocated in the 2015 session.

“Being a survivor is a very lonely place,” says Karen. “But I am fighting to help pave the way for those who don’t have the support and strength to use their voice.”

Thanks in part to her testimony—and to our donors whose support funded our strong advocacy efforts—the Washington State Legislature voted unanimously to create both civil and criminal penalties for disclosing sexually explicit images of someone without her consent. Washingtonians now have clear remedies for this devastatingly violating crime. And we couldn’t have done it without you.

So today, on Giving Tuesday, Karen is asking you to continue your support of Legal Voice: “Legal Voice made me feel like my voice and my experience mattered. I’ve never felt so much true support and warmth at any point in my journey,” says Karen. “They are working on the things that will really, truly make a difference. That alone makes me want to support Legal Voice as much as possible—and I hope you will join me.”

Please join the Giving Tuesday movement and help us reach our $5,000 goal by making a gift to Legal Voice today. Your support allows us to continue making real, lasting change for women like Karen, and all women in the Northwest.