Womenstake

Third Time's the Charm – Unfortunately: Arizona Enacts Copycat Abortion Ban

by Jen Swedish, Health Law Fellow, 
National Women's Law Center 

After two previous attempts were thwarted by governor’s veto, anti-choice legislators in Arizona have finally managed to enact a state copycat of the federal abortion ban upheld in Gonzales v. Carhart.  Ever since the Supreme Court’s 2007 decision upholding a ban on an abortion procedure some doctors deemed necessary to protect a woman’s health without an exception to protect a woman’s health, many states have eagerly tried to copy the ban, wanting to enact their own version.

And, Arizona was no different.  During the legislature’s 2008 session, then-Governor Janet Napolitano vetoed two state copycat bans.  Not to be deterred, anti-choice legislators introduced a third copycat ban early in 2009, hopeful that it would fare better under Napolitano’s replacement, Governor Jan Brewer.  Although we hoped that the state legislature would reject the copycat ban, the bill passed the House in March and passed the Senate last month. 

Gov. Brewer signed the copycat bill into law last week, proving – unfortunately – that the third time’s the charm.

The Sotomayor Confirmation Hearings: Day One

by Jen Swedish, Health Law Fellow, 
National Women’s Law Center 

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

Today, the first day of Judge Sonia Sotomayor’s confirmation hearings, we’ve seen a little bit of everything.  A few highlights:

• Chairman Patrick Leahy began the proceedings, touting Judge Sotomayor as “a careful and restrained judge with a deep respect for judicial precedent", her impressive record of accomplishments and her broad range of legal experience – points that were echoed by many other Senators, especially – but not exclusively – those on the Democratic side.
• Ranking Member Jeff Sessions instead emphasized what is sure to be a counter theme throughout the hearings – that Judge Sotomayor’s “empathy” precludes her from administering justice impartially.  According to Senator Sessions, “Empathy for one party is always prejudice against another.” He seemed to preclude the possibility that one might have empathy for both sides.
• Senator Amy Klobuchar, one of only two female senators on the Senate Judiciary Committee, echoed others in highlighting the historic nature of today’s hearings, noting that Judge Sotomayor is only the third woman nominated to the Supreme Court and the first Latino.
• Senator Lindsey Graham told Judge Sotomayor, “Now, unless you have a complete meltdown, you're going to get confirmed,” and signaled his openness to supporting her confirmation.
• The hearings were interrupted – not once, not twice, but three times – by anti-choice protestors, who were quickly escorted from the hearing room. 
• Senator Diane Feinstein, a veteran of past confirmation hearings, emphasized how important it is that nominees answer honestly, decrying what seemed like assurances of previous nominees that they would protect key rights, only to undermine those rights once on the Court.
• Senator Al Franken noted that today was only his fifth day on the job, acknowledging that he has much to learn from both his fellow committee members and Judge Sotomayor, and his intention to explore a broad range of subjects from the perspective of someone who is not a lawyer.
• Introducing Judge Sotomayor, Sen. Chuck Schumer teared up a bit as he talked about her childhood and how much she had accomplished.
• Senator Kristen Gillibrand also introduced Judge Sotomayor, thanking President Obama for recognizing “the importance of women’s voices on the nation’s highest court.”
• And, finally, Judge Sotomayor herself got the opportunity to speak.  In a brief statement, she movingly thanked her mother for the “aspirations and sacrifices” that enabled her to be here today.  She talked about the different perspectives from which she has experienced our country’s judicial system – as a big-city criminal prosecutor, a corporate litigator, a trial judge, and an appellate judge.  Speaking of her experience as a judge, she emphasized that her goal was “always to serve the larger interest of impartial justice” and cited “fidelity to the law” as her judicial philosophy (Take that, Senator Sessions!)

Concluding her remarks, Judge Sotomayor said she looks forward to answering the Senators’ questions, to having the American public learn more about her, and to being part of a process that reflects the greatness of our Constitution and our nation. Tomorrow is when the questioning begins – and when the public will truly have the chance to take the measure of this extraordinary woman.

Women & Privacy: Questions for Judge Sotomayor

by Jen Swedish, Health Law Fellow,
National Women's Law Center 

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

As Marcia mentioned we at NWLC are eagerly anticipating next week’s Senate Judiciary Committee nomination hearings. The hearings present a unique conversation between the nominee and Senators on the Committee about many of the legal issues that come before the Supreme Court, including the right to privacy, equal protection under the law, antidiscrimination protections, health and safety regulations, and more. It’s likely the only time that the public will get to hear Judge Sotomayor explain her views about these and other critical legal rights and protections, outside of her written opinions on the bench. 

So let’s focus on the first of these. The constitutional right to privacy is of key importance to the women of this country. This right protects many aspects of Americans’ daily lives, including decisions involving whether to bear children, the ability to keep medical records private, the right to live with extended family members of one’s choosing, and having consensual adult sexual relations. 

Nowhere is the constitutional right to privacy under more assault than in its application to Roe v. Wade. In 2007, in Gonzales v. Carhart, the Court in a 5-4 decision upheld a federal law banning a medically-approved abortion procedure, overturning over three decades of constitutional law protecting women’s health and putting in jeopardy the fundamental freedom of women to secure the safest abortion procedure for them. Emboldened by this decision, state legislatures have been considering numerous bills designed to further restrict women’s access to abortion and even to test Roe v. Wade’s continued existence by outlawing abortion altogether. These laws, if passed, will likely be challenged, eventualy up to the Supreme Court.

Women want to learn more about Judge Sotomayor’s perspective on the right to privacy broadly, and its application to Roe v. Wade more specifically, during her nomination hearings. 

In her seventeen years on the federal bench, Judge Sotomayor has never ruled directly on the right to abortion. Tom Goldstein at SCOTUSblog provides a detailed look at her previous opinions, noting that based on these cases, it’s difficult to predict how she would rule on questions related to abortion. 

Previous Supreme Court nominees have been asked about their perspectives on the constitutional right to privacy, as well as what they think about Supreme Court decisions like Griswold v. Connecticut and Roe v. Wade, in which the Court upheld this right in relation to women’s reproductive rights. While nominees’ answers have been carefully crafted, there have been subtle differences that have given signals as to their approach on key issues once on the bench. The Center will be analyzing Judge Sotomayor’s answers to learn how she views this fundamental right.

The Ninth Circuit Gets it Right . . . Finally!

by Jen Swedish, Health Law Fellow, 
National Women's Law Center 

Yesterday, the Ninth Circuit Court of Appeals ruled that the State of Washington can fully enforce a rule passed by its pharmacy board that ensures patient access to medication. As we’ve reported before, back in 2007, two pharmacists and a pharmacy challenged the rule in court, because they objected to providing emergency contraception. A lower federal court decided in favor of the challengers, issuing a preliminary injunction that halted the rule as it applied to Plan B emergency contraception.

While the appeal was pending, Washington argued that it should be allowed to enforce the rule in its entirety, but the Ninth Circuit upheld the lower court’s preliminary injunction. This meant that until the Ninth Circuit could decide the merits of the case, Washington women who wanted EC were at risk of delay in accessing the time-sensitive medication because of a refusing pharmacist.

The Ninth Circuit finally decided the merits of the appeal yesterday and said that the lower court was wrong to issue the broad injunction. The pharmacy and pharmacists who brought the case claimed that requiring them to provide EC violated their right to free exercise of religion under the First Amendment. The Ninth Circuit held that the district court should not have applied heightened scrutiny to analyze the rule’s affect on religious freedom. According to the appellate court, the rule’s purpose was not to eliminate religious objections to the delivery of lawful medications, but rather to eliminate all objections that do not ensure patient health, safety, and access to medication. As such, the rule was a neutral law of general applicability, which must withstand only rational basis review to pass constitutional muster. Although the Ninth Circuit sent the case back to the lower court to apply the correct standard of review, it suggested that the rule would likely pass constitutional muster.

Finally, yesterday's Ninth Circuit decision assures Washington women access to EC at the pharmacy!

Emergency Contraception – Some Good News and Some Bad

by Ellen Newcomb, Program Assistant, 
and Jen Swedish, Health Law Fellow, 
National Women’s Law Center 

Last Wednesday, the FDA approved a generic version of the emergency contraception pill, Plan B. For now, this new generic version of emergency contraception (EC) will only be available with a prescription to women ages 17 and under. The generic (thus, less expensive) version may become available over-the-counter to women 18 and over in August, when Duramed Pharmaceuticals will no longer hold marketing exclusivity for nonprescription use of Plan B. (You may recall that a court recently ordered the FDA to make EC available to 17-year-olds without a prescription and to reconsider its decision to impose any age restrictions at all on nonprescription use of EC. The FDA has begun the process to enable 17-year-olds to access EC over-the-counter, but – for now – 17-year-old women still need a prescription, but they will have access to the generic version of EC.)

Currently, over-the-counter Plan B can cost up to $55 for women 18 and older. Private insurance companies may not cover Plan B because drugs sold over-the-counter are often not covered by insurance, and some state Medicaid programs won’t cover it at all. The generic version will lower the cost of EC, making EC more accessible for the women who need it.

But, with the good comes the bad. Arizona and Louisiana are both about to enact laws that will make it more difficult for women to access EC and other vital reproductive health care services.

A harmful refusal bill in Arizona has successfully made its way through the state House and Senate and is waiting for Governor Jan Brewer’s signature. Among other anti-choice provisions, HB 2564 allows any pharmacy, hospital, or health professional, or any employee thereof, who cites a moral or religious objection, to refuse to provide EC. If this bill is enacted, Arizona hospitals could deny EC to sexual assault survivors and pharmacists could refuse to provide EC to women who need it, even though EC is a time-sensitive drug that is most effective in the first 12-24 hours after birth control failure, unprotected sex, or sexual assault. In addition to allowing refusals for EC, the Arizona bill would also allow pharmacists and pharmacies to refuse to fill prescriptions for some of the most widely used forms of birth control. We’re hoping that Governor Brewer recognizes that this bill will harm women’s access to vital health services and that she’ll veto the bill.

Wasting Women's Time with Abortion Restrictions

by Jen Swedish, Health Law Fellow, 
National Women's Law Center

As you are probably aware, this is National Women’s Health Week, and the theme is “It’s Your Time.”  Since Monday, my colleagues have blogged and vlogged about the importance of timing for women in health care – and health insurance coverage, in particular. 

Timing is also crucial for women seeking reproductive health care services.  Twenty-four states currently require women to receive counseling and then wait, usually for 24 hours, before they can receive abortion care.  Proponents of these laws often argue that the counseling and waiting period is essential to ensure that a woman seriously considers the information she has been given before she decides to have an abortion.  Opponents, on the other hand, contend that women are able to make informed decisions about their pregnancies without state-mandated counseling and waiting periods. 

A new report from our friends at the Guttmacher Institute provides fodder for the opponents’ arguments.  Guttmacher found that these laws do not, in fact, cause women to change their minds about having an abortion and, in reality, have very little impact on birth and abortion rates.  A troubling finding of the report indicates that mandatory counseling and waiting period laws may actually postpone the timing of some abortions, increasing the likelihood of more expensive and less safe second-trimester procedures.

As National Women’s Health Week draws to a close, I’d like to emphasize that mandatory counseling and waiting period laws needlessly waste women’s valuable time without benefiting their health. 

New EC in the ER Laws Protect Survivors of Sexual Assault in DC and Utah

by Jen Swedish, Health Law Fellow, 
National Women's Law Center 

As I’ve blogged about before, thus far in the 2009 legislative session, state legislators around the country have introduced a number of bills related to emergency contraception (EC). EC, also known as the “morning after pill,” is a safe and effective way to prevent pregnancy, which is most effective if used within the first 12-24 hours after sex.

Timely access to EC is especially important for survivors of sexual assault, which DC and Utah recently recognized by enacting new EC in the ER laws. These EC in the ER laws require that emergency rooms provide sexual assault survivors with information about and access to EC. With their newly enacted laws, DC and Utah join fourteen other states in recognizing that EC is a critical component of a comprehensive medical response to sexual assault. Kudos to DC and Utah!

Pharmacy Refusals 101: State Legislative Update

by Jen Swedish, Health Law Fellow, 
National Women’s Law Center  

As we’ve mentioned before, the problem of pharmacist refusals just isn’t going away! Around the country, pharmacists refuse to fill valid prescriptions for contraception or sell emergency contraception over-the-counter (EC OTC) based on their personal beliefs. The issue also continues to receive attention from state legislators, as shown in our newly updated Pharmacy Refusals 101 factsheet.

So far in the 2009 legislative session, 12 states are considering 19 proactive bills to prohibit or limit refusals. The majority of these bills would prevent pharmacies or pharmacists from denying access to contraception based on personal beliefs, including 12 bills that would apply to EC OTC. 

Unfortunately, legislators on the other side of the issue are also actively working on this issue. So far, legislators in 11 states have introduced 14 bills that would permit pharmacists to refuse to fill prescriptions based on their personal beliefs without providing any protections for the patient. A few of these refusal bills are moving:

• In mid-March, an omnibus anti-choice bill passed out of Arizona’s House of Representatives and is now awaiting action in the Senate. Among other provisions, this bill would allow pharmacies and pharmacists who cite a moral or religious objection to refuse to provide EC. 
• Just this week, Idaho’s House passed a bill allowing a pharmacist to refuse to provide any drug that violates his or her conscience with no protection for the patient. The bill now goes to the state Senate.
• Last month, a Missouri refusal bill was voted out of committee and is currently awaiting action on the House floor. This bill would allow pharmacies to refuse to dispense “abortifacient[s], including but not limited to the RU 486 drug and emergency contraception” – incorrectly classifying EC, an FDA-approved contraceptive, as an abortion pill despite medical consensus to the contrary.

We’re hoping that none of these refusal bills moves any further through their state’s legislative process, but we’ll keep you posted. For more information on pharmacy refusals in the states, check out the extensive resources on our website.

BUYBCD Update: EC in the States

by Jen Swedish, Health Law Fellow
National Women’s Law Center

Today, organizations across the country are participating in Back Up Your Birth Control Day, a campaign to improve access to and educate the public about emergency contraception (EC). 

In honor of BUYBCD, here’s a “state of the states” update on EC-related bills introduced so far in state legislatures across the country.

First, the good news:

• EC in the ER bills to mandate that emergency rooms provide sexual assault survivors with information about and access to EC have been introduced in 12 states thus far in the 2009 legislative session.  An EC in the ER bill is currently awaiting the governor’s signature in Utah, and the Virginia legislature recently passed a measure allowing sexual assault nurse examiners to provide EC to survivors of sexual assault.

• Expanding access to EC – On Monday, a federal court took significant steps to improve access to EC for those younger than 18.  In the meantime, two states have introduced bills this session to permit pharmacists to dispense EC to women of all ages without a prescription from a doctor.  In addition, legislators in New York have introduced a bill that would make EC available upon request to any student at a public college or university in the state.

• Educating the public about EC – A West Virginia bill would implement a pubic education campaign about EC to counter a lack of awareness among both consumers and pharmacists.

• Pharmacist refusals still prevent women from accessing EC.  Thus far in the 2009 legislative session, twelve states have introduced bills to prohibit or limit refusals based on personal beliefs, including seven states that would also explicitly protect access to non-prescription EC.

No One Likes a Copycat

by Jen Swedish, Health Law Fellow
National Women’s Law Center

As we’ve blogged about before, since the 2007 Supreme Court decision, Gonzales v. Carhart, many state legislatures have tried to copy the federal ban on a medically-approved abortion procedure with no exception to protect a woman’s health. These copycat bans are unnecessary—the federal ban is already in effect in every state, so state bans would not prevent a single abortion. Anti-choice state legislators simply want their own versions of the federal law to penalize doctors more harshly. 

According to our friends at the Guttmacher Institute, copycat bans have been introduced in 7 states thus far in the 2009 state legislative session. A few of these bills are moving:

• In early March, Kansas’s copycat ban passed the House, and it’s now in the Senate.

• Last week, Arizona’s copycat ban, which we’ve mentioned before, passed the House. It now goes to the Senate, where a companion bill is already pending.

One bill has even become law already—Arkansas’s copycat ban moved swiftly through the state legislature and was signed by the governor in February. 

Someone should clue these states in—no one likes a copycat!