3 Bad Opinions: A Frustrating Week for Women’s Rights and Health

Last Wednesday started off a week’s worth of bad court decisions in cases that directly affect women’s reproductive health.

It all started off with the 8th Circuit upholding a South Dakota law that requires doctors to tell a woman seeking an abortion that she would be subjected to “increased risk of suicide ideation or suicide” if she had an abortion. The court seemed unconcerned with the fact that a woman would likely interpret the disclosure as telling her that having an abortion would cause her to be at an increased risk of suicide (a link the scientific studies do not support). Making constrained arguments about relative risk and scientific “uncertainty,” the court rubberstamped a misleading disclosure that will only confuse women in South Dakota seeking abortion care. Decision outcome: it’s ok to mislead women? Check.

Second, a district court in Colorado temporarily stopped the health care law’s contraceptive coverage requirement from taking effect for a for-profit CO company, which specializes in heating and cooling systems, based on the claim that requiring coverage of birth control in a health insurance plan violated the company’s religious freedom. After the judge determined that questions like whether a for profit HVAC company can exercise religion “merit more deliberate investigation,” the court then decided that the government had failed to show it had a compelling interest in providing women access to contraceptive coverage and that there were less restrictive means for doing so. Decision outcome: it’s ok for your boss to make health care decisions for you? Check.

Now, it’s important to remember that this decision is only temporary and the judge could change his mind after more extensive briefing. But it does make me pause for a moment. Would this judge have made the same decision if it was an HVAC company refusing to cover a blood transfusion or immunizations? Are the facts here – i.e. that we are talking about women’s reproductive health – dictating the result?

Which brings me to the third bad case of the week, where a district court in Arizona decided that a pre-viability abortion ban can go into effect [after emergency briefing, the 9th Circuit just granted a temporary injunction that prevents the ban from going into effect as the court considers the challenge to the ban]. The district court decided that the abortion ban is not a ban, but just another abortion regulation because the ban has an extremely limited exception. What? I’m sorry but a law that outright bans almost every abortion after 20 weeks gestation is a ban. 

The district court also held that the “regulation” was not a substantial obstacle for a woman to get an abortion after 20 weeks gestation. Huh? With this law, you are actually barred from getting an abortion. I think being blocked from getting an abortion is the definition of a “substantial obstacle.” Decision outcome: politicians can deprive women and their providers the right to make a personal medical decision? Check.

The Arizona district court’s dismissal of the concerns raised by the ban’s challengers is what makes the decision so troubling, and reminds me of other similar opinions from the last six months (like the 5th Circuit decision upholding the ultrasound requirement and the 4th Circuit decision rejecting the requirement that crisis pregnancy centers disclose that they do not provide abortions or contraceptives).

What is happening is that not only are these judges ignoring the law, but also the reality of women affected by the laws. They ignore the reality of how covering contraception with no co-pays (especially where the woman’s health insurance plan did not previously cover contraception) can make a big difference to a woman deciding whether to purchase groceries or her birth control. They ignore the woman who finds out about a severe fetal abnormality after 20 weeks. They ignore the woman who hears that having an abortion puts her at an increased risk of suicide when the science doesn’t really say that. These decisions blatantly ignore the women their decisions directly affect.

Decision outcome: Women’s reproductive health hurt yet again? Check, check, and check.