TIME Supreme Court

Supreme Court Keeps Texas Abortion Clinics Open for Now

Blocks restrictions from going into effect until the court decides whether to hear appeal

The Supreme Court voted Monday to temporarily block several abortion restrictions in Texas until the court decides whether to take the case on appeal.

The Court voted 5-4 to grant an emergency reprieve from the restrictions, which would have forced many Texas abortion clinics to close. Earlier this month, a lower court upheld the two restrictions, which would have required abortion clinics to meet the same building, equipment and staffing standards that surgery hospitals must meet, and required physicians who administer abortions to have admitting privileges at a local hospital. If upheld, the restrictions would force half the abortion clinics in Texas to close, leaving the state with fewer than a dozen clinics. Justices Stephen G. Breyer, Elena Kagan, Sonia Sotomayor, Anthony M. Kennedy and Ruth Bader Ginsburg were the five majority votes, according to SCOTUSblog.

The Fifth Circuit Court previously sided with the Texas legislature, writing that the restrictions “protect the health and welfare of women seeking abortions,” and adding that “there is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions.” Major medical groups like the American Medical Association say that the restrictions “impede, rather than serve, public health objectives,” and reproductive rights advocates say they’re expressly designed to restrict access to abortion.

“We are grateful the Supreme Court has stepped in to protect women’s access to safe, legal abortion, for now. Restricting or banning abortion blocks women from getting safe medical care,” Planned Parenthood president Cecile Richards said in a statement. “This dangerous law never should have passed in the first place — which is why we need to elect leaders who will champion women’s health and rights.”

The Supreme Court decision does not strike down the restrictions—it merely prevents them from going into effect until the Court decides whether or not to hear an appeal from the clinics. If the law stays as it is, the abortion regulations in Texas will be among the most restrictive in the country.

The Court is also hearing a similar case from Mississippi, involving the requirement that doctors get admitting privileges at a local hospital. If the Court upholds that restriction, the last remaining abortion clinic in Mississippi may be forced to close. The Court may issue a decision on that case as early as Tuesday.

TIME Poland

Women’s-Rights Groups Plan to Deliver Abortion Drugs to Poland by Drone

The move is designed to circumvent strict Polish laws on abortion

Four women’s-rights organizations based in Germany and Poland are planning to deliver WHO-approved abortion pills by drone from Germany to a Polish border town.

The drone will carry the drugs from Frankfurt an der Oder to women across the river in the Polish town of Slubice, in a bid to get around Poland’s restrictive abortion laws

The delivery will also hopefully bring attention to the discrepancy between Poland’s abortion laws and those of other European countries, says one of the organizations involved, Women on Waves.

Poland, a staunchly Roman Catholic country, is one of the few places in Europe where women can only get a legal abortion if there is proof of rape or incest, if the mother’s life is endangered, or if the fetus is severely malformed.

The drugs scheduled for delivery on June 27 are mifepristone and misoprostol. They can be taken without medical supervision for pregnancies of less than nine weeks, Women on Waves says. Inducing miscarriage is not an offense under Polish law.

Women on Waves adds that, since the drone won’t be flying through controlled air space and weighs less than 5 kg, it does not require authorization from the Polish or the German government.

TIME Courts

Federal Court Upholds Key Parts of Texas Anti-Abortion Law

The decision could leave as few as seven abortion clinics in the state

(AUSTIN, Texas) — A federal appeals court upheld key parts of Texas’s strict anti-abortion law on Tuesday, a decision that could leave as few as seven abortion clinics in the nation’s second largest state.

The decision by the 5th U.S. Circuit Court of Appeals comes in a lawsuit challenging some of the toughest abortion restrictions in the country, including requirements that all abortion-providing health clinics employ hospital-level operating standards.

Owners of small clinics argue that those standards demand millions of dollars in upgrades they can’t afford. They and other abortion-rights supporters say the law is a thinly veiled attempt to block access to abortions in the state, but Republican Gov. Greg Abbott and other conservatives supporting the law say the standards protect women’s health.

The New Orleans-based appeals court, considered one of the most conservative panels in the nation, allowed Texas to enforce the restrictions when abortion providers first sued in 2013. But the U.S. Supreme Court temporarily sidelined the law last year.

Texas currently has about 17 abortion providers, down from 40 clinics in 2012. That sharp decline began after the 5th Circuit upheld another part of the 2013 law that required doctors to have admitting privileges at nearby hospitals.

Under the new restrictions, the only remaining abortion facilities in Texas would likely be in major cities. One exception would be in McAllen, near the Texas-Mexico border, which the 5th Circuit exempted from some restrictions.

But for women in El Paso, the closest abortion provider in Texas would require a 1,200-mile round trip to San Antonio, or they would have to cross the border into New Mexico.

Attorneys for the state dismissed opponents’ arguments about women being burdened by fewer abortion facilities, saying that nearly 9 in 10 women in Texas would still live within 150 miles of a provider.

A new slate of conservative leaders in Texas has vowed to continue stifling abortion-rights efforts. George P. Bush, the son of expected 2016 presidential hopeful Jeb Bush and nephew of former President George W. Bush, made an anti-abortion rally at the Capitol his first public event since being sworn in as land commissioner, along with Abbott’s wife, Cecilia.

TIME abortion

Abortions Fall in Nearly Every U.S. State, Survey Finds

Abortion Bush Abbott
Eric Gay—AP A pro-abortion supporters, foreground, try to disrupt anti-abortion supporters as they march to the Texas Capitol during a Texas Rally for Life in Austin on Jan. 24, 2015.

Even in states where abortion rights are protected

Abortions across the United States have decreased some 12% since 2010, according to a new survey on the most recent data from states’ health departments.

Data analyzed by the Associated Press in a report released Sunday indicates a roughly 15% drop in states that have proposed aggressive anti-abortion laws, including Indiana, Ohio, Oklahoma and Missouri. Similar declines were also seen in states that continue to allow access to abortions, like New York and Washington.

While abortion-rights supporters attributed the drop to greater access to contraceptives and a falling teen pregnancy rate, the report noted, anti-abortion advocates pointed to a cultural shift in which more women are choosing to carry their pregnancies the full term.

[Read more at AP]

TIME Scott Walker

Walker Defends Rape and Incest Position on Abortion Bill

Republican Wisconsin Gov. Scott Walker speaks during a meeting with area Republicans on April 19, 2015, in Derry, N.H.
Jim Cole—AP Republican Wisconsin Gov. Scott Walker speaks during a meeting with area Republicans on April 19, 2015, in Derry, N.H.

Wisconsin Gov. Scott Walker is under fire from Democrats for supporting legislation that would ban abortions after 20 weeks of pregnancy, including in cases of rape or incest.

The unannounced presidential candidate told reporters Monday that he would sign a 20-week abortion ban proposed by the Badger State legislature, regardless of whether it includes rape or incest exemptions.

“I think for most people who are concerned about that, it’s in the initial months when they are most concerned about it,” Walker said. “In this case, it’s an unborn life, it’s an unborn child, that’s why we feel strongly about it. I’m prepared to sign it either way they send it to us.”

A version of the bill passed by the Wisconsin House of Representatives does not include exceptions for rape or incest but does have a provision permitting abortions that would save the life of the mother. It would also allow the mother or father to seek civil damages against a doctor who carried out an abortion after 20 weeks.

The issue is a potentially perilous one for Walker. Polls show broad support among voters, including a majority of Republicans, for legal abortions in at least some instances, such as when the pregnancy is caused by rape or incest. The last three Republican presidential nominees—Mitt Romney, John McCain and George W. Bush—all backed such exemptions.

Walker’s political opponents painted his position as extreme. “Once again, Scott Walker has placed his own rigid, backward ideology ahead of the best interests of the people of his state,” said Democratic National Committee Chair Debbie Wasserman Schultz. “Already, this bill takes away a decision that should be between a woman and her doctor. Already, it doesn’t allow for any exceptions even for survivors of rape or incest. And now, shocking new details show that Scott Walker wants to go even further to take away a woman’s say in her own health. Rape survivors deserve more protections under the law, not less.”

Democrats have had political success in recent years skewering conservatives for ill-considered statements about women’s health. In 2012, Barack Obama earned the support of 56% of female voters, compared to 44% for Romney, after the Democrats made the GOP’s alleged “war on women” a centerpiece of campaigns up and down the ballot. Walker is not the only national Republican to face questions on the issue as the 2016 campaign gets underway. Kentucky Sen. Rand Paul found himself in hot water shortly after announcing his presidential campaign two months ago when he wouldn’t say whether he would support exceptions to abortion bans.

AshLee Strong, a spokeswoman for Walker’s political committee, Our American Revival, defended the governor’s stance. “A majority of Americans agree with Governor Walker that life after five months should be protected,” she told TIME. “Governor Walker has been very clear that he will sign a bill passed by the legislature to ensure the state of Wisconsin protects life after five months.”

“What’s far outside the mainstream in this country is the Democrat Party’s disregard for babies capable of feeling pain,” Strong added. “It’s unfortunate that far-left extremists are eager to twist an issue that most Americans have consensus on.”

Walker’s position on the bill is not new. In a March letter to the conservative Susan B. Anthony List, the two-term governor said he would sign the 20-week abortion ban and advocate for it on the federal level.

Such a stance could be a boon to Walker’s hopes of capturing the Iowa caucuses, which are dominated by social conservative activists. But they could backfire on the all-but-certain presidential contender by leaving him vulnerable to partisan attacks, especially should he become the Republican nominee.

It’s an issue the GOP has hoped to avoid. Since the 2012 election, Republican strategists have sought to neutralize the “war on women” trope by embracing over-the-counter birth control, championing female candidates and largely avoiding rape-related gaffes.

“The Democrats were painting us as the caveman party,“ says Katie Packer Gage, a former top aide to Romney and founder of Burning Glass Consulting, a firm that has focused on helping male Republican candidates talk about issues important to women.

Packer Gage acknowledged Walker’s comments could hurt him. But she said the 20-week abortion ban, if properly handled, could be a winning issue for Republicans in the general election. “We have [Democrats] a bit backed into the corner because the public support is there, even among women,” she told TIME. “Many people believe that if you haven’t figured this out in 20 weeks, well, the decision has probably already been made and you should probably go forward.”

Liz Mair, a Republican strategist and former adviser to Walker, noted that many women who support the right to an abortion draw a distinction between late-term abortions and those performed during the first 20 weeks of pregnancy. Mair, who supports a woman’s right to an abortion in the first trimester, argued it is extreme to support abortions during the final three months of a pregnancy if the mother’s life is not at risk.

TIME abortion

North Carolina OKs Bill for 72-Hour Wait Period for Abortion

Three other states have 72-hour waiting periods: Missouri, South Dakota and Utah

(RALEIGH, N.C.) — North Carolina’s governor says he’ll sign a bill that would make the state one of several with a 72-hour waiting period for abortions.

The state House gave final approval to the bill Wednesday, sending it to Republican Gov. Pat McCrory’s desk.

McCrory issued a statement several hours later saying that he’s pleased with how the bill developed in the legislature over the past few days.

The bill adds other rules for doctors and clinics that perform abortions and includes several unrelated criminal justice measures.

Three other states have 72-hour waiting periods: Missouri, South Dakota and Utah. Oklahoma’s waiting period of that length goes into effect in November.

Since Republicans took over North Carolina’s legislature in 2011, the state has passed several laws aimed at limiting abortions.

TIME Health Care

How a New Study on Premature Babies Could Influence the Abortion Debate

Pro-life advocates say the research supports their arguments

A new study showing that a tiny percentage of extremely premature babies born at 22 weeks can survive with extensive medical intervention could change the national conversation about abortion, though the research is unlikely to have a major effect on women’s access to abortions in the short term.

Anti-abortion advocates said the study—which was published by the New England Journal of Medicine on Wednesday and found that 3.5% percent of 357 infants born at 22 weeks could survive without severe health problems if hospitals treated them—could benefit the anti-abortion movement by sparking discussion about the viability of premature babies.

“Some people are strongly committed to pro-life, some are strongly committed to the other side,” but many fall somewhere in the middle, said Burke Balch, director of the Robert Powell Center for Medical Ethics for the National Right to Life Committee, the non-profit advocacy organization. “The fact that those children could survive will affect those in the middle.”

The anti-abortion movement has tried to shift attention away from women who seek abortions—as in, debates on whether abortion should be allowed in cases of rape or incest—and instead focus on the unborn baby, using the argument that fetuses can feel pain at 20 weeks to justify state bans on abortion after that time. Some 13 states have banned abortion after 20 weeks, according to Naral Pro-Choice America, a non-profit advocacy organization. Other states, such as Wisconsin, South Carolina and West Virginia have started debating such measures this year. The 20-week bans, Balch said, are partially designed to bring the focus back to the child—and the new data on premature babies will make that easier. “It strengthens the persuasiveness argument, even if it doesn’t impact the legal argument,” he said.

While anti-abortion advocates hope the study will shift public opinion, the fact that a small number of babies can survive at 22 weeks with extraordinary interventions will likely not have a large impact on a woman’s ability to get an abortion today, experts said.

The Supreme Court has held that states can restrict abortions if the fetus is viable—able to survive outside the womb—even if the mother’s health is not threatened by the pregnancy. But there is no strict legal definition of viability; instead, it is determined on a case-by-case basis by the individual doctor. While it is possible that the study could affect a doctor’s decision about the viability of a pregnancy, doctors would usually focus more on the details of the specific case. And few doctors and clinics offer abortions at such a late stage anyway, experts added.

“Viability has never been a set number,” said Eric Ferrero, vice president of communications at Planned Parenthood Federation of America, the reproductive health non-profit. “It is determined by each doctor based on the woman and the pregnancy and it varies. That’s what the medical community has said and what Roe v. Wade says, and that’s unchanged by this study, which is about the extremely intensive care that is provided in some places.”

Though the new research has sparked discussion of abortion, its real relevance is for expectant parents researching the medical treatment available for premature babies, particularly those who may want to find out whether their hospital provides interventions to save babies at 22 weeks.

“I think it’s important information, especially for women excited about having a baby,” says Elizabeth Nash, an expert on state laws governing reproduction at the Guttmacher Institute, a research and advocacy group focused on reproductive health. “It’s much more tangential to abortion, except that abortion opponents will look to this information to try to restrict access, and that’s where we have to pay attention.”

TIME Research

Some Premature Babies Can Survive After Only 22 Weeks, Study Says

premature baby
Getty Images

Roughly 5,000 babies are born at 22 or 23 weeks in the U.S. each year

A new study has found that some premature babies can survive outside the womb with medical treatment as early as 22 weeks into pregnancy.

The study, published on Wednesday in the New England Journal of Medicine, raises questions about treatment practices for premature babies while also adding a new layer to the abortion debate.

Hospitals vary in how they approach treatment for babies born before 24 weeks, widely viewed to be the minimum age of viability, the New York Times reports. But the study, which analyzed almost 5,000 babies born at between 22 and 27 weeks, found that a small number of babies born at 22 weeks could survive with treatment, some with long-term impairment. Those that were not treated died.

Each year, roughly 5,000 babies are born at 22 or 23 weeks in the US, according to the Times.

[NYT]

TIME Innovation

Why Read Hamlet When You Can Play It?

The Aspen Institute is an educational and policy studies organization based in Washington, D.C.

These are today's best ideas

1. Why read Hamlet when you can play an immersive time-traveling video game version instead?

By Jess Joho in Kill Screen

2. Here’s how to attract female engineers.

By Lina Nilsson in the New York Times

3. Everyone is losing in Yemen’s war.

By Adam Baron in Foreign Policy

4. Google and Facebook could save — or consume — journalism.

By Emily Bell in the Columbia Journalism Review

5. We know how to dramatically reduce teen pregnancies, but we don’t. Here’s why.

By Nora Caplan-Bricker in the National Journal

The Aspen Institute is an educational and policy studies organization based in Washington, D.C.

TIME Ideas hosts the world's leading voices, providing commentary and expertise on the most compelling events in news, society, and culture. We welcome outside contributions. To submit a piece, email ideas@time.com.

TIME Courts

Two Things You Don’t Know About Roe v. Wade That Will Surprise You

New Justices Rehnquist And Powell
Keystone / Getty Images The two new Associate Justices of the US Supreme Court after being sworn in, William Rehnquist (left) and Lewis F Powell, on Jan. 11, 1972

One of these two things changed American politics

History News Network

This post is in partnership with the History News Network, the website that puts the news into historical perspective. The article below was originally published at HNN.

January 22, 1973 is the date that most associate with Roe v. Wade. That is the day when Justice Harry Blackmun read a summary of the Supreme Court’s decision in Roe and that of its companion case, Doe v. Bolton. Every year there are demonstrations in Washington on January 22 to commemorate or protest the Supreme Court’s decision recognizing a woman’s right to an abortion.

But there is another date that actually might be far more significant in the history of these decisions: May 25, 1972. That is when these cases should have been decided, and likely were decided, but in a much different form. And if they had come down in May or June 1972, the arc of American politics would have been remarkably different. I argue as much in my new book, January 1973, Watergate, Roe v. Wade, Vietnam, and the Month that Changed America Forever (release date May 1, 2015).

First, let me identify my source. Larry Hammond was Justice Lewis F. Powell’s law clerk at the time Roe and Doe were decided. Hammond, now in his seventies, agreed to talk with me about how the decisions came about and I believe I am the first to interview him with the full benefit of the Powell Papers that were released after Powell’s death in 1998.

Here are the two revelations from these interviews and the Powell Papers that will surprise most people: (1) the justices of the Supreme Court had reached a majority on versions of the opinions that Blackmun first drafted in May 1972—and these drafts would have left it to the states to draw the line as to when life begins; and (2) Justice Powell, not Justice Blackmun, pushed for the “viability” standard that remains the hallmark of Roe forty years later. While Blackmun may have been the author, Powell really was the moving force behind the core principle of Roe.

Let me explain further.

When Roe and its companion case out of Georgia were first argued in the Supreme Court in December 1971, the Court was down two justices. Justices Black and Harlan had both retired (and died) in the fall of 1971 and President Nixon had nominated Lewis Powell and William Rehnquist to take their places. Neither man had been confirmed by the Senate at the time of the first oral arguments in Roe and Doe, so by Court tradition neither could take part in “the Conference” to decide the cases, nor could they vote on the outcomes.

There did not appear to be a consensus at the time of the first Conference on how to decide the abortion cases, so Chief Justice Warren Burger took it upon himself to assign Justice Harry Blackmun, his friend from childhood, to take a stab at first drafts. If Blackmun’s drafts would “command a majority” then those would become the Court’s decisions. Justice William O. Douglas disputed Burger’s assignment to Blackmun and thought he had the right to make the assignment as the most senior judge who, he believed, was in the majority out of the first conference. Douglas, however, let it go after an exchange of some fairly heated notes with the Chief.

Blackmun took his time in drafting. As former counsel to the Mayo Clinic in Minnesota, his perspective was that of the doctor whose patient seeks an abortion. He wanted to study up on the history of abortion, with a kind of obsessive focus on the Hippocratic Oath (which actually has a proscription against abortions).

Blackmun’s first drafts of Roe and Doe came out in May 1972.

With Roe, Blackmun wanted to overturn the Texas statute as void for vagueness, meaning it was too imprecise to be enforceable. The result would be to turn it back to Texas to redraft a clear statute. On Doe, the more reform Georgia statute from 1968, Blackmun addressed squarely a woman’s right to an abortion. He found there was such a right, but critically, he observed that the Court, at that moment in time, did not have the experience or knowledge to decide “when life begins.”

Thus, given these outcomes, the Supreme Court would have recognized a right to an abortion, but left it to state legislatures to do the line-drawing on when an abortion could be prohibited.

Justice Douglas, for one, believed that a majority of the seven justices who could decide the cases was in place in May 1972. Specifically, on May 25, 1972, Douglas, Brennan, Marshall and Blackmun (4 of 7) all agreed on Blackmun’s drafts. Justice Stewart added his vote in favor by May 29, 1972. (From my perspective, it is fascinating that this all took place just as burglars were first breaking into the Watergate in their political espionage campaign against the Democrats.)

Enter Chief Justice Burger. He was not pleased with the first drafts and pressed Blackmun to “re-argue” the cases, allowing two conservatives, Powell and Rehnquist, to take part. Douglas and the others in the majority exploded—they believed the decisions should have come down and that Burger was playing politics with a partisan issue likely to have some role in the 1972 presidential contest. Douglas’s dissent to re-argument was vitriolic—and never saw the light of day. With Powell and Rehnquist participating, the vote to re-argue carried.

This is when Justice Powell asked his law clerk, Larry Hammond, to take a look at the briefs in Roe and Doe and Justice Blackmun’s first drafts. Hammond did so over the summer of 1972 (as Richard Nixon became mired in the Watergate cover-up). Hammond wrote a 30-page memo for Powell, arguing in favor of the right to an abortion. Powell, when he returned from the summer break, told Hammond that he agreed with him. This was a real surprise. Chief Justice Burger’s push to re-argue was about to backfire.

As the second oral argument drew near in October 1972, Hammond wrote a game-changing bench memo to Powell, pointing out a recent federal court case out of a lower court in Connecticut that had address that state’s abortion statute. In what lawyer’s call dicta (meaning not critical to the opinion), the Connecticut judges argued that the critical line in any pregnancy was “viability,” that is, when the fetus could live outside the womb—roughly the end of the sixth month.

No one argued “viability” in the briefs or in oral argument. Yet it was Powell who gently suggested to Blackmun that the Court consider and accept “viability” as its important dividing line. The Court adopted a three-part test, according to the trimesters of a nine-month pregnancy, but decided that the rights of a fetus were not to be considered until viability. While the other parts of Roe have dissolved, “viability” remains the law today.

I argue in my new book that this controversial change in how the case was decided had a dramatic impact on American politics. The Roe decision activated the so-called Religious Right. But more importantly, because abortion is an issue about which many will not compromise—it is a life and death decision to some—the whole concept of “no compromise” as a political strategy entered our political bloodstream. Along with the other great events of January 1973—Truman’s death, end of the Vietnam War for the US, Watergate burglars’ trial, Nixon’s Second Inaugural, Roe and the death of Lyndon Johnson (on the same day as Roe)—the conditions set up for a government of deadlock.

Checks and balances have become checks.

Obviously history is never quite this clean, but I think it is an important time to look back at this momentous month to start to understand how we got to where we are and perhaps learn how we might all start to get along again for the sake of our democracy and our country. Understanding Roe v. Wade and how it was actually decided is a first step.

James Robenalt is a trial lawyer and author of “The Harding Affair, Love and Espionage During the Great War” (Palgrave/Macmillan, 2009). Robenalt lectures nationally with John W. Dean, former White House Counsel, on Watergate and legal ethics. His latest book is “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.

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