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U.S. Supreme Court Refuses to Review Decision Invalidating Provisions in Louisiana Parental Consent Law
Continuing a 5-year record of choosing not to review cases dealing directly with abortion rights, the U.S. Supreme Court voted 8 to 1 on October 20 not to review a recent appeals court ruling that found provisions in Louisiana's parental consent law to impose an unconstitutional "undue burden" on young women seeking abortions. Justice Antonin Scalia cast the only dissenting vote. The case, Causeway Medical Suite v. Ieyoub, was decided by the U.S. Court of Appeals for the Fifth Circuit in April, when a three-judge panel upheld a lower court ruling that invalidated Louisiana's attempt to impose additional restrictions on young women seeking abortions. In September, the full appeals court voted to deny a request by one of its members to rehear the case.
Since the early 1980s, the state has required a young woman to obtain the consent of one parent prior to an abortion; a court bypass procedure is also available to grant waivers to young women who prove that they are mature enough to choose abortion on their own or who, if immature, demonstrate that an abortion would be in their best interests. In the spring of 1995, the Louisiana legislature amended the one-parent consent law to give judges wide latitude to deny young women authorization for abortions, breach their confidentiality, and fail to decide their waiver petitions in an expeditious manner. An October 1995 ruling by the U.S. District Court for the Eastern District of Louisiana held that the revised law conflicted with established federal court precedent and blocked the state from enforcing the amendments (see RFN VI/16, 7, IV/19). Agreeing with that decision, the appeals court also found that the statute's lack of a guarantee for a specified time frame for resolution of a young woman's petition was inconsistent with court rulings striking down such open-ended bypass procedures. The panel also rejected a provision that allowed a judge to order a young woman to attend evaluation and counseling sessions before authorization for an abortion was granted, again with no required time limits. Finally, the panel struck down the provision that permitted a court to contact the parents of a young woman who is not found to be mature if it determines that such notification would be in her best interests. Such a mandate, the panel found, would unacceptably compromise the petitioner's anonymity. The plaintiffs are represented by the Center for Reproductive Rights' Janet Benshoof, Simon Heller, and Bonnie Scott Jones, along with New Orleans attorney William Rittenberg.
Federal Court Judge Denies Request to Stop Enforcement of Iowa's Parental Involvement Law
Women's health care providers seeking to block enforcement of Iowa's parental notification law were denied their request for a temporary restraining order on October 16. Ronald E. Longstaff, U.S. District Court judge for the Southern District of Iowa, ruled that recent legislative action had remedied most of the constitutional problems with the law at issue in Planned Parenthood of Greater Iowa v. Miller. The court had previously issued a temporary injunction to stop enforcement of the law on January 3 and then extended the order on January 22 on the basis that the law failed to provide for an expeditious and confidential judicial bypass procedure for young women who cannot involve a parent in their decision to have an abortion (see RFN VI/2, V/6). During the 1997 legislative session, the Iowa legislature passed House File 121, which amended the statute to address the constitutional problems cited by the court. The amended bill went into effect on July 1.
Iowa's parental involvement law requires that one parent of a young woman who is seeking an abortion be notified at least 48 hours before the procedure; alternatively, the young woman may seek a court waiver. Where the original statute merely ordered the state supreme court to issue rules to guarantee that the court proceedings are expeditious and confidential, the amendment provides further details: a hearing must be held and a ruling issued within 48 hours of the filing of a young woman's petition, and any appeals must be resolved within 10 days. The amended law no longer allows an aunt or uncle to be notified if the young woman provides her doctor with a reason why she prefers not to notify her parents; a grandparent, however, is still a suitable alternative. The plaintiffs filed for a new temporary restraining order in August out of their concern that the newly-amended bill, while less problematic than the original, creates an unconstitutionally short (24 hours) time frame in which a minor is expected to appeal a court's decision to deny her request for a waiver. The judge referred the case to the Honorable Ross A. Walters, U.S. Magistrate Judge, for a settlement conference in order to avoid further litigation.
The plaintiffs are represented by Dara Klassel and Roger Evans of the Planned Parenthood Federation of America, the Center for Reproductive Rights' Priscilla Smith, Mark Lambert of Planned Parenthood of Greater Iowa, and Randall Wilson of the Iowa Civil Liberties Union.
Appeals Court Panel Allows Enforcement of Virginia Parental Consent Law
On October 20, a panel of the U.S. Court of Appeals for the Fourth Circuit voted 7 to 5 to deny a request to reinstate a lower court's preliminary injunction blocking enforcement of Virginia's parental notification requirement for young women seeking abortions. Virginia's Parental Notification Act was signed into law by anti-choice governor George Allen (R) on March 22. On June 30, just one day before the law was to go into effect, a U.S. District Court judge granted women's health care providers' request for a preliminary injunction to block its enforcement. But later that same day, in response to an emergency appeal from the state, Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit stayed the lower court's decision. As a result, the law went into effect as scheduled on July 1 (see RFN VI/12, 6).
Under the statute, unemancipated minors must notify one parent at least 24 hours before having an abortion. A young woman may go to court to waive the requirement, but the judicial bypass process established in the law would allow a court to deny authorization even if a young woman proves she is mature enough to decide for herself whether or not to have an abortion (see RFN VI/12). In addition, like the Louisiana law that the U.S. Supreme Court recently refused to review, the statute does not hold the court to a specific time frame for resolving a young woman's petition. The Center for Reproductive Rights' Simon Heller and Richmond attorney Karen Raschke represent the plaintiffs in Planned Parenthood of the Blue Ridge v. Camblos.
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Ashley became despondent and shot herself in the stomach - an act which ultimately resulted in the emergency cesarean delivery and death of her infant.
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In the State Courts
Florida Supreme Court Refuses to Pit Woman Against Fetus in Criminal Court
Ruling unanimously on October 30, the Florida Supreme Court overturned a lower court decision in State v. Ashley that allowed the state to prosecute a nineteen-year-old woman for shooting herself during her sixth month of pregnancy. Already the single mother of a three-year-old, Kawana Ashley had intended to have an abortion because she couldn't afford to support another child and didn't want to further burden her grandmother, who she lived with. But, because she did not qualify under Medicaid's strict guidelines on abortion coverage - Medicaid only covers abortions in cases of rape, incest, or life endangerment - and couldn't raise the money on her own, she continued the pregnancy. Ashley became despondent and shot herself in the stomach on March 27, 1994 - an act which ultimately resulted in the emergency cesarean delivery and death of her infant.
The State Attorney charged Ashley with murder and manslaughter, with the underlying felony for the murder charge being criminal abortion. Ashley's attorneys filed a motion to dismiss the charges, arguing that Florida's homicide laws were not intended to apply to these circumstances and that the legislature has not acted to criminalize this conduct (see RFN IV/2, III/21). They further asserted that Florida courts had already rejected attempts to use other state criminal statues to punish women for allegedly harming their fetuses by taking drugs during pregnancy. The trial court dismissed the murder charge in January, 1995, but allowed the manslaughter charge to stand, reasoning that the cases involving drug use could be distinguished from the Ashley case because there was no intent to harm the fetus in the drug cases. That January, Florida's Second District Court of Appeals upheld the district court ruling and certified the case to the Florida Supreme Court for review. In overturning the previous decisions, the Supreme Court reasoned that, in finding Ashley criminally liable for actions taken while pregnant, the state had not followed common law, which differentiates between actions taken by a third party against a pregnant woman and actions she takes upon herself that result in harm to her newborn. The court also found no basis in common law or current statute for prosecuting a pregnant woman for a self-induced abortion. The state high court wrote, "This Court cannot abrogate willy-nilly a centuries-old principle of the common law - which is grounded in the wisdom of experience and has been adopted by the legislature - and install in its place a contrary rule bristling with red flags and followed by no other court in the nation." Kawana Ashley is represented by the Center for Reproductive Rights' Priscilla Smith and Florida public defender Bruce Johnson.
South Carolina High Court Reaffirms Conviction for Mother's Behavior During Pregnancy
On October 27, the South Carolina Supreme Court voted 3-2 to reaffirm a previous ruling in which they established that a viable fetus can be considered a child under state law, therefore making a pregnant woman criminally liable for any actions taken during pregnancy - legal or illegal - that might affect her viable fetus. The case, Whitner v. State of South Carolina, first came to the state high court when South Carolina prosecutors appealed a lower court ruling that freed a woman who had been convicted and jailed under the state's child neglect statute for her alleged use of crack cocaine during pregnancy. In November 1993, a Court of Common Pleas judge vacated Cornelia Whitner's eight-year sentence for unlawful neglect of a child, finding that the law at issue could not apply to a pregnant woman's conduct (see RFN II/22,20). In July of 1996, a majority of the state Supreme Court reversed that ruling, holding that a viable fetus can be considered a person under the child neglect statute and reinstated Whitner's conviction (see RFN V/13). In arriving at this conclusion, the justices cited previous wrongful death cases and manslaughter convictions for actions by third parties (but not pregnant women) that resulted in the death of a viable fetus. The majority ruled that even though her child was born healthy, Whitner had "endangered [his] life, health, and comfort."
One of the two dissenting justices noted that under the majority's interpretation, a pregnant woman could serve up to ten years in prison for ingesting drugs, compared to the two-year sentence she would receive were she to obtain an illegal, third-trimester abortion. The dissent also reasoned that the decision could make pregnant women criminally liable for a wide range of behavior, such as failing to quit smoking or not seeking prenatal care. The majority refused to address the arguments made by national and local public health groups, including the American Medical Association and the National Council on Alcoholism and Drug Dependence, asserting that prosecutions for alleged prenatal drug use threaten the health and well-being of both women and their future children. The Court's opinion marks a radical departure from the interpretations of the state's lower courts, which have consistently rejected efforts to apply the child neglect law to pregnant women. Supreme Courts in Florida, Kentucky, Nevada, and Ohio have also thrown out efforts to prosecute pregnant women for alleged prenatal drug or alcohol use, and the Supreme Court of Wisconsin rejected use of that state's laws to civilly commit a pregnant drug user. Cornelia Whitner is represented by the Center for Reproductive Rights' Simon Heller, C. Rauch Wise, cooperating counsel for the ACLU of South Carolina, and New York attorney Lynn Paltrow.
On the Hill
Both Houses Pass Stopgap Spending Measure
On October 22, the House passed by voice vote yet another stopgap spending measure to continue government projects and activities through November 7. The Senate unanimously approved the continuing resolution the next day and sent it on to the White House, where President Clinton signed it into law. Like the continuing resolution passed at the end of September, the new measure is free of the disputed policy riders and amendments that are holding up the four remaining appropriations bills - education testing issues on the Labor-HHS bill, census sampling issues on the Commerce-Justice-State bill, school vouchers on the District of Columbia bill, and family planning issues on the Foreign Operations bill.
House Passes Conference Report on Defense Department Authorization Bill
On October 28, the House voted 286-123 to adopt the conference report on the Department of Defense authorization bill (HR 1119). The bill fails to rescind restrictions that bar overseas military hospitals from performing abortions, even when a woman pays for an abortion with her own money (exceptions are made for cases or rape, incest, or life endangerment). The Department of Defense authorization bill has prohibited the use of agency funds for non-lifesaving abortions at overseas military facilities since 1984; in 1988, the ban was expanded to include abortions paid for privately. President Clinton abolished this policy in 1993, only to have Congress reverse him in 1995 (see RFN VI/13).
Senate Approves Surgeon General Nominee
On October 22, the Senate Labor and Human Resources Committee voted 12-5 to approve Dr. David Satcher's nomination to the post of Surgeon General. Dr. Satcher's nomination drew five "no" votes from Republicans who voiced their disappointment that Dr. Satcher supports President Clinton's veto of the "partial-birth abortion" ban recently passed in the House. Dr. Satcher is currently the executive director of the Centers for Disease Control and Prevention in Atlanta. He will be the nation's first surgeon general since President Clinton fired Dr. Joycelyn Elders three years ago for speaking frankly about sexuality education. Clinton's first nominee after Elders, Nashville physician Henry W. Foster, was routed by anti-choice Senators because he had performed abortions.
Around the World
Kenyan Woman Takes Abusing Husband to Court
In an unusual break with tradition, a Kenyan woman has taken her husband to court for physically abusing her. According to news reports, Agnes Siyiankoi, a 30-year-old Masai woman, revealed in an October 10 hearing that she had endured 13 years of beatings before finally taking her husband to court. Ms. Siyiankoi was beaten so badly that she had to be carried to a hospital, where she was required to make an official complaint. (This procedure is said to deter many victims of domestic abuse in Kenya from seeking medical treatment.) Ms. Siyiankoi's brother, who is an attorney, is helping her file charges against her husband. Mr. Siyiankoi faces a maximum sentence of five years in prison and corporal punishment.
In a recent survey by the Women Rights Awareness Program, a Kenyan advocacy group, 70 percent of the men and women interviewed said they knew neighbors who beat their wives. Nearly 60 percent said women were to blame for the beatings. Just 51 percent said the men should be punished.
Correction: RFN VI/15 reported that a bill before the California state legislature (SB 1110) would prohibit schools from offering any form of sexuality education unless a pupil's parent or guardian is notified. In fact, existing state law already gives parents the opportunity to veto their child's participation in sexuality education programs. SB 1110 merely extends existing law to include presentations on sexuality education given by outside organizations.
Notice: RFN will be published once a month for the remainder of 1997. Look for your next issue in early December.
State Bans on "Partial-Birth Abortion" and Other Abortion Methods
In Effect (6):
Indiana
Mississippi (Exceptions include cases of rape)
South Carolina
South Dakota
Tennessee
Utah (Bans post-viability abortions using D&X or saline amnioinfusion, except when other methods would pose a risk to a woman's life or health)
Limited Enforcement (3):
Alabama (Attorney General has limited enforcement to post-viability abortions)
Georgia (Interim order by federal court limits enforcement to post-viability abortions)
Nebraska (Order by federal court bars enforcement as applied to physician plaintiff's
practice)
Blocked by a Federal or State Court (8):
Alaska
Arizona
Arkansas
Louisiana
Michigan
Montana
Ohio (Bans both D&X and D&E abortions, but explicitly excludes suction curettage abortions from the ban.)
Rhode Island
Vetoed by Governors (4):
Florida
Illinois
New Jersey (Vetos are subject to legislative override)
Missouri (Veto upheld)
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