Will Mississippi’s 15-Week Abortion Law Survive Constitutional Muster?


On March 19, 2018, Mississippi Governor Phil Bryant signed an abortion bill into law that some say will likely be overturned. The new law places a ban on abortions after only 15 weeks of pregnancy, making it the shortest gestational age limitation on abortions in the U.S.  The Governor has stated that the law will help make Mississippi the “safest place in America for an unborn child.”  Opponents, however, are arguing that this unprecedented ban is unconstitutional and endangers the health care of women in Mississippi. The Center for Reproductive Rights, among the opponents, is characterizing the law as a “flagrant assault on reproductive rights” and is fighting to have it overturned. Similar laws that have attempted to be passed in other states were all overturned by the court system, which has consistently found that such short gestational age limitations create an undue burden for women seeking to have an abortion and, therefore, violate women’s constitutional right to an abortion.

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Selective Abortions for Women Carrying Multiple Fetuses Now Legal in Norway

In an article dated October 18, 2016, it was reported that “selective reduction”—the practice of aborting one or more healthy fetuses in a multifetal pregnancy while leaving another intact—is now legal in Norway. While proponents of the procedure say that selective reduction should not be thought of any differently than any other abortion procedure, opponents claim that the procedure should not be performed if the fetus is healthy, exposes the remaining fetus to unnecessary risks, and may lead to “abortion tourism” due to its unavailability in neighboring countries.

From The Independent, “Norway Allows Foreign Women Pregnant with Twins to Have Selective Abortions”

Excerpt from article:

“Dr Birgitte Heiberg Kahrs, a specialist in fetal medicine at St Olav’s Hospital in Oslo said: ‘We have not found any medical benefit from this. On the contrary, it exposes the second child in the womb to danger as the abortion risk increases.’”

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The Zika Virus and the Moral Dilemma

With the spread of Zika virus across the Catholic dominant South and Latin Americas, restrictions on women’s access to contraceptives and abortions has made its way to the forefront of the discussion.

Medical professionals and researchers suspect that the mosquito borne virus is directly responsible for the increased reporting of infants born with microcephaly, a rare neurological condition causing an infant’s head to be significantly smaller than the heads of other children of the same age and sex.  While research is still underway to determine if Zika virus actually causes microcephaly, the correlation between the two has prompted warnings from health organizations such as the World Health Organization (WHO) and the Center for Disease Control (CDC).  Such warnings advise women to avoid travel to countries affected by the virus and, for women presently living in affected countries, to postpone pregnancy.

For women living in the affected countries, heeding the health organizations’ warning is problematic.  Of the countries affected by Zika virus, a significant majority of people are Catholic.  The Catholic Church prohibits the use of birth control and abortion. Furthermore, many of the countries affected by Zika virus prohibit abortion except in instances where the pregnancy poses a risk to the mother.  Critically, these prohibitions have remained in place, despite the correlation between Zika virus and microcephaly, and both the Catholic Church, and various governments have refused to lessen such restrictions. As a result, women are being faced with an impossible predicament: seeking an illegal and religiously prohibited abortion or giving birth to an infant who may suffer from microcephaly.

Source: http://www.latimes.com/world/mexico-americas/la-fg-global-zika-abortion-story.html

The Use of Fetal Tissue From Abortions For Research: Acceptable or Exploitation?

Planned Parenthood was subject to national attention and scrutiny in late 2015 after videos surfaced that allegedly showed Planned Parenthood employees discussing the sale of fetal tissue from abortions for research. In response, an investigative panel was formed by the House of Representatives. In its first hearing, the panel engaged in a heated debate on the use of any fetal tissue, not just from abortions, for research purposes. While it seems that everyone can agree that this practice raises ethical concerns, there is sharp disagreement about what should and should not be permissible. Especially in the case of elective abortions, many argue that fetal tissue should not be used for research under any circumstances, even with the woman’s consent. One advocate even took the position that a woman who elects to have an abortion should not have the ability to give consent in the first place. Other opponents of fetal tissue research argued that such research could create an industry that may exploit a vulnerable and voiceless population. On the other hand, those who support the research took a utilitarian approach and explained the importance of tissue research for scientific advancements that could benefit a vast number of people.

While the panel’s focus may seem narrow to some, it implicates a host of ethical and legal questions: What right should a patient have to dictate what happens to his or her bodily tissue after a medical procedure? Should the answer depend on whether the procedure was elective or medically necessary? Should the potential benefit of fetal tissue research outweigh the risk of exploitation? What is our duty to protect vulnerable populations, such as women seeking abortions and their unborn fetuses? For now, these questions remain unanswered. The panel, however, will meet again in the next few months to hear arguments of additional witnesses and further discuss the issues at hand.

Sources: http://www.bioedge.org/bioethics/panel-on-infant-lives-meets-in-washington/11793; https://www.washingtonpost.com/news/powerpost/wp/2016/03/02/house-fetal-tissue-research/; http://docs.house.gov/meetings/IF/IF04/20160302/104605/HHRG-114-IF04-Wstate-LeeP-20160302.pdf

Surrogates and Commissioning Parents Fight Over Abortion Clause in Surrogacy Contracts

A recent dispute between Melissa Cook, a California surrogate, and a commissioning father has brought to light the complexities of having abortion decision clauses in surrogacy contracts. Specifically, the enforceability of such clauses comes into question when surrogates and parents disagree on who should make decisions regarding abortion.

Melissa Cook was carrying triplets and the commissioning father wanted her to abort one of the fetuses. Cook filed a lawsuit in Los Angeles Superior Court, claiming that state surrogacy laws violated due process and equal protection under the Constitution. As an alternative resolution, Melissa Cook wishes to carry all three fetuses to term, adopt the third child and also collect her surrogacy fee. This would require the court to deem Cook’s surrogacy contract unenforceable, allowing her to breach the contract and still keep her surrogacy fee in full.

Women who agree to become a gestational surrogate enter into legally binding contracts with commissioning parents. Included in the terms of these contracts is a clause that allows the parents to make decisions about abortion.   Doctors implant multiple embryos to increase the chances of fertilization but thereby also increase the likelihood of multiple gestations. Intending parents whose surrogate carries multiple fetuses sometimes request that the surrogate abort, or “selectively reduce,” one or more of the fetuses. The surrogacy contract ensures that, in situations where termination decisions must be made, all parties are on the same page. Some surrogacy agencies take steps to match surrogates with parents who share the same views on abortion to minimize the likelihood of a conflict.

Allowing surrogacy contracts to mandate that a woman abort a fetus creates many legal questions, including who is the true parent of the fetus and who should make decisions regarding abortion. As Elizabeth Reis, a professor at City University of New York explains, what makes these questions all the more difficult is the fact that after a surrogacy contract is signed “there is no way to know how [a surrogate will] feel when [she is] pregnant and ordered to reduce.”

In Cook’s case, the fetuses legally belong to the father. However, this does not necessarily mean that the father’s wishes will be honored. No court would force Cook to abort her pregnancy. Nevertheless, even if she does not abort, under California law, the commissioning father has the right to decide what happens to the child, including having the child adopted by a third party other than Cook. This creates an inherent tension in modern surrogacy contracts which can conflict with women’s right to privacy. Even though a surrogate has a constitutional right to undergo an abortion, or to choose not to, she has no constitutional right to receive payment under the terms of a surrogacy contract. It remains unclear how such recent disputes will be resolved by the courts or how they will change surrogacy regulation, but many lawyers believe that surrogacy contracts will become much more heavily regulated as a result.

Source: http://www.theatlantic.com/health/archive/2016/02/surrogacy-contract-melissa-cook/463323/

UK Doctor Who Admitted to Offering to Arrange a Gender Based Termination Has Been Suspended For Three Months

A 2012 investigation by The Telegraph opened the doors to further inquiry of two UK doctors who faced a private prosecution on gender abortion charges. Under the 1967 Abortion Act, in the UK a pregnancy can only be terminated if two doctors agree that the physical or mental health of the mother or child is in danger, but both doctors must sign and certify that they formed their opinion in good faith. Recent concerns have been raised that the law does not explicitly state that gender selective abortions are illegal. To address this concern, a guidance was issued making it clear that gender-selective abortions are illegal. [1]

In the most recent case, Dr. Prabha Sivaraman and Dr. Palaniappan Rajmohan were summoned to Manchester and Birmingham courts to answer to allegations based on investigations of undercover reporters who accompanied pregnant women to clinics across the country. They filmed Dr. Sivaraman and Dr. Rajmohan agreeing to arrange terminations after the patient revealed that she did not want to continue the pregnancy because of the gender of her unborn child.

Investigation into Dr. Prabha Sivaraman’s conduct was dropped because she was recorded stating: “I don’t ask questions. If you want a termination, you want a termination.” The General Medical Council convened a panel to rule on Dr. Palaniappan Rajmohan’s fitness to practice medicine. The panel found that Dr. Rajmohan agreed to record a false reason to protect the woman who wanted to terminate her pregnancy because of the gender of her child. Instead of expressing this reason, he recorded her reason as “too young for pregnancy.” The panel deemed Dr. Rajmohan’s act of dishonesty as misconduct, and ordered his immediate suspension.

[1] http://www.telegraph.co.uk/news/health/news/10850072/Gender-selective-abortion-is-illegal-Health-Secretary-Jeremy-Hunt-to-announce.html

Planned Parenthood Reacts to Congressional Pressure and Changes Reimbursement Policy

After Planned Parenthood was subjected to recent controversy involving fetal tissue procurement, the organization announced that it would no longer receive reimbursements for fetal tissue donations. Under its former policy, Planned Parenthood received reimbursements for expenses associated with the donation, including costs of procuring and transporting the tissue.

Planned Parenthood’s practice came under scrutiny after an anti-abortion group secretly videotaped a conversation with a Planned Parenthood doctor discussing the process of fetal tissue procurement. An edited video portrayed Planned Parenthood as selling fetal tissue, rather than donating the tissue. Federal law allows fetal tissue to be donated to research facilities, however, organizations cannot profit from such donations. The law only allows for reimbursement of reasonable expenses.

A special Congressional panel investigated Planned Parenthood’s activities. Although the panel did not find any wrongdoing on the part of Planned Parenthood, the national uproar caused by the released video was enough to encourage the organization to review its policy. President of Planned Parenthood, Cecile Richards explained the change in policy as an effort to protect the donation of fetal tissue at their facilities.

Sources: http://www.reuters.com/article/2015/10/13/us-usa-plannedparenthood-idUSKCN0S72GD20151013


Taxpayers are Illegally Funding Abortions

Other than carve outs for pregnancies caused by rape, incest, or where the life of the mother is in jeopardy, the Affordable Care Act prohibits the use of taxpayer funds for abortions. However, a recent report issued by the Government Accountability Office asserts that taxpayers are illegally funding abortions. The report reviews 18 issuers of health plans offered through the exchanges. All 18 issuers offer abortion services, but only three were found to be in compliance with the law. The non-complying plans offered no restrictions or limitations on abortion services even though the health-care law requires that issuers must estimate and segregate the cost of an abortion from premiums collected by the plan.

Read more here.

Potentially Dangerous Precedent Possible in Mississippi

Anti-fetal homicide laws were enacted originally to protect mothers of unborn children against violent acts. Yet, in reality, “they’ve led to disproportionate prosecution against African American women who suffer miscarriages.” An ongoing case in Mississippi could set a dangerous precedent with regard to the criminalization of pregnant women for their purportedly reckless acts.  Rennie Gibbs was charged with the murder of her unborn child after it was stillborn when she was 16 years old. Gibbs is being prosecuted for “depraved heart murder” because the autopsy showed that Gibbs had used cocaine during her pregnancy—but the cause of death was originally attributed to the umbilical cord being wrapped around the infant’s neck. That cause of death was never ruled out.

Read more here and here.

High Court to Consider Religious Rights of “Secular” Businesses under ACA

Sometime in March, the Supreme Court will consider whether for-profit corporations can claim the protection of either the First Amendment, or the 1993 Religious Freedom Restoration Act, in denying contraception coverage to employees. The Affordable Care Act (ACA) requires that employers provide a range of preventative services to employees, including birth control coverage. However, owners of businesses such as Hobby Lobby, an arts and crafts chain, and Conestoga Wood Specialties Corporation, which specializes in making wood cabinets, maintain that the ACA’s mandate on birth control coverage violates their religious freedom.

Read more here.