Legal Docket - Lower court skirmishes over abortion

JENNY ROUGH, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 27th of July, 2020.

Good morning everyone, I’m Jenny Rough.

MARY REICHARD, HOST: And I’m Mary Reichard. Hey, Jenny, welcome to the co-host seat!

ROUGH: Thank you, Mary! Glad to have a chance to do this.

REICHARD: There’s a purpose behind it. This week you and I and the team launch Legal Docket Podcast!

ROUGH: Yes, I’ve been talking about the “upcoming” podcast to family and friends for so long. It’s hard to believe the day’s almost here! Ten episodes of behind the scenes at the Supreme Court. A deep dive into a handful of cases. The people, the facts, the decisions and what they mean for us.

REICHARD: And Jenny, let me say this: you and I both graduated law school, passed the bar exam and practiced law for a while. And we learned a lot during this process.  

The weight of my own ignorance threatens to overwhelm me at times.

ROUGH: Ditto. And we had some adventures along the way, didn’t we?!

REICHARD: We did.

So, be listening for the new Legal Docket podcast in your podcast feed. Let us know what you think. Depending on how it goes, maybe we’ll do it again next summer!

ROUGH: Now, onto today’s Legal Docket. 

First, some good news for a Christian adoption ministry in New York. 

New Hope Family Services can proceed with its case against a state agency that threatened to shut it down. New Hope’s placement policy prioritizes opposite sex, married couples. But the state agency claimed the policy violates state anti-discrimination law.  

The appeals panel said the state may have shown hostility to New Hope’s religious beliefs in violation of the Constitution.

REICHARD: A foreseeable collision between religious liberty and the SOGI laws, the sexual orientation and gender identity statutes. 

Now, on to lower court skirmishes going on over abortion. 

The Supreme Court ruled this past term that abortionists need not have admitting privileges at nearby hospitals. That’s a rule other ambulatory surgical centers require, but the majority five justices didn’t decide the case on medical grounds. Instead, they cited the undue burden on a woman seeking to abort.

ROUGH: Something similar happened this month in Maryland. A federal district court judge stopped the Food and Drug Administration from enforcing safety rules on drugs that induce chemical abortion.

REICHARD: The Christian Medical and Dental Associations denounced that move. To learn why, I called up Dr. Jeffrey Barrows. He’s vice president for bioethics and public policy for the organization. He is also a physician of obstetrics and gynecology. 

I started by asking him about the medications in question.

BARROWS: There’s actually two of them. Mifepristone and misoprostol. And they were both initially approved in 2000 by the FDA. But fast forward to 2011, there were a lot of reports of significant complications coming in, including over 2000 adverse events and 14 deaths and over 600 hospitalizations.

Because of those significant complications, the FDA decided in 2011 to put in place what is called a risk evaluation and mitigation strategy or REMs.

BARROWS: What that is extra requirements for the prescribing of certain drugs. And when it came to the medication that it causes abortion, what the FDA put in place was that the person prescribing had to have the ability to assess the duration of the pregnancy directly. In other words, see the person in person. Be able to diagnose what’s called ectopic pregnancies. That’s a pregnancy that’s outside of the uterus, most commonly in the tube. And then thirdly the ability to provide surgical intervention in cases that needed it, because that was a common cause of a lot of the complications that had been occurring.

But then just over a week ago, this federal judge says he doesn’t think these precautions are necessary.

BARROWS: In fact, in his ruling, he felt that the in-person requirements for abortion pills presented a substantial obstacle to patients, making them unconstitutional. So with one decision, a nonmedical person put aside these FDA requirements that were in place for the safety of patients. And as far as I know, this is unprecedented. I don’t know of anything like it.

So these FDA safety rules are stopped for now. I asked Dr. Barrows, what is the problem is for women who used these chemical abortion drugs.

BARROWS: There are several serious side effects, especially if the patient has not accurately timed their pregnancy. In other words, I practiced OB GYN for many years. I know there’s a significant percentage of women that come in and they’re not really sure when their last menses was. So the date of the pregnancy is not really known all that well, and that’s absolutely critical when you’re prescribing this medication. So if it’s prescribed and the pregnancy is a little too far along, there’s a markedly increased risk of significant complications, such as infection, and a lot of bleeding.

There is another major complication—ectopic pregnancy.

BARROWS: That happens about one in 80, one in 85. And those are life threatening. And so what this judge did in this case is to allow this medication to be prescribed via telemedicine without in-person prescribing at all, thus putting the patients taking it at greater risk.

One consolation is this injunction is temporary. But Dr. Barrows is concerned.

BARROWS: The judge in this decision did say that this was a temporary injunction against the FDA rules and said that they would be no longer valid 30 days after Health and Human Services says that there’s no longer a pandemic in the United States. 

My greatest concern is that pro abortion forces will seek to make this a permanent injunction against the FDA. It means this decision was not made on the basis of medical grounds. It was made on the basis of some legal grounds, and it just increases a vastly increased risk for the patients that are taking this medicine. So, I’m very, very worried that this might become a trend.

On the other side, the American College of Obstetricians and Gynecologists say the FDA restrictions aren’t medically necessary and don’t advance the health and safety of patients. 

But that rather begs the question as to why the rules are there in the first place. 

The two-drug combo accounted for 39 percent of all U.S. abortions in 2017. That’s according to court documents.

Lastly and just briefly today, another abortion battle of a different sort in Texas. 

Quite a technical dispute, but an interesting one. 

The Supreme Court in 1973 decided in Roe v. Wade that abortion was a “privacy right” under the 14th Amendment’s Due Process clause. But under Texas state law, abortions were illegal then, and that law remains on the books to this day. Roe meant only that the abortion ban couldn’t be enforced. 

So here’s the technical aspect. Some pro-lifers in the state have said publicly that abortion is illegal in Texas. That prompted pro-choice groups to sue for defamation.  

Now, truth is an absolute defense to defamation. So the pro-life advocates are now suing to protect their free speech rights. They claim those defamation lawsuits filed against them by pro-abortion groups are only meant to silence them. 

I called up Erick Kaardal with the Thomas More Society. He represents the pro-lifers.

KAARDAL: Yeah, it’s real simple. You know, you have pro-life activists stating that you know, this is horrific, that abortions are occurring in Texas. You know, it’s a crime and then the, pro-abortion forces are saying that’s defamation, you’re calling these people criminals. And, you know, in Texas, according to the law, you know, abortions are a crime. So it’s true. Now, it’s also true that under Roe v. Wade and the precedence that those laws aren’t enforced. So they’re not going to be convicted as criminals, but the bottom line is that this is cancel culture trying to cancel out, you know, pro-life speech. And now all of the battlefields are about whether pro lifers can transmit their message publicly, to their children, uh, the left, the pro-abortion forces want to cancel speaking about these issues. So far awhile anyway we’re going to have to fight on First Amendment grounds so we convince the public that we’re right on these issues relating to pro-life.

Kaardal is asking to consolidate all eight cases in order to achieve a uniform ruling one way or the other.  

And that’s this week’s Legal Docket.

(AP Photo/Manuel Balce Ceneta, File) This June 30, 2020, file photo shows the U.S. Supreme Court in Washington. 

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