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Abortions

Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006)

Also under Minors' rights, Patient privacy

Outcome:     Unfavorable

Issue

The issue in this case was whether health care professionals in Kansas must report abortions on girls under 16 years of age, without exception, to the Department of Social and Rehabilitation Services.

AMA interest

The AMA believes that the reporting of possible child abuse should fall within a physician’s professional judgment.

Case summary

The Kansas child abuse reporting statutes require health care professionals to report suspected injury from sexual abuse to the Kansas Department of Social and Rehabilitation Services.  Also, Kansas law considers sex with a child less than 16 years of age to be statutory rape.  In response to a question from a member of the state legislature, the Kansas Attorney General stated that, under these laws, health care professionals must report any girls under the age of 16 who had an abortion to the Department of Social and Rehabilitation Services.  The Attorney General opinion further opined that any sexual activity by an unmarried person under the age of 16 must be reported.

A coalition of health care professionals sued in federal court to have the Attorney General’s opinion deemed a violation of the children’s right of privacy under the federal constitution.  The judge found that the opinion was such a violation, and he entered a preliminary injunction against prosecution of health care professionals for failing to report “sexual activity between adolescents under the age of sixteen and persons of similar age in which injury is not reasonably suspected.”  The defendants, the county and district attorneys in Kansas appealed.  The Tenth Circuit vacated the preliminary injunction and remanded to the trial court, finding an abuse of discretion by the trial court in failing to adequately analyze the several factors required for a preliminary injunction.

AMA involvement

The AMA, the Kansas Medical Society, several specialty medical societies, and numerous other public health organizations filed an amicus curiae brief on January 6, 2005, to advise the court of the importance of maintaining confidentiality in the relationship between physicians and their minor patients.  The brief argued that adolescent sexual activity, even for children under the age of sixteen, is not necessarily injurious, so long as it is consensual and between children of similar ages.  Reporting of such activity, therefore, should be within the discretion of the health care professional and not mandatory.

United States Court of Appeals for the Tenth Circuit brief

Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006)

Also under Abortion notification

Outcome:  Somewhat Unfavorable

Issue

The issue in this case was whether the New Hampshire Parental Notification Prior to Abortion Act violated the Federal Constitution, because the statute required notification even in emergency situations that could endanger the minor’s health. 

AMA interest

The AMA supports physicians’ right to practice ethical medicine, under which they should exercise their best medical judgment solely on behalf of their patients and without concern that such exercise will run afoul of non-medical, legal restrictions.  The AMA opposes the imposition of criminal penalties against physicians on account of their good faith medical decisions. 

Case summary

The New Hampshire Parental Notification Prior to Abortion Act required that, except in special situations, a physician who is to perform an abortion on a minor ensure that the minor’s parents have received at least 48 hours notice of the intent to perform the abortion.  The sanctions for violation of the law included civil liability and criminal penalties.  The law allowed physicians to avoid the notice requirement if necessary to prevent the minor’s death, but notice had to be provided even if so doing could result in medical complications and suffering short of death.  Both the federal district court and the court of appeals had held the statute unconstitutional.

By unanimous decision, the Supreme Court reversed the lower courts and remanded the case.  The Supreme Court held that the New Hampshire statute was defective, in that it did not include a “health exception” to the obligation to notify parents.  However, the lower courts were ordered to reexamine the law to see if they could devise a remedy to save the valid portions of the statute and still make it conform to Supreme Court precedents, rather than voiding it completely.

Litigation Center involvement

The Litigation Center filed an amicus curiae brief to oppose the parental notification law.  The brief highlighted the medical and practical difficulties that the New Hampshire law could cause physicians and their patients.  It also made clear that the AMA neither supports nor opposes its members’ performing abortions, as that is a matter of individual conscience. 

United States Supreme Court brief.

Hill v. Colorado, 530 U.S. 703 (2000)

Also under Access to medical facilities

Outcome:    Very favorable

Issue

The issue here was whether a Colorado statute prohibiting a non-consensual “knowing approach” of another person within 100 feet of a health care facility’s entrance was unconstitutional as a violation of the right to free speech.

AMA interest

The AMA supports the right of access to medical care and believes that health care providers have a fundamental right to freedom from violence.  The AMA opposes acts of intimidation that may impede physicians’ ability to care for their patients.

Case summary

In response to concern about aggressive anti-abortion protests outside facilities that performed abortions or provided abortion referrals, the Colorado legislature enacted a statute to restrict unwanted approaches toward those entering such facilities.  Anti-abortion activists challenged the constitutionality of the statute by suing to enjoin its enforcement.  The state trial court dismissed the complaint, holding that the statute imposed content-neutral time, place, and manner restrictions that were narrowly tailored to serve a significant government interest.  Both the state appellate court and the Colorado Supreme Court affirmed.

The case was then appealed to the United States Supreme Court, which also affirmed.  The Court held that the statute regulated place, not content, and properly protected listeners from unwanted communications.

AMA involvement

The AMA joined an amicus curiae brief with the American College of Obstetricians and Gynecologists to support the Colorado statute.

United States Supreme Court brief

McCullen v. Coakley (S.Ct.)

Also under Access to medical facilities and Patient privacy

Issue

The issue in this case is whether a Massachusetts statute making it a crime to enter or remain on a public way or sidewalk within 35 feet of an entrance to an abortion clinic in order to “counsel” those having abortions is constitutional.

AMA interest

The AMA supports the right of access to medical care and opposes acts of intimidation that may impede physicians’ ability to care for their patients. Further, the AMA believes that physicians should protect patient privacy in all its forms, including the physical privacy of patients and respect for their personal space.

Case summary

The plaintiffs in this case are “pro-life” sidewalk counselors and demonstrators, who characterize themselves as “peaceful” and “non-confrontational.” They park their cars near various abortion clinics in Massachusetts and attempt to persuade patients of the clinics not to have abortions. They festoon their cars with pro-life signage, carry placards and other signs, pray aloud, sometimes with the assistance of loudspeakers, and occasionally wear evocative garments (such as a costume of the Grim Reaper). Whey they can, they speak with prospective patients and hand out anti-abortion literature. The defendants are the Massachusetts Attorney General and various county prosecutors.

The plaintiffs are challenging a Massachusetts “buffer zone law,” which prohibits persons from encroaching within a specified distance of abortion facilities or the patients at those clinics. The plaintiffs contend that the Massachusetts law infringes their rights under the First and Fourteenth Amendments to the United States Constitution. Both the trial court and the United States Court of Appeals held the buffer zone law constitutional, but the plaintiffs are now appealing to the United States Supreme Court.  Oral argument in the Supreme Court was heard on January 15, 2014.

Litigation Center involvement

The Litigation Center joined the Massachusetts Medical Society and the American Congress of Obstetricians and Gynecologists in an amicus brief to the Supreme Court. The brief argued that the buffer zone law is reasonable and does not unduly infringe the plaintiffs’ constitutional right to communicate with the abortion facility patients.

United States Supreme Court brief

McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001)

Also under Access to medical facilities

Outcome:    Very favorable

Issue

The issue in this case was whether a Massachusetts statute intended to keep pro-life demonstrators at a reasonable distance from persons seeking to enter abortion clinics violated the demonstrators’ First Amendment rights.

AMA interest

The AMA supports the right of access to medical care and opposes violence and acts of intimidation directed against patients, physicians, other healthcare providers, and medical facilities, including abortion clinics.

Case summary

In response to concerns of violence, harassment, and intimidation outside medical facilities that perform abortions, Massachusetts enacted a statute which created a buffer zone to keep anti-abortion demonstrators at a reasonable distance from patrons seeking to enter abortion clinics.

The anti-abortion demonstrators challenged the constitutionality of the statute by seeking a preliminary injunction against its enforcement.  The district court granted the preliminary injunction and enjoined various Massachusetts government officials from enforcing the statute.  The defendants appealed to the First Circuit.

The First Circuit upheld the statute, reversing the low court decision.

AMA involvement

The AMA, the Massachusetts Medical Society, and the American College of Obstetricians and Gynecologists joined in an amicus brief supporting the Massachusetts statute.

National Organization for Women v. Scheidler, 537 U.S. 393 (2003)

Also under Physician safety

Outcome:    Very unfavorable

Issue

This case concerned the power of the federal courts to enjoin persons who, in the course of abortion protests, intimidate and commit acts of violence against pregnant women seeking medical services at abortion clinics, the physicians and other persons who provide such services, and the abortion clinics themselves.

AMA interest

The AMA supports the right of access to medical care and opposes violence and acts of intimidation directed against patients, physicians, other healthcare providers, and medical facilities, including abortion clinics.

Case summary

The National Organization for Women (NOW) and two abortion clinics sued Joseph M. Scheidler, Operation Rescue, and several other militant anti-abortion activists in 1986 in the United States District Court for the Northern District of Illinois, in Chicago.  While a part of the defendants’ activities involved legitimate expression of opinion, another part involved illegal conduct.  Protestors sat or lay down in abortion clinic doorways, entered the clinics and destroyed medical equipment, and chained their bodies to operating tables to prevent their use.  In some instances, protestors physically assaulted clinic staff and patients.  The defendants also issued letters and statements to other clinics threatening to engage in such illegal conduct at those clinics unless they voluntarily shut down.  NOW claimed that the defendants’ anti-abortion protests violated the Racketeer Influenced and Corrupt Organizations Act (RICO) through criminal acts of intimidation and violence.

In 1994, the Supreme Court held that RICO provided a remedy against the defendants’ actions.  NOW v. Scheidler, 510 U.S. 249.  Following the Supreme Court decision, the case was remanded to the district court for a trial.  After a seven-week trial, a jury found for the plaintiffs.  The trial court awarded a total judgment of slightly in excess of $250,000.  In addition, the court entered a permanent, nationwide injunction prohibiting the defendants from using violence or threats of violence against abortion clinics, their employees, volunteers, or patients.  The injunctive relief was far more significant than the monetary damages, because the defendants, being impecunious, were largely impervious to monetary damages.

On Feb. 26, 2003, the Supreme Court reversed, holding for the abortion protesters.  The Court reasoned that to violate the Hobbs Act (a federal anti-extortion statute), a perpetrator must obtain actual possession of a victim’s property.  The abortion protesters, however, merely interfered with the clinics’ use of their property.  Thus, they did not violate the Hobbs or the RICO Act.  The Court never reached the issue of whether private litigants could secure an injunction under RICO.

Litigation Center involvement

The Litigation Center, on behalf of the AMA and several state and specialty societies, filed an amicus curiae brief in support of NOW and the other plaintiffs.  It primarily argued that the defendants had violated the Hobbs Act and that in so doing, they had supplied the necessary predicate for a RICO violation.

United States Supreme Court brief.

Planned Parenthood of Greater Texas Surgical Health Services v. Abbott,

Also under Access to medical facilities

Outcome:    Very unfavorable

Issue

The issue in this case was whether a Texas law imposed an undue burden on the right to abortion because it (1) required physicians who perform abortions to have medical staff privileges at a hospital within 30 miles of where the abortions are performed and (2) limited drug-induced abortions to the protocol approved by the Food and Drug Administration.

AMA interest

The AMA supports (1) the right of access to medical care and (2) physicians’ right to practice ethical medicine, under which they should exercise their best medical judgment solely on behalf of their patients and without concern that such exercise will run afoul of non-medical, legal restrictions.

Case summary

Texas passed a law which required physicians who perform abortions to have medical staff privileges at a hospital within 30 miles of where the abortions are performed. In addition, the law limited drug-induced abortions to the protocol approved by the Food and Drug Administration for the abortifacient drug mifepristone.

The trial court held that the law was facially unconstitutional, because it unduly burdened the right to an abortion. It found it was unnecessary for maternal health to require medical staff privileges as a condition of performing abortions, and doing so would make it substantially more difficult for many women to obtain an abortion. It further found that the FDA protocol for mifepristone was in contravention of established medical practice and that following the protocol could endanger women’s health. Thus, it enjoined enforcement of the law.

The Fifth Circuit found that the law had a rational purpose to protect women’s health. Furthermore, whatever burden the law imposed on the right to abortion was, for all but a small number of women, minimal. The court found the law facially constitutional except for a minor issue regarding the time it could become effective. It reversed the lower court injunction and the declaratory judgment.

AMA involvement

The AMA joined with the American College of Obstetricians and Gynecologists in an amicus brief supporting the lower court decision and opposing the Texas law.

United States Court of Appeals for the Fifth Circuit brief