AUL Files Brief in Mexican Supreme Court Detailing Abortion’s Risks

WASHINGTON, DC – Attorneys with Americans United for Life have filed a brief in the Mexican Supreme Court supporting a constitutional amendment from the Mexican state of Baja that protects human life from conception.  In its brief, AUL argues that protecting unborn life also works to protect women from the harms of abortion.

“The Mexican Supreme Court has a unique opportunity to learn from the devastating consequences of the United States’ 37-year ‘experiment’ with abortion-on-demand,” said Denise Burke, a senior attorney with AUL.  “The medical evidence detailed in our brief proves that abortion hurts women and is not the panacea that pro-abortion advocates promised.”

Following a controversial 2008 ruling by the Mexican Supreme Court upholding a Mexico City law permitting first trimester abortions, 15 of Mexico’s 31 states passed constitutional amendments protecting human life from conception.  Most of these amendments passed overwhelmingly.  Passed in December 2008, Baja’s amendment garnered some legislative opposition and a constitutional challenge was later brought by Francisco Javier Sánchez, a former Baja human rights commissioner.  The Mexican Supreme Court has agreed to hear the challenge, but no hearing date has been set.

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AUL Amicus Brief- Spanish

AUL Amicus Brief- English translation

FEBRUARY 4, 2010

AMERICANS UNITED FOR LIFE DEFENDS ARIZONA’S INFORMED CONSENT LAW
AUL Files Brief in 9th Circuit Affirming State’s Interest in Protecting Women

WASHINGTON, DC – Attorneys with Americans United for Life filed a brief in the 9th Circuit Court of Appeals arguing that Arizona’s 2009 informed consent law is a constitutionally-appropriate expression of the state’s legitimate interest in safeguarding the health of women considering abortions.

“Abortion providers in Arizona are making it clear that they aren’t protecting women’s health,” noted AUL’s lead attorney Mailee Smith, “rather their priority is getting paid.”

In 2009, Arizona enacted a law mandating that a woman considering abortion must receive information about its risks and also about the alternatives. The law also requires a 24-hour reflection period before the woman may actually undergo an abortion, and it prohibits abortion providers from collecting payment prior to the expiration of the reflection period.

In September 2009, Arizona abortion providers filed legal challenges to the law in both federal and state courts, requesting that it be enjoined and declared unconstitutional. A federal district court later refused to enjoin the law and abortion providers have elected to appeal the enforcement of the payment restrictions to the 9th Circuit.

State Representative Nancy Barto, AUL’s client and a principal sponsor of the legislation, remarked during a February 2009 hearing on the measure, that the State of Arizona has demonstrated a commitment to “protecting Arizonans’ right to make informed decisions about their medical care.”

Amicus Brief: http://blog.aul.org/wp-content/uploads/2010/02/AUL-Tucson-v.-AZ-Amicus-Brief.pdf

http://aul.org/Amicus_Briefs
SOURCE: AMERICANS UNITED FOR LIFE: The first national pro-life organization in America

Media Contact
press@aul.org

202-556-1994

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Since the 1970s, federal courts have regularly interpreted the “mandatory categories of care” within Medicaid to include abortion and thus mandate abortion coverage. That judicial interpretation of Medicaid will be adopted by courts in interpreting federal health care legislation, unless abortion is expressly excluded.

In addition to the leading case of Planned Parenthood Affiliates of Michigan v. Engler—where the Sixth Circuit held that “abortion fits within many of the mandatory care categories, including ‘family planning,’ ‘outpatient services,’ ‘inpatient services,’ and ‘physicians’ services.’ 73 F.3d 634, 636 (6th Cir. 1996)—at least six other circuit courts (the First, Third, Fifth, Seventh, Eighth, and Tenth) have held that abortion is covered under Medicaid (unless there is a specific statutory exclusion like the Hyde Amendment). Some, like the Sixth Circuit, have specifically held that abortion is covered under the broad “mandatory categories of care” including “family planning” within Medicaid (Title XIX of the Social Security Act, 42 USC 1396d(a)).

The First Circuit, in Preterm, Inc. v. Dukakis held that abortion is covered by Medicaid and implicitly concluded within the mandatory Medicaid categories. 591 F.2d 121, 125 (1st Cir. 1979).

The Third Circuit, in Roe v. Casey, noted with agreement that “[t]he district court took note of the fact that standard abortion procedures ‘involve most, if not all’ of the types or classes of services which are to be furnished to the categorically needy” within Medicaid. Roe v. Casey, 623 F.2d 829, 832 (3rd Cir. 1980).

The Fifth Circuit, in Hope Medical Group for Women v. Edwards, held that a state statute limiting Medicaid-funded abortion procedures was “inconsistent with the broad objective of Title XIX to provide needed medical care to qualified recipients.” 63 F.3d 418, 428 (5th Cir. 1995). The court stated, “[a]lthough Title XIX does not specifically include abortion as a mandatory service, the parties concede that abortion services fall under several of the eight broad categories of medical services mandated by the Act, including inpatient hospital services, outpatient hospital services, physician’s services, and family planning services.” Id. at 425.

The Seventh Circuit, in Zbaraz v. Quern, agreed with the First Circuit’s decision in Preterm “that limiting Medicaid assistance to life-threatening abortions “violate[s] the purposes of the Act and discriminate[s] in a proscribed fashion” 596 F.2d 196, 199 (7th Cir. 1979).

The Eighth Circuit in 1980 held that “[the Medicaid mandatory categories] include medical procedures to induce abortions.” Hodgson v. Board of County Com’rs, Hennepin County, 614 F.2d 601, 607 (8th Cir. 1980). And in Little Rock Family Planning Services, P.A. v. Dalton, the court held that “[a] state plan must cover medical services that a person’s physician certifies are “medically necessary.” 60 F.3d 497, 499 (8th Cir. 1995). Though the Dalton court admitted that “[Title XIX] does not identify any specific medical procedures, whether they are Caesarean sections, transfusions, bypass surgery, or abortions.” Id. at 499, it concluded that “[b]ecause abortion falls within several of these mandated categories [of medical service], a medically necessary abortion is a mandatory covered service.” Id.

The Tenth Circuit, in Hern v. Beye, held that “[a]bortion falls under several … ‘mandatory coverage’ categories, including ‘inpatient hospital services,’ 42 U.S.C. § 1396d(a)(1), ‘outpatient hospital services,’ id. § 1396d(a)(2)(A), ‘family planning services,’ id. § 1396d(a)(4)(C), and ‘physicians’ services furnished by a physician,’ id. § 1396d(a)(5)(A).” 57 F.3d 906, 911 (10th Cir. 1995).

In addition, several federal district courts have read abortion into Medicaid.

In Doe v. Busbee, the court concluded that “[i]t is clear that an abortion is a medical procedure which falls within the five general categories set out in Title XIX.” 471 F.Supp. 1326, 1331 (N.D. Ga. 1979).

In Smith v. Rasmussen, the court held that “[a]bortions . . . fall within several of Medicaid’s mandatory categories of care.” 57 F.Supp.2d 736, 755 (N.D. Iowa, 1999).

In Planned Parenthood Affiliates of Ohio v. Rhodes, the court broadly held that “[t]he ‘promotion’ of abortion, whether it consist of counseling, encouraging, referring, assisting or even performing medically necessary abortions is included in the five general categories.” Planned Parenthood Affiliates of Ohio v. Rhodes, 477 F.Supp. 529, 540 (E.D.Ohio, 1979).

Finally, in reading these decisions, it must be understood that a “medically necessary” abortion is—under the Supreme Court’s abortion doctrine—whatever an abortion provider, in his/her personal, subjective judgment, determines it to be. The terms “necessary” and “medically necessary” are virtually synonymous, because both vest the abortion provider, in his or her subjective judgment, with complete discretion to determine their meaning. As the lower federal courts have applied the terms, an abortion is “necessary” because a woman requests it, and it becomes “medically” necessary when the doctor agrees to it. Consequently, when these two terms are combined—“medically necessary” to preserve the “health” of the woman”—a “medically necessary” abortion means any abortion a provider agrees to perform for any reason.

This letter to Senator Patrick Leahy, chairman of the Senate Judiciary Committee, was released this morning.

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May 4, 2009

The Honorable Patrick J. Leahy
United States Senate
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Senator Leahy:

We understand that Associate Justice of the Supreme Court, David Souter will retire at the end of the Court’s current term.  The President will soon send to the United States Senate a nominee to our highest court.

Americans United for Life is a public-interest law and policy organization whose vision is a nation in which everyone is welcomed in life and protected in law.  We will oppose any nominee to the Court who believes social activism trumps interpreting the Constitution.

The Constitutionally-protected right to self-government is threatened when judges arrogate to themselves the legislature’s power to craft public policy.  The most important question a nominee for the Supreme Court must answer is to articulate their judicial philosophy:  will they advance an agenda that limits the right of the people to determine the content of abortion-related laws through the democratic process?

The President has expressed a public commitment to reducing the frequency of abortion in the United States. Appointing a nominee who intends to read the Freedom of Choice Act into the Constitution will undermine that objective, increase the number of abortions nationwide, and further disenfranchise millions of Americans who want to settle this issue through the democratic process.

Furthermore, elevating abortion to a fundamental right on the same plane as the freedom of speech would void common-sense abortion regulations that the vast majority of Americans support, like the prohibition on partial-birth abortion.   Such a move would also require taxpayer funding of abortion, eliminate informed consent and parental notice and consent laws, state requirements that abortions be done only by physicians, and more.  A judicial nominee who intends to pursue such a radical agenda should be summarily rejected by the Senate.

In the days ahead, we look to our Senators to uphold their duty to raise serious questions on the nominee’s judicial philosophy and reject any nominee who places personal preference over upholding the Constitution.

Sincerely,

Charmaine Yoest, Ph.D.
President and CEO

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A PDF of this letter is available here.

“Pro-abortion Supreme Court nominee will read Freedom of Choice Act into the Constitution.”

WASHINGTON – Major media outlets are reporting that United State Supreme Court Justice David Souter has informed the White House that he plans to retire at the end of the Court’s current term.

Dr. Charmaine Yoest, President & CEO of Americans United for Life, stated, “We will work to oppose any nominee for the Supreme Court who will read the Freedom of Choice Act into the Constitution in order to elevate abortion to a fundamental right on the same plane as the freedom of speech. In his search for a replacement for Justice Souter, President Obama should avoid a pro-abortion litmus test.”

Dr. Yoest continued, “This nomination represents a test for a President who has expressed a public commitment to reducing abortions while pursuing an aggressive pro-abortion agenda. Appointing an abortion radical to the Court — someone who believes social activism trumps the Constitution – further undermines efforts to reduce abortion. In the days ahead, Justice Souter’s retirement also represents a test for the Senate: will they uphold their duty to raise serious questions over a nominee’s judicial philosophy?”

“The irony is that even many abortion rights supporters agree that Roe v. Wade was poorly decided,” Yoest said. “One person often cited as a potential Obama pick, legal scholar Cass Sunstein, has argued that Roe ‘badly overreached’ and that the decision rests on shaky constitutional foundations.”

Regarding Souter’s tenure on the Court, Americans United for Life Senior Counsel Clarke D. Forsythe stated, “Justice David Souter is one of the most pro-abortion members of the United States Supreme Court. During his tenure, Justice Souter voted to uphold abortion on demand and to strike down common sense abortion regulations that the vast majority of Americans support. He voted in 2000 and again in 2007 to strike down prohibitions on the barbaric practice of partial-birth abortion. As many votes on abortion have been 5-4 decisions, his presence on the Court has extended the tragedy of abortion by restricting the right of states to make their own decisions on abortion law.”

About Americans United for Life
Americans United for Life (AUL) is a nonprofit, public-interest law and policy organization whose vision is a nation in which everyone is welcomed in life and protected in law.  The first national pro-life organization in America, AUL has been committed to defending human life through vigorous judicial, legislative, and educational efforts at both the federal and state levels since 1971.  The Wall Street Journal has profiled AUL, and PBS’ Frontline program chronicled AUL’s successful efforts in Mississippi.

On January 7, 2009, the Arizona License Plate Commission unanimously approved the offering of “Choose Life” license plates to Arizona motorists.  The decision followed years of litigation, where it was determined that the Commission had acted unconstitutionally in originally denying a petition for the “Choose Life” plates.

When the petition filed by Arizona Life Coalition was denied six years ago, the group filed suit in the federal district court for Arizona.  Arizona Life Coalition had abided by all state requirements, but the Commission inappropriately denied the plate based upon its pro-life message.  However, the district court sided with the Commission, and the case proceeded to the Ninth Circuit.

The Ninth Circuit, however, quickly saw through the Commission’s unconstitutional actions and reversed the district court’s decision and ruled in favor of Arizona Life Coalition.  When the U.S. Supreme Court denied the Commission’s request to review the appeal, the lower court instructed the state of Arizona to issue the license plates.

AUL has been continually active in this case, Arizona Life Coalition v. Stanton, as well as in other “Choose Life” cases.  In the Arizona case, AUL represented pregnancy care centers that stand to benefit from the funds derived from the “Choose Life” plates.  That amicus brief is available at http://www.aul.org/xm_client/client_documents/briefs/ArizonaLifeCoalitionvStanton.pdf.

AUL has also filed amicus briefs supporting the plates in Missouri and Illinois.  The case in Missouri, Roach v. Vincent, is currently pending before the Eight Circuit.  The lower court has already ruled that the state acted unconstitutionally in denying the issuance of the plates.  AUL’s amicus brief, filed on behalf of pregnancy care centers in Missouri, is available at http://www.aul.org/xm_client/client_documents/briefs/RoachvVincent.pdf.

The Seventh Circuit, however, has diverged from the decisions in the Ninth Circuit and the Western District of Missouri, ruling instead that the state of Illinois has not acted unconstitutionally in denying the “Choose Life” license plates to its motorists.  Attorneys for Choose Life Illinois have stated that they plan to take the case to the U.S. Supreme Court.  AUL’s amicus brief in that case, Choose Life Illinois v. White, is available at http://www.aul.org/xm_client/client_documents/briefs/ChooseLifeILvWhite.pdf.

By finally approving the plates on Wednesday, Arizona became the 18th state to offer the “Choose Life” license plates to its residents.  The other states offering the plates include Alabama, Arkansas, Connecticut, Florida, Georgia, Hawaii, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Montana, Ohio, Oklahoma, Pennsylvania, South Dakota, and Tennessee.

In a disturbing unanimous opinion today, the California Supreme Court ruled that patient demand for nonessential, elective care trumps the freedom of conscience of physicians and their ability to practice medicine in accordance with their religious beliefs.

The Plaintiff, Ms. Benitez, brought suit because physicians at North Coast Women’s Medical Care Group could not, based upon conscience, perform one particular form of artificial insemination. Ms. Benitez was told from the beginning of the patient-physician relationship that certain North Coast physicians could not perform that particular elective procedure on unmarried women. When later denied that elective procedure, Ms. Benitez claimed it was because of her sexual orientation and sued.

The Court’s ruling is disturbing—and dangerous—for a number of reasons. First, Ms. Benitez’s arguments—as adopted by the California Supreme Court—represent an extremist position that will deny physicians free exercise in any medical situation. Rather than balancing the patient and physician interests so that everyone wins, the Court completely ignored the physicians’ constitutionally-guaranteed free exercise rights. Thus, this decision will force physicians to perform any elective procedure in any situation, regardless of their moral or religious beliefs. In fact, this decision is dangerous to any professional in any occupation.

Second, the Court’s decision poses a threat to good medical care. It defies common sense that a patient would want a doctor to violate his or her conscience in practicing medicine. We want our physicians to have consciences. In addition, by giving physicians an ultimatum—treat every patient in any way she demands, or get out of the profession—we will be left with a diminished supply of physicians, nurses, and other healthcare workers. Obviously, a diminished supply will be disastrous for the overwhelming demand in American society today.

What is ironic about Ms. Benitez’s arguments and the Court’s opinion is that both demonstrate their complete intolerance for the lifestyle decisions of other Americans. Ms. Benitez demands to be respected in her lifestyle decisions; but she does not afford that same grace and dignity to the decisions of others.

AUL filed an amicus brief at the appellate level as well as before the California Supreme Court on behalf of Christian Medical & Dental Associations (CMDA), American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), and Physicians for Life. AUL argued that Ms. Benitez’s extremist arguments would, if adopted by the Court, open a Pandora’s Box of ramifications threatening to religious freedom and the practice of medicine.

The case now returns to the trial court for a trial and important factual determinations including whether the physicians declined to perform the demanded treatment because of Ms. Benitez’s marital status or her sexual orientation. If, as the physicians have demonstrated all along, the trial court agrees that the physicians acted based upon Ms. Benitez’s marital status, the case should be decided in favor of the physicians. Ms. Benitez has raised no claims of marital discrimination.

The Minnesota abortion alternatives program, “Positive Alternatives,” has just been granted roughly 1.5 million dollars in state funding per year for the next three years, totaling to 4.7 million dollars.

The Positive Alternatives program was approved by the state legislature in 2005. Non-profit organizations that qualify for participation in the program will be reimbursed with state funds for services they have provided. Under the program, maternity homes, pregnancy centers, counseling agencies, and other social service agencies will be reimbursed for the free services they have already provided to women who have chosen childbirth over abortion. Reimbursable services include medical and nutrition services, prenatal care, parenting classes, housing, adoption counseling, food, personal counseling, and educational and employment assistance.

Executive Director of Positive Alternatives Scott Fischbach stated that “[t[hese grants ensure that pregnant mothers…won’t feel abortion is their only option.” Fischbach continued: “We know that the grants are helping more women choose life for their unborn children, and we hope that they are enough to reduce the overall number of abortions.”

Indeed, abortion alternatives programs have been shown through the years to reduce the number of abortions performed. Pennsylvania’s abortion alternatives program, “Real Alternatives,” is the oldest government-funded abortion alternatives program in America, and has been used as the model for all other state abortion alternatives programs. During the 2004-2005 fiscal year, the PA program served 17,233 women. In that year alone, the number of abortions performed in PA dropped 3%. This drop has been attributed directly to the free services provided by Real Alternatives supporting women’s right to choose childbirth over abortion.

When the MN Positive Alternatives program was approved in 2005, it received overwhelming bi-partisan support. During its first year of funding, the program served at least 5,600 women. This year, Representatives Ken Tschumper (D), Shelly Madore (D) and Will Morgan (D) pushed the Minnesota legislature to completely cut off all funds for the Positive Alternatives program. The legislature, however, recognized the need and importance of the program, and renewed funding for the next three years.

The Minnesota legislature recognized that women who have exercised their right to choose by electing childbirth over abortion deserve the care necessary to carry through with their choice. The state’s funding of the Positive Alternatives program protects women facing crisis pregnancies from being forced by financial and other pressures to resort to an unwanted abortion. The legislature has seen thousands of women served by the program, and has chosen to continue to serve pregnant women in need.

Abortion alternatives programs are prevalent in other states besides Minnesota. Using the successful Pennsylvania program as a model, the state legislatures in Arizona, Florida, Louisiana, Missouri, North Dakota, Ohio, Oklahoma, and Texas have created state-supported abortion alternatives programs. These programs are effective and have improved the lives of hundreds of thousands of women.

State legislatures concerned with meeting the needs of women in need and with protecting the right of a woman to choose childbirth over abortion should consider establishing an abortion alternatives program in their state.

Senator McConnell’s tireless efforts to get Senate Democrats to agree to allow more federal judges come to the floor for a vote is finally showing some fruit.  The Senate leadership has agreed to allow five judges to be considered this week:

• Nomination of Helene White to the Sixth Circuit Court
• Nomination of Raymond Kethledge to the Sixth Circuit Court
• Nomination of Stephen Murphy to District Judge for the Eastern District of Michigan
• Nomination of William Lawrence to District Judge for the Southern District of Indiana
• Nomination of G. Murray Snow to District Judge for District of Arizona

This evening the Senate will consider the nominations of White, Kethledge and Murphy. Thursday the Senate will consider Lawrence and Snow.

I’m sure some of you are wondering whether Senator McConnell’s continued obstruction of Senate business over that body’s failure to confirm judges to the federal bench is really a big deal. I mean, come on! It’s an election year – what do you expect?

Well, here are some key stats that demonstrate just how far the Senate is behind:

Key Statistics on Judicial Confirmations for the 110th Congress

(Current As of June 10, 2008)

CIRCUIT COURT VACANCIES
11 Circuit Court vacancies with 10 nominees: 7 nominees are judicial emergencies: 1 judicial emergency does not have a nominee

Circuit Court Confirmations During Final 2 Years of Presidency (Average 24):

• 8 – Bush (thus far in 110th)
• 15 – Clinton
• 20 – Bush I
• 17 – Reagan
• 44 – Carter

Circuit Court Confirmations During Presidency (Average 62, including 1 term presidents):

• 59 – Bush (7 years)
• 65 – Clinton (8 years)
• 42 – Bush I (4 years)
• 83 – Reagan (8 years)
• 56 – Carter (4 years)

DISTRICT COURT VACANCIES
33 District Court vacancies with 18 nominees; plus 1 nominee to a future vacancy: 7 nominees are judicial emergencies; 2 judicial emergencies do not have nominees

District Court Confirmations During Final 2 Years of Presidency (Average 94):

• 41 – Bush
• 57 – Clinton
• 100 – Bush I
• 66 – Reagan
• 154 – Carter

District Court Confirmations During Presidency (Average 237, including 1 term presidents):

• 244 – Bush (7 years)
• 305 – Clinton (8 years)
• 148 – Bush I (4 years)
• 290 – Reagan (8 years)
• 206 – Carter (4 years)

SUMMARY

• The Senate must confirm 7 more circuit nominees and 16 more district court nominees this year to match President Clinton’s confirmation numbers during his final two years.

Senator McConnell continues his campaign to draw attention to the Senate’s continued failure to confirm judges to the federal bench.

While the Senate confirmed three District Court nominees today, (Mark S. Davis to be U.S. District Judge for the eastern district of Virginia; David Gregory Kays to be U.S. District Judge for the Western District of Missouri; Stephen N. Limbaugh, Jr. to be U.S. District Judge for the Eastern District of Missouri), McConnell is unhappy over the failure of the Senate to confirm Circuit Court nominees per the previous agreement by Majority Leader Harry Reid.

So, Leader McConnell once again invoked the two-hour rule today forcing Democrats to shut down the Senate so that a committee hearing on interrogation could continue.

Given McConnell’s continued campaign, it seems that the Democratic leadership has two choices – allow more nominees be brought forward for an up or down vote or extend this Congress’s do-nothing record and allow this issue to become campaign fodder in the fall.

Senate Minority Leader Mitch McConnell continues his efforts to draw attention to the utter failure of Senate leadership to honor promises to bring a number of federal circuit court nominees forward for an up or down vote.

Senator McConnell today shut down Senate committee hearings by objecting to their continuance pursuant to the “two-hour rule”. (See here under point 5.)

Particularly worrisome is the fact that Senator Patrick Leahy, the chairman of the Senate Judiciary Committee has “threatened to shut down the confirmation process completely.”

Conservatives have benefited in the past by pointing out the extreme views of the Senate Democratic leadership on judicial confirmations and the lengths they will go to keep highly qualified candidates off the federal bench. Senator McConnell should continue and expand these tactics until the Senate leadership gives in or election day – whichever comes first.

Unfortunately, the judicial emergency continues.

While the Federal bench languishes with too few judges thanks to the Senate sitting on its hands, the Senate Minority Leader Mitch McConnell decided yesterday to protest the Majority’s failure to honor promises to bring President Bush’s judicial nominees forward for an up or down vote. He did this by opposing a routine request to dispense with the reading of the Boxer substitute to the Lieberman-Warner Climate Change Bill. By objecting, the clerk was required to read the entire text of the amendment.

The amendment was 491 pages long.

In a press release, McConnell stated:

“At the beginning of this Congress, the Majority said it would meet or exceed the average of 17 circuit court nominees that have been confirmed in prior Congresses; yet it has only confirmed eight circuit court judges thus far. More disturbing, the Chairman of the Committee recently threatened to shut down the confirmation process completely, an action that would break yet another historical precedent.

“The Majority said it would treat Republican Senate delegations fairly; yet for months, the Democratic Majority has only worked on circuit court nominees from states with a Democratic senator.

“The Majority said it would do its ‘utmost,’ said it would do ‘everything’ possible, said it would do ‘everything within its power’ to confirm three more circuit court nominees by the Memorial Day recess; yet it only confirmed one nominee. Moreover, it appears the Majority did not seriously attempt to honor its commitment. Indeed, since that deadline passed almost two weeks ago, the Democratic Majority has still failed to confirm more circuit court nominees.”