Hot Times in the City

In June and July, things heated up for family planning supporters. While the Supreme Court made some definitive pronouncements, committees in the House and the Senate struggled, and then failed, to find common ground.

Supreme Court Strikes Down Texas Abortion Rules

On June 27, the Supreme Court handed down its decision in the Whole Woman’s Health v. Hellerstedt case, which challenged two parts of a sweeping Texas abortion law. That law, known as HB 2, was one of a string of so-called TRAP laws (Targeted Regulation of Abortion Providers) enacted across the nation over the past few years. Such laws are generally passed under the guise of improving women’s health, but have the effect of making it more difficult for providers to operate. They also impose rules on abortion clinics and providers that do not apply in other, similar healthcare settings.

The provisions at issue in the Hellerstedt case required all clinics in Texas to meet the standards of ambulatory surgical centers and required all abortion providers to have admitting privileges with a local hospital. While the state insisted that it sought only to protect the lives of women seeking abortions, clinic advocates pointed out that the state had offered no evidence that the regulations in question did anything to advance that goal. Rather, they argued, the new rules served only to put clinics out of business and prevent women from accessing abortion care.

Both sides relied heavily on the Supreme Court’s prior ruling in Planned Parenthood v. Casey, which held that states may regulate abortion as long as those regulations do not create an “undue burden” by having the “purpose or effect” of putting “substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” The Casey ruling, however, did not outline exactly what it would take for a burden to be “undue,” or how “substantial” an obstacle had to be.

In a 5-3 decision, the court struck down both requirements. In his opinion for the majority, Justice Stephen Breyer wrote that because the obstacles imposed by the Texas statute significantly outweighed any medical benefit offered, the restrictions constituted an undue burden, and were therefore unconstitutional.

It was an enormous victory for women across the country. It reaffirmed the core holding of Roe v. Wade and clarified the previously vague standard set by the Casey decision. Going forward, it also offers strong guidelines for courts to use in evaluating future challenges to state-level abortion restrictions. In a concurring opinion, Justice Ruth Bader Ginsburg wrote, “So long as this Court adheres to Roe v. Wade … and [Planned Parenthood v. Casey] … Targeted Regulation of Abortion Providers laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion’ … cannot survive judicial inspection.”

The ruling has had enormous and near-immediate effects on similar laws in multiple states. In the days following the decision, the court quietly nullified related laws in Wisconsin and Mississippi. In Alabama, Attorney General Luther Strange announced that his office would drop its defense of the state’s clinic rules, saying that “in light of the Supreme Court ruling,” there was “no good faith argument” that the law was constitutional. In Indiana, where several new restrictions were set to take effect on July 1, a federal judge blocked the provisions from doing so, stating that the law was unlikely, in her view, to survive a constitutional challenge. Planned Parenthood and other reproductive rights groups have already announced plans to campaign for the repeal of TRAP laws in Arizona, Florida, Michigan, Missouri, Pennsylvania, Tennessee, and Virginia, along with restrictions in Texas that were not challenged in the Hellerstedt case.

Senate and House Committees Pass Competing Bills

A day after the Senate failed to pass a bill to combat the Zika virus (due to a fight over the exclusion of—you guessed it—family planning), the Senate Appropriations Committee handed a win to supporters of family planning when it marked up the Fiscal Year 2017 State Department/Foreign Operations funding bill. While the original bill eliminated all funding for the United Nations Population Fund (UNFPA) and reinstated the Global Gag Rule, the outcome was quite a bit more positive than that scenario would suggest. Sen. Jeanne Shaheen (D-NH) offered an amendment that restored funding to UNFPA and called for a permanent repeal of the Gag Rule. Because family planning supporters have a majority in the committee, the amendment passed 17-13. All Democrats voted in favor of the amendment, along with Republican Senators Collins, Kirk, and Murkowski.

In the House, however, there was no such bipartisanship. The House Appropriations Committee, for the sixth year in a row, offered an initial bill that capped funding for family planning at $461 million (a $146.5 million cut from current levels), reinstated the Global Gag Rule, and barred any U.S. contribution to UNFPA.

The ranking Democrat on the panel, Rep. Nita Lowey (D-NY) cited the attacks on family planning as only one part of a long list of problems with the proposal. She then offered a sort of Democratic mega-amendment, striking large parts of the bill and replacing them with alternate language. The family planning-specific portions of this amendment included the following provisions:

  • increasing funding for family planning to meet the President’s budget request of $585 million;
  • removing the reinstatement of the Global Gag Rule and replacing it with a permanent repeal; and
  • adding a $35 million contribution to UNFPA.

Given the breadth of the amendment, it unsurprisingly failed, 20-29, on a party-line vote. Rep. Tim Ryan (D-OH) then offered a much narrower amendment specifically aimed at restoring funding for family planning. His amendment increased funding to the President’s budget request and funded UNFPA solely for the purchase of contraceptive supplies and to combat the Zika virus. His amendment also failed 20-29, again along party lines. Finally, Rep. Rosa DeLauro (D-CT) offered an extremely narrow amendment, providing $37.5 million in funding for UNFPA to be used only for:

  • providing reproductive healthcare in emergencies;
  • purchasing contraceptive supplies;
  • programs aimed at preventing and treating obstetric fistula;
  • opposing coercive practices; and
  • programs to end child marriage and female genital mutilation.

Rep. Charlie Dent (R-PA) joined Democrats on this one, but the amendment still failed 20-28 (Rep. Sanford Bishop (D-GA) was absent for this last vote, accounting for the change in tally). It is unlikely that either bill will come to the floor before the end of the Fiscal Year, and it remains to be seen if the chambers will even be able to pass an omnibus spending bill, as has happened in previous years.

The upcoming campaign season and November election already have members talking about the need for a continuing resolution to keep the government open until after the election. We will keep you up to date on events as they occur.

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