This article first appeared online at POLITICO Pro on June 29, 2011.
Planned Parenthood juggles lawsuits
By Sarah Kliff
Planned Parenthood is in the midst of a whirlwind week in court.
On Friday, the group received news that a federal judge in Indiana would block a controversial state law that cuts off its funding. The following Monday, the group announced it would file suit against a similar restriction in Kansas.
That same day, in South Dakota, Planned Parenthood was also in court, arguing that a 72-hour waiting period was unconstitutional.
Planned Parenthood’s caseload stands to grow soon, too. The group said it is seriously considering filing a lawsuit soon in North Carolina challenging a provision in the state’s budget that defunds the group.
“What’s different this year … is the fact that we are either named or contemplated in so many pieces of legislation,” says Roger Evans, Planned Parenthood’s senior director of public policy litigation. “We will probably be litigating in about six states by the time we’re done, and that is completely unprecedented from ever before.”
Stories with headlines like “Roe v. Wade: Is It Still Law Of The Land?” and “Roe v. Wade On Hold” called into question whether abortion rights defenders had shirked their responsibilities.
“If nobody will sue over those laws … then quietly, and with no real national debate, Roe v. Wade has already been effectively overturned,” MSNBC television host Rachel Maddow said on a recent show.
In reality, though, Planned Parenthood has launched an increasingly aggressive campaign to push back against both abortion restrictions and the federal funding of abortion providers for other services, like birth control and preventive care.
“We try to bring litigation whenever something is enacted that targets us or impedes access to the services that we provide,” Evans said. “If a state enacts a ban on abortion at 22 weeks and we don’t provide abortion any later than that, whatever we think of the legislation, we’re not in a place to litigate.”
Caitlin Borgmann, a professor at City College in New York who runs the Reproductive Rights Prof Blog, describes the abortion rights movement’s challenges as “strategic.”
The cases they have brought are thought safer and less likely to bump up against abortion precedents, an area currently viewed with apprehension by the abortion rights community, uncertain of whether a Supreme Court challenge could engender further restrictions.
“There may be more optimism there because they aren’t strictly within the framework on abortion challenges,” she said. “There are all sorts of different challenges that aren’t dependent on a particular interpretation of a constitutional standard of abortion.”
Moreover, the laws that Planned Parenthood has decided to challenge tend to affect a greater number of people, widening the scope of a potential victory.
In Kansas, where Planned Parenthood filed suit on Monday, the group estimates they serve just more than 5,000 patients using federal Title X funds. If barred from the program, the group’s Title X clinics would lose about a third to half of their budgets and likely charge higher co-pays to program participants.
Kansas is also one of the states that passed a late-term abortion ban this year. But since 2009, when Wichita-based abortion provider George Tiller was murdered, the state has not had any late-term abortion providers. No clinic in the state will perform abortions beyond 16 weeks.
So while the state is now among those with a late-term abortion ban, the new regulation does not, in practical terms, affect the services that the state’s abortion providers currently offer.
“We don’t provide abortion after viability and after the stage of pregnancy that the law addresses,” Planned Parenthood of Kansas and Mid-Missouri’s Peter Brownlie told reporters on a Monday call. “We do not have standing to challenge that law.”
In the likely challenge to the North Carolina budget, Evans expects a relatively straightforward and simple case. As opposed to other state efforts, which have defunded all abortion providers, the North Carolina budget mentions Planned Parenthood by name as barred from state and federal contracts.
“What’s different in North Carolina … is it literally singles out Planned Parenthood and nobody else,” he said. “It is, in that sense, one step easier than Kansas. In Kansas, they didn’t name Planned Parenthood.”
Susan B. Anthony List, an anti-abortion group that has aggressively pushed to defund Planned Parenthood, expects the legal challenges to fail — but also concedes that the group will have its best shot at overturning the provisions in court.
“It’s a tidal wave. Their best hope for stopping it is in court, and they know that,” said SBA List President Marjorie Dannenfelser. “They feel very strongly about the fact that they have solid ground, but our prediction is it won’t hold up in court.”
One thing, at least, is for certain: The legal battles will be lengthy — and abortion opponents won’t back down easily. On Tuesday, Indiana appealed a district court decision to block the state’s first-in-the-nation law defunding Planned Parenthood.
Along with the possibility of dragging on, the challenges that Planned Parenthood has brought do include some risk — particularly the one challenge that does wade into abortion rights, now being debated in South Dakota.
The state passed a law this year requiring a woman to wait 72 hours and visit a crisis pregnancy clinic before obtaining an abortion. The law is set to go into effect on July 1.
In a lawsuit heard on Monday, Planned Parenthood of Minnesota, North Dakota and South Dakota requested a preliminary injunction, contending that the new restrictions place an “undue burden” on women seeking abortions. The judge is expected to issue a ruling by the end of the week.
“The mandatory delay will make it extremely difficult, if not impossible, for many of plaintiffs’ patients to have an abortion in South Dakota,” Planned Parenthood argued in its complaint against Gov. Brian Daugaard. “Some women will simply be unable to have an abortion at all because they cannot afford to make two trips to Sioux Falls or make the necessary arrangements to miss that much time away from their families, jobs or other commitments.”
But it’s not necessarily certain that the Supreme Court would agree, if it did take the challenge. The court previously upheld a waiting period — albeit a much shorter, one-day time frame — in the 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey.
“With these things there’s always at least a slight risk,” Borgmann said. “I’d worry about Justice Kennedy. He ought to find a 72-hour waiting period an undue burden, but he also seems quite willing to accept delays and burdens to women that may include higher costs and some health consequences.”