Wednesday, July 11, 2018

Iowa Supreme Court notes the travails of "rural women" in striking 72-hour waiting period for abortion

Having written about this issue for more than a decade--nudging courts to take the lived realities of rural women's lives seriously, including the burden of distance--I have little to say about this development except how glad I am that the Iowa Supreme Court specifically acknowledged the burden on "rural women" in its June 29 opinion striking down the state's 72-hour waiting period.  You can read the Des Moines Register's coverage of this case here.

Most of the legal "action" on the constitutionality of state restrictions on abortion has been in the federal courts, but this time reproductive freedom advocates turned to a state court, perhaps because the U.S. Court of Appeals for the Eighth Circuit has no (virtually none?) pro-choice precedents on the books.  In short, the Eighth Circuit has rarely (if ever) met an abortion regulation it didn't like.

The case is PLANNED PARENTHOOD OF THE HEARTLAND and JILL MEADOWS, Appellants, v. KIMBERLY K. REYNOLDS ex rel. STATE OF IOWA and IOWA BOARD OF MEDICINE, Appellees.  No. 17-1579. Supreme Court of Iowa.  The court acknowledges rural women seven--yes, count them, seven--times.  I'll excerpt a quote featuring each use of "rural" below. The first regards the shortage of OB/GYN practitioners in Iowa:
At the time this suit was filed, Iowa ranked forty-sixth in the nation for obstetrician and gynecologist (OB/GYN) access for reproductive age women. Sixty-six of Iowa's ninety-nine counties do not have an OB/GYN. Only 7.6% of family medicine physicians perform pregnancy ultrasounds in their offices. Because a handful of medical practitioners serve large geographic areas, patients—especially rural patients—must often wait between two to six weeks to see an obstetrician.
The second acknowledges the burden of distance to travel to an abortion provider, whether you have access to a private vehicle or must rely on public transit:
Transportation poses another collateral expense, especially for rural Iowans. Dr. Collins again used the hypothetical Ottumwa and Sioux City patients to illustrate the expected transportation costs of an additional visit to a PPH clinic. Dr. Collins offered two scenarios for each patient: one in which the patient has access to a vehicle and another where the patient must rely on public transportation.
This is interesting to me because I have similarly made the point of the burden of distance by deploying hypotheticals, as here and here (the latter being a feminist re-write of Planned Parenthood of Southeast Pennsylvania v. Casey for a collection of "Feminist Judgments").  These sorts of hypotheticals were not used, as far as I know, prior to Whole Woman's Health v. Hellerstedt, and then primarily in amicus briefs like that of Public Health Deans.

The opinion's next three references to "rural" are in a single paragraph, referencing an empirical study of abortion access:
Dr. Sharon Dobie authored a study that compared abortion rates of rural and urban women in Washington during a period when several abortion providers closed. The study found that, after the closings, 73% of rural women traveled more than fifty miles to obtain an abortion. Among those women, there was a significant increase in later abortions, which was not present among urban patients. Indeed, following the closings, the proportion of rural women who had abortions at eighteen weeks into their pregnancy or later doubled.
This reminds me of the U.S. Supreme Court's decision in Whole Woman's Health v. Hellerstedt, which made many references to evidence-based medicine.  The final text excerpt mentioning rural women cites to me, having noted that the Iowa statute makes no exception to the 72-hour waiting period for rural women; that's something Texas did prior to H.B. 2, the law under scrutiny in Hellerstedt.
Unlike mandatory delay statutes in other states, the Act does not provide an exception for rural women who live far from health centers. See Tex. Health & Safety Code Ann. § 171.012(a)(4) (West, Westlaw through 2017 Reg. and 1st Called Sess. of 85th Leg.); Va. Code Ann. § 18.2-76(B) (West, Westlaw through 2017 Reg. Sess.). See generally Lisa R. Pruitt & Marta R. Vanegas, Urbanormativity, Spatial Privilege, and Judicial Blind Spots in Abortion Law, 30 Berkeley J. Gender L. &; Just. 76 (2015). Nor does it provide an exception for rape or incest victims. See Utah Code Ann. § 76-7-305(9)(c)-(d) (West, Westlaw current with 2018 Gen. Sess. effective through April 1, 2018). Nor does it provide exceptions for victims of domestic violence or human trafficking. See Fla. Stat. Ann. § 390.0111(3)(b) (West, Westlaw through 2018 2d Reg. Sess.), invalidated on other grounds by Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1265 (Fla. 2017).
Note that, in addition to also acknowledging rape victims and those experiencing domestic violence and human trafficking, the court cites ... drum roll ... my former student, Marta Vanegas, and me for the proposition regarding rural women.  We wrote a piece early in the litigation over Texas's House Bill 2, the legislation eventually struck down in Hellerstedt. I have often joked that no court would ever cite an article with the words "Judicial Blind Spots" in the title, as mine and Marta's had, but I am happy to report now that I was wrong. 

Oh, the Iowa Supreme Court's final mention of rural women comes in footnote 7, which reads:
PPH urges that this disclosure jeopardizes a patient's confidentiality, particularly in small, rural towns.
The reference relates to this sentence of text, regarding how to get an ultrasound if you must be referred by your family medicine doctor:
Patients seeking certification would have to first schedule a family medicine appointment, meet with the physician and inform the physician of her desire for an abortion, and then be referred to a radiology center or hospital.
This lack-of-anonymity point is one I have also highlighted in my prior writing on abortion access for rural women (and a wide array of other issues, for that matter), such as here and here.

Planned Parenthood of the Heartland v. Reynolds also had some things to say about regulations on medication abortions.  I'll return to that topic in a subsequent post. 

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