Our ERA Testimony to the Senate Judiciary Committee
JUST TELL PRESIDENT BIDEN TO PUBLISH THE ERA, because the so-called Deadline is void (Why? See Exhibit A).
The LIVES OF WOMEN AND GIRLS ARE AT STAKE! See Complaint to UNITED NATIONS for the United States’ post-Dobbs human rights violations. Is this who we are now? (Read Exhibit D).
THE ERA SAVES ALL REPRODUCTIVE RIGHTS EVERYWHERE ALL AT ONCE (Read why in Exhibit B)—so to all politicians, STOP USING WOMEN’S DEMISE TO RAISE MONEY & GARNER VOTES!
TELL PRESIDENT BIDEN: DO YOUR JOB (U.S. CONSTITUTION ARTICLE II, SECTION 3). #PublishERA Here’s a handy Executive Order he can Sign (Exhibit C). End this Handmaids Hell with one ✍🏻 or pick up the ☎️ & call 1-202-ARCHIVIST!!
NO MORE EXCUSES!
The brief of the Department of Justice, which was representing the Archivist, in IL v. Ferriero, the DC Circuit Court of Appeals ERA case against the Archivist (the opinion in it is addressed more fully below in our testimony), correctly states that the act of the Archivist publishing the ERA does not make it valid, or not, because an Amendment legally becomes part of the Constitution the date the last necessary state ratifies it, (which means the ERA became legally valid on January 27, 2020), per Art. V. Biden has a Constitutional duty (Art. II §3) to publish the ERA, which will save Reproductive Rights, LGBTQ Rights, and make women and girls equal citizens for the first time. It will be his most historic act. (See Exhibit C for draft Executive Order).
As soon as the Archivist publishes the ERA, it is permanent. [See United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir. 1986) ("certification of the adoption of [a constitutional amendment by the statutorily-designated federal official] is conclusive upon the courts") (citing Leser v. Garnett, 258 U.S. 130, 137 (1922))]. The only way to remove it would be to go through the amendment process in Article V, US CONST., just like they had to do to get rid of Prohibition. It came in with an Amendment, and it could only be repealed with a new Amendment.
Testimony of Arlaine Rockey, Esq. and Gina Collias, Esq.
United States Senate Committee on the Judiciary
Hearing on Congress’ Role in Publishing the Equal Rights Amendment 07 March 2023
Amended 09 March 2023, adding Section III. A. and Ex. D – 02 March 2023 letter to UN re: decimation of U.S. abortion rights
Chairperson Durbin and Members of the Senate Judiciary Committee:
Through the decades, the United States has been committed to a worldwide struggle to promote and protect the rights of all who wish to be free and to have equal rights within their countries, including the women.
Thus, here at least, it ought to be possible for every citizen to access healthcare, to obtain an education, to participate in any chosen profession, and to be paid fair wages, equivalent to men’s in the same jobs, without being forced to resort to demonstrations in the streets. It ought to be possible for every citizen to have equality of rights without having to seek justice at every instance from the courts or to fear death, arrest or exorbitant monetary repercussions.
It ought to be possible, in short, for every American to enjoy the privileges of being American regardless of their sex. But half our population, WOMEN and GIRLS,
=====================
are legally SECOND-CLASS CITIZENS.1 We Americans should stop and examine our consciences about how important equality for all of our citizens is to a resilient Democracy.
This testimony is likely the most important and comprehensive that you will receive in this hearing as we are both attorneys who are experts on the Equal Rights Amendment (“ERA”), and who have been working on getting the ERA published, via the Courts and grassroots advocacy. We have both been practicing law over three decades and are members of two state bars and the U.S.Supreme Court Bar. You can find out more about us on Ms. Rockey’s Equality for Women Blog, at www.ArlaineRockey.com/equal-rights-for-women. We both represented amici curiae in the Equal Means Equal vs. David S. Ferriero2 case in 2020-21.3 We are both on the National ERA Publication Task Force. This testimony is not on behalf of the Task Force, but our views expressed herein are representative of many in the Task Force, which is an unincorporated coalition with the sole goal of getting the ERA properly published immediately.
__________________
1 The italicized portions are quoted from a famous civil rights speech by President John F. Kennedy in 1963, when our country was fighting over providing civil rights, like voting, education and desegregated accommodations, to Americans regardless of race. Much of what he said applies to the last leg of the fight to provide equal rights for women in our Constitution. See original text and video: https://www.jfklibrary.org/learn/about-jfk/historic-speeches/televised-address-to-the-nation-on-civil-rights
2 Equal Means Equal v. Ferriero, 3 F.4th 24 (1stCir. 2021) (unpub), Equal Means Equal v. Ferriero, 141 S. Ct. 611 (2020) (cert. before decision in 1st Cir. denied)[dismissed for lack of standing as was Illinois v. Ferriero, No. 21-5096 (D.C. Cir. Feb. 28, 2023)].
3 Ms. Rockey, Ms. Collias, and Ms. Pamela Parker, Esq. wrote the amici curiae briefs in all three courts for, final count, 86 amici, organizations that represented over a million of people, including SAG-AFTRA, Human Rights and Diversity Commission of the Teamsters, Niskanen Center, National Women’s Political Caucus, Elizabeth Cady Stanton Trust, The Alice Paul Institute, Global Indigenous Council, and several NOW, AAUW, and ERA state and local groups. U.S. Supreme Court amici curiae brief, with the theme, EQUALITY OF ALL CITIZENS IS ESSENTIAL TO AMERICAN DEMOCRACY is available here:
https://acrobat.adobe.com/link/track?uri=urn:aaid:scds:US:8be29fdf-6f6c-4edf-944c-3a13348ba9a6
=======================
I. THE ILLINOIS v. FERRIERO CASE LEFT THE ISSUE OF THE PURPORTED DEADLINE IN THE ERA AN OPEN QUESTION – HERE’S THE ANSWER.
Nothing, in the Illinois v. Ferriero, No. 21-5096 (D.C.Cir. Feb. 28, 2023) opinion, decided whether or not the purported deadline in the Preamble of the ERA was valid or not. The Court noted that the only U.S. Supreme Court case that came close to discussing it was Dillon v. Gloss.The D.C. Circuit Court of Appeals said:
It is certainly plausible to read the word “mode” [in Article V of the U.S. Constitution] as only referring to how the amendment may be ratified and not when. See United States v.Sprague, 282 U.S. 716, 733 (1931)(characterizing Congress’s role pursuant to Article V as “the delegated agent of the people in the choice of the method of ratification”) (emphasis added). The problem for the States is that the Supreme Court has also observed that Article V confers upon Congress an “incident[al] … power” to establish “matters of detail” that flows from its power to designate the “mode of ratification,” including the establishment of a reasonable time limit for ratification. Dillon v. Gloss , 256 U.S. 368, 376 (1921).
In Dillon, a prisoner held in custody for violating the National Prohibition Act petitioned for a writ of habeas corpus, arguing that the Eighteenth Amendment was invalid because Congress placed a seven-year deadline in the text of the amendment. [Emphasis supplied].[The Supreme] Court held that the inclusion of the seven year deadline [in the text of the amendment] was consistent with Article V, “for with the Constitution, what is reasonably implied is as much a part of it [the Constitutional provision] as what is expressed.” [Emphasis supplied]. Id. at 373. [HOLD THAT THOUGHT, because it will be important below]. The [Supreme] Court reasoned that Article V conferred a “wide range of power” upon Congress
=================
when proposing amendments, and thus “entertain[ed] no doubt” that Congress may fix a definite period for ratification that is reasonable, and that the seven-year deadline it imposed [in the TEXT] was permissible. Id. at 373, 376.
However, the ERA’s deadline was not in the text of the ERA Resolution, but in the preamble (also known as the “Proposing Clause” or the “Resolving Clause”). This is dispositive, because based upon the conservative constitutional interpretation methods of former Justice Antonin Scalia, now used by the majority of the Supreme Court, ORIGINALISM and TEXTUALISM, the ERA’s deadline is UNCONSTITUTIONAL precisely because it is NOT IN THE TEXT of the Amendment, which is the only part of the original resolution that the States can vote on to determine whether or not they want to ratify a new amendment to the Constitution.
Briefly, Article V of the Constitution was designed for the federal and state governments to have co-equal power in deciding whether or not to amend the Constitution (a concept of “Federalism”). Since the states only have rights / the power to vote on the text of the proposed new amendment, by the 92nd Congress placing the deadline in the preamble, it usurped the states’ rights / power to decide whether the new amendment should be ratified. It is a clear violation of the 10th Amendment. It essentially is also itself amending the Constitution, which is impermissible based on the Textualist and Originalist interpretation of the Constitution. This is a States’ Rights argument that any Conservative should champion.
Ms. Michele Honora Thorne, Esq., ingeniously wrote an article in the Chicago
====================
Bar Association Record (attached hereto as Exhibit A),4 using what she calls Justice Scalia’s “precision power tools” that proves that the ERA deadline is unconstitutional, and thus void ab initio (from the beginning), meaning it does not exist. She also used the same methods of interpretation to show how any purported rescissions of previous ratifications by a state are also unconstitutional. Think about Prohibition. The only way to get rid of it was to ratify a new amendment. Ms. Thorne also did an ERA continuing legal education (“CLE”) video explaining this, which makes it much more understandable.5
II. YOUR ERA REPORT MUST INCLUDE FINDINGS THAT WILL MAKE THE ISSUE OF THE VALIDITY OF THE ERA A “POLITICAL QUESTION” TO PROTECT THE ERA FROM COURT INTERVENTION
The following findings will help make the ERA’s validity a non-justiciable political question, which is important, so the ERA is protected from Court involvement due to the separation of powers doctrine.
A.YOUR ERA REPORT SHOULD INCLUDE FINDINGS REGARDING THE CHANGED CONDITIONS SINCE 1972 FOR WOMEN THAT HEIGHTENED AWARENESS OF THE NEED FOR AND THE APPROPRIATENESS FOR THE ERA.
__________________
4 Michele Honora Thorne, Esq., A New Era for the ERA? Our 28th Amendment to the U.S. Constitution, 36 CBA Rec. 31 (May-June 2022) [Explaining why the purported ERA Deadline has never been legally valid, nor are any Rescissions from any states. Ratifying an amendment is a one-way street. They cannot undo it. Ms. Thorne uses Justice Scalia’s “precision power tools” Textualist and Originalist reasons (that the ultra-conservative majority of the current Supreme Court uses) to prove why the Deadline and attempted state Rescissions are unconstitutional].
https://user-35215390377.cld.bz/CBA-Record-May-June-2022/31/
5 Ms. Thorne explains it in a Chicago Bar Continuing Legal Education video here: https://youtu.be/9rtRwfX-62w
[Also, here is Ms. Thorne giving a presentation about the ERA in which she explains clearly why ratifications are a one-way street on 15 March 2023. She explains that Congress, in proposing a new amendment, acts as the AGENTS of the states. Each state is the PRINCIPAL of all of that state’s Representatives and Senators, so in ratifying a proposed amendment, just like in contract law, the state is approving of (ratifying) the action of its agents. She explains the origins of the word ratify and why, once ratified, it is a done deal. https://youtu.be/X9V3e8TgrSw].
[Also see MS. Thorne’s video presentation, “Slavery, Coverture & the Unpublished Equal Rights Amendment” from the Chicago Bar Association and Young Lawyers Division. In it, she explains that the ERA will protect Reproductive Rights, and regarding abortion, there will still be a balancing between the autonomy rights of the mother and the rights of the unborn baby, similar to that in Roe. youtu.be/XbU7BRF5DmI].
=====================
Your report should include findings why the forty-eight years that it took for the ERA to be ratified, from 1972 to 2020, was a “reasonable” length of time, given the political and societal circumstances that existed in the country that finally made the requisite number of states ready to accept that women should have equal rights. This is an important piece of this ERA validity puzzle that you must include, based on the Supreme Court case of Coleman v. Miller, 307 U.S. 433 (1939). You can cite to evidence of many of the things that have changed since 1972, for example, women are now in combat, there are now many women with college degrees, women can get credit cards without their husbands’ signatures, etc. These are some of the things that people cite that makes them think that women do not need the ERA any more, because women are more equal than they were in 1972 – a big change is that there are many more women in state and federal government. However, read on to see why we still need the ERA today.
The Supreme Court in Coleman wrote Congress must determine:
[W]hether conditions were such as to intensify the feeling of need and the appropriateness of the proposed remedial action. In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of the Government. The questions they involve are essentially political and not
===============
justiciable. They can be decided by the Congress with the full knowledge and appreciation ascribed to the national legislature of the political, social and economic conditions which have prevailed during the period since the submission of the amendment. Coleman v. Miller, 307 U.S. 433, 453-54 (1939). [Emphasis supplied].
B. YOUR ERA REPORT SHOULD INCLUDE FINDINGS REGARDING THE CURRENT IMPORTANCE– THE VITALITY – OF THE ERA TO MAKE THE VALIDITY OF THE ERA A DONE DEAL.
The next important piece of this ERA validity puzzle that you must include, based on the Supreme Court case of Coleman v. Miller, 307 U.S. 433 (1939), is to show that the ERA has maintained its “vitality” from the time it was sent to the states by Congress in 1972, until the date it was finally ratified, on January 27, 2020 and became effective two years later (per its own language – the compromise to allow states and the federal government time to bring its laws into compliance with the ERA) on January 27, 2022.
You must find that the political principle, that equality of rights under the law should not be denied or abridged by the United States or by any state on account of sex, has not lost its vitality prior to the time that was required for ratification by three-fourths of the States, meaning that the ERA is still important.
The Supreme Court in Coleman said:
The more serious question is whether the proposal by the Congress of the amendment had lost its vitality through lapse of time ...It is said that when the [child labor] amendment was proposed there was a definitely adverse popular sentiment and that at the end of 1925 there had been rejection by both houses of the legislatures of sixteen States and ratification by only four States, and that it was not until about 1933 that an aggressive campaign was started in favor of the amendment that the conditions
====================
which gave rise to the amendment had not been eliminated; that the prevalence of child labor, the diversity of state laws and the disparity in their administration, with the resulting competitive inequalities, continued to exist. Coleman v. Miller, 307 U.S. 433, 451 (1939).
For example, in 2020, 97% of United States adults believed that the policy that women should have equal rights under the law is important, and 67% said that women not having the same legal rights as men was a major reason that women do not have equality in the United States.6
You can read Ms. Rockey’s blog (at. www.ArlaineRockey.com/equal-rights-for-women) for more information and ideas of what sorts of circumstances make the ERA vitally important still today. These include that women comprise 50% of the population, but in most legislatures, they are between 20-30% of the members. You can, for example, find facts regarding what percentages of women versus men hold tenured positions in colleges, run Fortune 500 companies, and are Governors of our states.
You can note that we just elected our first female Vice President in 2020 and have yet to elect a female President.
III. THE ERA WILL PROTECT ALL REPRODUCTIVE RIGHTS.
The ERA is the textual basis for reproductive choice, and a fundamental right for the same by implication, that Justice Alito claimed did not exist in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022) — even though the ERA was legally in the Constitution and legally-effective as of January
____________
6 Pew Research Center study of 3,143 U.S. adults from March 18 to April 1, 2020.
===================
27, 2022, prior to the Dobbs decision being leaked, but after oral arguments. After the leaked Dobbs opinion came out, Ms. Rockey and Ms. Collias filed a Motion in the Dobbs case seeking leave to file an amicus brief on behalf of ERA-NC Alliance, to argue that the ERA was valid and that it protected Reproductive Rights, which was a long shot since under Supreme Court Rules, only a party could file [a Supplemental Brief to] submit new authority after oral arguments. See Motion attached as Exhibit B.7
In our AMENDED MOTION FOR LEAVE TO FILE BRIEF FOR ERA-NC ALLIANCE AS AMICI CURIAE IN SUPPORT OF RESPONDENTS, we argued:
Consideration of the ERA is critical to a proper outcome in the instant case. Justice Alito and approximately four other Justices of the Supreme Court are “textualists.” In U.S. CONST. amend. XXVIII, §1. (unpublished), the ERA’s text states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The Mississippi law’s 15-week ban on abortion is a violation of the actual text of the ERA, because Mississippi has discriminated against women and girls on account of, ie., the basis of, sex because, it is axiomatic that the ability to get pregnant is a sex-based trait, and because Mississippi does not regulate the equivalent axiomatic sex-based trait of men and boys, the ability to emit sperm. There is no Mississippi law mandating vasectomies for men or boys, which would be regulating their reproductive choices.
_________________
7 AMENDED MOTION FOR LEAVE TO FILE BRIEF FOR ERA-NC ALLIANCE AS AMICI CURIAE IN SUPPORT OF RESPONDENTS (SCOTUS case#19-1392), on May 16, 2022, FOR LEAVE TO FILE AN AMICUS BRIEF, on behalf of ERA-NC Alliance, to argue based on the ERA TO SAVE REPRODUCTIVE RIGHTS filed in Dobbs v.Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022). It explains why the ERA saves Reproductive Rights and creates a Fundamental Right to Reproductive Rights in it. It was not allowed even to be filed because, despite the extraordinary circumstances, the Supreme Court Rules only allow a party to file a “Supplemental Brief” to brief new authority.
===================
[Emphasis supplied].
Further, the ERA does implicitly protect women’s Reproductive Choices, which include, but are not limited to, abortion. The ERA moreover provides a fundamental right for women’s Reproductive Choices because, the ability of a woman to control her reproduction is a necessary element of her ability to be a full and equal citizen, which is the intent and the requirement of the ERA. The Supreme Court has ruled that “What is reasonably implied is as much a part of [the Constitution] as what is expressed.” Dillon, at 373 (internal citations omitted).
Further, the reasons why the ERA is a textual basis for a Fundamental Right to Reproductive Rights, is historically women have been discriminated against because only women can become pregnant and give birth — that ability to become pregnant is a sex-based trait. “The ability to decide whether and when to have children is a fundamental aspect of being treated as an equal, respected, and participating member of our democracy. Women must be free to exercise this fundamental freedom on equal terms…,” which was well-stated in the BRIEF FOR LGBTQ ORGANIZATIONS AND ADVOCATES AS AMICI CURIAE IN SUPPORT OF RESPONDENTS, at19, filed in the instant case.3 The Supreme Court recognized this fact in Planned Parenthood v. Casey, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Id. at 30 (citing Casey, 505 U.S. 833, 856 (1992)).
...[T]he Court must consider the entire Constitution, which legally includes the 28th Amendment, the ERA, which has been effective since January 27, 2022. U.S. CONST. amend. XXVIII. AMENDED MOTION FOR LEAVE TO FILE BRIEF FOR ERA-NC ALLIANCE AS AMICI CURIAE IN SUPPORT OF RESPONDENTS, by Arlaine Rockey, Esq. and Gina Collias, Esq. (May 16, 2022).
As a strict textual matter, women’s reproductive choices will be protected by the ERA simply because the vast majority of state and federal legislatures, are majority
=================
male, and it is highly unlikely that they will restrict men’s reproductive rights in an equivalent fashion as they are restricting – even criminalizing – women’s.
An alternative way to compare the two sexes: “unless there is some male equivalent to forcing women to gestate against their will that the State is willing to perpetrate on men and men are willing to accept, the State will be unable to compel women’s pregnancy under the protections of the Equal Rights Amendment,” quoting Kamala Lopez, President of Equal Means Equal.8
Hopefully before that comes to pass there will be Supreme Court precedent that the ERA makes reproductive choice a fundamental right.
Many state ERAs have been used to protect reproductive rights9 and additional states are creating ERAs for their state constitutions.
Last year, Ms. Rockey wrote to the attorneys for Jackson Women’s Health Organization, and others at the Center for Reproductive Rights, and pleaded with them to file a Supplemental Brief (to submit new authority) based on the ERA
___________________
8 Lopez, Kamala, SCOTUS Seeks to Decimate Women’s Rights, Yet Biden Remains Silent on ERA Publication, Equal Means Equal Blog (May 19, 2022).
https://equalmeansequal.org/blog/scotus-seeks-decimate-womens-rights-yet-biden-remains-silent-era-publication/ (Accessed 3-7-23). [Kamala Lopez is President of Equal Means Equal (“EME”), a national ERA grassroots organization that was instrumental in implementing the three state solution, which led to the ratification of the ERA on January 27, 2020; Director of the ERA documentary, Equal Means Equal; EME was the lead plaintiff in Equal Means Equal v. David S. Ferriero, dismissed for lack of standing (as was Illinois v. Ferriero, No. 21-5096 (D.C. Cir. Feb. 28, 2023)), Equal Means Equal v. Ferriero, 3 F.4th 24 (1st Cir. 2021) (unpub), EqualMeans Equal v. Ferriero, 141 S. Ct. 611 (2020) (cert. denied), Ms. Rockey, Ms. Collias, and Ms. Pamela Parker, Esq. wrote the amici curiae briefs in all three courts].
9 https://ShatteringGlass.org “How States Use their own ERAs/Equal Rights [state constitutional] Provisions to Protect Repro Rights.”
=====================
becoming legally-effective on January 27, 2022 after oral arguments and said why it would protect Reproductive Rights, but they never filed it. Even now, they have never, to our knowledge, used the ERA to try to protect Reproductive Rights.
Ms. Rockey wrote to the White House Counsel and several others in the Biden Administration on June 17,2022, a week prior to Dobbs being issued10 and pleaded for President Biden to publish the ERA to stop the Supreme Court from decimating women’s reproductive rights. But he did not do it. It is unconscionable in our opinion for President Biden to purport to support women’s rights to their reproductive health yet not do the one thing that could fix this “Handmaids Hell” in our whole country – publish the ERA!
III. A. MULTIPLE ORGANIZATIONS FILED A COMPLAINT WITH THE UNITED NATIONS REGARDING THE HUMAN RIGHTS CRISIS IN THE UNITED STATES DUE TO THE DOBBS DECISION.
We amend this Testimony and provide the Committee notice of and an attached portion of the March 2, 2023 letter to the United Nations regarding “the intensifying harm that people residing in the United States who can become pregnant currently face following the US Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (Dobbs, or Dobbs v. JWHO). This submission is supported by a coalition of organizations and experts promoting civil rights, human rights, women’s rights, children’s rights, gender equality, racial justice, religious freedom, economic justice, and the right to access to healthcare.” [Footnotes omitted].
_______________
10 After she finally located their emails.
=====================
We have attached (as Exhibit D) these portions of their Urgent Appeal from the Table of Contents below:I, II A and B, IV, and V. The entire document can be found here: https://www.globaljusticecenter.net/files/UNSpecialProceduresLetter_USAbortionRights.pdf
Table of Contents
I. Executive Summary 1
II. Summary of the Facts 3
A. Women’s Lives and Health on the Line 4
B. Penalizing Healthcare: Criminalization, Civil Liability, andInvoluntary Confinement 15
C. Threats to Privacy from Increased Digital Surveillance 21
D. Freedom of Thought, Conscience and Religion or Belief 24
E. Disproportionate Impact on Marginalized Populations 25
III. Anti-Abortion Legislation Violates International Law 31
IV. List of Signatories 40
V. ANNEX A: 46 States With Abortion Bans Entering Into Effect After Dobbs (asof 01/09/2023) 46
IV. ALL DEMOCRATS IN CONGRESS MUST INSIST THAT PRESIDENT BIDEN SIGN AN EXECUTIVE ORDER DIRECTING THE ARCHIVIST TO PUBLISH THE ERA IMMEDIATELY TO SAVE LIVES – IT WILL BE THE MOST HISTORIC ACT HE COULD EVER DO.
In our legal opinion, Congress does not need to do anything with regard to the ERA except demand that President Biden direct the Archivist to publish it immediately. In our legal opinion, once an amendment is published in the Constitution, the only way to remove it is to ratify another amendment.
It would help if this Committee did put out its Report and that the Senate (we hold out less hope for the House at present) pass its Resolution even if it is after President Biden has the ERA published, because it will help any issue of the
=================
ERA’s validity to be considered a political question, as set forth hereinabove.
Congress did a Resolution after the 27th Amendment was published even though there was some controversy regarding its validity.
When it became evident that the ERA would be ratified by the 38th state, the Commonwealth of Virginia, in our opinion, Attorney General Bill Barr obstructed justice by getting an Office of Legal Counsel opinion to prevent the ERA from being published, and when it became a valid Amendment on January 27, 2020, in our opinion, Donald Trump obstructed justice and violated his Constitutional Duty to Take Care that the laws be faithfully executed (Art. II, § 3) by refusing to direct the Archivist to publish it.
Despite promising to enshrine women’s equality in the Constitution and acknowledging that the ERA was properly ratified, in his 2020 campaign’s Agenda for Women, President Biden has also failed to abide by his same Constitutional Duty, under the Take Care Clause (Art. II, §3) to enforce 1USC §106b, Article V, and the ERA itself, which became a valid Amendment on January 27, 2020, to immediately direct the Archivist to publish a new Constitution with the ERA as the 28th Amendment.
Pres. Biden wrote on January 20, 2023, “I will continue to use my Executive authority to protect women and families from harm in the wake of the Dobbs decision.” A Proclamation on 50th Anniversary of the Roe v. Wade Decision. He has thus far failed to do the easy lift of directing his Archivist to publish the ERA, which is the only way to protect all Reproductive Rights and
===============
many LGBT+ rights, including marriage and gay sexual relationships – Texas has spoken about beginning to enforce their criminal sodomy law, apparently still on the books, that was struck down in Lawrence v. Texas, 539 U.S. 558 (2003) (Dobbs put the longevity of Lawrence in question). It will likely protect LGBT+ people from the multitude of new discriminatory state laws. See Ms. Rockey’s draft Executive Order for President Biden attached as Exhibit C.11
We do not have a big social media footprint. We have tried to get publicity to let the public know that President Biden can fix this life and death situation with one stroke of the pen or even a phone call to the Archivist. He is the Archivist’s boss as head of the Executive Branch. Directing the Archivist to publish the ERA would be an appropriate use of an Executive Order.
There is NO EXCUSE for President Biden to wait one minute longer to publish the ERA. Ms. Rockey and Ms. Collias are Democrats. We will vote Democratic, no matter who the nominee is. We voted for President Biden and Vice President Kamala Harris, who we admire greatly. But, South Carolina is trying to make women who have abortions get the death penalty! Our own state, North Carolina, is about to pass a draconian anti-abortion bill. Mifepristone’s FDA approval may be removed, blocking women from using it as an option even in states where abortion is legal. Walgreens has stopped carrying these abortion pills. The authoritarian steamroller has been let loose like bulls in Pamplona.
____________
11Draft Executive Order for President Biden to direct the Archivist to publish the ERA by Ms. Arlaine Rockey, Esq. (first paragraph copied from the March 8, 2021 EO he signed to create the Gender Policy Council) available here: https://acrobat.adobe.com/link/track?uri=urn:aaid:scds:US:d27d45d3-cf60-3143-b407-09f4507110e5
==============
President Lincoln’s Emancipation Proclamation was the most historic Executive Order. President Biden has the opportunity to sign the second most historic Executive Order publishing the ERA, making 167 million women and girls in the United States equal citizens for the first time ever.
Respectfully submitted,
This the 7th day of March, 2023 (amended the 9th day of March, 2023),
Arlaine Rockey, Esq.
Gina Collias, Esq.
NOW COMES, Arlaine Rockey, Esq. who swears that the foregoing testimony to the U.S. Senate Judiciary Committee regarding the Equal Rights Amendment is true to the best of her own knowledge, except for those items that are legal opinions, and as to those she believes them to be true under the law. My North Carolina State Bar number is *****..
This the 7th day of March, 2023.
/s/Arlaine Rockey, Esq.
NOW COMES, Gina Collias, Esq. who swears that the foregoing testimony to the U.S. Senate Judiciary Committee regarding the Equal Rights Amendment is true to the best of her own knowledge, except for those items that are legal opinions, and as to those she believes them to be true under the law. My North Carolina State Bar number is *****.
This the 7th day of March, 2023.
/s/Gina Collias, Esq.
==================
EXHIBIT A
Textualist and Originalist analysis showing why the so-called deadline, that is not in the text of the ERA, is unconstitutional, thus void from the beginning [as well as why rescissions are not constitutionally valid and have bo effect on the ERA].
A New Era for the ERA? Our 28th Amendment to the U.S. Constitution
By Michele Honora Thorne
After women won equal suffrage rights in 1920 withpassage of the 19th Amendment to the U.S. Constitution, the Equal Rights Amendment was proposed asthe next step toward full equality for women – and all Americans.
The ERA was first introduced to Congress in 1923by two Republicans from Kansas. During its first few decades, the ERA faced opposition from social welfare and labor activists who sought to maintain special protections extended to women but not men. As those laws became more gender-neutral, support for the ERA grew and was mobilized by the women’s rights movement of the 1960s and ‘70s. The ERA introduced to Congress in1971 reads:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power toenforce, by appropriate legis- lation, the provisions ofthis article.
Section 3. This amendment shall take effect two yearsafter the date of ratification.
Amendment Procedure
Article V of the Constitution sets forth the amendment process and reads in pertinent part:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.
Adding a constitutional amendment is essentially a two-step process: (1) proposal by at least a two-thirds vote in each house of Congress, and (2) ratification by three-fourths of the states.
For the ERA, the first step of the amendment process was completed in 1972. On October 12, 1971, the U.S.House of Representatives passed the ERA by an overwhelming, bipartisan vote of 354 to 24. Then, on March 22, 1972, the U.S. Senate passed the ERA by a vote of 84 to 8, which was also bipartisan and well in excess of the two-thirds-vote threshold. The ERA was then sent to the states for ratification as the second step of the amendment process. Between 1972 and 1977, 35 state legislatures ratified the ERA. Between 2017 and 2020, three more states ratified: Nevada, Illinois, and Virginia, the 38th and final state needed to reach three-fourths, which ratified on January 27, 2020. Upon receipt of official notice that a proposed amendment has been adopted according to the provisions of the Constituation, the national archivist has a ministerial duty under 1U.S.C. 106b to issue a certificate specifying the states by which it was adopted and publish the amendment.
Objections to Certification
However, on January 6, 2020, in anticipation of Virginia becoming the 38th and final state needed to ratify the ERA, the Trump administration (through the U.S. DOJ) issued a specifically political opinion to the national archivist. According to the opinion, the ERA had expired and the national archivist, who works within the Executive Branch, was told not to certify and publish the amendment. The opinion states, in part, “Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment.” However, that statement is untethered to the actual text of the Constitution and its plain meaning. An additional objection to certifying the ERA as the 28th Amendment is that, after ratifying, a few states have attempted to rescind their ratifications. Between 1973 and 1979, five states (Nebraska, Tennes- see, Idaho, Kentucky and South Dakota) attempted to rescind. Most recently, in 2021, North Dakota attempted to rescind.
Rescission of Ratification: History
Can states rescind their ratifications? Article V mentions only the positive act of ratification, not rescissions. Further,
CBA RECORD 31
the word “ratify” comes from the Latin adjective “ratus,” which means established, authoritative, fixed,certain. Ratification is an act of validation, a grant of authority that is done, counted, and set.
In the context of law, ratification often applies to agency. The 1856 edition of Bouvier’s Law Dictionary, the original American legal dictionary, explains that a principal may “ratify” an action of its agent, meaning that the action is autho- rized and adopted by theprincipal. “But having once ratified the act, upon a full knowledge of all the material circum- stances,” according to Bouvier,“the ratifi- cation cannot be revoked or recalled, and theprincipal becomes bound as if he had originallyauthorized the act.”
In the narrow context of Article V, the states are like the “principal” and representatives in Congress are like the “agent.” Congress proposes amendments, but ratification by the states is what makes an amendment official and final. The Constitution itself was approved by state ratification. In September 1787, the Congress sent the Constitution to the states for ratification. By its terms, nine of the 13 states had to approve the Constitution for it to be adopted. On June 21, 1788, the Constitution became the official framework of the government of the United States of America when New Hampshire became the ninth state to ratify. However,the large and important state of New York had not ratified. There were concerns that the Constitution did not include protections for civil liberties, or what we now call a “bill of rights.” Absent these rights, New York delegates were uneasy approving the document. In July 1788, Alexander Hamilton wrote to Madison that New York could ratify the Constitution, but with a “right to recede” if a bill of rights was not added. “A reservation of a right to withdraw” is a “conditional ratification,” responded Madison, and New York “could not be received on that plan …. The Constitution requires an adoption in toto, and forever.” In other words, no take backs. Subsequent attempts were made to undo state ratifications of the 14th, 15th, and 19th Amendments. For example, on July 9, 1868, South Carolina ratified the 14th Amendment, becoming the 28th state to do so, which was three-fourths of the then 37 states. However, earlier that year, two of the 28 states – Ohio and New Jersey – attempted to rescind their ratifications. Regardless, the National Archives, the Library of Congress, and all three branches of the national government publicly state that the official effective date of the 14th Amendment is July 9, 1868. There are no subtractions due to attempts to rescind. The same is true of the effective dates of the 15th and 19th Amendments. Rescissions of state ratifications of constitutional amendments are not honored.
State Ratification Time Limit
When Congress passed the Equal Rights Amendment in 1972, its proposing resolution read as follows: Resolved by the Senate and House of Representatives of the UnitedStates of America in Congress assembled (two-thirds ofeach House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress. Can Congress – via a unilateral Con- gressional resolution – limit the time for states to ratify an amendment? The Constitution sets times in many parts of its text. It establishes minimum ages, minimum citizenship lengths, terms of office, and term limits for various officeholders. Congress determines the time for choosing electors and the day on which the electorsgive their votes. The Constitution requires a censusevery 10 years for representatives to be apportioned. The President has a 10-day period in which to approve or disapprove a bill passed by Congress. The year 1808 was set in Article V and elsewhere as the time when the slave trade could be prohibited. However, the text of Article V of the Constitution does not set a time limit on state ratifications of amendments,nor does it provide Congress the authority to set a unilateral time limit on the states. An outsized role for Congress in the amendment process was never envisioned. The Virginia Plan of May 29,1787, prepared by Madison, was an initial template for the Constitution. Paragraph 13 of that plan stated, “Provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.” George Mason concurred: “It would be improper to require the consent of the National Legislature, because they may abuse their power, and refuse their consent on that very account.” As late as September 15, 1787, Edmund Randolph was concerned about the “indefinite and dangerous power” given by the Constitution to Congress. Randolph said he could not support the new constitution unless state conventions could also suggest amendments.
32 May/June 2022
Ultimately, the founders allowed both Congress and the states to play a role, as co-equal parties in the amendment process, which, as noted, is a two-step process, not a negotiation. Neither party has a uni- lateral right to amend the Constitution or otherwise infringe on the other party’s role. Pursuant to the text of Article V, an amendment is valid “when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Con- gress.” In its political opinion issued in anticipation of Virginia’s ratification, the DOJ under the Trump administration asserted that this “mode of ratification” language bestowed on Congress constitutional authority to limit states’ time for ratification. The text clearly does not say that. The phrase “one or the other” refers toa particular set of options, from which the Congress can choose, and has nothing to do withbeing able to limit the ratification time for states. Congress picking between the two modes of state ratification is a practical matter, so that there is a uniformity of ratifica- tion from state to state.These two modes were specifically discussed at theConstitutional Convention. Setting a time limit is a sub- stantive change to the Constitution and that change cannot be made unilaterally by Congress. Such Congressional overreach was certainly not contemplated by the constitutional drafters, who were tempering the power of the national government and its varied branches with the preservation of states’ rights.
Therefore, since Article V neither sets a time limit on state ratifications nor gives Congress the constitutional authority to set a time limit on the states, adding a time limit is itself an amendment to the Constitution. That time limit must follow the Article V amendment process, which means passage by at least a two-thirds vote in each house of Congress and ratification by the legislatures of three-fourths of the states. For a time limit to be effective, it would have to be within the four corners of the amendment text, where it can be agreed upon by both parties to the amend- ment process, Congress and the states, and not contained solely in one party’s internal resolutions. States do not ratify Congressional resolutions. States ratify amendments. The states did not approve the ratification time limit in the resolu- tion Congress used to adopt the ERA. Also noteworthy is thata resolution for the sole purpose of proposing an amendment under Article V is different from otherresolutions passed in order to make law. Article I, Section 7 of the Constitution requires that for ordinary resolutions passed by Congress to have the effect of law, those resolutions must be presented to the President for signa- ture. Even assuming Congress somehow had authority to set a time limit on the states via a resolution - which it does not - for that time limit to be enforceable as law against the states, the resolution would have to have been presentedto the President. The ERA proposing resolution passed byCongress was not presented to President Richard Nixonfor his signature. It is also salient that the language in the congressional proposing resolution for the ERA is open-ended. The resolution says the amendment “shall be valid…when ratified … within seven years from the date of its submission by the Congress.” Significantly, the language does not say that the amendment is invalid – or, in more legalisticlanguage, “null and void” – if ratified after seven years. In 1917, Congress passed the 18th Amendment, known as Prohibition, which was the first amendment that had a time limit.That time limit is in the text of the amendment – completely unlike the ERA – and was ruled as con- stitutional in Dillon v. Gloss, 256 U.S. 368 (1921). The language is also definite. Section 3 of the 18th Amendment says, “This article shall beinoperative unless… ratified … within seven years …” Many years later, in 1978, after days of hearings, Congresspassed a resolution extending its intended ERA state ratification timeframe until June 30,1982. Also in 1978, around the same time as these hearings, Congress passed the District of Columbia Voting Rights Amendment. Congress put the time limit within the text of thatamendment and used the same definite language as was in the 18thAmendment. They knew that the ERA state ratification timeframe was unenforceable. The most recent amendment to the Constitution is the 27th, which was added in1992. Congress had passed the “Congressional Pay Amendment,” drafted by Madison, 203 years earlier in 1789, along with the amendments that became our Bill of Rights. The Congressional Pay Amend- ment did not have a timeframe either in its text or in a unilateral Congressional resolution. What a remarkable contrast to add this ancient amendment on the basis that it meets the strict requirements of Article V, yet to block a 48-year-old amendment – the ERA – that also meets the strict requirements of Article V. Of course, the ERA does include a timeframe that is valid. Section 3 provides that theamendment will take effect two years after it is fully ratified, allowing governmental bodies time to
CBA RECORD 33
review their statutes for com- pliance. That effective date is January 27, 2022. Since this timeframe was placed within the amendment text, where it was approved by both Con- gress and thestates, it is opera- tive, and the ERA is now in full force and effect for all Americans.
The ERA & the Role of Illinois Attorneys
The battle to have the ERA recognized as the 28thAmend- ment involves each of the three branches of the national government. Attorneys fromIllinois have starring roles. The Executive Branch doesnot have a substantive role in the amend- ment process under Article V of the Constitution. Only Congress and the states have express, material consti- tutional amendment responsibilities. Nonetheless, as noted, the Executive Branch – through the Trump administra- tion’s DOJ – stopped the national archivist from performing the functionary role of certifying and publishing the fully-ratified ERA uponreceipt of notice from Virginia. This same archivist,David Ferriero, previ- ously certified the 2017 and2018 ratifica- tions by Nevada and Illinois,respectively. This same archivist issued a letter to Representative Carolyn Maloney dated October 25, 2012, stating:
Under the authority granted under [1 U.S.C. 106b], once [the National Archives and Records Administration] receives at least 38 state ratifications of a proposed Constitutional Amend- ment, NARA publishes theamendment along with a certification of the ratifications and it becomes part of the Constitutionwithout further action by the Congress. Once the process in 1 U.S.C. 106b is completed, the Amendment becomes part of the Constitution and cannot be rescinded. Another Constitutional Amendment would be needed to abolish the new Amendment.
U.S. Attorney General Merrick Garland, who grew up in Lincolnwood, Illinois, now heads theDOJ. His office has been asked to reconsider the 2020 opinion. On January 26,2022, the DOJ’s Office of Legal Counsel issued a brief opinion, statingthat “the legal status of the proposed Equal Rights Amend- ment is not an obstacle either to Con- gress’sability to act with respect to ratification of the ERA or to judicial consideration ofquestions regarding the constitutional status of the ERA.”On January 27, 2022, President Joe Biden issued astatement “calling on Con- gress to act immediately topass a resolution recognizing ratification of the ERA.” With regard tothe judicial branch, the three states that most recently ratified (Illinois, Virginia and Nevada) filed suit in federalcourt to direct the archivist to perform the functionaryrole of certifying and publishing the fully ratified amendment. The matter is currently in the U.S. Court of Appeals for theDistrict of Columbia Circuit. Illinois and Nevada are appealing the district court’s order dismissing their casefor lack of standing. Illinois Attorney General KwameRaoul is a prominent leader in the litigation. In addition, Illinois attorneys filed an amicus brief on behalf of the national ERA Coalition. Another amicusbrief was
filed by a local firm on behalf of former Illinois state legislators. Illinois attorney groups are among the amici, including the Chicago Bar Association, the Illinois StateBar Association, and the Women’s Bar Association of Illinois. In the legislative branch, Congress has been asked to pass aresolution waiving its ratification timeframe. This action does not concede any authority to Congress to set ratification time frames but does serve to simplify issues. The House of Representatives passed this resolution in the last session andagain in the current session. The U.S. Senate has had a majority in support of the resolution, butaction has been blocked by the filibuster rule. Senator Richard Durbin of Illinois chairs the Judiciary Committee, which has been asked to consider theresolution. In addition, a recent House resolution has been proposed to affirm the ERA as the 28thAmendment. Similarly, Congress affirmed the 14th and 27th Amendments. In support of this process, Coleman v. Miller, 307 U.S. 433 (1939) held that the vitality of a constitutionalamendment is a nonjusticiable political question.
A New Era?
Our founders envisioned a great nation governed by law, not by individual kings or queens. The Constitution is our rule of law. In 2020, the EqualRights Amend- ment met the strict requirements to be the 28th Amendment to the Constitution. Everyone – especially those in power – must follow the law.
The first words of our Constitution are “We thePeople.” It’s time we finally realize that ideal.
Michele H. Thorne is an attorney in private practice and a founding member ofthe Human Rights Special Interest Group (HR-SIG).
34 May/June 2022
===================
EXHIBIT B
No. 19-1392
In the Supreme Courtof the United States
Thomas E. Dobbs, State Health Officer of the
Mississippi Department of Health, et Al., Petitioners
v.
Jackson Women’s Health Organization, et Al.
On Writ of Certiorari
To the United States Court of Appeals For the Fifth Circuit
Amended Motion for Leave to File Brief for ERA-NC Allianceas Amici Curiae in Support of Respondents
Arlaine Rockey, Esq.
Counsel of Record for Proposed Amicus Curiae
P.O. Box 656
Marshall, NC 28753
828-279-6735
AttorneyRockey@gmail.comhttps://ArlaineRockey.com/equaL-rights-for-women
2
===============
A statewide North Carolina 501(c)(4) corporation, the purpose of which includes advocating for the ratification of the federal Equal Rights Amendment by North Carolina, and to reach that goal it collaborates and has been involved nationally with issues regarding the ERA, ERA-NC Alliance respectfully moves pursuant to SUP.CT. R. 37.2(a) for leave to file a brief as amicus curiae in support of the Respondents and for the Court to call for ERA-NC Alliance to file an amicus curiae brief in response to the extraordinary circumstances which have arisen. Since the deadlines for filing for briefs have passed, ERA-NC Alliance, has concurrently filed an Amended Motion for Extension of Time to File its Brief as Amicus Curiae, pursuant to SUP. CT. R. 30.4 (2019), with the Clerk and incorporates it herein by reference, (copy attached as Exhibit A). The ERA-NC Alliance has not attached its brief as it awaits for the Court to grant such an extension and to call for a response by way of its amicus curiae brief.
Per SUP. CT. R. 37.3(a), bothPetitioners and Respondents have consented to the filing of any amicus curiae brief in support
3
===================
of either party or of neither party, andthe Petitioner added “at any stage of the proceedings.”
There are extraordinary circumstances that should compel this Honorable Court to grant leave to and to invite the ERA-NC Alliance to filetheir amicus curiae brief, and to allow thirty days after said invitation for the amicus curiae brief to be filed. Said circumstances are as follows:
SUP. CT. R. 37.1 states: “Anamicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court.”
The deadlines for filing briefs have passed and oral argumentswere held December 1, 2021, but the Equal Rights Amendment (“ERA”)1 was not effective before that date. Per U.S. CONST. art. V, the ERA legally became the 28th
_________
1 The Equal Rights Amendment states:
"SECTION 1. Equality of rights underthe law shall not be denied or abridgedby the United States or by any State on account of sex.
"SEC. 2. The Congress shall have thepower to enforce, by appropriatelegislation, the provisions of this article.
"SEC. 3. This amendment shalltake effect two years after thedate of ratification." [Emphasis supplied].
4
================
Amendment (aka “ERA”) to the U.S.Constitution, U.S. CONST.AMEND, XXVIII, on January 27,2020 (“Date of Ratification”) when the last necessary state, the Commonwealth of Virginia, ratified the ERA. Dillon v. Gloss, 256 U.S. 368, 376 (1921). Yet by its own terms, U.S. CONST. amend. XXVIII, § 3, the ERA did not take effect until two years after the Date of Ratification; thus, it was not effective until January 27, 2022.2
The proposed majority opinion by Justice Samuel Alito was leakedand released to the public on May 2,2022, in which the Justice Alitowrote that Roe v. Wade, 410 U. S.113 (1973) and Planned Parenthoodv. Casey, 505 U. S. 833 (1992)
were overruled because, “... no such right to abortion is implicitlyprotected by any constitutionalprovision.” Thomas
E. Dobbs, et al., v. Jackson Women’s Health Organization, et al.,
_________________
2 See Generally, Michele Honora Thorne, A New Era for the ERA? Our 28th Amendment to the U.S.Constitution, 36 CBA Rec. 31(May-June 2022) (explains whythe ERA’s deadline isunconstitutional, hence void abinitio, and why the alleged rescissions from certain states are ineffective and not constitutionally permissible).
5
================
U.S., (20 ) (leakeddraft majority opinion, at 5, February 10, 2022) (“Leaked Opinion”).
This Leaked Opinion put ERA-NC Alliance on notice that, since the ERA is the 28th Amendment and became effective on January 27, 2022,that statement is in error. However,ERA-NC Alliance has not had sufficient time to prepare a brief to accompany this Motion because it has only known about the Leaked Opinion for thirteen (13) days.
Upon information and belief, neither the parties, nor the amici curiae, fully briefed the issues in the instant case, as they are effected by the ERA. Consideration of the ERA is critical to a proper outcome in the instant case.
Justice Alito and approximatelyfour other Justices of the Supreme Court are “textualists.” In U.S.CONST. amend.
XXVIII, §1. (unpublished), the ERA’stext states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”The Mississippi law’s 15-week ban on abortion is a violation of the actual text of the ERA, because Mississippi has discriminated
6
===================
against women and girls on account of, ie., the basis of, sex because, it is axiomatic that the ability to get pregnant is a sex-based trait, andbecause Mississippi does notregulate the
equivalent axiomatic sex-based trait ofmen and boys, the ability to emit sperm. There is no Mississippi law mandating vasectomies for men or boys, which would be regulating their reproductive choices.
Further, the ERA does implicitly protect women’s Reproductive Choices, which include, but are not limited to, abortion. The ERA moreover provides a fundamental right for women’s Reproductive Choicesbecause, the ability of a woman to control her reproduction is a necessary element of her ability to be a full and equal citizen, which is the intent and the requirement of the ERA. The Supreme Court has ruled that “What is reasonably implied is as much a part of [the Constitution] as what isexpressed.” Dillon, at 373 (internal citations omitted).
Further, the reasons why theERA is a textual basis for aFundamental Right to Reproductive Rights, is historically
7
=================
women have been discriminated against because only women can become pregnant and give birth — that ability to become pregnant is a sex-based trait. “The ability to decide whether and when to have children is a fundamental aspect of being treated as an equal, respected, and participating member of our democracy. Women must be free to exercise this fundamental freedom onequal terms…,” which was well-stated in the BRIEF FOR LGBTQORGANIZATIONS AND ADVOCATES AS AMICICURIAE IN
SUPPORT OF RESPONDENTS,at 19, filed in the instant case.3 TheSupreme Court recognized this fact in Planned Parenthood v.
Casey, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Id. at 30(citing Casey, 505 U.S. 833, 856 (1992)).
Also, in oral argument, the attorney for Respondents referred theSupreme Court to the BRIEF OFAMICI CURIAE
______________
3 https://www.supremecourt.gov/docketpdf/19/19_1392/193042/20210920162554202_petition.pdf (accessed05/15/2022).
8
=====================
ECONOMISTS IN SUPPORT OFRESPONDENTS,4 filed in theinstant case, in which they cited statistical studies showing causal links between legalized abortion and women moving more towards equality in multiple spheres.“[A]bortion legalization has had a significant [positive] impact on women’s wages and educational attainment….” Id. at 11. It increased the likelihood that girls who hadaccessed abortion, were more likely to graduate from high school and from college, and that they entered professional occupations. Id. at 3, 11, and13. It also reduced teen motherhood by 34% and teen marriage by 20%. Id. at 3. Even with the greater availability of contraception, legalized abortion is still “necessary to women’s equal and full participation in society.” Id. at 16.
Thus, the proposed majority opinion is in error, and the Court must consider the entire Constitution, which legally includes the 28th Amendment, the ERA, which has been effective since January 27,2022. U.S. CONST. amend.XXVIII.
____________________
4 https://www.supremecourt.gov/docketpdf/19/19-1392/193084/20210920175559884_19-1392bsaceconomists.pdf(accessed 05-15-2022).
9
=================
Based on the foregoing, ERA-NC Alliance respectfully prays for this Honoable Court to call for a response, by way of an amicus curiae brief, and grant it leave to submit an Amicus Curiae brief in support of Respondents.
Respectfullysubmitted,
Arlaine Rockey, Esq.
Counsel of Record for Proposed Amicus Curiae
P.O. Box 656
Marshall, NC 28753
828-279-6735
https://ArlaineRockey.com/equal-rights-for-women
and
Gina Collias, Esq.
Counsel for Proposed Amicus Curiae
P.O. Box 656
Marshall, NC 28753
704-692-4774
10
====================
DATED: MAY 16, 2022
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served upon the attorneys of record by the ECF filing system.
Dated: May 16, 2022
Arlaine Rockey, Esq.
Counsel of Record forProposed Amicus Curiae
CERTIFICATE OFCOMPLIANCE
I HEREBY CERTIFY that the foregoingMOTION FOR Leave to File Brief for ERA-NC Alliance as Amici CURIAE IN SUPPORT OF RESPONDENTS complies with the type- volume limitation, and according to the word-processingsystem used, the word count is 1450.
Arlaine Rockey, Esq.
Counsel of Record for Proposed Amicus Curiae
==============
EXHIBIT A [to above Amended Motion]
Ms. Arlaine Rockey
Attorney at Law
PO Box 656 Marshall, NC 28753
Tel. 828-279-6735 Fax. 866-202-5977
AttorneyRockey@gmail.comwww.ArlaineRockey.com
16 May 2022
By Electronic Filing
HonorableScottS.Harris Clerk of the Court
SupremeCourt of theUnitedStates 1 First Street, NE
Washington, D.C. 20543
RE:Thomas E. Dobbs, et al., v. Jackson Women’s Health Organization, et al.
No. 19-1392
AMENDED MOTION FOR EXTENSION OF TIME AND MOTION FOR LEAVE TO FILE AMICUSCURIAE BRIEF WITH REFERENCETO THE 28TH AMENDMENT, THE EQUAL RIGHTS AMENDMENT, AS A TEXTUAL BASIS FOR REPRODUCTIVE RIGHTS AND TO PROVE SEX-BASED DISCRIMINATION, IN SUPPORT OF RESPONDENTS
Dear Mr. Harris:
Attorney Gina Collias, Esq. and I represent the proposed Amicus Curiae, ERA-NC Alliance, in the above-captioned case. I write to respectfully move for and request an extension of time, for preferablythirty (30) days from the date of an order grantingsuch extension, and, in addition to a Motion forLeave to File an Amicus Curiae Brief, incorporatedherein as if fully set forth, state the reasons why this requested Extension and also the Motion for Leave to File an Amicus Curiae Brief should be granted considering the extraordinary circumstances set forth.
ERA-NC Alliance is a statewide North Carolina 501(c)(4) corporation, located in Winston-Salem, North Carolina, the purpose of which includes includes advocating for the ratification ofthe federal Equal Rights Amendment by NorthCarolina, and to reach that goal it collaborates and has been involved nationally with issues regarding the ERA.
Per SUP. CT. R. 37.3(a), both the Petitionersand the Respondents have consented to the filing of any amicus curiae brief in support of either party or of neither party and the Petitioner added “at any stage of the proceedings.”
The proposed Amicus Curiae provide the following reasons for its request to be allowed an extension of time, pursuant to SUP. CT. R. 30.4 (2019), and include the Motion for Leave to File Amicus Curiae Brief filed separately, which is incorporated herein as if fully set forth. In short, the reason for the extension is necessary and appropriate is:
1. The deadlines for filing the briefs have passed and the oral arguments were held on December 1, 2021, but the Equal Rights Amendment (“ERA”) was not effective before that date. Per U.S. CONST. art. V, the ERA legally became the 28th Amendment (aka “ERA”) to the U.S. Constitution, U.S. CONST. AMEND,XXVIII, on January 27, 2020 (“Ratification Date”) when the last necessary state, the Commonwealth of Virginia, ratified the ERA.Dillon v. Gloss, 256 U.S. 368, 376 (1921). Yetby its own terms, U.S. CONST. amend. XXVIII, § 3, the ERA did not take effect until two years after the Ratification Date, meaning that it was not able to be used until January 27, 2022;
2. The proposed majority opinion by Justice Samuel Alito was leaked and released to the public on orabout May 2, 2022, in which the Justice Alitowrote that Roe and Casey were wrongly decided and were overruled because, “... no such right to abortion is implicitly protected by anyconstitutional provision.” Thomas E. Dobbs, et al., v. Jackson Women’s Health Organization, et al., U.S., (20 ) (leaked draft majority opinion, at 5, February 10, 2022) (“leaked opinion”).
a. This leaked opinion put the ERA-NC Allianceon notice that since the ERA is the 28th Amendment and became effective on January 27, 2022, that statement is in error;
b. Upon information and belief, neither the parties, nor the amicus briefs, fully briefedthe issues in the instant case, as they areeffected by the ERA. The ERA is critical to a proper outcome in the instant case;
c. In SUP. CT. R. 37.1 (2019), it states: “An amicus curiae brief that brings to the attention of the Court relevant matternot already brought to its attention bythe parties may be of considerable help to the Court.” [Emphasis supplied];
3. Upon information and belief, Justice Alito and approximately four other Justices of the Supreme Court are “textualists.” In U.S.CONST. amend. XXVIII, §1. (unpublished),the ERA’s text states: “Equality of rightsunder the law shall not be denied orabridged by the United States or by any State on account of sex.”
2
a. The Mississippi law’s 15-week ban onabortion is a violation of the actual text of the ERA, because Mississippi has discriminated against women and girls on the basis of sex because, it is axiomaticthat the ability to get pregnant is a sex-based trait, and because Mississippi does not regulate the equivalent axiomatic sex-based trait of men and boys, the abilityto emit sperm. There is no Mississippi law mandating vasectomies men or boys, which would be regulating their reproductive choices, yet the Mississippi law does regulate the reproductive choices of women and girls.
b. Further, the ERA does implicitly protect women’s Reproductive Choices, which includes, but is not limited to, abortion and contraception. The ERA moreover providesa fundamental right for women’sReproductive Choice, in short because, the ability of a woman to control her reproduction is a necessary element of her ability to be an equal citizen, which is the intent and the requirement of the ERA. The Supreme Court has ruled that “What is reasonably implied is as much a part of [the Constitution] as what is expressed.” Dillon, at 373 (internal citations set out at footnote 2a omitted) (“What is reasonably implied is as much a part of [the Constitution] as what is expressed).” More will be said about the ERA as a basis for this fundamental right in the Motion for Leave to File an Amicus Brief.
3. Thus, the proposed majority opinion is in error, and the Court must consider the entire Constitution,which legally includes the 28th Amendment, theERA, as it is has been effective as of January 27, 2022. U.S. CONST. amend. XXVIII.
Wherefore, the ERA-NC Alliance respectfully seeks an extension of time to file an Amicus Curiae brief in support of the Respondents.
Thank you for your consideration.
Respectfully submitted,
Arlaine Rockey, Esq.
Counsel of Record for Proposed Amicus Curiae
Member U.S. Supreme Court Bar
P.O. Box 656
Marshall, NC 28753
828-279-6735
AttorneyRockey@gmail.comhttps://ArlaineRockey.com/equal-rights-for-women
and
Gina Collias, Esq.
Counsel for Proposed Amicus Curiae
Member U.S. Supreme Court Bar
P.O. Box 656
Marshall, NC 28753
704-692-4774
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served upon the attorneys of record by the ECF filing system.
Dated:May 16, 2022
Arlaine Rockey, Esq.
Counsel of Record forProposed Amicus Curiae
____________________________________________
EXHIBIT C
Draft Executive Order for President Biden to direct the Archivist to publish the ERA byMs. Arlaine Rockey,Esq. (first paragraph copied from the March 8, 2021 EO he signed to create the GenderPolicy Council). This EO is also available here: https://acrobat.adobe.com/link/track?uri=urn:aaid:scds:US:d 27d45d3-cf60-3143-b407-09f4507110e5
____________________________________
Executive Order ________ of March, 2023
Publishing the Ratified Equal Rights Amendmentas the 28th Amendment to the United States Constitution
By the authority vested in me as President by the U.S. Constitution and the laws ofthe United States ofAmerica, it is hereby ordered as follows:
Section 1. Policy. Advancing gender equity and equality is a matter of human rights, justice, and fairness. It is also a strategic imperative that reducespoverty and promoteseconomic growth, increasesaccess to education, improves health outcomes, advances political stability,and fosters democracy. Thefull participation of allpeople— including womenand girls—across all aspectsof our society is essential to the economic well-being, health, and security of our Nation and of the world.
It is therefore the policy ofmy Administration thatevery person should betreated with equality underthe laws of the United States and of every state therein and should face no discrimination on the basisof sex. Since the foundingof our country, some 246years ago with the Declaration of Independence, women have been subjected to invidious discrimination inflicted by the laws of this country and its several states. Becauseequal rights for women havenot been explicitly written in the U.S. Constitution, women have continued to suffer legal, societal, and personal indignities and discrimination, physical andsexual assaults that often gounreported or un- redressedin criminal courts, unequalpay for equal work as men, lack of parity in the economic, professional, educational and political spheres, and unequal treatment and bias in the legal system. Women have been deprived of the full benefits of the Equal Protection Clause of theFourteenth Amendment.Without the Equal RightsAmendment published in the U.S. Constitution, women are subjected to a lesser standard of judicial scrutiny, than the strict scrutiny the new 28thAmendment will provide,meaning that women have heretofore suffered more discrimination without the benefits of the Equal Rights Amendment.
It is also the policy of my Administration that the January 6, 2020 Opinion, ofthe Office of Legal Counsel,on the Ratification of the Equal Rights Amendment,Opinions of the Office ofLegal Counsel of the Dep’t of Justice, 44 Op. O.L.C.(released January 8, 2020), was improvidently andwrongly decided, becausethe deadline in the Equal Rights Amendment was placed, not in its text, but solely in the Preamble, which unconstitutionally interfered with the States’ rights under Art. V and the 10th Amendment of the U.S. Constitution. Being unconstitutional, thedeadline is void ab initio.
Three-fourths of the states have ratified the Equal Rights Amendment, in accordance with Art. V of the U.S. Constitution, with the last three states beingNevada and Illinois, in 2017 and 2018, respectively, andthe thirty-eighth, the Commonwealth of Virginia, which ratified the Equal Rights Amendment on January 27, 2020, which date is and shall be known as the date the Equal Rights Amendment was fully ratified.
It is the policy of my Administration to prevent and to combat discrimination on the basis of sex, and to do so by publishing the Equal
Rights Amendment forthwith as the 28th Amendment to the U.S. Constitution.
On March 24, 2020, theArchivist of the UnitedStates recorded Virginia’s ratification with a notation that said ratification occurred after the void deadline expired. On the same date, the Archivist added the same notation to the previously recorded ratifications of Nevada and Illinois. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION: EQUAL RIGHTS AMENDMENT, LIST OF STATE RATIFICATION ACTIONS (https://www.archives.gov/files/foia/pdf/era-list-of-state-ratification- actions-03-24-2020.pdf) It is the policy ofmy Administration that the Archivist of the UnitedStates, shall remove theaforementioned notations,and per 1 U.S.C. § 106b,that the Archivist of theUnited States shall forthwithrecord that the Equal RightsAmendment was duly ratified on January 27, 2020.
Sec. 2. Specific Provisions. (a) Consistent with thepolicies set forth in section 1 of this order, the Archivist of the United States shall remove the aforementioned notations, with regard to the void deadline, to the ratifications of Nevada, Illinois, and Virginia.
(b) Consistent with the policies setforth in section 1 of this order, the
Archivist of the United States shall certify andpublish the Equal Rights Amendment forthwith as the 28th Amendment to the U.S.Constitution.
Sec. 3. General Provisions. (a) Except as stated hereinabove and as are the natural and legal consequences of the publication of the EqualRights Amendment as the 28th Amendment to the U.S. Constitution, nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executivedepartment or agency, or the head thereof; or
(ii) the functions of theArchivist of the UnitedStates or the Office of Legal Counsel.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
_____________________________________________
EXHIBIT D
Portions of the Urgent Appeal to the UNITED NATIONS regarding the post-Dobbs decimation of Reproductive Rights, included herein from the Table of Contents below: I, II A and B, and IV. The entire document can be found here: https://www.globaljusticecenter.net/files/UNSpecialProceduresLetter_USAbortionRights.pdf
Sent Via E-mail to:
Working Group on Discrimination against Women and Girls
hrc-wg-discriminationwomen@un.org
Ms. Tlaleng Mofokeng
Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health
Mr. Gerard Quinn
Special Rapporteur on the Rights of Persons with Disabilities
Mr. Felipe Gonzalez Morales
Special Rapporteur on the Human Rights of Migrants
Ms. Ana Brian Nougrères
Special Rapporteur on the Right to Privacy hrc-sr-privacy@un.org
Mr. Victor Madrigal-Borloz
Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity
Mr. Francisco Cali Tzay
SpecialRapporteurontheRightsof Indigenous Peoples
Mr. Olivier de Schutter
Special Rapporteur on Extreme Poverty and Human Rights
Ms. K.P. Ashwini
Special Rapporteur on Contemporary Forms ofRacism,RacialDiscrimination,
Xenophobia and Related Intolerance hrc-sr-racism@un.org
Mr. Fernand de Varennes
Special Rapporteur on Minority Issues hrc-sr-minorityissues@un.org
Mr. Morris Tidball-Binz
SpecialRapporteuronExtrajudicial,
Summary or Arbitrary Executions hrc-sr-eje@un.org
Ms. Reem Alsalem
SpecialRapporteuron Violence Against Women
Ms. Alice Jill Edwards
Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
Ms. Nazila Ghanea
Special Rapporteur on Freedom of Religion or Belief
hrc-sr-freedomofreligion@un.org
Ms. Irene Khan
Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
The Working Group of Experts on People of African Descent
==============
1.Table of Contents
A. Women’s Lives and Health on the Line 4
B. Penalizing Healthcare: Criminalization, Civil Liability, and Involuntary Confinement15
C. Threats to Privacy from Increased Digital Surveillance21
D. Freedom of Thought, Conscience and Religion or Belief24
E. Disproportionate Impact on MarginalizedPopulations25
III. Anti-Abortion Legislation Violates InternationalLaw31
V. ANNEX A:46 States With Abortion Bans Entering Into Effect AfterDobbs (as of 01/09/2023)46
===================
I. Executive Summary
Following the United States (US) Supreme Court decision in Dobbs v. Jackson Women’s HealthOrganization in June 2022, people residing in the US who can become pregnant are facing a human rights crisis. This urgent appeal to United Nations (UN)mandate holders, supported by a coalition of 196 signatories, details these intensifying harms,discusses the ways in which Dobbs contravenes the US’ international obligations, and sets forth calls to action.
With the Dobbs decision, the US Supreme Courtoverturned the constitutionally protected right to access abortion, leaving the question of whether and how to regulate abortion to individual states.Approximately 22 million women and girls of reproductive age in the US now live in states where abortion access is heavily restricted, and often totally inaccessible.
The harms of the Dobbs decision detailed in thisappeal include: the impact on women’s lives and health; the penalization of healthcare, including criminalization; threats to privacy from increaseddigital surveillance; infringement on freedom ofthought, conscience and religion or belief; and the disproportionate impact on marginalized populations.
By overturning the established constitutional protection for access to abortion and through the passage of state laws, the US is in violation of its obligations under international human rights law, codified in a number of human rights treaties to which it is a party or a signatory. These human rights obligations include, but are not limited to, the rightsto: life; health; privacy; liberty and security of person; to be free from torture and other cruel, inhuman, or degrading treatment or punishment; freedom ofthought, conscience, and religion or belief; equalityand non-discrimination; and to seek, receive, and impart information.
The signatories call on the UN mandate holders to take up their calls to action, which include communicating with the US regarding the human rights violations, requesting a visit to the US, convening a virtual stakeholder meeting with UScivil society, calls for the US to comply with its obligations under international law, and calls for private companies to take a number of actions to protect reproductive rights.
===================
March 2, 2023
Re: Urgent Appeal: Human rights crisisfollowing the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Org.
Dear Experts,
On behalf of the Global Justice Center (GJC), Pregnancy Justice (formerly National Advocates for Pregnant Women), National Birth Equity Collaborative (NBEC), Amnesty International USA (AIUSA), Human Rights Watch (HRW), Physicians for Human Rights (PHR), and other signatories, together with the support of the law firm Foley Hoag LLP, we write to call your attention to theintensifying harm that people residing in the UnitedStates who can become pregnant1 currently face following the US Supreme Court decision in Dobbs v.Jackson Women’s Health Organization (Dobbs, or Dobbs v. JWHO).2 This submission is supported by a coalition of organizations and experts promoting civil rights, human rights, women’s rights, children’s rights, gender equality, racial justice, religious freedom, economic justice, and the right to access to healthcare.3
Before detailing the devastating human rights implications of Dobbs, we recognize, with deep appreciation, the work that many of you have already undertaken to highlight the crisis facing people in the US who can become pregnant. Such efforts,including, but not limited to, an amicus brief in the Dobbs case,4 joint statements in the wake of the decision,5 and pre-Dobbs communications to the State regarding the decimation of abortion access in certain parts of the country,6 have been important inhighlighting the State’s failure to uphold its humanrights
1 While the remainder of this letter often refers to women and girls as the targets of laws restricting abortion, we recognize that although most people who can become pregnant and require abortion services are cisgender women, people with diverse gender identities are also affected and need abortions. For more information on the need for abortion services amongst trans, non-binary and gender diverse people in the United States, see H. Moseson etal., Abortion experiences and preferences of transgender, nonbinary, and gender-expansivepeople in the United States, 224 AM. J. OBSTETRICS & GYNECOLOGY 4 (2021); American College of Obstetricians and Gynecologists, ACOG Committee Opinion: Health Care for Transgender and Gender Diverse Individuals,137 OBSTETRICS & GYNECOLOGY 3, p. e80-e81 (Mar. 2021),
-transgender-and-gender-diverse-individuals.pdf.
2 Dobbs v. Jackson Women's Health Org., 142 S. Ct.2228 (2022) (Dobbs v. JWHO).
3 The coalition of organizations and experts appear assignatories at the end of this letter.
4 Brief of the United Nations Mandate Holdersas Amicus Curiae, Dobbs v. JWHO., 142 S. Ct.2228 (2022), https://www.supremecourt.gov/DocketPDF/19/19-1392/193045/20210920163400578_19-1392%20bsac%20United%20Nations%20Mandate%20Holders.pdf.
5 United Nations Human Rights Office of theHigh Commissioner, Joint web statement by UNHuman rights experts on Supreme Court decision to strike down Roe v. Wade (24 June 2022), https://www.ohchr.org/en/statements/2022/06/joint-web-statement-un-human-rights-experts-supreme-court-decision- strike-down. See also Report by the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Racism and the right to health (U.N. Doc. A/77/197) (20 July 2022), ¶ 35; Mandate of the United Nations Independent Expert on Protection from Violence and Discrimination based on Sexual Orientation and Gender Identity, Victor Madrigal-Borloz, Country Visit to the United States of America, Preliminary Observations (29 Aug. 2022), ¶ 8.
6 Working Group on the issue of discrimination against women in law and practice, SpecialRapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and the Special obligations. Eight months on from this catastrophic legal decision, it is now apparent that the consequences are even worse than feared. Women and girls in need of reproductive healthcare are being met with systematic refusals, huge financial burdens, stigma, fear of violence, and threats of criminalization. Thousands are being forced to remain pregnant against their will. We urge you to raise these issues directly with the State in line with your mandates and to mobilize your constituencies to address this human rights crisis.
Part I of this submission outlines theconsequences of Dobbs on the fundamental human rights of women and girls, as well as the outsized impact it has on certain demographics made vulnerable by systemic oppressions. This factual summary includes input from physicians in various states as part of fact-gathering efforts conducted by a number of organizations involved in this submission. Part II discusses the ways in which Dobbscontravenes the US’ international obligations.
II. Summary of the Facts
1. In June 2022, the US Supreme Court overturned the constitutionally protected right to access abortion,7leaving the question of whether and how to regulate abortion to individual states.8 As of January 17, 2023, abortion is banned, with extremely limited exceptions, in thirteen states: Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, Wisconsin, and Oklahoma.9 Georgia has banned abortion after six weeks of pregnancy (effectively outlawing access entirely).10Approximately 22 million women and girls ofreproductive age (ages 15-49) in the US live in Rapporteur on violence against women, its causes and consequences (Comm. AL USA 4/2015) (11 Feb. 2015), https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=21504; Working Group on discrimination against women and girls; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical andmental health; and the Special Rapporteur onviolence against women, its causes and consequences (Comm. AL USA 11/2020) (22 May 2020), https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25279;Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on violence against women, its causes and consequences;and the Working Group on the issue of discrimination against women in law and in practice (Comm. OL USA 8/2017) (20 June2017), https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23185.
________________________
7 Dobbs v. JWHO.
8 Id., p. 2243.
9 Some states, such as Indiana and Ohio, have enacted bans that are currently under injunction as litigation moves forward. See “After Roe Fell: Abortion Laws By State,” Center for Reproductive Rights (updated in real time), https://reproductiverights.org/maps/abortion-laws-by-state/. In the November 2022 election, Kentucky voters rejected a ballot initiative to specify that the state constitution does not protect the right to abortion; however, the impact of the initiative is not yet clear, andKentucky’s trigger ban is still in place. See A.Rickert, “Kentucky voters reject amendment that would have affirmed no right to abortion,” NPR (9 Nov. 2022), https://www.npr.org/2022/11/09/1134835022/kentucky-abortion-amendment-midterms-results.Other state bans have been blocked by courts: Arizona, North Dakota, Utah, and Wyoming. “Tracking the States Where Abortion is Now Banned,”TheNewYorkTimes(updated6Jan.2023), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.
10 See id. See also Center for Reproductive Rights, “After Roe Fell: Abortion Laws By State,” https://reproductiverights.org/maps/abortion-laws-by-state/. Ohio passed a similar six-week ban, but the provision has been blocked by a court and is currently on hold indefinitely. See “Tracking the States Where Abortion is Now Banned,”TheNewYorkTimes(updated6Jan.2023), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.
=================
states where abortion access is heavily restricted, and often totally inaccessible.11 Four states have begun restricting access to medication abortions,including by prohibiting the mailing of medication into their jurisdictions.12 Meanwhile, at least three states (Texas, Oklahoma, and Idaho) enacted so-called “bounty” laws before the Dobbs decision, empowering private citizens to sue providers who carry out abortions.13 In continuation of the country’s devaluation of the lives of Black and Brown women, communities of color and of lowersocio-economic status are bearing the brunt of these laws.14 Dozens of clinics have closed across the country since Dobbs was decided,15 increasing travel time and distance for women seeking care — and barring access for those women unable to travel.16
A. Women’s Lives and Health on the Line
2. The onslaught of legislative abortion restrictions in the US denies women’s decisional and bodily autonomy in a way that rejects the agency, dignity, and equality of people who can become pregnant.17This draconian attack on gender equality threatens women’s lives and health on a massive scale.
3. In the months since Dobbs, two of the organizations involved in this submission have interviewed UShealthcare practitioners about the impacts of anti-abortion legislation on
____________
11 Guttmacher Institute, “100 Days Post-Roe: At Least 66 Clinics Across 15 US States Have Stopped Offering AbortionCare”(6Oct.2022), https://www.guttmacher.org/2022/10/100-days-post-roe-least-66-clinics-across-15-us-states-have-stopped-offering-a bortion-care.
12 Guttmacher Institute, State Legislation Tracker: Medication Abortion (updated 31 Dec. 2022) https://www.guttmacher.org/state-policy.
13 Okla. Stat. tit. 63, §1-745.33-.34, .38 (2022);Idaho Code §§ 18-8804, 18-8807; TexasHeartbeat Act, Senate Bill 8 (SB 8) (20 Mar. 2021). See also S. Murphy, “Oklahoma Governor Signs the Nation’s Strictest Abortion Ban,” AP News(25May2022), https://apnews.com/article/abortion-us-supreme-court-health-texas-oklahoma-ad37e8db8a0f3fd9f4fcd215f8a3ed0a. These laws are still in effect post-Dobbs.
14 See CERD Committee, Concluding observations on the combined tenth to twelfth reports of the United States of America (U.N. Doc. CERD/C/USA/CO/10-12) (21 Sept. 2022),¶ 35. See also Global Justice Center, “UnitedStates of America: Submission to the United Nations Committee on the Elimination of Racial Discrimination,” pp. 11-12 https://www.hrw.org/sites/default/files/media_2022/07/SBRWI_HRW_GJC_AI_CERDShadowReport.pdf; GuttmacherInstitute,“InequityinUSAbortionRightsandAccess”(17Jan.2023), https://www.guttmacher.org/2023/01/inequity-us-abortion-rights-and-access-end-roe-deepening-existing-divides.
15 Abortion Care Network, “Communities NeedClinics, The New Landscape of IndependentAbortion Clinics in the UnitedStates”(2022Report), https://abortioncarenetwork.org/wp-content/uploads/2022/12/communities-need-clinics-2022.pdf.
16 Guttmacher Institute, “100 Days Post-Roe: At Least 66 Clinics Across 15 US States Have Stopped Offering AbortionCare”(6Oct.2022), https://www.guttmacher.org/2022/10/100-days-post-roe-least-66-clinics-across-15-us-states-have-stopped-offering-a bortion-care.
17 For more on the autonomy, dignity andequality impacts of abortion restrictions, seeCEDAW Committee, Inquiry concerning the U.K. and Northern Ireland under article 8 of the Optional Protocol to CEDAW (U.N. Doc. CEDAW/C/OP.8/GBR/1, 17) (6 Mar. 2018) (“criminalization has a stigmatizing impact on women and deprives them of their privacy, self-determination and autonomy of decision, offending women’s equal status, constituting discrimination.”). See also Working Group on the issue of discrimination against women in law and in practice, Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (Oct. 2017) (“both the CEDAW Committee andthe WGDAW determined that the right to safe termination of pregnancy is an equality right for women.”).
=====================
women’s healthcare.18 The practitioners’ responses describe far-reaching implications for women and girls seeking abortion and other reproductive healthcare, dramatically affecting their health, and resulting in serious — sometimes fatal — risks.
4. These interviews and documentation by women’s rightsgroups describe difficulty, including:
● in accessing abortion in cases of miscarriage;
● forced travel across state lines in emergencies;
● denial of care in cases of ectopic pregnancy;
● hospitals delaying care until the woman’s healthhas deteriorated to a level most certainly to fit within narrow and vague “risk to life of the mother” exceptions;
● professionals withholding information fearingthat their advice could violate anti-abortion laws;
● reduced access to non-reproductive healthcare (e.g. chemotherapy);
● the infliction of serious psychological harm onwomen and girls forced to carry an unwanted pregnancy;
● complications for adolescents forced to give birth;
● reduced access to other forms of reproductive healthcare including contraception;
● heightened risk of violence faced by pregnant individuals in abusive relationships; and
● pregnant individuals forgoing prenatal care to avoid surveillance.
5. Anti-abortion legislation may also reduce access to reproductive healthcare in states where abortion isstill legal, as patients are displaced from restrictivejurisdictions into already-overburdened clinics in jurisdictions where abortion remains legal.
6. The accounts provided by the interviewed professionals are shocking. Dr. Lisa Harris, Professor of Obstetrics and Gynecology at University of Michigan Medical School, described how a patient treated at her institution for ectopicpregnancy — a life-threatening condition in which an embryo implants outside of the uterus and therefore cannot result in a healthy pregnancy and requires an abortion — had to travel from her home state, Ohio, to Michigan because she could not find a doctor willing to treat her in Ohio after their six-week abortion ban came into effect in June 2022.19More broadly, Dr. Harris commented that, in the six months between the overturn of Roe v. Wade (Roe)20 and the passage of Michigan’s constitutionalamendment protecting abortion access, somefaculty and trainees with whom
______________________
18 Foley Hoag LLP, legal counsel to the Global Justice Center, interviewed medical professionals, including three OBGYNs (Drs.Harris, Serapio, and Drey), as well as a researcher who studies the impact of abortion on women (Dr. Foster). The methodology for these interviews included providing each interviewee with background on the purpose ofthe submission to the Mandate Holders and then asking about their general views about the change in laws as experienced by them, and their experience (before and after the change) performing abortions, treating patients who sought abortions, or otherwise treating patients. PHR engaged in a series of discussions with various medical sector stakeholders and clinicians post-Dobbs to understand the scopeand nature of impacts of the decision on clinicians in the U.S., including specifically medical students through PHR’s StudentAdvisory Board.
19 Interview by Foley Hoag LLP with Dr. Lisa Harris(4 Nov. 2022).
20 Roe v. Wade, 410 U.S. 113, 153 (1973)(recognizing “the right of the woman to chooseto have an abortion before viability”).
she works decided not to provide abortion care because of the potential risk of prosecution should Michigan’s 1931 abortion ban come into effect.21
=====================
7. Dr. Elissa Serapio, an obstetrics and gynecology specialist (or OB-GYN, a doctor who specializes in pregnancy and female reproductive health), workedin Texas in the aftermath of the state’s six-week abortion ban in 2021. Dr. Serapio explained that her colleagues were forced to watch their patients’ health deteriorate before providing abortions due tothe narrow exceptions for legal abortion where the “life of the mother” is at risk.22 This challenge, Dr. Serapio noted, applied even when there was a zero percent chance that the pregnancy in question could result in a live birth.23
8. Dr. Eleanor Drey, Medical Director of the Women’s Options Center and the Family Birth Center at San Francisco General Hospital, explained that physicians in states with abortion bans are now faced with two bad options: leave their patients to suffer harm or else risk prosecution.24
9. While the array of state level abortion bans ostensibly have “exceptions” to safeguard the life and/or health of the pregnant person, these exceptions are unworkable. Replete with vague and non-medical terminology, the “exceptions” to protect women’s health and lives may be difficult to implement in practice, because their terms do not necessarily correspond with medical diagnoses and sometimes exclude health-threatening conditions.25Medical professionals report that the restrictive legal landscape means that they are generally unsure whether and when medically necessary, and even lifesaving, abortions are legal. They note that such uncertainty causes both healthcare providers and institutions to delay or deny abortion and other reproductive healthcare.26 These dangerous chilling effects were foreseeable: research from other countries has long demonstrated the chronic unworkability, and concurrent danger, of generalabortion prohibitions with exceptions to “save thelife of the mother” or for “medical emergencies only.”27
_______________________
21 Id. Dr. Harris also reported that manycolleagues only feel comfortable providingabortion care in hospital settings, rather than clinics where abortion care is normally provided because they perceive the risk of prosecution to be lower in hospitals than in an outpatient setting. See MICH. CONST. art. 1, § 28(recognizing a fundamental individual right to reproductive freedom, including abortion care, adopted by ballot initiative Nov. 2022).
22 Interview by Foley Hoag LLP with Dr. ElissaSerapio (29 July 2022).
23 Id.
24 Interview by Foley Hoag LLP with Dr. EleanorDrey (15 July 2022).
25 See e.g., E. Woodruff, “Louisiana hospital denies abortion for fetus without a skull” (17 Aug. 2022), https://www.nola.com/news/healthcare_hospitals/article_d08b59fe-1e39-11ed-a669-a3570eeed885.html.
A Louisiana woman was denied an abortion inby a hospital after her fetus was diagnosed withacrania – developing without a skull – acondition considered “uniformly fatal in theperinatal period.” Because acrania did notappear on a state list of conditions considered to render a fetus “medically futile,” Louisiana doctors declined to perform the abortion, despite the physical and psychological health risks of continuing a pregnancy that will end in stillbirthor death within hours of birth.
26 See generally Sens. Elizabeth Warren et al., Post-Roe Abortion Bans Threaten Women’s Lives: Health Care Providers Speak Out on the Devastating Harm Posed by Abortion Bans and Restrictions (Oct. 2022), https://www.warren.senate.gov/imo/media/doc/Abortion%20Care%20Oversight%20Report1.pdf. See also T. Weinberg, “Missouri doctors fear vague emergency exception to abortion ban puts patients at risk,” Missouri Independent (2 July 2022),
https://missouriindependent.com/2022/07/02/missouri-doctors-fear-vague-emergency-exception-to-abortion-ban-put s-patients-at-risk/.
27 For example, in the Dominican Republic, where abortion is criminalized, “[m]edical providers said that criminal penalties forabortion made it difficult for them to exercisetheir best judgment and provide the best standard of care
===================
10. Several women who have been denied care in this way have bravely shared their experiences publicly. In July 2022, a woman had to travel hundreds of miles to a different state for a lifesaving abortion. Though she was experiencing an ectopic pregnancy (one of the leading causes of maternal mortality in the first 12 weeks of pregnancy)28 her doctor would not end the pregnancy because he was “worried that the presence of a fetal heartbeat meant treating her might run afoul of new restrictions on abortion.”29
11. In Wisconsin, hospital staff would not remove thefetal tissue for a patient with an incomplete miscarriage for fear that it would violate that state’s abortion ban.30 She was left to bleed at home for more than 10 days.31 While the patient survived and expelled the tissue safely, delays in miscarriage care — now common in anti-abortion states — pose serious risks to women’s health. Delays in expelling tissue following miscarriage can lead to hemorrhaging and life-threatening sepsis,32 and canpotentially impact future fertility.33 Delayed carecan also cause serious psychological suffering andtrauma for women and families already dealingwith pregnancy loss.34
______________________
when their pregnant patients faced serious health risks.” Human Rights Watch, “‘It’s Your Decision, It’s Your Life’ The Total Criminalization of Abortion in the Dominican Republic” (19 Nov. 2018), https://www.hrw.org/report/2018/11/19/its-your-decision-its-your-life/total-criminalization-abortion-dominican-repu blic. In Poland, where abortion is almost completely outlawed, pregnant women with cancer have been prevented from obtaining an abortion orotherwise accessing chemotherapy due to thepotential harm to the fetus, placing more importance on the fetus than the pregnant person. See Human Rights Watch, “Regression on Abortion Harms WomeninPoland”(26Jan.2022), https://www.hrw.org/news/2022/01/26/regression-abortion-harms-women-poland; Amnesty International, “Poland: AYearOn,AbortionRulingHarmsWomen”(19Oct. 2021), https://www.amnesty.org/en/latest/news/2021/10/poland-a-year-on-abortion-ruling-harms-women/.
28 See UC Davis Health, “7 things to know about ectopic pregnancy” (22 Mar. 2022), https://health.ucdavis.edu/news/headlines/7-things-to-know-about-ectopic-pregnancy/2022/05; J. Tenore, EctopicPregnancy, 61(4) AM FAM PHYSICIAN 1080 (2000), https://www.aafp.org/pubs/afp/issues/2000/0215/p1080.html.
29 F. Sellers & F. Nirappil, “Confusion post-Roe spurs delays, denials for some lifesaving pregnancy care,” The WashingtonPost(16July2022), https://www.washingtonpost.com/health/2022/07/16/abortion-miscarriage-ectopic-pregnancy-care.
30 Id.
31 Id.
32 See P. Belluck, “They Had Miscarriages, and New Abortion Laws Obstructed Treatment,” The New York Times (17 July 2022), available at https://www.nytimes.com/2022/07/17/health/abortion-miscarriage-treatment.html. See also A. Redinger & H. Nguyen, Incomplete Abortions, STATPEARLS [INTERNET] (27 June 2022), https://www.ncbi.nlm.nih.gov/books/NBK559071/ (describing “complications that can arise after the management of incomplete abortion including death, uterine rupture, uterine perforation, subsequent hysterectomy, multisystem organ failure, pelvic infection, cervical damage, vomiting, diarrhea, infertility, and/or psychological effects.”).
33 See generally A. Redinger & H. Nguyen, Incomplete Abortions, STATPEARLS [INTERNET] (27 June 2022), https://www.ncbi.nlm.nih.gov/books/NBK559071/ (describing “complications that can arise after the management of incomplete abortion including death, uterine rupture, uterine perforation, subsequent hysterectomy, multisystem organ failure, pelvic infection, cervical damage, vomiting, diarrhea, infertility, and/or psychological effects.”).
34 See generally A. Redinger & H. Nguyen, Incomplete Abortions, STATPEARLS [INTERNET] (27 June 2022), https://www.ncbi.nlm.nih.gov/books/NBK559071/ (describing “complications that can arise after the management of incomplete abortion including death, uterine rupture, uterine perforation, subsequent hysterectomy, multisystem organ failure, pelvic infection, cervical damage, vomiting, diarrhea, infertility, and/or psychological effects.”). See also R. Westwood, “Bleeding and in pain, she couldn'tget 2 Louisiana ERs to answer: Is it amiscarriage?” NPR (29 Dec.2022),
https://www.npr.org/sections/health-shots/2022/12/29/1143823727/bleeding-and-in-pain-she-couldnt-get-2-louisiana-ers-to-answer-is-it-a-miscarria.
===================
12. Such harrowing experiences are the tip of the iceberg. The chilling effect of anti-abortion restrictions is now systemic. Even where physicians determine that an abortion is necessary and are willing to stipulate that the patient’s condition falls under a medical exception to a state’s ban, those physicians often still face difficulty assembling the necessary medical team to carry out the procedure due to reluctance from other staff or suppliers of medication, as well as state regulations requiring multiple physicians to attest to the legal complianceof any abortions performed.35 As Dr. Serapio explained, even if a physician determines that an abortion is medically necessary, the other healthcare professionals involved may still object given the confusion surrounding legality and the resultant environment of fear.36
13. Moreover, risk-averse hospitals often fail to give healthcare teams the information they need to feel comfortable making such a medical decision. In Dr. Serapio’s experience, hospitals leave medical teams to make these decisions — and assume the risk that goes with them — alone.37
14. The chilling effect of anti-abortion legislation may also cause physicians to withhold information frompatients for fear that their medical advice couldviolate their state’s anti-abortion statutes.38 Doctors report that the rapidly shifting landscape has impacted their ability to counsel patients, including full information on dealing with pregnancycomplications and options for patients from across state lines: “We’re trying to be very, very careful,” said Dr. Katie McHugh, in an interview with National Public Radio (NPR), “And it is so scary tome to know that I'm not only worrying about mypatients' medical safety, which I always worry about, but now I am worrying about their legal safety, my own legal safety. The criminalization of both patients and providers is incredibly disruptive to just normal patient care.”39
15. Dr. Jennifer Griggs, a Professor in the University of Michigan’s Department of Internal Medicine, Hematology & Oncology Division, also spoke tothe impact of abortion restrictions on women’s access to healthcare more broadly — even non-reproductive care.40 She described how the legal landscape post-Dobbs leaves pregnant people and their clinicians in an untenable situation, risking the life of a pregnant patient by delaying treatment for arange of health conditions.41 For example, she reported that anti-abortion laws challenge doctors’ ability to provide cancer treatment in a timelymanner. Because treatments such as
_____________________
35 See e.g., Fla. Stat. § 390.0111 (1)(a) (requiring for any abortion after 15 weeks gestational age that "Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk ofsubstantial and irreversible physical impairmentof a major bodily function of the pregnant woman other than a psychological condition.”)
36 Interview by Foley Hoag LLP with Dr. ElissaSerapio (29 July 2022).
37 Id.
38 J. Glenza, “A Severe Chilling Effect’:Abortion Bans Will Inhibit Doctors’ Advice toPatients, Experts Fear,” TheGuardian(6May2022), https://www.theguardian.com/world/2022/may/06/abortion-bans-patient-doctor-medical-advice;(Noting the chilling effect of abortion bans among doctors counseling patients on optionsduring pregnancy, including whether abortion care could be available in another jurisdiction).
39 S. Simmons-Duffin, “Doctors Weren’t Consideredin Dobbs, But Now They’re on Abortion’s LegalFront Lines,”
NPR(3July2022),
https://www.npr.org/sections/health-shots/2022/07/03/1109483662/doctors-werent-considered-in-dobbs-but-now-the yre-on-abortions-legal-front-lines. For more on criminalization, see infra Section I(B).
40 Interview by Physicians for Human Rights with Dr.Jennifer Griggs (22 Nov. 2022).
41 Id.
chemotherapy and radiation can harm a fetus, particularly during early pregnancy, laws that restrict women’s termination options can force them to delay cancer treatments until later in pregnancy when the risks are lowered or until they have given birth. Such delays, however, can put the patient’s life at risk.42 The uncertainty of the law under stateabortion bans also has what Dr. Harris refers to as a“coercive negative impact on patients,” in whichconcerns about restrictive or uncertain abortion regulations lead doctors or patients to make suboptimal decisions about a patient’s course of treatment.43
====================
16. Girls and adolescents are at increased risk of life-threatening consequences owing to delayed reproductive healthcare. Because girls and adolescents experience serious pregnancy-related complications at a higher rate than adults,44including, trauma to organs,45 pregnant adolescents are particularly at risk when healthcare providers delay care. Despite this heightened vulnerability, none of the state abortion bans recognize an exception specifically for adolescent pregnancy.46Even before Dobbs, young people under 18 in at least 36 states faced “parental involvement” requirements forcing them to notify and/or seek permission from a parent to get an abortion. These restrictions remain in place in more than 20 states where abortion is still legal.47 While most young people who have abortions voluntarily involve at least one parent in their decision, forced parental involvement laws put young people’s health andsafety at risk. Young people without a supportiveparent to involve in their abortion decision — for example, those who “fear physical or emotional abuse, being kicked out of the home, alienationfrom their families or other deterioration of familyrelationships or being forced to continue a pregnancy against their will”48 — generally have the option to go through a judicial bypass process to request permission from a judge to access abortioncare. However, the process for securing a bypass is daunting and unworkable for many young people.49A recent study by Human Rights Watch revealedthat Florida judges denied more
_______________________
42 Id.
43 Interview by Foley Hoag LLP with Dr. Lisa Harris (4 Nov. 2022). Dr. Harris described a patient pregnant with twins who experienced acomplication requiring the termination of onefetus for the other to survive. This procedure should normally be completed after a certain stage of pregnancy to minimize the chance ofcomplications or death. However, due to concerns over the shifting legal landscape, the patient elected to have the procedure earlier than medically advised. This decision –prompted by abortion bans and legal uncertainty – placed the health of the mother and the remaining fetus at risk.
44 See World Health Organization, “Adolescent Pregnancy” (15 Sept. 2022), https://www.who.int/news-room/fact-sheets/detail/adolescent-pregnancy; D. Jeha et. al., A review of the risks and consequences of adolescent pregnancy, 8 J. NEONATAL-PERINATALMEDICINE (2015), pp. 1, 3.
45 D. Jeha et. al., A review of the risks andconsequences of adolescent pregnancy, 8 J.NEONATAL-PERINATAL MEDICINE (2015), p. 3.
46 See supra note 9.
47 Guttmacher Institute, “Parental Involvement in Minors’ Abortions,” (updated 1 Jan. 2023), https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions.
48 In some states with parental notification requirements, there are provisions for judicialbypass of the requirement; however, the process for securing a bypass is daunting and unworkable for many girls and adolescents, requiring them to demonstrate that they are “1) sufficiently mature and well enough informed to make an abortion decision without parental involvement, and/or that 2) parental involvement is not in their best interests.” Perversely, these requirements can result in a judicial finding that a minor is “not sufficiently mature” to make an informed abortion decision, therefore forcing the child to remain pregnant and give birth. See, e.g., Human Rights Watch, “The Only People It Really Affects Are thePeople It Hurts” (11 Mar. 2021), https://www.hrw.org/report/2021/03/11/only-people-it-really-affects-are-people-it-hurts/human-rights-consequences. 49 Id. In most states, to obtain a judicial waiver, young peoplemust demonstrate that they have sufficientmaturity to have an abortion without parental involvement, or that parental involvement is notin their best interest. Perversely,
than one in eight young people's petitions in 2020-2021.50 These children and adolescents were then forced to continue a pregnancy against their wishes,travel outside the state, or seek a way to manage abortion outside the health system.
_______________________
17. Abortion bans also harm women’s health in ways unrelated to pregnancy complications. Abortion restrictions can increase the risk of violence for pregnant individuals who are exposed to abusive relationships. Studies reveal that many victims of intimate partner or domestic violence seek abortionsto prevent further abuse.51 The inability to obtain anabortion can force victims to remain with their abusers.52 These impacts are compounded for women from marginalized groups, who are morelikely to experience domestic violence53 and are less likely to have access to an abortion if the procedure has been banned in their state.
18. Abortion bans can also increase the risk of suicide.Medical exceptions to abortion bans in the US do not provide for psychological risks to life or health.54 This limitation prevents physicians from providing abortion care even if they have a well-founded fear that their patient will attempt suicide ifforced to continue their pregnancy.55 Federalguidance regarding the provision of emergency medical care does not explicitly mention mental health under emergency medical conditions that may require abortion.56 In Dr. Drey’s experience, suicide risk is especially pronounced in some of her teenage patients who develop “post-traumatic stressdisorder or suicidal ideation as a result of theirpregnancies and make plans to commit
__________________
these requirements can result in a judicial finding that a minor is “not sufficiently mature” to make an informed abortion decision, therefore forcing the child to remain pregnant and potentially give birth.
50 Human Rights Watch, “Access Denied: How Florida Judges Obstruct Young People’s Abilityto Obtain Abortion Care” (19 Feb. 2023), https://www.hrw.org/news/2023/02/09/us-florida-judges-block-youth-abortion-access
51 S. Roberts et al., Risk of violence from the man involved in the pregnancy after receiving or being denied an abortion, 12 CENT BMCMEDICINE 144 (2014) (explaining that womendenied an abortion remain tethered to abusive partners and at risk for continued violence, even if they leave the relationship).
52 Id.
53 See Center for Disease Control and Prevention, Violence Against Native Peoples Fact Sheet (2020), https://www.cdc.gov/injury/pdfs/tribal/Violence-Against-Native-Peoples-Fact-Sheet.pdf(estimating that 48% of American Indian and Alaskan Native women will experience sexual violence, physical violence, and/or stalking from an intimate partner) (citing The National Intimate Partner and Sexual Violence Survey, Center for Disease ControlandPrevention,ViolencePrevention(updated19July 2021), https://www.cdc.gov/violenceprevention/datasources/nisvs/index.html); Women of Color Network, “Life in the Margins: Expanding Intimate Partner Violence Services for Women of Color by Using Data as Evidence” (June 2017),
https://vawnet.org/material/life-marginsexpanding-intimate-partner-violence-services-women-color-using-data-evide nce (showing that “[a]pproximately four out of every ten non-Hispanic Black women . . . have been the victim of rape, physical violence, and/or stalking by an intimate partner in their lifetime”).
54 Of the statutes banning abortion in the US, none include exceptions to protect a pregnantperson’s mental health. Some specifically exclude physical harms related to psychological distress. For example, Idaho’s law explicitly states that “No abortion shall be deemed necessary to prevent the death of the pregnant woman because the physician believes that the woman may or will take action to harm herself” (Idaho Code § 18-622(1)(a)).
55 Interview by Foley Hoag LLP with Dr. EleanorDrey (15 July 2022).
56 See U.S. Dept. of Health and HumanServices, Reinforcement of EMTALAObligations specific to Patients who arePregnantorareExperiencingPregnancyLoss(11July2022), https://www.cms.gov/files/document/qso-22-22-hospitals.pdf. See also U.S. Dept. of Health and Human Services, Letter to U.S. Governors onReproductive Health Care (26 Aug. 2022), https://www.hhs.gov/sites/default/files/hhs-letter-to-governors-reproductive-health-care.pdf.
suicide if they cannot obtain an abortion.”57 For individuals who have become pregnant as a result of rape, this risk can also be heightened, Dr. Drey explained.58
====================
19. Even more starkly, pregnant people who attempt suicide can be charged with attempted feticide, manslaughter, or murder in some states.59 For example, in 2011 in Indiana, Bei Bei Shuai, an immigrant woman from China, attempted suicide and was subsequently charged with murder and feticide for attempting suicide while pregnant, based on the prosecutor’s interpretation of the murder code to include fetuses.60 As the zeal for prosecuting pregnant individuals increases,61 there is a significant risk that abortion bans with fetal personhood language can use a pregnant person’s need for mental health support as a reason to funnel them into the criminal-legal system whilst simultaneously failing to address the underlying health issue.
20. Abortion bans also reduce the quality and availability of other forms of necessaryreproductive healthcare, such as contraception, pre- and postnatal care, and preventative annual exams.62 One reason for this is that the reproductivehealthcare clinics that provide this
____________________
57 Interview by Foley Hoag LLP with Dr.Eleanor Drey (15 July 2022). Dr. Drey reportedtreating a pediatric patient whose pregnancy was caused by rape, who experienced post-traumatic stress disorder symptoms every time the fetus moved and was at risk of suicide as a result.
58 Evidence from other restrictive contexts confirms this connection. In El Salvador, the state’s draconian abortion ban has driven many pregnant women and girls to end their ownlives. According to a 2014 report, suicideaccounts for 57% of deaths of pregnant females aged 10-19 in El Salvador, though due to stigma surrounding adolescent pregnancy and sexuality, this number may be much higher than reported. Amnesty International, “On the Brink of Death: Violence Against Women and the Abortion Ban in El Salvador” (25 Sept. 2014), https://www.amnesty.org/en/documents/AMR29/003/2014/en/.
59 See e.g., J. Rovner, “Women Who Tried toCommit Suicide While Pregnant Gets Bail,” NPR (18 May 2022), https://www.npr.org/sections/health-shots/2012/05/18/153026015/bail-granted-for-indiana-woman-charged-in-attem pted-feticide (discussing a woman who, under pre-Dobbs laws, was arrested for murder after sheattempted suicide while pregnant and her baby died after being born). See also Pregnancy Justice, “When Fetuses Gain Personhood: Understanding the Impact on IVF, Contraception, Medical Treatment, Criminal Law, Child Support, and Beyond” (17 Aug. 2022),
https://pregjustdev.wpengine.com/wp-content/uploads/2022/08/Fetal-Personhood-Issue-8.17.22.pdf. See also “Who Do Fetal Homicide Laws Protect? An Analysis for a Post-Roe America,” Pregnancy Justice (9 Jan. 2023), https://www.pregnancyjusticeus.org/wp-content/uploads/2022/08/Feticide-Brief-w-Appendix.pdf.
60 Bei Bei Shuai v. State of Indiana, No. 49A02–1106–CR–486, Court of Appeals of Indiana (2012).
61 See R. Baldwin III, “Losing a pregnancy could land you in jail in post-Roe America,” NPR (3 July 2022), https://www.npr.org/2022/07/03/1109015302/abortion-prosecuting-pregnancy-loss (stating that the number of cases where pregnancy or pregnancy loss was used in a criminal investigation or prosecution nearly quadrupled from 2006-2020).
62 See K. L. Gilbert et al., “Dobbs, another frontline for health equity,” Brookings Institution (30 June 2022), https://www.brookings.edu/blog/how-we-rise/2022/06/30/dobbs-another-frontline-for-health-equity/ (“Reducing access to abortions does not reduce the number of abortions, rather, it has the effect of reducing access to reproductive health care.”). See also J. Christensen & T. Sneed, “At least 43 abortion clinics shut in month after Supreme Court overturned Roe, research says, with more likely to close,” CNN (28 July 2022), https://www.cnn.com/2022/07/28/health/abortion-clinics-shut-guttmacher/index.html; C. Vestal, “New Research Shows State RestrictionsReduce Contraception Use,” Pew (22 Sept.2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/09/22/new-research-shows-state-restriction s-reduce-contraception-use; M. Ollove, “Critics Fear Abortion Bans Could Jeopardize Health ofPregnant Women,” Pew(22June2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/06/22/critics-fear-abortion-bans-could-jeop ardize-health-of-pregnant-women.
================
treatment are often financially unable to stay open when abortion services become illegal.63 Some communities are facing reductions in care becausetheir obstetricians have moved or are considering moving to states where abortion is still legal.64
21. Even obstetric training is being impacted. Medical schools in anti-abortion states are limited in what they can teach about abortion, and young doctors are choosing to study — and eventually practice — elsewhere.65 A research study mapping US residency programs predicted that almost 44% of OB-GYN residency programs are located in states that have already banned or are likely to ban abortions.66 As more states ban or limit abortion,medical students may prefer to train in states where abortion is legal. Consequently, existing divides in healthcare access will deepen as many medical residents choose to practice where they trained.67
22. Anti-abortion legislation also has a chilling effect on patients’ access to healthcare services more broadly. Access to healthcare in the US depends in part on access to insurance, and for many low-income individuals, the most available insurance provider is the federal government-run Medicaid system. Enrollment in Medicaid is limited by income level, but income caps for the program arehigher for pregnant and postpartum individuals.68As a result, many low- and middle-income patients who have otherwise been excluded become eligiblefor the first time when they become pregnant.69 This increased access to healthcare includes coverage for pre- and postnatal care, but also for non-pregnancy-specific care such as health screenings, hospital visits, and emergency care.70 This window of increased access thus provides an opportunity for patients to be screened for a host of conditions.
23. But criminalization of certain pregnancy outcomes discourages engagement with the healthcare system, leading to reduced prenatal care and worse health outcomes for pregnant people and infantsalike. For example, the number of women receivingany prenatal care
__________
63See M. Zahn, “Abortion clinics in embattled states face another challenge: Money,” ABC News (15 Aug. 2022), https://abcnews.go.com/Business/abortion-clinics-embattled-states-face-challenge-money/story?id=87945089 (“Many abortionclinics now must choose between two costly options: stay open but stop providing abortions, or move to an abortion-friendly state, clinic officials and reproductive health organizations told ABC News.”).
64 Id.
65 See O. Goldhill, “After Dobbs, U.S. medicalstudents head abroad for abortion training no longer provided by their schools,” STAT (22 Oct. 2022),
https://www.statnews.com/2022/10/18/medical-students-heading-abroad-for-abortion-training/(detailing how medical schools in states with abortion bans are pairing up with programs in other states that allow abortions in an attempt toensure that future doctors are adequately prepared. Many students interested in reproductive healthcare are considering moving to states where abortions are legal.).
66 K. Vinekar et al., Projected Implications of Overturning Roe v Wade on Abortion Trainingin U.S. Obstetrics and Gynecology Residency Programs, 140(2) OBSTETRICS & GYNECOLOGY146 (2022), p. 147.
67 J. Hoffman, “OB-GYN Residency Programs Face Tough Choice on Abortion Training,” NewYork Times (27 Oct 2022) https://www.nytimes.com/2022/10/27/health/abortion-training-residency-programs.html. See also Interview by Physicians for Human Rights with Allison Lenselink (24 Nov. 2022).
68 “Health coverage if you're pregnant, plan to get pregnant, or recently gave birth,” HealthCare.Gov, https://www.healthcare.gov/what-if-im-pregnant-or-plan-to-get-pregnant/ (last accessed: 10 Jan. 2023).
69 M. Clark & A. Osorio, Medicaid Pregnancy Coverage Fills a Critical Health Insurance Gap During Pandemic, Data Shows, GEORGETOWNUNIVERSITYHEALTHPOLICYINSTITUTE(31 Mar. 2022),
https://ccf.georgetown.edu/2022/03/31/medicaid-pregnancy-coverage-fills-a-critical-health-insurance-gap-during-pa ndemic-data-shows/.
70MarchofDimes,“Healthinsuranceduringpregnancy,” https://www.marchofdimes.org/find-support/topics/planning-baby/health-insurance-during-pregnancy (last accessed: 10 Jan. 2023).
=================
markedly dropped in Tennessee while the state’s law criminalizing any prenatal drug use was in effect, as pregnant people were threatened with criminal prosecution for a host of pregnancy outcomes and therefore avoided contact with formal healthcare.71 The reduction in access was more pronounced for populations marginalized along class lines72 and was associated with measurably worse health outcomes for mothers, fetuses, andnewborns.73 New abortion bans and criminalization can be expected to instill fear in pregnant patients74and create confusion over potential criminal liability, further reducing access to healthcare for vulnerable populations while increasing punitive surveillance of marginalized women.75 Pregnant people — even those who wish to continue their pregnancies — may forgo prenatal care to which they are entitled altogether to avoid falling under surveillance.
24. Abortion access is also threatened in states where abortion is still legal. Due to the rapidly changinglegal landscape and fears of future legalconsequences, some providers feel forced to suspend services even where abortion has not yet been outlawed. For instance, in West Virginia, the only abortion clinic in the state stopped performingabortions shortly after Dobbs was decided, eventhough the state’s pre-Roe abortion ban had notfully entered into force.76 In Arizona, where a legislative attempt to ban abortion has been blocked by the courts, nine of the state’s ten clinics have nevertheless stopped providing abortions.77 A provider in Arizona reported that she had decided to suspend abortion services because, as a Blackdoctor, she felt particularly vulnerable to potential criminalization. She noted “abortion is still legal but that would not stop someone from causing a legal disaster that I would not be able to recover from.”78Providers are hesitant to move to or continue practicing in states where restrictions are increasingor unstable, citing “an atmosphere … perceived asantagonistic to physicians.”79 This dynamic deepens existing shortages of physicians, nurses, and other skilled providers.
25. The chaos has spilled over to states where abortionis expected to remain legal. As patients are displaced from their home states by abortion prohibitions, providers in states where abortion remains legal are seeing an influx of patients,placing a large strain on already overtaxed
______________
71 M. Boone & B. J. McMichael, State-CreatedFetal Harm, 109 THE GEORGETOWN L. JOURNAL475 (2021), pp. 496-98.
72 Id.
73 Id., p. 501.
74 F. Sellers & F. Nirappil, “Confusion post-Roe spurs delays, denials for some lifesaving pregnancy care,” The WashingtonPost(16July2022), https://www.washingtonpost.com/health/2022/07/16/abortion-miscarriage-ectopic-pregnancy-care/.
75 L. Paltrow & J. Flavin, Arrests of and ForcedInterventions on Pregnant Women in the UnitedStates, 1973–2005: Implications for Women's Legal Status and Public Health, JOURNAL OF HEALTH POLITICS, POLICY AND LAW, https://read.dukeupress.edu/jhppl/article/38/2/299/13533/Arrests-of-and-Forced-Interventions-on-Pregnant.
76 “West Virginia’s only abortion clinic stops performing abortions,” The Associated Press (24 June 2022), https://www.wsaz.com/2022/06/24/west-virginias-only-abortion-clinic-stops-performing-abortions/.
77 N. Lakhani, “Abortion is still legal in Arizona. But confusion and fear abound,” The Guardian (15 Aug. 2022), https://www.theguardian.com/us-news/2022/aug/15/arizona-abortion-laws-ban-access.
78 Id.
79 “Hospitals Fear Abortion Bans Will WorsenStaff Shortages,” Bloomberg Law (updated 9Aug. 2022),https://news.bloomberglaw.com/health-law-and-business/hospitals-fear-abortion-bans-will-worsen-staff-shortages (“fears of being arrestedfor prescribing medications that could be unsafefor pregnancy, or for advising chemotherapy that requires ending a pregnancy… ‘The ironyis that in states that pass these anti-abortionlaws, there will be fewer OB GYN doctors willing to practice there. But there will be moreneed for them because there will be morepregnancies going to term,’ said SuzannaSherry, a constitutional law expert at VanderbiltUniversity Law School.”).
=============
clinics.80 Clinics in less restrictive states often do not have enough staff. As Dr. Serapio explained, it can be difficult to find qualified staff because of theneed for specialized training and experience.81Given the legal landscape over the past few years, obtaining the requisite formal and practical experience is difficult, so qualified staff was already in short supply.82
26. Abortion providers also suffer risk to their physical safety and lives in the US. Both in their clinics and in their homes, many providers andother staff report being in near constant fear of attack from extremists within the anti-abortionmovement.83 Extremist anti-abortion vigilantes have kidnapped, attacked, bombed, and even murdered abortion providers.84 In 2021 alone, the NationalAbortion Federation reported 1,465 incidents ofviolence against providers across the US.85 The widespread organized campaigns of harassment and violence appear to have been emboldened in recent years by the movement’s broader success inrestricting abortion.86 Notably, those who target providers and clinic workers and harass abortionseekers often have ties to violent extremistmovements. For instance, a number of violent anti-abortion extremists
___________________\
80 K. Schorsch, “Staffing shortages in Illinois for abortion care,” NPR-WBEZ (12 May 2022), npr.org/local/309/2022/05/12/1098469190/staffing-shortages-in-illinois-for-abortion-care (“Illinois providers are expecting an additional 20,000 to 30,000 patients a year as people travelfrom other states that could ban or heavily restrict the procedure. That would be a nearly two-thirds increase in abortions across Illinois.” An Illinois doctor cites the healthcare workershortage as “perhaps the biggest barrier to afull-scale increase that would meet the needs of folks coming from other states.”).
81 Interview by Foley Hoag LLP with Dr. Elissa Serapio (29 July 2022). See also E. Reyes, “These California Nurse-Midwives Want toProvide Abortions. They’re Struggling to GetTrained,” Los Angeles Times (18 July 2022), latimes.com/california/story/2022-07-18/california-nurse-midwives-want-to-provide-abortions-struggling-to-get-trai ned.
82 See S. Aksel et al., UnintendedConsequences: Abortion Training in the Yearsafter Roe v Wade, 103AM. J. PUBLIC HEALTH 3 (2013) (explaining how provider shortages havecreated barriers to abortion access); AmericanCollege of Obstetricians & Gynecologists,Committee Opinion: Abortion Training andEducation (Nov. 2014), https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-opinion/articles/2014/11/abortion-traini ng-and-education.pdf (Healthcare providers faceinstitutional barriers in getting trained toperform abortions); E. Declercq et al., “The U.S. Maternal Health Divide: The Limited Maternal Health Services and Worse Outcomesof StatesProposingNewAbortionRestrictions,”TheCommonwealthFund(14Dec.2022), https://www.commonwealthfund.org/publications/issue-briefs/2022/dec/us-maternal-health-divide-limited-services- worse-outcomes (maternity care providers may hesitate to work in scenarios where they may face legal challenges).
83 See generally D. Cohen & K. Connon, LIVING IN THECROSSHAIRS : THE UNTOLD STORIES OF ANTI-ABORTION
TERRORISM (2015) (in-depth accounts and data regarding the violence and harassment endured by women's health professionals).
84 Id.
85 National Abortion Federation, 2021 Violence& Disruption Statistics (19 May 2022), https://prochoice.org/wp-content/uploads/2021_NAF_VD_Stats_Final.pdf. See also U.S. Dept. of Justice, Recent Cases on Violence Against Reproductive Health Care Providers (updated 18 Oct. 2022), https://www.justice.gov/crt/recent-cases-violence-against-reproductive-health-care-providers.
86 A January 2020 unclassified report from the FBI outlined an ongoing increase in anti-abortion threats, disruption and violence, stating, “The FBI assess the increase inabortion-related extremist violent threats andcriminal activity, including violations of the Freedom of Access to Clinic Entrances (FACE) Act, against targets including reproductive healthcare facilities (RHCFs) likely is driven in part by the recent rise in state legislative activities related to abortion services and access.” (emphasis added); National Abortion Federation, 2020 Violence & Disruption Statistics (2021), p. 2, https://prochoice.org/our-work/provider-security/#dflip-df_13683/3/.
================
were documented at the January 6, 2021 coupattempt at the US Capitol.87 As recently as January 15, 2023, an anti-abortion group carried out an arson attack on a clinic in Illinois.88
B. Penalizing Healthcare: Criminalization,Civil Liability, and InvoluntaryConfinement
27. Following Dobbs, 13 states’ statutes now criminalize healthcare providers who perform abortions.89 Penalties include up to life in prison (Texas)90 and fines as much as $100,000 (Oklahoma).91 Some states also impose criminal liability for “aiding or abetting” abortion, making it a crime for any individual, whether a healthcareprovider or not, to assist a pregnant person in obtaining an abortion.92 This can apply to hospital administrative staff, therapists, and other medical professionals who have discussed or provided information about obtaining an abortion; family,friends, or religious leaders; or even rideshare orcab drivers who
_________________\\
87 See supra note 87. See also J. Winter, “The Link Between the Capitol Riot and Anti-Abortion Extremism,” The NewYorker(11Mar.2021), https://www.newyorker.com/news/daily-comment/the-link-between-the-capitol-riot-and-anti-abortion-extremism; C. Sherman, “Anti-Abortion Activists Were All Over the Capitol Riots,” Vice News (12 Jan. 2021), https://www.vice.com/en/article/4ad73w/anti-abortion-activists-were-all-over-the-capitol-riots.
88 No patients or staff were present during theattack; a firefighter sustained life threateninginjuries. T. Bella, “Arson Suspected at Illinois Planned Parenthood After State Expands Abortion Rights,” Washington Post (19 Jan. 2023), https://www.washingtonpost.com/nation/2023/01/19/abortion-planned-parenthood-arson-illinois/.
89 See Tex. Health & Safety Code §170A.004, La. Stat. Ann. §14:87.7 (2022), Idaho Code §18-622 (2022), Ala. Code § 26-23H, Ark.Code Ann. § 5-61-304, Ky. Rev. Stat. §311.772, § 188.017 R.S.Mo., Okla. Stat. tit. 63,§ 1-731.4, Miss. Code Ann. § 41-41-45, S.D. Codified Laws § 22-17-5.1, Tenn. Code Ann. § 39-15-201, Wis. Stat. Ann. § 940.04, W. Va. Code § 61-2-8 (currently under an injunction). See also Annex A.
90 The Texas abortion ban classifies any attempt to induce an abortion as a second-degree felony if unsuccessful (punishable by up to 20 years inprison) and as a first degree felony (up to life inprison) “if an unborn child dies as a result of the offense.” Tx. Code § 170A.004(b).
91 Okla. Stat. tit. 63, § 1-731.4.
92 For example, Texas’s pre-Roe abortion ban explicitly included accomplice liability (“Whoever furnishes the means for procuring anabortion knowing the purpose intended is guiltyas an accomplice”) Tex. Pen. Code art. 1192 (1925),
https://www.sll.texas.gov/assets/pdf/historical-statutes/1925/1925-3-penal-code-of-the-state-of-texas.pdf#page=279. Other states, in definingabortion as a felony, have imported generallyapplicable aiding and abetting provisions. See,e.g., Guidance for Oklahoma law enforcement following Dobbs v. Jackson Women’s Health Org (31 Aug. 2022) (citing Oklahoma definitions of principal and accessory criminal liability, and opining, “Oklahoma law prohibits aiding and abetting the commission of an unlawful abortion, which may include advising a pregnant woman to obtain an unlawful abortion. See 21 O.S. §§ 171-172, 861…”). Meanwhile, Alabama, Arizona, Arkansas, Florida, and Ohio have considered such aprovision. See H.B. 4327, 2022 Leg., Reg. Sess.(Okla. 2022); H.B. 23, 2022 Leg., Reg. Sess. (Ala. 2022); H.B. 2483, 55th Leg., 2nd Reg. Sess. (Ariz. 2022); S.B. 13, 93rd Gen. Assemb., 2ndExtraordinary Sess. (Ark. 2021); H.B. 167, 124thLeg., Reg. Sess. (Fla. 2022); H.B. 480, 134thGen. Assemb., Reg. Sess. (Ohio 2021). See also J. Tolentino, “We’re Not Going Back to theTime Before Roe. We’re Going Somewhere Worse,”TheNewYorker(24June2022), https://www.newyorker.com/magazine/2022/07/04/we-are-not-going-back-to-the-time-before-roe-we-are-going-som ewhere-worse/amp.
_____________________
transport patients to abortion clinics.93 Employers, family members or friends who contribute financially or provide other forms of support can also be criminalized.94
28. Individuals can also face civil penalties for “aiding and abetting” abortion in some states. Texas, for example, provides for privately enforced civil liability,95 in addition to its criminal ban.96 This threat of private suits places further pressure on providers to cease providing any abortion care whatsoever — even for patients who experiencecomplications making abortion medically necessary and permitted under the state’s criminal restrictions— because they may have to defend themselves from a costly lawsuit brought by a bystander.97 As Dr. Serapio explained, the law has left providers in Texas feeling potentially surveilled by everyone around them and questioning whether private discussions with their patients could land them in front of a judge.98
___________________
93 R. Klitzman, “Opinion: Roe’s reversal doesn’t just hurt women – it harms us all,” CNN (25 June 2022), https://www.cnn.com/2022/06/25/opinions/medical-ethics-post-roe-world-klitzman/index.html.See also J. Tolentino, “We’re Not Going Back to the Time Before Roe. We’re GoingSomewhere Worse,” The New Yorker (24 June2022),
https://www.newyorker.com/magazine/2022/07/04/we-are-not-going-back-to-the-time-before-roe-we-are-going-som ewhere-worse/amp. Virtually all of the “trigger laws” punish thoseconducting and/or aiding an abortion. See alsoA. Zablocki & M. Sutrina, “The Impact of State Laws Criminalizing Abortion,” Lexis Nexis (27 Sept. 2022), https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/the-impact-of-state-laws
-criminalizing-abortion (Noting potential aidingand abetting liability for employers who providesupport or time off for employees to obtain abortions; for medical personnel who advise or assist; for individuals who facilitate; or for health plans that cover the procedure); K.E. Queram, “Lyft and Uber Establish Legal Fundsto Protect Drivers from TexasAbortionLaw,”RouteFifty(7Sept.2021), https://www.route-fifty.com/management/2021/09/ride-share-abortion-legal-fund-texas/185154/. T. O’Donnell, “Under Texas ban, private citizens could sue a cab driver who takes a woman to an abortion,” (1 Sept. 2021), https://theweek.com/science/health/1004413/under-texas-ban-private-citizens-could-sue-a-cab-driver-who-takes-a-w oman-to; R. Alta Charo, Vigilante Injustice — Deputizing and Weaponizing the Public to Stop Abortions, THE NEW ENGLAND JOURNAL OF MEDICINE (14 Oct. 2021),https://www.nejm.org/doi/full/10.1056/NEJMp2114886.
94 A. Zablocki & M. Sutrina, “The Impact of State Laws Criminalizing Abortion,” Lexis Nexis (27 Sept. 2022), https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/the-impact-of-state-laws-criminalizing-abortion; Madiba Denney & Jackie Fielding, “Miscarriage of Justice: The Danger of Laws Criminalizing PregnancyOutcomes” The Brennan Center (9 Nov. 2021),https://www.brennancenter.org/our-work/analysis-opinion/miscarriage-justice-danger-laws-criminalizing-pregnancy-outcomes.
95 Texas Heartbeat Act, Senate Bill 8 (SB 8) (20 Mar. 2021) (An Act relating to abortion,including abortions after detection of an “unborn child’s heartbeat”; authorizing a private civil right of action), https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf. See also Okla. Stat. tit. 63, §1-745.33-.34, .38 (2022); Idaho Code §§ 18-8804, 18-8807
96 Tex. Health & Safety Code §§ 170A.001-7 (2022).See id., § I (B)(1).
97J. Gerson, “‘No one wants to get sued’: Some abortion providers have stopped working in Texas” The 19th (15 Sept. 2021), https://19thnews.org/2021/09/abortion-providers-texas-stopped-working-under-threat-sued/ (“‘Even if abortion providers win in every single case brought against them [under SB 8], that burden of having to have a lawyer to defend yourself, traveling all over the state to do so — that alone threatens to shut down abortion providers,’ said Marc Hearron, senior counsel at the Center for Reproductive Rights”). InDecember 2022, a Texas court dismissed a suit from an unaffected, out of state plaintiff against a doctor who had performed an abortion in defiance of the law. The court held that the plaintiff lacked standing to bring the case, but left the door open for plaintiffs with ties to a case to sue providers. See D. Solomon, “Texas’s Abortion ‘Bounty’ Law Just Lost Its First Test.Here’sWhatThatMeans,”TexasMonthly(9Dec.2022), https://www.texasmonthly.com/news-politics/texas-abortion-bounty-law-just-lost-first-test/.
98 Interview by Foley Hoag LLP with Dr. ElissaSerapio (25 July 2022). Others involved inabortion care, including lawyers, have the same concerns. I. Mitchell, “Texas Freedom Caucus Warns Law Firm of Criminal Liability for Covering Employees’ Abortion Costs,” The Texan (11 July 2022), available at
==================
29. Some states are attempting to enforce their bans across state lines. Although the legality of this strategy is uncertain,99 lawmakers in several states that have banned abortion have proposed legislation to “allow private citizens to sue anyone who helps a resident of that state… terminate a pregnancy outside the state,” from an out-of-state physicianwho performs a procedure to a driver who conveys a patient across state lines.100 For example, Missouri lawmakers introduced a bill in 2021 that claimed jurisdiction over any pregnancy conceived within the state or where the parents were Missouri residents.101 While the law was not adopted, another bill introduced last year is intended to allow privateenforcement across state lines.102 These cross-border efforts expand the threat of prosecution beyond providers practicing in restrictive states, creating uncertainty for providers103 even in states where abortions remain legal, and infringing on women’s freedom of movement.
30. Pregnant individuals themselves are also at risk of criminalization.104 In some states, officials have indicated a willingness to arrest those who self-induce abortion.105 In Idaho, a statute from 1973 remains a potential threat: a woman “who purposelyterminates her own pregnancy otherwise than by a live birth” can be found guilty of a felony.106Similarly, some states have begun to explore criminalization approaches based on “fetal personhood,”107 a concept which
_________________
https://thetexan.news/texas-freedom-caucus-warns-law-firm-of-criminal-liability-for-covering-employees-abortion-c osts/ (members of the Texas Freedom Caucus promise to file legislation in the upcoming session to “require the State Bar of Texas to disbar any lawyer thathas violated Texas abortion laws.”). See also E.Bowman, “As states ban abortion, the Texas bounty law offers a way to survive legal challenges,” NPR (11 July 2022), https://www.npr.org/2022/07/11/1107741175/texas-abortion-bounty-law. See also M. Kornfield, “A website for ‘whistleblowers’ to expose Texas abortion providers was taken down-again” (6 Sept. 2021), https://www.washingtonpost.com/nation/2021/09/06/texas-abortion-ban-website/.
99 R. Cohen, “The coming legal battles of post-Roe America,” Vox (27 June 2022), https://www.vox.com/2022/6/27/23183835/roe-wade-abortion-pregnant-criminalize.
100 C. Kitchener & D. Barrett, “Antiabortion Lawmakers Want to Block Patients from Crossing State Lines,” Washington Post (30 June 2022), https://www.washingtonpost.com/politics/2022/06/29/abortion-state-lines/. See also A. Ollstein & M. Messerly, “Missouri wants to stop out-of-state abortions. Other states could follow,” https://www.politico.com/news/2022/03/19/travel-abortion-law-missouri-00018539 for specific of the Missouri proposal.
101 M.O. SB603, 101st Gen. Assemb., Reg. Sess.(2021).
102 See R. Cohen, “The coming legal battles of post-Roe America,” Vox (27 June 2022), https://www.vox.com/2022/6/27/23183835/roe-wade-abortion-pregnant-criminalize. See also S. Ballentine & J. Hanna, “Missouri considers law to make illegal to ‘aid or abet’ out-of-state abortion,” PBS (16 Mar. 2022), https://www.pbs.org/newshour/politics/missouri-considers-law-to-make-illegal-to-aid-or-abet-out-of-state.
103 T. Gross, “The U.S. faces 'unprecedenteduncertainty' regarding abortion law, legal scholarsays,” NPR (updated
18Jan.2023),
https://www.npr.org/sections/health-shots/2023/01/17/1149509246/the-u-s-faces-unprecedented-uncertainty-regardin g-abortion-law-legal-scholar-sa; T. Benson, “Interstate Travel Post-Roe Isn’t as Secure as You May Think,” Wired (25 July 2022), https://www.wired.com/story/insterstate-travel-abortion-post-roe/.
104 Pregnancy-related prosecutions not onlyexisted but were increasing before Dobbs. SeePregnancy Justice, “ArrestsandProsecutionsofPregnantWomen,1973-2020”(18Sept.2021), https://www.nationaladvocatesforpregnantwomen.org/wp-content/uploads/2021/09/FINAL_1600cases-Factsheet.do cx.pdf. See also M. Goldberg,“When a Miscarriage Is Manslaughter,” TheNew York Times (18 Oct. 2021), https://www.nytimes.com/2021/10/18/opinion/poolaw-miscarriage.html.
105 See A. Yurkanin, “Women can be prosecuted for taking abortion pills, says Alabama attorneygeneral,” AL.com (10 Jan. 2023).
106 Idaho Code §18-606.
107 Pregnancy Justice, “When Fetuses Gain Personhood: Understanding the Impact on IVF,Contraception, Medical Treatment, Criminal Law, Child Support, and Beyond” (17 Aug. 2022),
https://pregjustdev.wpengine.com/wp-content/uploads/2022/08/Fetal-Personhood-Issue-8.17.22.pdf.Seealso
==================
attributes legal rights to a fetus.108 If adopted, these provisions will increase prosecutions targeting pregnant people by classifying abortion as homicide and permitting prosecution of those who receive such treatment for murder or manslaughter.109 A Louisiana House of Representatives committee voted in May 2022 to amend criminal laws to make abortion qualify as a homicide.110 While the bill wassubsequently withdrawn, other states are exploring fetal personhood approaches to criminalizing a range of pregnancy outcomes.111
31. Even prior to Dobbs, prosecutors charged pregnant women and girls in situations where they suspected that the woman’s actions during pregnancy harmed the fetus.112 Alleged conduct deemed worthy of prosecution went beyond suspected abortions to include using drugs (even where prescribed by a doctor), drinking alcohol, and falling down stairs.113For example, in 2020, a pregnant woman from Alabama was prosecuted for using pain medicationprescribed by her doctor, even though it wasestablished after the baby was born that the childsuffered no adverse consequences.114 In 2014, a pregnant woman who took just half a Valium pill and
__________________
Pregnancy Justice, “Who Do Fetal HomicideLaws Protect? An Analysis for a Post-RoeAmerica,” https://www.nationaladvocatesforpregnantwomen.org/wp-content/uploads/2022/08/Feticide-Brief-w-Appendix.pdf.
108 International human rights law (IHRL)makes clear that its protections start at birth andthat fetal personhood has no basis in IHRL. SeeWorking Group on discrimination againstwomen and girls in law and practice, Women's Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and RegressiveTrends(Oct.2017), https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/WomensAutonomyEqualityReproductiveH ealth.pdf (“It was well settled in the 1948 [Universal Declaration of Human Rights] and upheld in the ICCPR thatthe human rights accorded under IHRL are accorded to those who have been born. ‘Allhuman beings are born free and equal in dignityand rights. They are endowed with reason andconscience and should act towards one anotherin a spirit of brotherhood.’”). The Working Group cites inter alia the travaux préparatoiresof Article 6 of the ICCPR, in which proposedamendments suggesting that the right to life applied before birth were specifically rejected by states. UN GAOR, 12th Session, Agenda Item 33, at 119 (e), (q), UN Doc. A/3764, 1957.
109 M. Carlisle, “Fetal Personhood Laws Are aNew Frontier in the Battle Over ReproductiveRights,” Time (28 June 2022),https://time.com/6191886/fetal-personhood-laws-roe-abortion/. Fetal personhood provisions could also lead tonon-abortion-relatedconductbeingcriminalized. https://www.usnews.com/news/national-news/articles/2022-05-06/the-push-to-make-fetuses-people-and-abortion-m urder/.
110 O. Gonzalez, “Louisiana abortion billallowing homicide charges against patients stopped for now,” Axios (13 May 2022), https://www.axios.com/2022/05/13/louisiana-abortion-bill-homicide-patient-roe.
111 A Tennessee trigger law that will go into effect in August will make performing anabortion a felony that comes with a sentence of up to 15 years imprisonment. A.Sainz & K. Kruesi, “Memphis council resolution addresses abortionprosecutions,”TheAssociatedPress(12July 2022), https://apnews.com/article/abortion-2022-midterm-elections-us-supreme-court-health-nashville-92c4834b3b0fd10e4 87c2bc75020c03d. A 2021 study from theNational Association of Criminal DefenseLawyers and Pregnancy Justice determined that there are thousands of federal and state crimes already on the books that prosecutors can andhave used to charge pregnant persons in a post-Roe world. See National Association of Criminal Defense Lawyers and National Foundation for Criminal Justice, “Abortion in America: How Legislative Overreach Is Turning ReproductiveRightsIntoCriminalWrongs”(Aug.2021), https://www.nacdl.org/getattachment/ce0899a0-3588-42d0-b351-23b9790f3bb8/abortion-in-america-how-legislative
-overreach-is-turning-reproductive-rights-into-criminal-wrongs.pdf.
112 “Alabama Mother Prosecuted for TakingPrescription During Pregnancy,” Equal JusticeInitiative (12 July 2021), https://eji.org/news/alabama-mother-prosecuted-for-taking-prescription-during-pregnancy/.
113 L. Paltrow & L. Sangoi, “The dangerousstate laws that are punishing pregnant people,”Think Progress (28 Sept. 2016), https://archive.thinkprogress.org/criminalization-pregnancy-us-43e4741bb514/; Amnesty International, “USA: Criminalizing pregnancy: policing pregnant women who use drugs in the USA” (23 May 2017) https://www.amnesty.org/en/documents/amr51/6203/2017/en/.
114 “Alabama Mother Prosecuted for TakingPrescription During Pregnancy,” Equal JusticeInitiative (12 July 2021), https://eji.org/news/alabama-mother-prosecuted-for-taking-prescription-during-pregnancy/; P.Salhotra, “Does a
================
whose child was born healthy was charged with “chemical endangerment of a child.”115 Pregnancy Justice, one of the organizations involved in preparing this submission, has documented more than 1700 instances of arrests, forced medical interventions, and other deprivations of liberty of pregnant people since 1973, with 1331 of these cases occurring between 2006-2020.116 This sharp escalation in arrests engenders significant concern given that states now have no restrictions on their ability to criminalize women for their reproductive outcomes.
32. Some jurisdictions also have policies of civil oradministrative detention to hold pregnant girls and women in custody — even without criminal charges — if they are suspected of using controlled substances during pregnancy.117 Thus even in states that do not explicitly criminalize women who seek abortions, authorities have used civil commitment and involuntary substance abuse treatment to detain individuals for allegedly endangering their fetuses.118 Following their 2016 country visit to the US, the UN Working Group on arbitrary detention observed, “The civil proceedings to commit pregnant women are often in closed hearings, lack meaningful standards and provide few procedural protections. In some states, important early hearingsmay take place without the mother having legalrepresentation, as the pregnant woman does nothave the right to appointed counsel although thefetus has a court-appointed guardian ad litem.”119Pregnant individuals have been arbitrarily detained under these policies for months at a time. Becausespontaneous miscarriage and self-managed abortion are medically indistinguishable in most cases,120prohibitions on abortion will predictably lead to the investigation and detention of many womenexperiencing miscarriages as well as those self-managing abortions.
_______________
fetus count in the carpool lane? Texas’ abortion law creates new questions about legal personhood,” The Texas Tribune (13 Sept. 2022), https://www.texastribune.org/2022/09/13/texas-personhood-laws-abortion-law/; M. Carrizosa, “Beyond Abortion: The Fight Over Fetal Personhood Is Here (Video),” Bloomberg Law (12 Jan. 2023), https://news.bloomberglaw.com/us-law-week/beyond-abortion-the-fight-over-fetal-personhood-is-here-video.
115 See N. Martin, “Take a Valium, Lose Your Kid, Go to Jail,” ProPublica (23 Sept. 2015), https://www.propublica.org/article/when-the-womb-is-a-crime-scene.
116 See Pregnancy Justice, “Confronting Pregnancy Criminalization: A Practical Guide for Healthcare Providers, Lawyers, Medical Examiners, Child Welfare Workers, and Policymakers,” p. 6 (July 2022), https://www.pregnancyjusticeus.org/wp-content/uploads/2022/06/1.Confronting-PregnancyCriminalization_6.22.23-
1.pdf; Pregnancy Justice, “Arrests and Other Deprivations of Liberty of Pregnant Women, 1973-2020,” https://www.pregnancyjusticeus.org/wp-content/uploads/2021/09/FINAL_1600cases-Factsheet.docx.pdf.
117 See Pregnancy Justice, “Wisconsin’s ‘Unborn Children Protection Act’ (Act 292)” (16 May 2022), https://www.nationaladvocatesforpregnantwomen.org/fact-sheet-wisconsins-unborn-child-protection-act-act.
118 See Idaho 18-622(5) “Nothing in this section shall be construed to subject a pregnant woman on whom any abortion is performed or attempted to any criminal conviction and penalty.”; S. Harris, “Local woman facing 10 years in prison for allegedly using meth the day she gave birth” (6 June 2021), https://www.idahostatejournal.com/news/local/local-woman-facing-10-years-in-prison-for-allegedly-using-meth-the- day-she-gave/article_e03d4800-cf40-5263-a7d3-085d2d7df2b4.html/; L. Miranda et al., “How States Handle Drug Use During Pregnancy” (30 Sept. 2015),https://projects.propublica.org/graphics/maternity-drug-policies-by-state.
119 Report of the Working Group on ArbitraryDetention on its visit to the United States ofAmerica, ¶ 74 (U.N. Doc. A/HRC/36/37/Add.2) (17 July 2017).
120 See NWHN Staff, “Consumer Health Info: Medication Abortion and Miscarriage” (updated 15 Aug. 2019), https://nwhn.org/abortion-pills-vs-miscarriage-demystifying-experience/ (“From a medical perspective, there is no physically significant difference between a medication abortion and a spontaneously occurring miscarriage. For example, the medicines used in medication abortion are used to help safely manage an incomplete miscarriage.”).
==================
33. Those targeted for detention and criminalization are more likely to be Black, Indigenous, and people of color (BIPOC) individuals,121 contributing to the already disproportionately high level of incarceration of BIPOC persons in the US.122 For example, out of 413 cases of arrest or forced intervention of pregnant persons documented between 1973 and 2005, 71% were economically disadvantaged women, 59% were women of color, and 52% were Black.123 Communities of color, especially Black communities, are disproportionately impacted by pregnancy criminalization due in part to the heightened policing of these communities under the auspices of the “war on drugs.”124 As the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has already described, “given that the country’s criminal legal system already disproportionately polices women and girls of African descent, [this] is the population group that suffers the most from increased surveillance and criminalization.”125
34. Finally, the criminalization of abortion threatens to further affect the relationship between patients and their healthcare providers. Providers fear that their actions, or even their words, could be used against them in court. Patients may be afraid to seek care126and worry that providers will act as an arm of the police by collecting evidence and reporting them to the authorities if they suspect an abortion has been induced.127 Since BIPOC individuals already
_________________
121 See M. Dennie & J. Fielding, “Miscarriage ofJustice: The Danger of Laws CriminalizingPregnancy Outcomes,” BrennanCenterforJustice(9Nov.2021), https://www.brennancenter.org/our-work/analysis-opinion/miscarriage-justice-danger-laws-criminalizing-pregnancy-outcomes. P. Thompson & A. Turcios Cruz, “How an Oklahoma women’s miscarriage put a spotlight on racial disparities in prosecutions,” NBC News (5 Nov. 2021).
122 “Criminal Justice Fact Sheet,” NAACP, https://naacp.org/resources/criminal-justice-fact-sheet; https://www.prisonpolicy.org/blog/2021/10/08/indigenouspeoplesday/ (“In jails, Native peoplehad more than double the incarceration rate of white people, and in prisons this disparity was even greater.”).
123 L. Paltrow & J. Flavin, Arrests of and ForcedInterventions on Pregnant Women in the UnitedStates, 1973–2005: Implications for Women's Legal Status and Public Health, JOURNAL OF HEALTH POLITICS, POLICY AND LAWhttps://read.dukeupress.edu/jhppl/article/38/2/299/13533/Arrests-of-and-Forced-Interventions-on-Pregnant (noting that the socioeconomic status of economically disadvantaged was indicated by the fact that 71 percent qualifiedfor indigent defense).
124 See National Association of Criminal Defense Lawyers, Race and the War on Drugs (29 Nov. 2022), https://www.nacdl.org/Content/Race-and-the-War-on-Drugs.
125 Report by the Special Rapporteur on the right of everyone to the enjoyment of the highestattainable standard of physical and mental health: Racism and the right to health (U.N. Doc. A/77/197) (20 July 2022).
126 See American College of Obstetricians and Gynecologists, Opposition to Criminalization of Individuals During PregnancyandthePostpartumPeriod-StatementofPolicy(Dec.2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-cri minalization-of-individuals-pregnancy-and-postpartum-period.
127 A recent study by If/When/How found “at least 61 instances where people were investigated or prosecuted for allegedly self-managing an abortion or helping others self-manage. Among the cases involving adults, 26% were reported by acquaintances (including family, friends, and neighbors) and 45% were reported by care professionals (including doctors, nurses, and social workers) after seeking care...Whether criminalization has occurred out of malice or simply due to ignorance of reporting requirements, clinicians, social workers, and other clinical support providers have caused substantial harm to patients by calling law enforcement after the loss of pregnancy because they suspect the miscarriage was intentionally induced.” J. Perritt, “Don't Report Your Abortion Patients to Law Enforcement—Self-managed abortion does not legally need to be reported,” Medpage Today (5 Nov. 2022), https://www.medpagetoday.com/opinion/second-opinions/101581; (citing L. Huss et al., Self-Care, Criminalized: August 2022 Preliminary Findings, IF HOW WHEN: LAWYERING FORREPRODUCTIVE JUSTICE 2-3 (2022)). See also E. Bazelon, “Purvi Patel Could Be Just the Beginning,” The New York Times (1 Apr. 2015), https://www.nytimes.com/2015/04/01/magazine/purvi-patel-could-be-just-the-beginning.html.
=====================
face well-documented barriers to obtaining propermedical treatment and are subject to over-policing,128 they are put at particular risk.129
35. The ultimate impacts of abortion criminalization have not yet been fully realized, but it is reasonable to expect this criminalization to have a chillingeffect on women’s health generally, to increase risks to women’s lives, and to lead to further arbitrary detention of women and girls.
C. Threats to Privacy from Increased DigitalSurveillance
36. The proliferation of abortion bans in the US has decimated reproductive autonomy — the power to control all aspects of one’s reproductive health — which is “at the very core of [individuals’] fundamental right[s] to equality and privacy.”130The right to privacy of individuals (irrespective of whether or not they are pregnant) and the rights of medical professionals are also threatened by states’ use of digital surveillance to track the identities of people who seek or provide reproductive healthcare.
37. Because many states now criminalize abortion, law enforcement officials in these states are using electronic data to prosecute patients or those who help them access abortion.131 This personal information is wide in scope and may include:
● location data to show if someone visited anabortion clinic, substance use disorder treatment center, or other health facility;
● search histories on medication abortion, clinics, and general information on abortion;
● menstrual cycle tracking applications; and
● communications data such as text messages about pregnancy and abortion.132
38. The pre-Dobbs case of Latice Fisher, who wascharged with second-degree murder after a stillbirth when investigators found the words “mifepristone”and “misoprostol” in her phone’s
____________________
128 S. Artiga et al., “Racial Disparities inMaternal and Infant Health: An Overview,”Kaiser Family Foundation (10 Nov.2020),
129 E. Yuko, “Women of Color Will Face More Criminalized Pregnancies in Post-‘Roe’America,” Rolling Stone (7 July2022),
130 Working Group on discrimination against women and girls in law and practice, Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (Oct.2017),
https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/WomensAutonomyEqualityReproductiveH ealth.pdf.
131 See, e.g., C. Zakrzewski et al., “Texts, web searches about abortion have been used to prosecute women,” The WashingtonPost(3July2022), https://www.washingtonpost.com/technology/2022/07/03/abortion-data-privacy-prosecution/.See also R. Williams, “How might law enforcement use digital tracking to enforce Georgia’s strict anti-abortion law?” GPB (30 Aug. 2022),
132 See K. Cheung, “Abortion in the SurveillanceState,” Jezebel (22 Nov. 2021), https://jezebel.com/abortion-in-the-surveillance-state-1848076906. See also J. Schuppe, “Police sweep Google searches to find suspects. The tactic is facing its first legal challenge,” NBC News (30 June 2022), https://www.nbcnews.com/news/us-news/police-google-reverse-keyword-searches-rcna35749.
READ THE ENTIRE LETTER / APPEAL / COMPLAINT TO THE UN here