Annual Meeting

'Dobbs is an indictment of women,' past ABA president tells House in emotional testimony

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The Wellspring Health Access clinic opened in April in Casper, Wyoming, where abortion is still legal to perform. The use of mifepristone faced a legal challenge the same month. Photo by Rachel Woolf for the Washington Post via Getty Images.

It’s been more than a year since the U.S. Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, but members of the House of Delegates continued to discuss wide-ranging issues that stem from the landmark decision at the ABA Annual Meeting on Monday.

The Supreme Court ruled June 24, 2022, that there is no constitutional right to abortion in Dobbs. Until then, Roe, which was decided in 1973, held that states can’t ban abortions before viability, the point at which a fetus can survive outside the womb.

Resolution 511 urges Congress to enact the Women’s Health Protection Act of 2023 or similar legislation that protects patients’ access to abortion care, as well as health care professionals’ ability to provide this care.

The Women’s Health Protection Act, which was introduced in both the U.S. Senate and House of Representatives in March, creates a new statutory right to access and provide abortions, free from restrictions that are medically unnecessary and bans on the procedure. The bill remained in committee in the last legislative session.

Past ABA President Judy Perry Martinez not only spoke in support of Resolution 511 but also shared a personal story.

When Martinez was 31, she went to the emergency room in distress. She was pregnant but hemorrhaging and bleeding significantly because of preterm labor and placenta previa. She was kept in the hospital for 21 days and told that if she had another big bleed, her life would be at risk. Fortunately, she said, she eventually delivered a healthy baby boy.

“I was told I only had seven minutes to perform an emergency C-section if I had hemorrhaged,” said Martinez, of counsel at Simon, Peragine, Smith & Redfearn in New Orleans. “To this day, I don’t know where courage would have led me if I had to make that decision back in 1992 again.”

Martinez told the House that she had similar complications with her other children but was able to remain in the care of her trusted obstetrician and family and deliver them safely.

“That scenario is only one, but it is my story of how Roe v. Wade … made a difference,” she said. “That is not the health care autonomy my daughter, a recent law school graduate who has moved back home with her new husband, would be afforded.”

Follow along with the ABA Journal’s coverage of the 2023 ABA Annual Meeting here.

If facing life-threatening complications during pregnancy, her daughter “could be told she could not be admitted to receive care because her doctor or hospital GC or administration is concerned that whatever steps they need to take to save her life may be deemed an abortion or illegal medical care,” Martinez said.

As a result, Martinez said her daughter and her daughter’s husband are already having tough conversations about how they will handle their obstetrics care in the future.

Dobbs is not an indictment of abortion,” she said. “Dobbs is an indictment of women. Its effect is to say, in no uncertain terms, that the women in this room, the women in your firms, in your workplaces, your wives, your daughters, your sisters, your nieces, are not capable of making decisions about their health care and their lives without intervention from state legislators.”

According to data from the Guttmacher Institute, which is cited in the report accompanying the resolution, at least 66 clinics that offered abortion care in 15 states stopped these services in the first 100 days after Roe was overturned. At least a dozen states have banned abortion care, and others are expected to take similar action by the end of the year, the report also says.

The ABA has long supported personal autonomy in health care decision-making and opposed government regulations that hinder access to medical treatment. More specifically, the association has been a longtime advocate of the right to access reproductive health services.

At the 2022 ABA Annual Meeting, the House adopted a series of resolutions that oppose the criminalization of people or groups that assist or support someone who is seeking abortion care, oppose the criminalization of health care providers that offer abortion care, support access to contraceptives or contraceptive care, and support laws that prevent the disclosure of personal reproductive and sexual health information.

The House adopted another measure at the ABA Midyear Meeting in February that calls on government entities to enact laws and regulations that protect the right of any individual to travel across state lines to access medical care.

Resolution 511 was co-sponsored by the Commission on Domestic and Sexual Violence.

Protecting access to reproductive and other health services

The House on Monday approved a second resolution that was proposed by the Section of Civil Rights and Social Justice and relates to the fall of Roe.

Resolution 509 supports the long-standing principle that U.S. Food and Drug Administration decisions to approve drugs be reviewed under a legal standard that takes into account “the agency’s scientific expertise, its statutory decision-making authority, the procedures established by Congress, and the precedents set by reviewing courts for exercising their decision-making authority.”

The ABA Section of Civil Rights and Social Justice proposed the measure in response to the U.S. District Court for the Northern District of Texas, which suspended the FDA’s approval of the abortion drug mifepristone in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration in April. The 5th U.S. Circuit Court of Appeals at New Orleans, which heard oral arguments in the case in May, also appears ready to restrict approval of the drug.

Renée Landers, an ABA Section of Administrative Law and Regulatory Practice representative to the House of Delegates, introduced the resolution. She pointed out that the case marks “the first time a court has ordered the FDA to revoke its approval of a drug, contrary to established law and practice.”

Landers, the faculty director of the Health and Biomedical Law Concentration at Suffolk University, said the case’s decision, as it stands, could reach beyond mifepristone and potentially affect approvals for hormone therapies, vaccines, contraceptives and drugs that treat HIV infection in the future.

In response to the district court’s decision, more than 400 representatives of the biopharmaceutical industry signed a letter noting “the agency’s framework has resulted in decades of unsurpassed medical innovation and in statutory mechanisms to remove drugs from the market if, among other reasons, they fail to maintain the anticipated safety and efficacy profile.”

According to the letter, which is cited in the report that accompanies the resolution, these representatives vowed to “stand together to unequivocally support the continued authority of the FDA to regulate new medicines.”

Past ABA President William Neukom also spoke in favor of Resolution 509, saying, “As much as we are the guardians of an independent judiciary as lawyers, we can … also recognize mistakes made by members of the judiciary.”

He added: “In this case, the mistake is all too apparent. We have simply no expertise in medical science.”

Resolution 509 was co-sponsored by the ABA Commission on Sexual Orientation and Gender Identity and the ABA Commission on Domestic and Sexual Violence.

See also:

ABA Journal: “Aftershocks: Navigating the morass of state abortion laws post-Roe”

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