Author: Shoshanna Ehrlich

Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently a legal consultant with Planned Parenthood of Massachusetts, with a particular focus on the reproductive rights of teens.

‘Significant Victory’: Ninth Circuit Court Mixed Ruling ‘Frees Idahoans to Talk With Pregnant Minors About Abortion’

In April of 2023, Idaho passed the nation’s first abortion “trafficking” law (travel ban) making it a crime to procure an abortion for a minor. The law was challenged by reproductive rights advocates, who argued that the legislature had created a statute that makes unclear when lawful mentoring support stops, and unlawful conduct begins. Agreeing with the plaintiffs, in November of 2023, a federal district court issued a preliminary injunction preventing the law from going into effect.

On Dec. 2, the Ninth Circuit Court of Appeals issued a mixed decision in the case. Although not a complete win, as Wendy Heipt of Legal Voice, one of the attorneys for the plaintiffs put it: The “decision is a significant victory … as it frees Idahoans to talk with pregnant minors about abortion healthcare.” 

“Encouragement, counseling, and emotional support are plainly protected speech under Supreme Court precedent,” wrote the Ninth Circuit Court last week, “including when offered in the difficult context of deciding whether to have an abortion.”

Trump’s Chilling Promise to ‘Protect Women’ Puts ‘Women Not on a Pedestal, but in a Cage’

On the campaign trail, Trump boasted that under his presidency, “women will be happy, healthy, confident and free” and that we will also magically be freed from the stress of “thinking about abortion.” 

Trump’s back-and forth with women at his rallies may, at first glance, be viewed as an act of paternalistic beneficence for our collective best interest. After all, who would not prefer to be “happy, healthy, confident and free” over being “abandoned, lonely, and scared?” But, as history makes clear, paternalistic protectionism reinforces male supremacy. It is premised on the deeply subordinating and essentialist view that women are “weak and incapable of taking care of themselves.” Accordingly, we require protection for own good, with the resulting loss of self-agency and decisional autonomy.

Republican AGs Want Access to Health Records of Out-of-State Abortion Seekers. Texas’ Ken Paxton Is Leading the Charge.

Since the fall of Roe, cross-border abortion travel has doubled. To guard against the threat of having—as President Biden put it—the medical records of abortion patients “used against them, their doctor, or their loved one just because they sought or received lawful reproductive healthcare,” a new HIPAA rule issued last year enhances the privacy protections for reproductive healthcare.

Attorneys general from 19 abortion-hostile states submitted a formal letter to HHS Secretary Xavier Becerra in opposition to the proposed enhanced privacy rule, based on its disregard for fetal personhood. The AGs failed in their mission to prevent the proposed 2024 rule from becoming final—so Texas Attorney General Ken Paxton took matters into his own hands. The Texas challenge will be heard by Republican appointee Judge James Wesley Hendrix in Lubbock, Texas. It is anticipated that he will be sympathetic to the state’s position.

Do Parents Have the Right to Control Their Daughters’ Sexuality?

Title X, the federally funded family planning program that provides confidential family planning services to teens has once again come under attack. In separate lawsuits, two Texas parents have alleged that by allowing their daughters to obtain contraceptives in the absence of their consent, the program has effectively divested them of their “God-given right to ensure their daughters remain virgins until marriage.”

This attack is on Title X is nothing new. The rights of parents to control the upbringing of their children has long been a rallying cry of Christian conservatives as they battle against the ostensible indoctrination of their children “with a secular worldview that amount[s] to a godless religion.” As they see it, a particularly pernicious aspect of this “godless religion” is the belief that  “’teen promiscuity is … normal and acceptable conduct.”

Over the course of four decades, courts have consistently held that although Title X encourages parental involvement, it does not require it based on the recognition that “confidentiality [is] a crucial factor in attracting teenagers to Title X clinics and reducing incidence of teenage pregnancies.”

Decisions Belong to the Pregnant Teen: Montana Court Strikes Down State’s Parental Consent Act

The Supreme Court of Montana used state constitutional grounds to strike down the Consent Act, which required minors to obtain parental consent for an abortion. The court’s analysis of these justifications determined that they were clearly intended to obfuscate the antiabortion animus behind the Consent Law.

Having revealed the baselessness of the underlying justifications for discriminating against teens who choose abortion over childbirth, it becomes readily apparent that these are antiabortion laws—plain and simple—that aim to divest teens of control over this reproductive choice.

A New Tennessee Law Claims to Protect Parental Rights, Leaving Teens Without Routine Healthcare

In addition to enacting a strict abortion ban and trafficking law to punish those who assist minors with abortion access, Tennessee has also taken Justice Thomas’ injunction to heart that the time has come to reassess constitutional protections for birth control. Towards this end, on July 1, the state’s newly enacted Family Rights and Responsibilities Act aimed at bolstering parental authority went into effect with minmal fanfare.

Public healthcare providers may no longer provide teens with routine sexual and reproductive healthcare, including birth control, pregnancy testing and treatment of STIs, in the absence of parental consent.

Tennessee Is the Second State to Criminalize Minor ‘Abortion Trafficking.’ Activists Are Pushing Back.

In May 2024, following Idaho’s lead, Tennessee became the second state in the country to criminalize the ‘abortion trafficking’ of minors, making it a class A misdemeanor.

Late last month, Nashville Democratic Rep. Aftyn Behn and abortion rights attorney and activist Rachel Welty brought a lawsuit in federal district court challenging the trafficking law on constitutional grounds and asking to have it permanently enjoined. 

EMTALA Dissents: Jackson Warns of ‘Storm Clouds’ for Pregnant Women, While Conservatives Long for Fetal Personhood

The Supreme Court’s dismissal of the EMTALA case drew the fierce ire of Justice Ketanji Brown Jackson. Warning of the “storm clouds [that] loom ahead,” Jackson condemned the Court’s failure to resolve the case on the merits, in accordance with the long-settled principle that “state laws that conflict with federal laws, are ‘without effect.’”

In an alternate dissent, the Court’s hardcore conservative justices—Alito, Thomas and Gorsuch—paid homage to the unborn child.

SCOTUS Rejects Biden’s Bid for Emergency Abortion Care, Risking Lives of Women in Texas and Other Abortion Ban States

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The U.S. Supreme Court on Monday rejected a request from the Biden administration to send a dispute over emergency abortions in Texas back to the lower courts. The Court dealt with a set of similar cases out of Idaho in June without reaching a conclusive decision on the federal law in question, the Emergency Medical Treatment and Labor Act (EMTALA).

“Recently, the world has heard the story of Amber Thurman, a young woman who died because of Georgia’s extreme abortion ban,” said Noreen Farrell, executive director of Equal Rights Advocates. “Today’s punt by the Supreme Court will lead to more cases like Amber’s. … The Court is telling women in states with bans that need abortion care to save their life: ‘We don’t care.'”