The U.S. Supreme Court has ruled time and again that reproductive privacy is “central to personal dignity and autonomy, [which] are central to the liberty protected by” the Constitution. The Court has made eminently clear that under the Constitution, the right of a pregnant person to terminate a pregnancy prior to viability is a right so essential to our freedom that our government cannot ban or impose an undue burden on its exercise. But despite the long-standing clarity of this principle, reproductive health and rights continue to come under blistering, unrelenting attack.

Nowhere is this clearer than with the enactment of record numbers of outright pre-viability bans on abortion over the past few years. In enacting these bans and a slew of other devastating restrictions on abortion access, states such as Alabama, Georgia, Kentucky, Missouri, Ohio, Utah, and Arkansas have clearly undermined reproductive autonomy in blatant violation of the Constitution.

Enough is enough. That’s why we, along with our colleagues and fellow scholars in constitutional law, filed a friend of the court brief in the 8th Circuit last week, speaking up against Arkansas’s recent attempts to interfere with the right to reproductive autonomy. Right now, Arkansas is asking the 8th Circuit to overturn a lower court order that blocked a set of abortion bans and restrictions the state passed last year from taking effect. These laws include: a ban on doctors performing abortions prior to viability if the abortion is sought after 18 weeks (18-week ban); a ban on doctors performing abortions prior to viability if the doctor has “knowledge” that the abortion is sought “solely” due to a belief that the fetus may have Down syndrome (reason ban); and a medically unnecessary restriction on the types of physicians who can perform abortion in the state, which would prohibit all qualified providers who are not board-certified or board-eligible in obstetrics and gynecology from continuing to provide the safe, compassionate abortion care they have been providing in Arkansas for years (OBGYN requirement).

Arkansas insists that its two bans on pre-viability abortion are not actually bans but merely “regulations.” This is nothing but Orwellian subterfuge. We know a ban when we see one and so do people looking to terminate their pregnancies. Regulations are laws that control how a right can be exercised. Bans prohibit a right from being exercised at all. And that is exactly what the 18-week ban and reason ban would do if permitted to take effect.

Arkansas has also denied that the Constitution treats the right to pre-viability abortion, or any other right, as absolute. The Constitution begs to differ. Within the realm of privacy, states cannot ban many expressions of liberty and autonomy, including interracial unions, same-sex marriage, consensual same-sex intercourse, and more.

Arkansas’s OBGYN requirement fares no better under constitutional scrutiny. With it, Arkansas is attempting to impose an arbitrary and medically unnecessary restriction on who can provide abortions in the state with the aim of making abortion even more difficult — if not impossible — to access. The state defends this restriction as protecting patient health, but cannot show that current abortion providers who are not OBGYNs — and who have been providing compassionate abortion care in Arkansas for years — are doing so unsafely. It also claims that restricting those who can provide abortions to only board-eligible or –certified OBGYNs would lead to better health outcomes for patients. What the record does show is that if the law is allowed to go into effect, an estimated 62 to 70 percent of people wish to have an abortion in Arkansas will be unable to do so. Arkansas’s medical safety justification is just another failed post-hoc rationalization for an abortion restriction that would unduly burden access to vital reproductive health care. Indeed, if Arkansas were really concerned about maternal health, it would take action to lessen its fifth-highest in the country maternal mortality rate, a rate that is dramatically worse for Black women.

Thankfully, a district court saw through Arkansas’s sophistry and phony justifications and preliminarily enjoined the state’s two bans on abortion prior to viability and OBGYN requirement, with a decision rooted in long-standing precedent and bedrock principles of justice. Let’s hope the Eighth Circuit Court of Appeals follows our brief and heeds the wisdom of the lower court, preserving not only that decision but also the civil rights and civil liberties of all people who want to terminate a pregnancy.

Michele Goodwin, Professor of Law, University of California, Irvine,
& David S. Cohen, Professor of Law, Drexel University

We’re just days into the first state legislative sessions of 2020 and across the country, lawmakers are once again targeting transgender young people with a slate of proposed laws that would bring devastating harms to the transgender community.

In 2016, lawmakers fixated on where transgender people go to the bathroom. This year, lawmakers have zeroed in on transgender people playing sports and receiving life-saving medical care. It is hard to imagine why state legislators have decided to prioritize barring transgender young people from sharing in the benefit of secondary school athletics or disrupting medical treatment consistent with prevailing standards of care. But here we are, the start of the session, a time to fight.

As has been the case since 2015, South Dakota is leading the way with legislation targeting transgender youth. On the first day of this legislative session, South Dakota lawmakers introduced HB 1057, a bill that would make it a felony for medical providers to affirm a transgender minor’s gender. This bill would not only compromise positive health outcomes for transgender youth, but it would lead to the arrest and imprisonment of doctors for simply treating their patients consistent with prevailing medical standards.

That’s right. Lawmakers want to throw doctors who follow basic medical standards for trans youth behind bars and leave trans youth with no recourse at all.

Denying best practice medical care and support to transgender youth can be life-threatening. It has been shown to contribute to depression, social isolation, self-hatred, risk of self-harm and suicidal behavior, and more. The “problem” this bill and other similar bills in Florida, South Carolina, and Missouri is supposed to be addressing? That medical providers are treating children in accordance with long-established standards of care and the Hippocratic oath they took to do no harm.

Lawmakers want to stop people from being transgender and they are willing to put doctors in jail and tell transgender youth that they shouldn’t receive health care in order to achieve their aims.

Imagine being a young person in South Dakota who struggled with depression and anxiety in early childhood, as many transgender people do, because they couldn’t quite identify why they felt so alienated from their peers, their family, and their own body. Over time, they come to recognize that they have a gender that does not align with what they were assigned at birth, tell their family, find support, and begin a course of medical treatment that is quite literally saving their life. With bills like those proposed in South Dakota and elsewhere, young people are at risk of having their lifeline stripped away in an instant. The care that gave them a chance to live is at risk of becoming a crime. Their lives are at risk of becoming criminalized before they even get a chance to live them.

And these legislative attacks go beyond health care. Elsewhere, lawmakers have taken aim at transgender people through proposed bans on transgender student athletes participating in sports consistent with their gender identity. These measures would exclude transgender people from enjoying the benefits of sport on equal terms with their non-transgender peers. Not only do these bills discriminate against transgender young people in ways that compromise their health, social and emotional development, they also raise a host of privacy concerns.

In New Hampshire, for example, the proposed law would require any student athlete whose gender is “disputed” to have medical verification of their sex via “(a) The student’s internal and external reproductive anatomy;(b) The student’s naturally occurring level of testosterone; and (c) An analysis of the student’s chromosomes.” This type of Orwellian intrusion into the bodily autonomy of youth will sweep much broader than transgender youth and potentially impact the ability of all young people — particularly young girls — to safely partake in school activities.

And, if some lawmakers have their way, this will be the national norm as similar bills are pending in Alabama, Georgia, Indiana, Missouri, Tennessee, and Washington state.

Though lawmakers claim that these measures are aimed at protecting vulnerable youth, they in fact do the opposite. And this, too, is a pattern.

The first anti-LGBTQ bill to pass this session is a Tennessee bill that allows foster and adoption agencies to turn away prospective foster families based on the agencies’ religious beliefs — thus limiting prospective parents for kids in out-of-home care. At the end of the day, with all these measures, it will be young people who suffer most.

For transgender young people across the country, this time of year means bracing for public debates over their bodies, athletic abilities, medical care, and restroom practices. In some fundamental ways, these are ultimately debates about whether transgender people should exist at all. The latest round of proposed legislation tells us is that some people don’t think we should.

We must all fight to remind lawmakers that we already do exist, that we aren’t going anywhere, and that we have communities of people fighting alongside us.

Chase Strangio, Deputy Director for Transgender Justice, ACLU LGBT & HIV Project

This piece originally appeared on TheHill.com.

Last week, the full Sixth Circuit Court of Appeals announced it would hear arguments in a challenge to HB 214, an Ohio law criminalizing abortion if even part of a person’s reason for seeking the abortion is a fetal diagnosis of Down syndrome.

Politicians have packaged this law somewhat differently from the 20 other abortion restrictions enacted in Ohio since 2011, but make no mistake: This is just another not-so-thinly-veiled attempt to push abortion out of reach.

And it is not only in Ohio — similar bans have been enacted in Arkansas, Indiana, Kentucky, Missouri, North Dakota, and Utah (just several of the more than 480 politically-motivated, medically unnecessary abortion restrictions politicians have enacted nationwide since 2011), and introduced on the federal level. 

Proponents of these bans claim that their goal is to protect the rights of people with disabilities. Such attempts to co-opt the mantle of disability rights to ban abortion are not only hypocritical but also deeply offensive. 

Let’s be clear on what HB 214 does not do. It does not ensure that pregnant people are given information, resources, and support to raise their children — including children with Down syndrome (or any other disability) — with dignity.

It does not expand access to necessary services and opportunities or protect any person with disabilities from discrimination in education, housing, employment, medical care, or any other area of life.

It does not make it easier for people with disabilities to have — and keep — their children. And it does not protect people with disabilities from violence and abuse, such as coerced sexual and reproductive health decisions, sterilization abuse, and police violence. 

Instead, what HB 214 does, indeed, the only thing it does, is take away an individual’s ability to make one of life’s most deeply personal decisions and turn it over to politicians.

The hypocrisy is stunning: While Ohio politicians are passing abortion bans under the guise of disability rights, Ohio parents of children with disabilities are struggling to afford the services their children need to thrive.

Cuts in funding for these necessary services are routine, and Ohio provides significantly fewer resources for people with disabilities than, for example, its neighbor Pennsylvania.

And the government officials defending Ohio’s ban in court? They are the same officials making it even more difficult for disabled Ohioans to exercise their right to vote. The list goes on and on. 

There is no question that stigma, prejudice, and misconceptions about people with disabilities are widespread. But forcing someone to carry a pregnancy to term against their will does nothing to tackle underlying and systemic ableism and discrimination against people with disabilities.

On the contrary, forced pregnancy threatens a person’s physical, mental, and emotional health, as well as the stability and wellbeing of their family, including existing children. 

We will never address discrimination and the needs of people with disabilities by stigmatizing people who have abortions. We cannot know all the personal circumstances behind an individual’s decision to continue or end a pregnancy, including in cases of fetal diagnoses.

These decisions are often based on a multitude of factors — which is why the pregnant person and their family best make these decisions, and them alone.  

Contrary to what anti-abortion politicians want you to believe, efforts to promote the rights of people with disabilities need not compromise other fundamental rights.

Indeed, the disability and reproductive rights and justice movements share common goals: for every person to decide what happens to their own body and for every person to have the rights, resources, and respect to live their full potential. They also share a common foundation in the principles of equality, dignity, and self-determination. 

For years, we have seen politicians push medically unnecessary abortion restrictions in the name of women’s health and use junk science to defend unconstitutional bans on abortion.

Now, they are advancing their extreme anti-abortion agenda by claiming abortion bans are necessary to protect people with disabilities from discrimination. Enough is enough. 

Under no circumstances should politicians be allowed to force any individual to make particular decisions about reproduction, including forcing them to become a parent against their will, depriving them of the ability to become a parent, or interrogating their own decisions about pregnancy. That hurts all of us. 

Alexa Kolbi-Molinas, ACLU Reproductive Freedom Project
Susan Mizner, Director, Disability Rights Project