Professors from the University of Houston Law Center and the Tilman J. Fertitta Family College of Medicine participated in a panel discussion earlier this month to address the legal and medical landscape concerning women’s reproductive health since the Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization.
Sponsored by the University of Houston Law Center in conjunction with the Tilman J. Fertitta Family College of Medicine, the continuing legal education event was moderated by UH Law Dean and Professor of Law Leonard M. Baynes introduced the topic by saying, “As an education institution, we provide this kind of important information to shed light, not heat on these issues.”
Baynes added, “For almost 50 years, the US Supreme Court decision Roe vs. Wade, then Planned Parenthood vs. Casey, afforded women the right to make reproductive choices within the bounds of the law based on the right of privacy. Almost two years ago. the Supreme Court in the Dobbs case overruled that almost 50-year precedent that provided women the right to choose their reproductive healthcare. This change resulted in more than 20 states outlawing or significantly limiting certain reproductive healthcare. This created a patchwork of laws across the nation, sometimes confusing the public and often the medical care providers. This momentous change in Supreme Court precedent worries medical and legal scholars about the future of reproductive care, the safety of pregnant patients, and their opportunities to make reproductive choices.”
Speakers were UH Law Assistant Professor Laura Portuondo, UH Law Assistant Professor and Co-director for the Health Law and Policy Institute, Valerie Gutmann Koch, and Interim Associate Dean of Medical Education and Professor, Dr. Kimberly A. Pilkinton, with the Fertitta Family College of Medicine.
Professor Portuondo opened her presentation with the “… state of the law in Texas when abortions are prohibited and when they are allowed.”
She pointed out the contrast between the rulings handed down by the 5th Circuit Court and the Texas Attorney General in the years since Roe vs. Wade and noted the many layers of uncertainty we have here in Texas about the state of the law and what laws are even applying.
Professor Portuondo mentioned S.B. 8, also known as the “Bounty Law”and “Heartbeat Law” which was passed by the Texas Legislature in 2021. She referred to as “no doubt, good law,” and said that this statute has a private enforcement mechanism. It bans most abortions once a fetal heartbeat is detected (typically 6 weeks) and is considered “unreviewable” by SCOTUS. No state actor (law enforcement or prosecutor) is permitted to enforce this law, rather private citizens can sue other private citizens in the hope of enforcing the law with civil penalties for violations. It cannot be applied to self-managed abortions by pregnant people but rather to those who assist in the procedures.
The Human Life Protection Act in Texas, House Bill 1280 was signed in 2021 and effective after Dobbs. It prohibits abortion unless a physician determines that the pregnancy is life threatening or poses a serious risk of substantial impairment of a major bodily function.
The ambiguity in this law comes from the potential for opposing interpretations of the law’s language, including a medical professional’s “belief” a medical emergency exists in order to allow an abortion to be performed; if that medical emergency can be considered life-threatening; and if there is a danger of death or a significant impairment of major bodily functions.
The Dobbs decision also has implications for the future of in-vitro fertilization and other reproductive technologies. Professor Koch described how, with IVF, multiple embryos are usually created in a single round, but only one or two are implanted. “Creating and freezing multiple embryos allows subsequent attempts at pregnancy without people having to undergo a new IVF cycle,” which Professor Koch explained could be medically or financially impossible.
Professor Koch revealed it is estimated that one million embryos are frozen or stored. She explained that “these embryos can be stored in a frozen state until someone is ready to implant them, remain in storage indefinitely, or they can be thawed and donated for research purposes,” in order to learn more about better and more efficient and effective ways to achieve pregnancy via assisted reproduction.
Koch stated, “The Dobbs decision does not carve out reproductive technologies -- and in particular, technologies and procedures that occur ‘ex vivo,’ or before implantation. In the majority opinion, Justice Alito makes pains to distinguish its abortion decision from other precedent that protects access to, say, contraception or same-sex marriages.” It distinguishes those protections from abortion “because the latter, ‘uniquely involves what Roe and Casey termed ‘potential life.’’”
And State fetal personhood laws triggered or passed in the wake of Dobbs could mean, like in the Alabama case, LaPage v. Center for Reproductive Medicine, access to IVF and other assisted reproductive technologies could be significantly limited or barred, cutting off opportunities for many individuals to achieve biological parenthood.
Dr. Pilkinton shared a medical provider’s perspective to the post-Dobbs discussion.
Explaining the multiple versions of what is considered spontaneous abortion, commonly referred to as miscarriage, and those implications in reference to maternal mortality and long-term health impacts, Dr. Pilkinton revealed that, according to 2019 data, maternal mortality due to hemorrhage stood at 25 percent. Causes for hemorrhage can include trauma/injury, untreated infection, or ectopic pregnancy.
Ectopic pregnancies – any pregnancy occurring outside of the endometrial lining of the uterine cavity – is considered one of the leading reasons of medically-induced abortion. The wording of law, statutes and policy is critical in the review of the determination of abortion permissibility.
During a question-and-answer period, a question arose regarding African-American women and the issue respective of health care and mortality rates, and what effect it has on the issue of (reproductive rights).
Dr. Pilkinton noted African-American and people who identify as black do have a two to three times increased risk of maternal mortality. Even healthy women can have pregnancy complications, she said.
“The biggest thing is, with all these laws and statutes, in not having clinicians feel like their hands are tied in their ability to do their best for their patients, not delay in care, etc. It affects all patients but definitely that’s a community of patients where we need to do better.”
Professor Koch added that, “What I see in the wake of Dobbs is an increase in pregnant people facing criminal charges for their actions during pregnancy, that includes substance use, including legal substances, during pregnancy.” Those actions against pregnant people either for behaviors or actions are taken at a much higher rate against African-Americans, against people with fewer resources, and against historically marginalized populations, she concluded.
This CLE was the third and final in a series of Supreme Court updates for the 2023-2024 term held by the University of Houston Law Center.
Original source can be found here.