Delegates share emotional testimony on women's health and abortion
Former ABA President Judy Perry Martinez
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, and the landmark decision continues to raise new and old legal issues.
The House of Delegates took positions on those issues at the annual meeting. Resolution 511, submitted by the Section of Civil Rights and Social Justice, urges Congress to enact the Women’s Health Protection Act of 2023, which protects patients’ access to abortion care as well as health care professionals’ ability to provide it. The section also submitted Resolution 509, which supports the principle that U.S. Food and Drug Administration decisions be reviewed under a standard that considers “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.”
‘It is my story’
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 and 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 only told they had seven minutes to perform an emergency C-section if I had hemorrhaged again,” 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 1989 and 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 and autonomy my daughter, a recent law school graduate who has moved back home with her new husband, will be afforded.”
If facing life-threatening complications during pregnancy, her daughter “could be told that she could not be admitted to receive the care because her doctor, her hospital GC or administration is concerned that whatever steps they may 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 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.”
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
The Section of Civil Rights and Social Justice proposed Resolution 509 in response to the U.S. District Court for the Northern District of Texas’ suspension of the FDA’s approval of the abortion drug mifepristone in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration in April.
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.
Past ABA President William Neukom 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 someone with no expertise in medical science who is second-guessing the review by the FDA.”
Resolution 509 was co-sponsored by the Commission on Sexual Orientation and Gender Identity and the Commission on Domestic and Sexual Violence.
This story was originally published in the October-November 2023 issue of the ABA Journal under the headline: “‘An Indictment of Women’: Delegates share emotional testimony on women’s health and abortion.”
