September 17, 2011
French Suit over Relations (or Lack Thereof)
The Telegraph reports about a Frenchman sued by his ex-wife for lack of physical relations:
The 51-year-old man was fined under article 215 of France’s civil code, which states married couples must agree to a “shared communal life”.
A judge has now ruled that this law implies that “sexual relations must form part of a marriage”.
The rare legal decision came after the wife filed for divorce two years ago, blaming the break-up on her husband’s lack of activity in the bedroom.
A judge in Nice, southern France, then granted the divorce and ruled the husband named only as Jean-Louis B. was solely responsible for the split.
But the 47-year-old ex-wife then took him back to court demanding 10,000 euros in compensation for “lack of sex over 21 years of marriage”.
Read more here.
September 16, 2011
Reforming the Sale of Sperm
Naomi R. Cahn and Wendy Kramer have published an interesting editorial in the New York Times:
The United States has almost no rules when it comes to buying or selling sperm. In fact, no one keeps records on how much sperm is bought or sold, so we don’t even know how big the sperm market really is, or how many babies are born each year through donor sperm. The same donor can father hundreds of children, and, although his sperm must undergo some minimal testing before it is used, these tests don’t catch many genetic diseases. No laws in the United States require that donors or recipients exchange any information, identifying or otherwise...
...Ultimately, however, if we value children and their families, reform and regulation must occur.
Read their proposed solutions here.
September 15, 2011
Zoppo: "The War on Women"
David Ronald Zoppo has posted "The War on Women" on SSRN. Here is the abstract:
The 2010 mid-term elections were a boon for the Republican Party at the state level. In five states - Alabama, Maine, Minnesota, North Carolina, and Wisconsin - both legislative chambers flipped from Democratic to Republican control. In Indiana, Michigan, Ohio and Pennsylvania, Republicans won over an additional chamber, thereby taking control of the state legislature. And in Colorado, New York, and Oregon, the Republicans won over one chamber to split control with the Democrats.
The resurgence of Republican power at the state level has led to a corresponding resurgence in restrictive abortion regulations - both in those states with new conservative majorities and in traditional Republican strongholds. In some ways, these new regulations reflect existing state abortion laws that have been on the books since the United States Supreme Court’s 1992 ruling in Planned Parenthood v. Casey. New conservative majority have seized the opportunity to pass “traditional” abortion regulations on matters such as spousal notification or “informed consent.” In the history and scheme of abortion regulations, statutes such as these are nothing new.
In other ways, however, these new regulations - and the conservative majorities that have implemented them - represent a departure from the past. They have been drafted and passed in an arguably more polarized political climate, and their substance reflects the radical prerogative of their proponents. For example, South Dakota passed a law - which was struck down by the Eighth Circuit - requiring doctors to tell patients that the abortion procedure increases the risk of suicide. Another law in Texas - which was blocked by a federal district court - required doctors to give patients a sonogram and to provide patients with audio of the fetal heartbeat. Women could opt out of this process but they would have to certify in writing that their pregnancy was the result of rape or incest, which would remain with their medical record for at least seven years. These terms of these laws are unprecedented, and they demonstrate a new frontier in the already contentious area of abortion regulation.
The assault on abortion providers has been equally as pronounced. In the first half of 2011, five states - all controlled by Republican legislatures - voted to preclude Planned Parenthood from receiving Title X Medicare funds for family planning funding. Federal judges in several states have issued injunctions preventing these laws from going in to effect on the basis that they impermissibly exclude otherwise qualified entity from receiving funds under Title X. Kansas passed a law that would effectively shut down abortion clinics in that state by requiring that they meet certain space snd storage requirements. Virginia is considering a similar law. It seems clear that abortion opponents have broadened their strategy to target not just a woman’s individual privacy rights under Roe and Casey, but also her access rights as well.
This new era of abortion regulation at the state level raises important questions that will undoubtedly be addressed by the courts. To what extent do these laws violate the Supreme Court’s “undue burden” threshold as announced in Casey? How would the current Court rule in the event one of these laws come before it? To what extent to these laws violate doctors’ or patients’ first amendment rights? How does Title X figure in to states’ attempts to regulate otherwise eligible Medicare and Medicaid providers? What sort of legal theories might be most persuasive and effective for an advocate seeking to defeat these laws? What weaknesses inhere those legal theories? And, perhaps most importantly, what is the role of the courts in all this? The new slew of abortion regulation at the state level posits not just a fascinating development in abortion law in this country. They also resurrect the timeless debate about the tension between the legislature and the judiciary; is now an appropriate time for judicial discretion to override the popular will in the name of individual rights?
Though many scholars have commented on the abortion regulation at the state level, none have addressed this most recent development in abortion law and the abortion debate. My paper will proceed by providing a brief overview of the Court’s decisions in Roe and Casey - and, to a lesser extent, its rulings in Griswold and other seminal privacy cases. It will then proceed by providing a brief history and synopsis of abortion regulations at the state level and how the courts have treated such laws under the Supreme Court’s privacy jurisprudence. The bulk of the paper will be devoted to answering some - and hopefully all - of the questions above. As research for this topic is still in its preliminary stages, the exact focus and thesis of the paper have not yet been ironed out, but I expect they will be as time proceeds.
New Interpretation of Bad Parenting
Raised in a $1.5 million Barrington Hills, Ill., home by their attorney father, two grown children have spent the last two years pursuing a unique lawsuit against their mom for "bad mothering" that alleges damages caused when she failed to buy toys for one and sent another a birthday card he didn’t like.
The alleged offenses include failing to take her daughter to a car show, telling her then 7-year-old son to buckle his seat belt or she would contact police, "haggling" over the amount to spend on party dresses and calling her daughter at midnight to ask that she return home from celebrating homecoming.
Read more here.
September 14, 2011
Mississippi Voters Determine "Personhood"
From the Huff Post:
Mississippi voters will be allowed to decide on a ballot measure that defines "personhood" from the moment of fertilization, the Mississippi Supreme Court ruled last week. The measure could potentially outlaw abortions, birth control, in vitro fertilization and stem cell research across the state.
Measure 26, which will bypass the legislature and go straight to a popular ballot vote, redefines the term "person" as it appears throughout Mississippi's Bill of Rights to include "all human beings from the moment of fertilization, cloning or the functional equivalent thereof." The American Civil Liberties Union of Mississippi, Planned Parenthood and the Center for Reproductive Rights filed a lawsuit against the proposal earlier this year, not based on its content or constitutionality, but because Mississippi state law says a ballot initiative cannot be used to change the Bill of Rights.
The Mississippi Supreme Court rejected the lawsuit in a 7-2 ruling, saying that it had no power to review any ballot initiative before the actual vote takes place.
Read more here.
September 13, 2011
Kim: "The Neutered Parent"
Suzanne Kim (Rutgers School of Law - Newark) has posted "The Neutered Parent" on SSRN. Here is the abstract:
Despite family law’s broader recognition of nonmarital sexualities and nonmarital parental status in the past forty years, marriage has continued to shape the legal and social experiences of parents in a critical aspect of their lives - sexuality. Encompassing sexual behavior and sexual orientation, the sexuality of parents has curiously drawn little attention in legal scholarship, except in contexts the law has deemed aberrant. This Article breaks ground by widening the lens on parental sexuality to examine how the law’s conventional framing of evaluations of parental sexuality obscures the marriage-based structure of these appraisals.
The law of custody and visitation, in particular, reveals a legal and social preference for that perceived as “sexually neutral” parenting, an ideal that assumes that parenting can and should occur far removed from parents’ sexuality. As I argue in this Article, family law has premised this ideal on a dichotomy of parental sexuality based on marriage and on traditional, gendered norms of parental sexuality within marriage. Parents hewing to traditional marriage-based norms of parental sexuality have been held up as embodying a “sexually neutral” baseline, pursuant to which their sexuality fails to register as problematic. By contrast, parents who have strayed from these norms - historically, sexually active heterosexual mothers and lesbian and gay parents - have tended to be perceived as “sexually salient.” The legal construction of a parent as “sexually neutral” or “sexually salient” shapes how courts assess harm in making child placement decisions and promises to influence evaluations of parental fitness across a variety of evolving family law contexts, including same-sex marriage.
The dichotomization of parental sexuality based on marriage obscures the ability to assess actual harm to children. Moreover, this treatment of parental sexuality “neuters” parents. It metaphorically diminishes their sexual capacity by forcing sexually nonconforming parents to adhere to a standard of sexual neutrality that is fundamentally structured in opposition to them. Moreover, it undermines parents’ ability to achieve the laudable goal of experiencing meaningful adult-oriented parental sexuality in the context of successful parenting.
The Biggest Reason for Divorce in England
From Mail Online:
An extra-marital affair is no longer the most common reason for married couples to divorce, family lawyers have revealed.
In a survey of the [England's] leading family law firms, the main reason for divorce proceedings was given as couples falling out of love.
Read more here.
September 12, 2011
Baby Selling from MD
(Rockville, MD) -- A Rockville, Maryland lawyer pleads guilty in California to wire fraud in a baby-selling ring.
Federal prosecutors say Hilary Neiman of the National Adoption and Surrogacy Center sent women to Ukraine to be implanted with embryos, then charged would-be parents more than 100-thousand dollars, saying a previous arrangement fell apart.
Read more here.