Thursday, February 15, 2018
NYT, "Scarlet A" Wants Less Shouting About Abortion and More Talking, reviewing Katie Watson, Scarlet A: The Ethics, Law, & Politics of Ordinary Abortion (Oxford Press 2018)
Certain issues have become so noisy and stigmatized that they seem to be all-consuming and invisible at once. Abortion is one of them, and Katie Watson wants to change how Americans talk about it — when, that is, they deign to truly talk about it at all.
Rates of abortion may be on the decline, largely because of long-term contraceptive use, but as Watson points out in “Scarlet A: The Ethics, Law, & Politics of Ordinary Abortion,” the procedure is far from a fringe practice. Nearly one in five American pregnancies ends in abortion (a number that doesn’t include “spontaneous abortions,” the medical term for miscarriages). Nearly one in four American women will have an abortion in her lifetime.
Yet silence perpetuates a belief that abortion is atypical, even when the statistics say otherwise. The conversational void is then filled by advocates on both sides, who emphasize what Watson calls “extraordinary abortion.” Abortion rights activists highlight severe fetal abnormalities and pregnant 12-year-olds; anti-abortion activists highlight pregnancies that are terminated after viability. Such cases are all too real, but fixating on them distorts our understanding of what abortion ordinarily is....
Watson, a bioethicist at Northwestern’s medical school and a senior counsel for the American Civil Liberties Union of Illinois, comes to the debate with her own convictions. Forty-five years ago, with Roe v. Wade, “abortion was correctly identified as a constitutionally protected right, and it must remain legal,” she writes. “That’s not negotiable for me.” What she wants to do is engage directly with the fact that the majority of Americans, even those in favor of abortion’s legality, have deeply ambivalent feelings about abortion itself. “We should be able to acknowledge the complexity of private decision making,” she writes, “without threatening the right of private decision making.”
Thursday, January 11, 2018
Marisa Cianciarulo, For the Greater Good: The Subordination of Reproductive Freedom to State Interests in the United States and China, 51 Akron Law Rev. 99 (2017)
This Article provides a comparative analysis of two very different restrictions on reproductive freedom that have startling parallels and similarities. Both China and the United States impose limits on reproductive freedom: China restricts the number of children that families can have, often in ways that violate international law, while some U.S. states have attempted to restrict access to abortion in ways that violate the precepts of Roe v. Wade as well as international law. Both China and U.S. states impose restrictions on reproductive freedom in order to achieve compelling state goals: protecting development and sustainability in China, and protecting prenatal life in the United States. Finally, both China and the United States have means other than severe restrictions on reproductive freedom at their disposal to achieve the governments’ goals: broad access to birth control and sex education. This Article uses the lens of international human rights law to evaluate the concept of subordinating individual reproductive choice to a perception of the common good. Part II provides an overview of the major international instruments addressing individual rights and how they interact with the rights and responsibilities of the state. Part III discusses anti-abortion laws in the United States and the anti-abortion movement’s rationale that protecting prenatal life justifies limiting reproductive choice. Part IV discusses China’s vast and population control system and the government’s rationale that providing a controlled, sustainable population justifies limiting reproductive choice. Part V examines three levels of coercion—compulsory sex education and unrestricted access to contraception, monetary incentive and disincentive programs, and forced abortion and forced child-bearing—and analyzes whether these levels of coercion are consistent with international human rights principles. Finally, the Article concludes that in light of modern access to education and contraception, and the ability to reduce the incidence of unwanted pregnancies via those means, more coercive means are unnecessary (in the case of monetary incentives and disincentives) and unjustifiable (in the case of forced abortion and forced child-bearing).
Thursday, December 14, 2017
Women in Ohio would be prohibited from receiving abortions because of a fetal Down syndrome diagnosis under a bill that passed the state senate on Wednesday and is heading to Republican Governor John Kasich’s desk.
Lawmakers voted 20-12 in favor of the law, which criminalizes abortion if the physician has knowledge that the procedure is being sought due to a diagnosis of Down syndrome, a genetic disorder caused when abnormal cell division results in an extra full or partial copy of chromosome 21.Doctors would lose their medical licenses in the state and face a fourth-degree felony charge under the law if they were to perform an abortion with that knowledge. Mothers would not face criminal charges.
The bill makes Ohio the third state to pass a law outlawing abortions due to fetal anomalies. Similar laws were passed in Indiana and North Dakota. The Indiana provision was struck down by a U.S. District Judge in September after a lawsuit filed by the American Civil Liberties Union.
A bill banning abortion after a fetal diagnosis of Down syndrome has cleared the Ohio General Assembly and will now go to Gov. John Kasich's desk.
Three Republicans, including Gayle Manning of North Ridgeville and Matt Dolan of Chagrin Falls, voted with Democrats against the bill.
Kasich, who has signed 18 abortion restrictions into law since 2011, told cleveland.com last month he generally supported the idea but wanted to see the legislation before deciding how to act.
Monday, November 13, 2017
Today the US Supreme Court granted cert in National Institute of Family and Life Advocates v. Becerra
The petition for a writ of certiorari is granted and limited to the following question: “Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment."
For a prior post on the case see Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech
See also USA Today, Abortion, Contraception Return to Supreme Court in Free Speech Case
The Ninth Circuit's decision below upholding the law and disclosures is here.
Tuesday, October 24, 2017
The DC Circuit sitting en banc overruled a panel decision from late last week delaying an immigrant teen's abortion, granted by a state court.
Garza, as GAL to J.D. v. Hargan, No. 17-5236 (D.C. Cir. en banc, Oct. 24, 2017), overruling the panel decision in Garza v. Hargan (D.C. Cir. Oct. 20, 2017)
Concurring Opinion to the Order by Judge Millett (the dissent in the panel decision).
Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—“refuses to leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That sure does not sound like “on demand” to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.
Dissenting Opinion by Judge Kavanaugh (majority opinion in the panel decision).
The en banc majority has badly erred in this case.
The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.
Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.
Judge Karen Henderson also dissent in a separate opinion.
Monday, October 16, 2017
Commonwealth v. Becker, (Pa. Super. Ct. Oct. 10, 2017)
P & P opposed Becker's parole because of the risk that she may use heroin while pregnant. The trial court shared similar concerns, among others, and denied Becker's petition for parole.
Becker first claims that the denial of her parole was manifestly unreasonable, as she had incurred no misconducts during her incarceration, attended treatment and counseling, and had a stable address and family support. Becker's claim is without avail.
“Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law-abiding citizen in society.”
Here, the record does not support Becker's assertion that the denial of her parole was manifestly unreasonable. First, we note, Becker's gender and concomitant pregnancy are incidental to her well-chronicled heroin addiction. As such, the basis of the Becker's parole denial, as stated by the trial court, was the substantial risk that she would use heroin, not her unique status. In coming to its decision, the trial court expressed concern for the health of Becker's unborn child. However, the trial court did not discuss prisoner access to women's healthcare, prenatal care, child welfare resources or other associated services that might indicate its decision was motivated entirely by Becker's status. Rather, it focused on Becker's prior use of heroin and the dangers it posed to her and others. Specifically, the trial court reiterated its concern with “[Becker] using drugs and ․ harming herself” and the potential for relapse. N.T. Parole Hearing, 8/22/16, at 7, 15–17, 69 (“[S]he has a bad history [of heroin abuse][,] and history dictates when she gets out [of prison], she uses”).
The trial court's concerns are well founded.
Becker next claims that the trial court violated her substantive due process rights when it denied her parole based solely on her pregnancy. Becker concedes that in Pennsylvania, “a prisoner has no absolute right to be released from prison on parole upon the expiration of the prisoner's minimum term.” However, citing Block v. Potter, 631 F.2d 233, 235 (3rd Cir. 1980), Becker argues that the trial court based its denial of parole on factors she avers are unconstitutional and/or arbitrary, including gender, pregnancy and the safety of the unborn child.
Here, Becker asks us to determine whether the trial court's consideration of her gender, pregnancy and the health of the unborn child was, like in Block, an unconstitutional arbitrary government action. We decline to conduct such an analysis.
Under the Administrative Agency Law, a court can only review an action of a Commonwealth agency where its decision constitutes an adjudication. The Supreme Court found that the act unambiguously defines adjudication to exclude parole decisions. The Court also addressed the theory that parole decisions would be applicable for review under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court rejected this argument, as there was no precedent to support it.
Becker's next claim on appeal is that the trial court violated her equal protection rights by denying her petition for parole. Equal protection requires that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Legislative classifications based on gender call for a heightened standard of review. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 295 (1993). However, the Supreme Court of the United States has repeatedly held that we cannot reasonably presume opposition to abortion reflects an animus against women and/or pregnant women as a class. See Id. at 269–70; see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (finding that discrimination based on pregnancy was discrimination based on gender only because Congress specifically intended it to be when it amended 42 U.S.C. § 2000e). “Where the challenged governmental action does not burden ‘fundamental’ or ‘important’ rights, and does not make a suspect classification or a quasi-suspect classification, it does not offend the Equal Protection Clause as long as it is rationally related to a legitimate governmental interest.” Small v. Horn, 722 A.2d 664, 672 (Pa. 1998) (citations omitted). Furthermore, drug users are not a suspect or a quasi-suspect class. New York City Transit Authority v. Beazer, 440 U.S. 568, 592–93 (1979). This argument affords Becker no relief.
The trial court based its decision denying Becker's petition for parole on her status as an incarcerated, pregnant heroin addict. The court's action does not burden a fundamental or important right, nor is Becker's status a suspect or quasi-suspect classification. Therefore, the trial court's action need only pass a rational basis test. Small, 772 A.2d at 672. Our Supreme Court has defined the rational basis test as examining a law to find if it is “unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Nixon, 839 A.2d at 286–87 (citation omitted). If it is not, then the discrimination is permissible under the Equal Protection Clause. Id. at 286. Here, we find protecting Becker's unborn child was a legitimate governmental interest. Planned Parenthood, 505 U.S. at 846. By denying Becker parole, the trial court ensured Becker could not use heroin and harm her unborn child. Denying parole until going into labor was reasonable, as the only other alternative was releasing Becker on parole. Therefore, there was no equal protection violation.
Tuesday, September 26, 2017
Linda Edwards, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, 29 Yale J. L & Feminism 29 (2017)
On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.
The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers to the appellate case—with no vetting by cross examination or the rules of evidence. Yet, despite their controversial nature, they have thus far received little academic attention.
The time has come to ask some tough questions: Are these briefs legally permissible? Theoretically legitimate? How do they compare with other sources consulted regularly by the Court? Are they really so different from the policy arguments we have accepted without blinking for over a hundred years?
These foundational questions quickly take us into even murkier waters—legal and constitutional theory; narrative theory; framing; and cognitive science. Voices briefs prompt us to look at constitutional decision-making in a new way. Soon we find that voices briefs are interrogating long-accepted assumptions rather than the other way around. The analysis produces some surprising reasons why voices briefs can play an important role in constitutional interpretation and some realistic ideas about handling the undeniable concerns that still haunt their use.
Erwin Chemerinsky & Michele Goodwin, Abortion: A Woman's Private Choice, 95 Tex. L. Rev. 1189 (2017)
The uncertainty about abortion rights makes it especially important to provide a strong constitutional foundation and the best possible constitutional defense for their protection. That is our purpose in this Article, because abortion rights in the United States are in serious jeopardy. Despite the fact that a legal abortion is medically safer than carrying a pregnancy to term in the United States, that right may soon be more illusory than real. If Roe v. Wade is overturned, lessons from the era preceding that landmark decision underscore the broad harms women will encounter, particularly because 49% of pregnancies in the United States are unintended. In traditionally conservative states, the rates of unintended pregnancies are even higher: 54% in Texas, 55% in Alabama and Arkansas, 60% in Louisiana, and 62% in Mississippi, among others. Yet these states also have some of the highest rates of maternal mortality in the developing world: Texas ranks worst in the developing world on maternal mortality.
The Article proceeds in three parts. First, it explains the flawed foundation for the protection of reproductive rights under the Constitution, noting that the problem began in Griswold v. Connecticut, the first case to protect reproductive freedom. Second, it seeks to reconceptualize abortion rights and underscore the value and relevance of a reproductive justice framework, including taking serious account of women’s lived lives. Finally, in Part III we discuss what it would mean for abortion to be regarded as a private choice. In this Part, we identify three implications: a) restoring strict scrutiny to examining laws regulating abortions, which would mean that the government must be neutral between childbirth and abortion; b) preventing the government from denying funding for abortions when it pays for childbirth; and c) invalidating the countless types of restrictions on abortion — often referred to as “targeted restrictions of abortion providers” — that have the purpose and effect of limiting women’s access to abortion rather than promoting safety and health. We especially focus on “informed consent” and waiting period laws and show that they are inconsistent with regarding abortion as a private choice for each woman.
and the response:
Aziza Ahmed, Abortion in a Post-Truth Moment: A Response to Erwin Chemerinsky and Michele Goodwin, 95 Tex. L. Rev. See Also 198 (2017)
In Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin respond to the crisis of abortion rights in our current political moment. While preserving the right to abortion is an ongoing challenge for reproductive-justice advocates and lawyers, the arrival of a new Republican administration led by Donald Trump and a Republican majority in the House and Senate heightens these concerns. In the face of ongoing and new threats to abortion access, Chemerinsky and Goodwin argue that abortion should be treated as a woman’s private choice. I agree with Chemerinsky and Goodwin, as all supporters of abortion rights should. This response to their insightful essay situates their argument in a set of debates and discussions that undergird many of the logics utilized by the court to justify their choice of standard: medical, psychological, and scientific evidence on abortion.
Wednesday, September 13, 2017
Government attorneys on Tuesday asked the Ohio Supreme Court to override lower court rulings and uphold the state Health Department’s order to shut down Toledo’s last abortion clinic.
A lawyer for the clinic told the court that the state is trying to prevent women in northwestern Ohio from seeking legal abortions and is putting them at greater risk.
The case involves one of several restrictions Ohio lawmakers have placed on abortion clinics in recent years.
The Ohio Department of Health issued an order in 2014 to close Capital Care of Toledo because the clinic didn’t have a patient-transfer agreement with a local hospital.
Such agreements were mandated, and public hospitals barred from providing them, under restrictions Ohio lawmakers passed in 2013. The University of Toledo Hospital, which is public, withdrew from its transfer arrangement with Capital Care after the law passed.
The clinic sued and won in the lower courts, which ruled the restrictions were unconstitutional. Judges have allowed the clinic to continue operating as the legal dispute carries on.
Abortion-rights groups contend the transfer agreements and other restrictions not at issue in the case are medically unnecessary. They also say the city of 275,000 residents would be the first major city in Ohio without access to abortion services.
Chief Justice Maureen O’Connor on Tuesday asked about alternatives women would have if the Toledo clinic closes.
The state’s attorney, Stephen Carney, said the closest options would be Detroit and Ann Arbor, Mich. — both about an hour’s drive from Toledo.
“Certainly we are not telling women, ‘You can’t have an abortion in Ohio, but you can go to Michigan’?” Justice William O’Neill asked.
Jennifer Branch, an attorney representing Capital Care, said women seeking an abortion would have to make more than one trip, adding up to several hundred miles.
“The danger to those women from an unlawful abortion would be health risks,” she said. “They could bleed. They could have an infection.”
Branch also argued that transfer agreements are unnecessary.
“They could call 911 if they needed to, there is nothing to prohibit that,” she told justices. “No one ever asks if there is a written transfer agreement.”
O’Connor asked, “Are there any other (ambulatory surgical centers) precluded from contracting or entering into a (written transfer agreement) with hospitals, any hospital public or private?”
Branch replied: “No, your honor, only abortion clinics.”
Friday, August 25, 2017
Bronwyn Taylor, Judge-Made Law: The "Menhennit Ruling" and Abortion Law Reform in Victoria, 88 Victorian Historical J. (June 2017)
Women’s right to access abortion has historically been seen as controversial by lawmakers, secular and religious. Th is article examines the sources of change in Victoria’s abortion laws, and in particular the role of judicial law making. Th e late 1960s was a time of challenges to class, gender and political inequalities, locally and internationally. In Victoria during this period, with politicians unwilling to introduce abortion law reforms despite substantial community support, a conventional — even conservative — judicial ruling in 1969 changed the law in Victoria at one stroke and provided a model of legal access to abortion for other jurisdictions for the next 40 years. Th e article examines the context for, and consequences of, the decision of Mr Justice Menhennit in R v Davidson, the ‘Menhennit ruling’.
Monday, August 21, 2017
Oregon Gov. Kate Brown (D) on Tuesday signed into law what advocates called the nation’s most progressive reproductive health policy, expanding access to abortion and birth control at a time when the Trump administration and other states are trying to restrict them.
Called the Reproductive Health Equity Act, the measure requires health insurers to provide birth control and abortion without charging a co-pay. It also dedicates state funds to provide reproductive health care to noncitizens excluded from Medicaid.
Monday, July 31, 2017
In this special summer episode, we take a step back from reviewing to introduce listeners to H-Law's new legal history podcast. Robert interviews H-Law's podcast producer and host Siobhan Barco and we run in full her first episode, an interview with legal scholar Mary Ziegler, author of After Roe: The Lost History of the Abortion Debate (Harvard University Press, 2015). From Siobhan's description of the episode:
Ziegler’s work uses the landmark American abortion rights case, Roe vs. Wade to explore litigation as a vessel for social change and the role the court plays in democracy. In addition to traditional archival research, Ziegler recorded over one hundred oral histories of people in the pro-life and pro-choice camps, allowing her to move beyond caricatures and delve more precisely into the catalysts for these individual’s points of view.
Topics we discuss include:
(1)Whether Roe is overstated as a cautionary tale for judicial intervention
(2)How the bright line divide between the pro-life and pro-choice movements had not yet coalesced in the 1970s.
(3)Roe as a canvas onto which activists could project different strategic aims
Wednesday, July 19, 2017
David Pozen, The Abortion Closet
An enormous amount of information and insight is packed into Carol Sanger’s About Abortion: Terminating Pregnancy in Twenty-First Century America. The book is anchored in post-1973 American case law. Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.
The panoramic ambition of the book, and its correspondingly multi-disciplinary method, are established in the first chapter, in a section titled “What Abortion Is About.” By the end of this section, the reader has learned something about: Roe v. Wade; various international treaties on the rights of women; abortion training protocols in medical schools; the neurological development of a fetus; the 2004 and 2012 presidential primaries; a 1995 papal encyclical; a 1984 lecture by the New York Governor; a 2001 concurrence by a Mississippi Supreme Court Justice; the 2003 recommendation by a Food and Drug Administration advisory committee to approve the “morning-after-pill” for over-the-counter sale; the anti-abortion turn within certain Protestant denominations in the 1970s and 80s; sociological research on pro-life activists and their views on sex; anthropological research on pregnancy termination decisions following a diagnosis of fetal disability; prostitution laws in New York; abstinence-only programs in Texas; President George W. Bush’s Culture of Life; the rise and rise of parental involvement statutes and personhood amendments; the rise and fall of federal support for family planning organizations and abortion services to pregnant soldiers; the intensifying politics of abortion in state judicial elections; the recent Hobby Lobby litigation over the Affordable Care Act; and the Supreme Court’s decision last Term in Whole Woman’s Health.
This section lasts fourteen pages. It is a testament to Sanger’s skill as a writer and to
her synthetic capacities as a thinker that one comes away from this whirlwind tour feeling not vertigo, but rather an enhanced sense of clarity about the arc of abortion regulation. While the pace soon slows down, the rest of the book maintains a relentless inquisitiveness, ever collecting and connecting data points to help guide the reader through complex socio-legal terrain.
An earlier blog post about Sanger's book is here..
Wednesday, July 5, 2017
Ronli Sifris & Suzanne Belton, Australia: Abortion and Human Rights, 19 Health & Human Rights J. 209 (2017)
This article adopts a human rights lens to consider Australian law and practice regarding elective abortion. As such, it considers Australian laws within the context of the right to equality, right to privacy, right to health, and right to life. After setting out the human rights framework and noting the connected nature of many of the rights (and their corresponding violations), the article shifts its focus to analyzing Australian law and practice within the framework of these rights. It considers the importance of decriminalizing abortion and regulating it as a standard medical procedure. It discusses the need to remove legal and practical restrictions on access to abortion, including financial obstacles and anti-abortion protestors. Further, it comments on the importance of facilitating access; for example, by keeping accurate health data, securing continuity of health care, increasing the availability of medical abortion, and ensuring appropriate care is provided to the most marginalized and vulnerable women.
Wednesday, May 17, 2017
Noya Rimalt, When Rights Don't Talk: Abortion Law and the Politics of Compromise, 28 Yale J. Law & Feminism 328 (2017)
This Article draws attention to the significance of rights-talk in shaping proper abortion legislation. It engages with ongoing debates regarding the wisdom of Roe v. Wade’s judicially imposed, strict rights-based approach to legal abortion. As the issue of abortion remains extremely controversial in American politics, it has been argued that the Supreme Court’s rights-based rhetoric, coupled with its “undemocratic” judicial imposition of a resolution to the issue, played a central role in triggering the ongoing conflict over abortion. Legal scholars often rely on comparative examples in an attempt to argue in favor of legislative and conciliatory policy solutions to the issue of abortion.
This Article questions the superiority of legislative solutions to abortion by providing a critical comparative account of abortion legislation that seems to exemplify precisely the sort of compromise-based solution advocated by critics of Roe v. Wade’s judicially created right to abortion. It critically analyzes the give-and-take process in the Israeli legislature that gave birth to the country’s abortion law. The Article argues that the Israeli case study provides a cautionary tale of a legal system in which abortion regulation was decided exclusively by legislators, rather than judges, which resulted in legislation devoid of any concept of individual rights.
The Article concludes by exploring a number of additional comparative examples outside of Israel. Focusing specifically on Canada, Germany, and France, it illustrates how a broad comparative perspective is useful in drawing attention to the roles of courts and legislatures in shaping abortion policies, as well as to the disguised costs of abortion compromises.
Monday, April 10, 2017
Terry O'Neill, President, National Organization for Women, What Does the Minimum Wage Have to Do with Reproductive Rights?, 49 Akron Law Review 314 (2016)
In January of this year, I had the honor of delivering remarks at the AALS Section on Socio-Economics annual luncheon. The subject of my talk, What does the minimum wage have to do with reproductive rights?, undoubtedly struck many in the audience as attempting the impossible— linking two issues that, while each important and timely, are entirely separate. Surely, the argument goes, a woman’s right to choose abortion simply does not occupy the same analytical or policy space as a worker’s right to fair wages and terms of employment.
In this Essay, however, I will sketch out my reasons for claiming that these issues are inextricably interwoven—that in fact, the minimum wage issue is a women’s issue, while reproductive justice is an economic issue, not only for women but for their families as well. ***
The most immediate reason I hold this view, of course, is that I lead the National Organization for Women (NOW), which has long taken up economic justice and reproductive rights as “core issues” that are both intertwined and equally salient. Indeed, the organization’s bylaws declare its purpose as leading societal change through “intersectional grassroots activism,” and it has long identified six core issues, the four in addition to the two named above being: to end racism; win lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights; end violence against women; and amend the U.S. Constitution to include equality for women. Not only are these core issues viewed as deeply linked, but under NOW’s internal policies, one may not be prioritized over the others. As a result, should you ask any longtime NOW leader what the minimum wage has to do with reproductive rights, your most likely answer would be, “Well . . . that’s obvious!”
Monday, March 27, 2017
Siobhan Mullally and Claire Murray, Regulating Abortion: Dissensus and the Politics of Rights, 25 Social & Legal Studies: An International Journal (2016)
This special issue brings together comparative perspectives on the regulation of abortion. It examines the sociopolitical contexts within which proposals to expand access to abortion for women are won and lost. Women’s claim to a right to safe and legal abortion services is relatively new in the language of human rights; yet, it is one that continues to ‘trickle up’ and to ‘download’ across diverse jurisdictions. As the essays in this volume acknowledge, however, the universalized power of law, and the turn to law to secure a vindication of rights, brings with it certain risks. These risks of ignoring context and the messy processes of implementation are highlighted in the essays collected together in this volume.
Tuesday, March 21, 2017
The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.
In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.
The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.
The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.
Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.
Carol Sanger, Why, What, and Now: Writing on Abortion
I’ve just written a book called About Abortion: Terminating Pregnancy in 21st Century America. For years I hadn’t wanted to work on the issue of abortion because from an advocacy standpoint post-Casey v. Planned Parenthood, it meant being in a defensive posture, responding to whatever state legislatures had dished out. From a professorial perspective, abortion is most often taught in Con Law, usually in the sequence of privacy cases. This makes for interesting doctrinal lessons, but locating Roe v. Wade chronologically between Griswold v. Connecticut and Bowers v. Hardwick fails to capture abortion as a distinctively woman’s experience – and a highly regulated one at that.***
Nonetheless, my project was on, and I began with the question: Why, as we creep ever closer to the half-century mark of Roe v. Wade, is abortion still regarded as so unsettled, perhaps not illegal but certainly criminal-like? What makes this quasi-criminal status possible? I wanted to present the case that to the extent women feel guilty, ashamed, or reticent to speak about an abortion at the level of personal experience, they might be heartened to know that there is an entire structure of American law and culture aimed at bringing about just that result. Regulations that make abortion feel like a criminal act abound: mandatory ultrasounds and waiting periods; legislatively drafted statements that physicians must read to their patients; adoption brochures, and disclosure about paternal financial obligations. Each of these is intended to bring home to women that before they terminate an unwanted pregnancy they should think again, look harder, and not be so selfish.
Monday, March 20, 2017
The State of California enacted a law called the “Reproductive FACT Act.” The State admits its purpose is targeting “crisis pregnancy centers” based on their viewpoint that “discourag[es]” abortion. The Act forces pro-life religious licensed centers to post notices that encourage women to contact the State to receive information on free or low cost abortions. The Act also burdens pro-life religious unlicensed centers’ speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise. But the Act exempts most other licensed medical and unlicensed non-medical facilities, such as abortion providers, hospitals, and other healthcare facilities, as well as federal health care providers. The Ninth Circuit candidly admits that it upheld the Act amidst a “circuit split” with decisions by the Second and Fourth Circuits over how to scrutinize regulations of speech by medical professionals on controversial health issues. The ruling also conflicts with a recent decision by the Eleventh Circuit.
The question presented is: Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.
The Ninth Circuit's decision below is here.