Thursday, April 23, 2015

Hobby Lobby Keeps on Ticking

Leslie Griffin, "Trigger"-Happy Justice Alito Stays Third Circuit Contraceptive Mandate,

Before the passage of the Affordable Care Act (ACA), Geneva College, which is associated with the Reformed Presbyterian Church of North America, regularly notified its insurance carrier that it would not provide coverage for four contraceptives that it deemed to be abortifacients, namely, emergency contraceptives Plan B and ella and two intrauterine devices. Similarly, the Roman Catholic Bishops and Dioceses of Pittsburgh and Erie, Pennsylvania, along with their affiliated nonprofit organizations Catholic Charities, Prince of Peace Center, St. Martin Center, and Erie Catholic Cathedral Preparatory School, regularly notified their insurance carriers that they would not provide any contraceptive insurance. Geneva College administrators believe some contraceptives cause abortion and abortion is immoral; Catholic officials believe all contraception is immoral.

 

After the passage of the ACA, Geneva College is required to tell either its insurance company or the Department of Health and Human Services (HHS) that it will not provide coverage for four contraceptives that it deems to be abortifacients, namely, emergency contraceptives Plan B and ella and two intrauterine devices. Similarly, the Roman Catholic organizations are required to tell either their insurance companies or HHS that they will not provide contraceptive coverage to their employees.

 

Post-ACA, however, the religious organizations argue that filling out a simple notification form, just as they did in the past, substantially burdens their religion in violation of the Religious Freedom Restoration Act (RFRA). They argue that filling out a form makes them “complicit” in the sins of abortion and contraception because their signatures immorally “trigger” abortion and contraception.

 

Four courts of appeals—the Sixth, Seventh, D.C., and, most recently, the Third Circuits, in Geneva College v. Burwell— rejected that argument. The “trigger” to insurance coverage, those courts concluded, is the ACA itself, which legally requires contraceptive access for employees. Thus there is no “causal link” or trigger between the notification forms and contraception. Without a trigger, there is no substantial burden on religion, because women’s independent access to contraception is not a substantial burden on the religious organizations’ religious exercise. As the Third Circuit shrewdly observed:

The appellees’ real objection is to what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the appellees give notice of their objection.

The court then refused to give the religious organizations a veto over women’s rights on such non-substantial ground.

 

There things stood until Justice Samuel Alito shot down women’s rights last week by staying the Third Circuit’s opinion for the Catholic plaintiffs. Geneva College has asked the Court for a similar stay.

April 23, 2015 in Abortion, Healthcare | Permalink | Comments (0)

Saturday, April 11, 2015

The Impact of Abortion Laws on Women of Color

April Shaw (Arizona), How Race-Selective and Sex-Selective Bans on Abortion Expose the Color-Coded Dimensions of the Right to Abortion and Deficiencies in Constitutional Protections for Women of Color, NY Review of Law & Social Change (forthcoming)

The Supreme Court’s framework on the right to abortion as articulated in Roe v. Wade and Planned Parenthood v. Casey fails to take into account how race impacts women’s access to abortion. I argue that the race “neutral” framework of Casey’s undue burden test simultaneously erases the racial context of abortion and imposes a conceptual blind spot on how race is used to place a greater burden on women of color relative to white women. Specifically, States are using race to burden women’s access to abortion, but because the right to abortion does not explicitly take race into account, race is not used to measure whether regulations pose a heavier burden on certain groups of women. Applying race as a conceptual lens of analysis is not about inserting race into the legal framework, it is about showing how the current legal framework obscures the impact of race and almost inevitably perpetuates racial stereotypes, disproportionate burdens, and racial inequalities so as to systematically ensure that the right to an abortion as a fundamental right is less secure for women of color.

April 11, 2015 in Abortion, Race | Permalink | Comments (0)

Thursday, April 2, 2015

Woman Sentenced to 20 Years for Feticide...or was it Abortion?

In Indiana. 

For excellent coverage of the case, see Emily Bazelon, NYT, Purvi Patel Could be Just the Beginning

Patel’s case stands out, for the draconian length of the sentence she received, and for the disturbing image of a baby left in a Dumpster. But it is also part of a pattern. “This case shows how easy it is to sweep up women who’ve had miscarriages and stillbirths into a criminal justice framework,” Paltrow told me. For her, the key question is how to ensure that fewer women become as desperate as Patel must have been about her pregnancy. “Do you think these cases will be less rare if you terrify people and make them criminals?” she said.

Purvi Patel Sentenced to 41 Years for Feticide and Neglect of a Dependent

Purvi Patel was sentenced Monday to 41 years in prison on charges of feticide and felony neglect of a dependent after an Indiana jury in early February found her guilty of the charges. She was ordered to serve 20 years in prison after receiving a 30-year sentence on the felony neglect charge, with an additional ten years suspended.***

 

Patel in July 2013 went to a hospital emergency room suffering from heavy vaginal bleeding. She denied that she had been pregnant, but eventually told doctors that she had miscarried and placed the stillborn fetus in a bag and placed the bag in a dumpster.

 

Police questioned Patel without a lawyer present while she was in the hospital. Police also searched the text messages in Patel’s phone, which prosecutors claim revealed that she had communicated to a friend that she was pregnant and had purchased drugs online to terminate the pregnancy. Patel, who is Indian-American, lived in a conservative Hindu household in which it was expected that she would not engage in premarital sex, and wanted to keep the pregnancy a secret from her parents.

 

In order to support the contradictory charges of feticide and felony neglect of a dependent, the state was required to prove that Patel both “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus,” and that she neglected a dependent.

 

A charge of feticide requires a dead fetus, while a charge of neglect of a dependent requires a live birth.

 

 

April 2, 2015 in Abortion | Permalink | Comments (0)

Denial of Abortion as Cruel and Inhuman Treatment

Alyson M. Zureick, "(En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman or Degrading Treatment," 38 Fordham Int'l L. J. 1 (2015) 

From the abstract:

The regulation of abortion has long been considered a prerogative of the state. In recent years, however, international human rights bodies have begun to consider the conformity of domestic abortion regulations with a state’s human rights obligations. This paper examines a notable trend among human rights bodies: namely, finding that denying or obstructing a woman’s access to abortion can amount to cruel, inhuman, or degrading treatment under multiple human rights treaties. First, human rights bodies have found that states can be responsible for CIDT inflicted on women who are harassed and denied services that are legally available to them under the state’s laws. Second, human rights bodies have found that the application of restrictive abortion laws themselves may inflict CIDT by depriving women of an abortion in particularly serious cases, such as rape or when the woman’s life is threatened. I argue that these findings reflect an understanding that certain restrictions on abortion — or the state’s failure to act to prevent de facto restrictions from arising — are unjustifiable and disproportionate to lawful state aims. They also demonstrate a limited but important recognition that deprivations of autonomy in the reproductive rights context can lead to the kind of pain and suffering that is unacceptable in modern societies. At the same time, I argue that human rights bodies should further strengthen their understanding of women’s autonomy interests in this context, particularly the ways in which the frustration of their reproductive autonomy can inflict severe and unacceptable pain or suffering tantamount to CIDT. 

April 2, 2015 in Abortion, International | Permalink | Comments (0)

Wednesday, March 25, 2015

"Nebraska bill would end fathers' rights in rape cases"

The story: 

LINCOLN, Neb. (AP) — The biological fathers of children conceived through a sexual assault would lose their parental rights under a proposal reviewed by Nebraska lawmakers.

Sen. Tommy Garrett of Bellevue presented the proposal to the Judiciary Committee on Wednesday. Garrett says women who are sexually assaulted often feel pressure to terminate their pregnancy or put the child up for adoption to keep their assailant out of their lives.

Garrett says 29 other states have passed laws to end fathers' parental rights in rape cases. Supporters of the bill say 25,000 to 32,000 pregnancies occur because of rapes each year.

Garrett says the bill allows fathers to reclaim parental rights if their convictions are overturned. He says the bill still needs some work, but creates important protections for women.

__

The bill is LB358

March 25, 2015 in Abortion, Manliness, Masculinities | Permalink | Comments (0)

Tuesday, March 17, 2015

AG Nomination Delayed by Anti-Abortion Provision

Attorney General Confirmation Delayed Over Anti-Abortion Provision of Human Trafficking Bill

“I had hoped to turn to her next week, but if we can’t finish the trafficking bill, she will be put off again,” saidmajority leader Mitch McConnell on CNN on the delay in Lynch’s confirmation. This delay is the latest in a series of interruptions in the more than four months since Lynch’s nomination, who would make history as the first black woman to serve as the Attorney General.

 

The trafficking bill in question is the Justice for Victims of Trafficking Act, sponsored by Republican Senator John Cornyn (R-TX). The bipartisan bill had been expected to pass smoothly through Congress, until Democratic party noticed a small provision of the bill that would effectively strengthen the Hyde Amendment, which bans spending federal dollars on abortion.

 

“This bill will not be used as an opportunity for Republicans to double down on their efforts to restrict a woman’s health-care choices,” said Sen. Patty Murray (D-WA). “It is absolutely wrong and, honestly, it is shameful. I know there are a whole lot of us who are going to fight hard against any attempt to expand the Hyde Amendment and permanently impact women’s health.”

 

Democrats are hopeful that the trafficking bill can be settled and passed quickly, so long as there is Republican support to remove the language limiting abortion access.

 

“We can finish this bill in 20 minutes,” said Democratic leader Senator Harry Reid. “The only thing that needs to be done is the language relating to abortion should come out of this bill. Abortion and human trafficking have nothing to do with each other.”

March 17, 2015 in Abortion, Women lawyers | Permalink | Comments (0)

Monday, March 16, 2015

Britain and Gender Abortion

From the Telegraph UK:  

Prosecutors have been accused of leaving the door “wide open” for gender abortion in Britain after blocking an attempt to bring charges against two doctors accused of agreeing terminations based on the sex of unborn baby girls.

Dr Prabha Sivaraman and Dr Palaniappan Rajmohan were facing the first ever private prosecution on gender abortion charges after being filmed apparently agreeing to arrange terminations because of the gender of the foetus in an undercover Telegraph investigation in 2012.

The pair had been summoned to courts in Manchester and Birmingham to answer allegations laid by Aisling Hubert, a pro-life campaigner from Brighton, and supported by the Christian Legal Centre, in what would have been a landmark prosecution.

But the CPS has announced that it is to use its powers to quash the case.

It said that, although there is potentially enough evidence to bring a successful prosecution, it had concluded it would not be in the “public interest” to pursue the case.

March 16, 2015 in Abortion, International | Permalink | Comments (0)

Saturday, March 14, 2015

Abortion Restrictions in Ohio

NPR, Abortion Restrictions Complicate Access for Ohio Women

Ohio may not have gotten the national attention of say, Texas, but a steady stream of abortion restrictions over the past four years has helped close nearly half the state's clinics that perform the procedure.

March 14, 2015 in Abortion | Permalink | Comments (0)

Tuesday, February 17, 2015

Ginsburg Says Overturning Roe "Not a Likely Scenario"

Ginsburg Doubts Roe v. Wade will be Overturned

U.S. Supreme Court Justice Ruth Bader Ginsburg told MSNBC she does not expect the high court to overturn Roe v. Wade, the 1973 ruling that declared a woman’s right to abortions.

 

“I don’t want to make any predictions,” Ginsburg told MSNBC reporter Irin Carmon in an interview that aired Monday night. “But precedent is important in this court.”

 

Ginsburg said overturning Roe “could happen, but I think it’s not a likely scenario.” She pointed to the 1992 Planned Parenthood v. Casey decision as the main precedent that is likely to rescue Roe from reversal.

February 17, 2015 in Abortion | Permalink | Comments (0)

Saturday, February 14, 2015

How Women's Rights Changed the Abortion Debate

Reva Siegel offers an excellent, concise and insightful analysis in Abortion and the "Woman Question": Forty Years of Debate, 89 Indiana L. J. 1365 (2014)

This lecture commemorates Roe’s fortieth anniversary by reconstructing how the woman question became entangled in the abortion debate in the twentieth century. The abortion debate is commonly thought to concern the question of when life begins. But the question of when life begins is not the only question that makes the abortion debate explosive. I will show how the entrance of women’s rights claims into the abortion debate fatefully changed it, and led opponents of abortion to engage the woman question in terms that have changed shape over the last several decades, from the frames of “pro-family” to the more contemporary discourse associated with claims that “abortion hurts women.” Tracing the four-decade arc of this conversation allows us to see more clearly the many forms in which the “woman question” can be expressed in cases that will reach the Roberts Court in the coming decade.

February 14, 2015 in Abortion, Legal History | Permalink | Comments (0)

Thursday, January 22, 2015

Female GOP Legislators Get Abortion Bill Dropped

WaPo, Abortion Bill Dropped Amid Concerns of Female GOP Lawmakers

House Republican leaders abruptly dropped plans late Wednesday to vote on an anti-abortion bill amid a revolt by female GOP lawmakers concerned that the legislation's restrictive language would once again spoil the party's chances of broadening its appeal to women and younger voters.

 

In recent days, as many as two dozen Republicans had raised concerns with the "Pain Capable Unborn Child Protection Act" that would ban abortions after the 20th week of a pregnancy. Sponsors said that exceptions would be allowed for a woman who is raped, but she could only get the abortion after reporting the rape to law enforcement.

 

A vote had been scheduled for Thursday to coincide with the annual March for Life, a gathering that brings hundreds of thousands of anti-abortion activists to Washington to mark the anniversary of the Supreme Court's 1973 Roe v. Wade decision that legalized abortion.

 

But Republican leaders dropped those plans after failing to win over a bloc of lawmakers, led by Reps. Rene Ellmers (R-N.C.) and Jackie Walorski (R-Ind.), who had raised concerns.

January 22, 2015 in Abortion | Permalink | Comments (0)

Reviewing Law and History on the Anniversary of Roe v. Wade

This is a good time to review your recollection of what this foundational case and its related constitutional law actually did.

For the decision and oral argument, see The Oyez Project.

For the excellent history leading up to Roe, a must read is Linda Greenhouse (NYT) and Reva Siegel (Yale), Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling (2012) (with documentary history).

For the history of abortion in the 19th century, when abortion before quickening (4 months) was generally available at common law until uniformly criminalized by the 1870s, see James Mohr  Abortion in America: Origins and Evolution of National Policy (Oxford U Press 1979) and Reva Siegel,  Reasoning From the Body: An Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stanford L. Rev. 261 (1992)

For a history of the immediate post-Roe aftermath, and the rise of so-called informed consent laws that we see exaggerated today, see my article on one of the first such laws in Akron, Ohio, Tracy A. Thomas, Back to the Future of Abortion Regulation in the First Term, 29 Wisconsin Journal of Law, Gender & Society 47 (2014)

January 22, 2015 in Abortion | Permalink | Comments (0)

Thursday, January 8, 2015

Legal Scholar Argues Technology May Moot Right to Abortion

Legal Scholar Calls for "Fetal Rescue Programs" to End Abortion Debate

Suppose technology advanced to the point at which a pregnancy could be terminated at any stage, with the extracted zygote, embryo, or fetus then transferred to an artificial womb where it could gestate to term. Could states then constitutionally mandate “fetal rescue programs” as a way to potentially eliminate legal abortion?

 

While the premise may sound like something right out of a Margaret Atwood novel, it is not some feminist dystopian nightmare; nor, for that matter, is the possibility of artificial wombs or gestation solely the creation of science fiction. The scenario is, as Professor Stephen Giles argues in the recent article “Does the Right to Elective Abortion Include the Right to Ensure the Death of the Fetus?”, a possible legal path forward for anti-abortion advocates to either render Roe v. Wade irrelevant or overturn it altogether.

 

Giles, who teaches at Quinnipac University School of Law, makes the argument for protecting fetal rights at the point of conception once technology has advanced to the point of being able to gestate humans in entirely “artificial” environments. According to Giles, this brave new world of ectogenesis will benefit women by eradicating the need for legal protections for abortions. That’s because, as Giles explains, modern technology currently limits reproductive choices. There is no way to end a pregnancy—other than via live birth and adoption—in a way that does not terminate the fetus, he writes.

Professor Giles explains further in his abstract to the article:

Would such a “fetal-rescue program” be constitutional under the Supreme Court’s controlling decision in Planned Parenthood v. Casey? Although the Article ultimately concludes that fetal-rescue programs are constitutional, the basis for that conclusion is not a categorical rule that the woman has no constitutionally protected liberty interest in ensuring the death of the pre-viable fetus. On the contrary, Part I argues that, under Casey, her liberty interest is “specially protected,” meaning that state-imposed burdens on that interest are subject to more than rational-basis scrutiny. Part II then explains why the appropriate form of heightened scrutiny is the interest-balancing methodology Casey employed in re-establishing the right to elective abortion, rather than the “undue burden” test Casey adopted for state laws that interfere with a woman’s ability to obtain an abortion. Consequently, the constitutionality of fetal-rescue programs turns on whether the state’s interest in protecting the pre-viable fetus outweighs the woman’s protected liberty interest in ensuring its death.

January 8, 2015 in Abortion | Permalink | Comments (0)

Legal Scholar Argues Technology May Moot Right to Abortion

Legal Scholar Calls for "Fetal Rescue Programs" to End Abortion Debate

Suppose technology advanced to the point at which a pregnancy could be terminated at any stage, with the extracted zygote, embryo, or fetus then transferred to an artificial womb where it could gestate to term. Could states then constitutionally mandate “fetal rescue programs” as a way to potentially eliminate legal abortion?

 

While the premise may sound like something right out of a Margaret Atwood novel, it is not some feminist dystopian nightmare; nor, for that matter, is the possibility of artificial wombs or gestation solely the creation of science fiction. The scenario is, as Professor Stephen Giles argues in the recent article “Does the Right to Elective Abortion Include the Right to Ensure the Death of the Fetus?”, a possible legal path forward for anti-abortion advocates to either render Roe v. Wade irrelevant or overturn it altogether.

 

Giles, who teaches at Quinnipac University School of Law, makes the argument for protecting fetal rights at the point of conception once technology has advanced to the point of being able to gestate humans in entirely “artificial” environments. According to Giles, this brave new world of ectogenesis will benefit women by eradicating the need for legal protections for abortions. That’s because, as Giles explains, modern technology currently limits reproductive choices. There is no way to end a pregnancy—other than via live birth and adoption—in a way that does not terminate the fetus, he writes.

Professor Giles explains further in his abstract to the article:

Would such a “fetal-rescue program” be constitutional under the Supreme Court’s controlling decision in Planned Parenthood v. Casey? Although the Article ultimately concludes that fetal-rescue programs are constitutional, the basis for that conclusion is not a categorical rule that the woman has no constitutionally protected liberty interest in ensuring the death of the pre-viable fetus. On the contrary, Part I argues that, under Casey, her liberty interest is “specially protected,” meaning that state-imposed burdens on that interest are subject to more than rational-basis scrutiny. Part II then explains why the appropriate form of heightened scrutiny is the interest-balancing methodology Casey employed in re-establishing the right to elective abortion, rather than the “undue burden” test Casey adopted for state laws that interfere with a woman’s ability to obtain an abortion. Consequently, the constitutionality of fetal-rescue programs turns on whether the state’s interest in protecting the pre-viable fetus outweighs the woman’s protected liberty interest in ensuring its death.

January 8, 2015 in Abortion | Permalink | Comments (0)

Thursday, December 11, 2014

Study Shows Gender Bias in Student Evaluations of Professors

Best Way for Professor to Get Good Student Evaluations? Be Male.

Many in academia have long known about how the practice of student evaluationsof professors is inherently biased against female professors. Students, after all, are just as likely as the public in general to have the same ugly, if unconscious, biases about women in authority. Just as polling data continues to show that a majority of Americans think being a man automatically makes you better in the boss department, many professors worry that students just automatically rate male professors as smarter, more authoritative, and more awesome overall just because they are men. Now, a new study out North Carolina State University shows that there is good reason for that concern.

 

One of the problems with simply assuming that sexism drives the tendency of students to giving higher ratings to men than women is that students are evaluating professors as a whole, making it hard to separate the impact of gender from other factors, like teaching style and coursework. But North Carolina researcher Lillian MacNell, along with co-authors Dr. Adam Driscoll and Dr. Andrea Hunt, found a way to blind students to the actual gender of instructors by focusing on online course studies. The researchers took two online course instructors, one male and one female, and gave them two classes to teach. Each professor presented as his or her own gender to one class and the opposite to the other. 

 

The results were astonishing. Students gave professors they thought were male much higher evaluations across the board than they did professors they thought were female, regardless of what gender the professors actually were. When they told students they were men, both the male and female professors got a bump in ratings. When they told the students they were women, they took a hit in ratings. Because everything else was the same about them, this difference has to be the result of gender bias. 

 

“The difference in the promptness rating is a good example for discussion,” MacNell explains in the press release for the study. "Classwork was graded and returned to students at the same time by both instructors. But the instructor students thought was male was given a 4.35 rating out of 5. The instructor students thought was female got a 3.55 rating.” Considering that professors were rated on a five-point scale, losing an entire point on the "promptness" question just because students think you're female is a major hit. 

“The ratings that students give instructors are really important, because they’re used to guide higher education decisions related to hiring, promotions and tenure,” says Lillian MacNell, lead author of a paper on the work and a Ph.D. student in sociology at NC State. “And if the results of these evaluations are inherently biased against women, we need to find ways to address that problem.”

 

December 11, 2014 in Abortion, Education, Law schools | Permalink | Comments (0)

Tuesday, November 25, 2014

The Constitutional Right (Not) to Procreate

Mary Ziegler, (Florida State), Abortion and the Constitutional Right (Not) to Procreate, 8 U. Richmond L. Rev. 1263 (2014). From the abstract:

With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.
 
This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.
 
This article uses the legal history of struggle over spousal consent abortion restrictions as a new way into the debate about the relationship between ART and existing reproductive rights. Such laws would require women to notify or obtain consent from their husbands before a doctor can perform an abortion. Scholars use spousal-consultation laws to illustrate the sex stereotypes supposedly underlying all abortion restrictions. This article tells a far more complex story. When feminists and pro-lifers battled about spousal consent in the 1970s, they wrestled with many of the questions motivating current battles about ART: Do women enjoy a unique role in child-rearing and childbearing? Does gestation, caretaking, or a genetic connection explain the decision-making power conferred on women in the context of reproduction? How could feminists reconcile demands that men perform a greater share of child-rearing with arguments that women should have the final decision on reproductive matters? By reexamining the history of the consent wars, we can gain valuable perspective on what can go right -- and wrong -- when we forge a jurisprudence based on the relationship between genetic, gestational, and functional parenthood.
 
 

November 25, 2014 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)

Thursday, October 30, 2014

ND SCT Strikes Down Medicated Abortion Law Despite Finding it Unconstitutional

ND Supreme Court OKs Restrictions on Drug-Induced Abortions, Despite 3 of 5 Judges Finding it Unconstitutional.  Say what?

The North Dakota Supreme Court on Tuesday reversed a Fargo-based district judge’s ruling that had blocked a 2011 state law limiting drug-induced abortions, letting the law stand despite three of the court’s five justices saying it violates the U.S. Constitution.

***

Justices were split on whether the law was unconstitutional under both the state and federal constitutions.

 

The Supreme Court was evenly split on whether the law violated the state constitution, with Justices Mary Muehlen Maring and Carol Ronning Kapsner finding it did and Chief Justice Gerald VandeWalle and Justice Dale Sandstrom finding it didn’t. Justice Daniel Crothers concluded the state constitutional issue didn’t need to be decided.

 

Maring, Kapsner and Crothers found the law violated the U.S. Constitution, while VandeWalle found that it wasn’t unconstitutional at the federal level. Sandstrom opined that the federal question didn’t belong before the state Supreme Court.

 

Tuesday’s opinion hinged on the North Dakota Constitution’s requirement that at least four members of the Supreme Court be in agreement to declare a statute unconstitutional.

For those brave enough to tackle a 103-page opinion and double pluralities, the opinion MKB Management v. Burdick is here.

October 30, 2014 in Abortion, Reproductive Rights | Permalink | Comments (0)

Thursday, October 23, 2014

More on Elizabeth Cady Stanton and Abortion

I wrote an article, related to my current book project, on feminist icon Elizabeth Cady Stanton’s views on abortion.  Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).  The article was triggered by a political misuse of Stanton for modern feminist-for-life anti-abortion advocacy, which claims she was a strong pro-life advocate. My research showed that Stanton said little about abortion per se.  And what she did say about reproductive rights – women’s unilateral right to self-sovereignty in reproductive decisionmaking and justice and forgiveness for women’s crimes of infanticide—suggests the opposite.  That to the contrary, her work provides historical support for a woman’s right to personal choice.

I’ve turned up a few more pieces of historical evidence since the publication of the article. Here’s an excerpt from the book chapter draft:

Stanton elaborated on this concern with enlightened motherhood, growing more melodramatic and emphatic. Writing to the Seventh Convention on Woman’s Rights, Stanton said polluted marital relations [with abuse, alcoholism, and misery] produced “the shocking monstrosities of . . . deformed and crippled offspring,” “miserable progeny conceived in disgust and brought forth in agony,” and often confined to asylums. Letter from Mrs. Stanton to Seventh National Woman’s Rights Convention, Nov. 24, 1856.  Another consequence of the perversions of marriage was abortion, “What all these advertisements in our public prints, these family guides, these female medicines, these Madame Restells?” Abortion, asylums, and disabled children, Stanton argued, showed “what a depth of degradation the women of this Republic have fallen, how false they have been to the holy instincts of their nature, to the sacred trust given them by God as the mothers of the race?”  Women, Stanton argued, had a higher duty to control and deliberate in reproduction, not simply propagate. Her solution was to “let Christians and moralists pause in their efforts at reform and let some scholar teach them how to apply the laws of science to human life.” To her readers in the Revolution, she emphasized the need to base the fundamentals of social and family life “on science and philosophy by educating women into the idea that to bear noble children to noble men with sound bodies and sound minds, is a worthy work and one that brings its own happiness and reward.”  But, she continued, “to fill the world with idiots, lunatics, criminals, the blind, the deaf, the dumb,” and to “spend one’s days nursing muling, puling, limp-backed, hydrocephalic abortions of humanity, is not a work worth a Christian woman, but a sin against herself, the state, and a gross violation of the immutable laws of God.” ECS, Mrs. Stanton and the Chicago Tribune, Rev., Feb. 8, 1871.

The eugenic context, then considered an emerging science, is stocking to us today. And that is a story in and of itself. But what can we make of this from a feminist perspective?  That Stanton endorsed women’s right, indeed moral duty to control reproduction.  That she supported science to control birth.  That she argued for a consideration of the health consequences to the child, as women do today when making difficult decisions about severe health defects shown in prenatal testing.  And that she condemned religious moralists for their mandates to women on motherhood.

October 23, 2014 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)

Tuesday, October 14, 2014

"Supreme Court Allows Texas Abortion Clinics to Stay Open"

Thus reads the article title from the NYT's on Tuesday.  The story:  

The Supreme Courton Tuesday blocked a federal appeals court ruling that was forcing many abortion clinics in Texas to close.

The Supreme Court’s order, which was five sentences long, will allow the clinics to remain open while appeals proceed.

On Oct. 2, the United States Court of Appeals for the Fifth Circuit, in New Orleans, provisionally let stand a Texas law that requires all abortion clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing.

State officials said the law’s requirements were needed to protect women’s health. Abortion providers said the regulations were expensive, unnecessary and a ruse meant to put many of them out of business.

The Supreme Court vacated the part of the Fifth Circuit’s ruling that had let the surgical-center requirement go into effect. It also vacated a second part of the Fifth Circuit’s ruling, concerning the law’s requirement that doctors performing abortions have admitting privileges at a nearby hospital, as it applied to clinics in McAllen, Tex., and El Paso.

October 14, 2014 in Abortion, Reproductive Rights | Permalink | Comments (0)

Tuesday, September 23, 2014

Mother Jailed for Buying Abortion Pill for Teenage Daughter on Internet

Emily Bazelon, NYT, Mother in Jail for Helping her Daughter have an Abortion

On Sept. 12th, Jennifer Whalen, a 39-year-old mother of three in the rural town of Washingtonville, Pa., went to jail to begin serving a 9-to-18-month sentence. Whalen’s crime was, in effect, ordering pills online that her older daughter took in the first several weeks of an unplanned pregnancy, when she was 16, to induce a miscarriage. The medication was a combination of mifepristone (formerly called RU-486) and misoprostol. The drugs have been available from a doctor with a prescription in the United States since 2000 and are used around the world to induce miscarriage.***

 

On the night before Whalen went to jail, I drove to Pennsylvania to meet her. We sat at a conference table in the office of her lawyer, who was present for the 90-minute conversation. For most of the time we spent together, she sat hunched forward, arms wrapped around herself. She was dreading the prospect of leaving her 11-year-old daughter and her husband at home, she said, as well as her older daughter, now 19, who still lives with the family. (The oldest child, a 20-year-old son, lives nearby.) “I’m scared,” Whalen said of serving her sentence. “And I’m hurt because I can’t be with my family.”

September 23, 2014 in Abortion, Family | Permalink | Comments (1)