Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, October 16, 2017

Court Upholds Denial of Parole to Pregnant Woman to Protect Unborn Child

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.

October 16, 2017 in Abortion, Constitutional, Family, Pregnancy | Permalink | Comments (0)

Tuesday, September 26, 2017

Are Women's Narrative Stories Admissible Evidence in the Supreme Court?

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.

September 26, 2017 in Abortion, SCOTUS | Permalink | Comments (0)

Maintaining the Constitutional Theory of the Private Choice of Abortion

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.

September 26, 2017 in Abortion, Constitutional | Permalink | Comments (0)

Wednesday, September 13, 2017

Ohio Supreme Court Hears Case on Abortion Clinic Closure

Ohio Supreme Court Hears Dispute on Abortion Clinic Closure

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.”

September 13, 2017 in Abortion | Permalink | Comments (0)

Friday, August 25, 2017

The History of Abortion Law in Victoria

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’.

August 25, 2017 in Abortion, International, Legal History | Permalink | Comments (0)

Monday, August 21, 2017

OR Enacts Nation's Most Progressive Reproductive Health Policy

Oregon Approves Sweeping Bill Expanding Abortion Access

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.

August 21, 2017 in Abortion, Healthcare | Permalink | Comments (0)

Monday, July 31, 2017

Book Podcast: After Roe: The Lost History of the Abortion Debate

New Legal History Podcast: Mary Ziegler's After Roe

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

July 31, 2017 in Abortion, Books, Legal History | Permalink | Comments (0)

Wednesday, July 19, 2017

Book Review of Sanger's About Abortion

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.

July 19, 2017 in Abortion, Books | Permalink | Comments (0)

Wednesday, July 5, 2017

Australia: Abortion and Human Rights

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.

July 5, 2017 in Abortion, International | Permalink | Comments (0)

Wednesday, May 17, 2017

Comparing Legislative versus Judicial Abortion Laws

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.

May 17, 2017 in Abortion, International, Legislation | Permalink | Comments (0)

Monday, April 10, 2017

What Does the Minimum Wage Have to do with Reproductive Rights

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!”

 

April 10, 2017 in Abortion, Equal Employment | Permalink | Comments (0)

Monday, March 27, 2017

Comparative Perspectives on the International Regulation of Abortion

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.

March 27, 2017 in Abortion, International, Reproductive Rights | Permalink | Comments (0)

Tuesday, March 21, 2017

Following the Changes in the Supreme Court's Abortion Law

Mary Ziegler,  The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

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.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

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.

 

March 21, 2017 in Abortion, Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Writing on Abortion

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.  

March 21, 2017 in Abortion, Books | Permalink | Comments (0)

Monday, March 20, 2017

Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech

Petition for Certiorari, National Institute of Family & Life Advocates v. Becerra

QUESTION PRESENTED

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.

March 20, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Friday, March 17, 2017

Thinking through the Impact and Application of the Supreme Court's Decision in Whole Woman's Health

Mary Ziegler, The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

Abstract

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.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

Abstract
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.

March 17, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Thursday, February 16, 2017

State Trigger Laws Ready if Roe Overturned

If Trump Gets His Way, These Will be the First Places to Ban Abortion

"We thought we wouldn’t have to worry about this stuff," Feigenholtz says, "but the new administration has been a wake-up call. I had to stop and say, 'Okay, now what? How do we protect women?'"

 

She was especially concerned about an obscure 40-year-old provision in Illinois' criminal code, one of a number of measures in 10 states across the country, that anticipate a time when the Supreme Court reverses itself on abortion. They are often referred to as "trigger laws," because even though each state's provision works a bit differently, the measures are "triggered" by the reversal of Roe v. Wade. Should that occur, these states commit to making abortion illegal in all cases, except to protect a mother's life, just as it was before the Supreme Court's 1973 ruling. (In four states, the trigger law makes the switch back to illegal abortion automatic.)

 
Feigenholtz was familiar with Illinois' trigger clause from her previous work on women's health measures in the General Assembly. After the election, she contacted local pro-choice advocates, including chapters of the ACLU and Planned Parenthood, to float the idea of proposing a measure to void Illinois' trigger law, as part of a bigger bill that seeks to expand abortion access by including abortion care in Medicaid and state employee health coverage. The bill she introduced in January, HB 40, proposes cutting Illinois' trigger language and affirming the state's commitment to uphold abortion rights, no matter what happens in Washington

 

Many such laws, including the one in Illinois, go even further, saying that if Roe is overturned, the state intends to renew their so-called "policy" that life begins at conception. This approach could not only affect the legality of abortion but also common forms of birth control, such as Plan B or IUDs, which some anti-abortion advocates consider to be abortifacients despite medical consensus to the contrary.

 

"After the passage of Roe, a handful of states said, 'If we can ever go back, we want to go back,'" says Daniela Kraiem, the associate director of the women and the law program at the Washington College of Law at American University. "The point of those laws, up until now, has been largely symbolic," she says, a way for states to "allow women to exercise their constitutional rights, but under protest."

 

**** 

 

If the Supreme Court did overturn Roe, the enforceability of these trigger clauses is complicated and difficult to predict, Kraiem explains. For instance, six states—Arkansas, Illinois, Kansas, Kentucky, Missouri, and Ohio—enshrine only their intention to revert back to pre-Roe policies, without requiring an automatic switch. Since a number of those legislatures tend to skew conservative, that intention could very quickly become law.

February 16, 2017 in Abortion | Permalink | Comments (0)

Thursday, February 2, 2017

Greenhouse & Siegel on Whole Woman's Health and the Future of Judicial Regulation of Abortion

Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L. Forum (2016)

Abstract:      1

In this essay we consider the implications of Whole Woman’s Health v. Hellerstedt for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the Supreme Court’s decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict.

In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health. The Court required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.

A crucial aspect of the Court’s decision in Whole Woman’s Health is the guidance it provides judges in determining the burdens and benefits to balance in the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s experience of exercising their constitutional rights. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health. In these and other ways, Whole Woman’s Health robustly reaffirms judicial protection for the abortion right.

 

February 2, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Tuesday, January 31, 2017

CFP Student Scholarship in Reproductive Rights

CFP 2017 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights

If/When/How, in collaboration with the Center for Reproductive Rights and the Center on Reproductive Rights and Justice at Berkeley Law School, is currently accepting submissions for the twelfth annual Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights.

 

This year’s suggested theme is “Balancing Burdens and Benefits after Whole Woman’s Health v. Hellerstedt.” However, submissions on other topics will also be accepted. For more information, please download the Call for Submissions. The deadline for submission is Monday, February 27, 2017.

 

Winning authors will receive cash prizes: $750 (first place), $500 (second place), or $250 (third place). Additionally, each winning author will receive a copy of the casebook Cases on Reproductive Rights and Justice, by Melissa Murray and Kristin Luker. The first place winner will also have a chance at publication with the NYU Review of Law and Social Change

January 31, 2017 in Abortion, Call for Papers, Reproductive Rights | Permalink | Comments (0)

Wednesday, January 11, 2017

Woman Denied Abortion While in Jail Sues

USA Today, Woman, denied abortion while in jail, sues Tenn. sheriff

 A Tennessee sheriff is named in a civil lawsuit after he denied a 29-year-old inmate access to an abortion, saying the woman's life was not in danger and her pregnancy was not the result of a crime, according to recently filed court papers.

 

The woman, Kei'Choura Cathey, was not released until it was too late for the procedure and had the child in April, the court filing says. Her lawsuit alleges Maury County Sheriff Bucky Rowland illegally denied her access to an abortion, which the nation's top court has protected as a woman's right for decades.

 

The case, and others around the country, pose questions about what obligations top law enforcement officers have when women who are incarcerated request abortions.

 

"Courts have generally said prisoners retain their right to access abortion even if they’re incarcerated," said Brigitte Amiri, senior staff attorney for the ACLU's Reproductive Freedom Project.

January 11, 2017 in Abortion | Permalink | Comments (0)