Gender and the Law Prof Blog

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

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)

Friday, December 16, 2016

"The Incidental Relation of Mother" and 19th Century Demands for Women's Reproductive Control

 I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).  See Introduction, Chapter 1 (Marital Property), Chapter 2 (Marriage reform), and Chapter 3 (Divorce reform). Today I want to talk a bit about Chapter 4 “The Incidental Relation of Mother.”

Stanton’s philosophical point in identifying motherhood as "incidental" was that women’s role of mother did not define her legally or socially, but rather was one incident of her life. In a time when the cult of motherhood and the idealization of the domestic sphere of the home defined women, and denied them all public and legal rights as married women, Stanton clashed with the accepted status quo and challenged the notion that motherhood was the defining attribute of women’s citizenship.  But one of the hardest audiences to convince of this was women themselves. Still she persisted in trying to shift the culture, as he wrote to the Seventh National Woman’s Rights Convention in 1856: “The woman is greater than the wife or the mother; and in consenting to take upon herself these relations, she should never sacrifice one iota of her individuality to any senseless conventionalisms.” Stanton herself had seven children, and presented a credible authority of one who could challenge the legal restriction of motherhood, even as she appreciated and enjoyed the role. 

Both chapter 4 and chapter 5 of the book further develop the specific concrete rights and actions that Stanton then demanded under her philosophy of incidental motherhood. Chapter 4 addresses Stanton’s views of reproductive rights, most namely the right to “voluntary motherhood” and control of sexual relations and procreation.

This chapter to me was one of the most important chapters as I worked to set the record straight. For today, Stanton has been adopted as a poster-child of the prolife movement. Quite literally, her image and words are used on posters, flyers, and commemorative coffee mugs put out by the prolife organization, Feminists for Life. She is cited, repeatedly, in US Supreme Court amicus briefs as evidence of a feminist history against abortion. However, as I detail in the book and here, Stanton was not a prolife advocate. Not at all. In fact, I found only one reference in all of the thousands of historical documents I reviewed in which Stanton even mentioned the word abortion. In this one line, she lists it as one of many social problems identified by reformers, but which she traces back to the core problem of women’s inequality and lack of control in marriage and social and sexual relations. 

FFLPictureECSPoster

 

What Stanton did talk about was voluntary motherhood.  Voluntary motherhood was the ideology of both feminists and conservative women reformers which advocated the right of women to control when they engaged in sexual relations with their husbands.  It reject the marital sexual privilege of the husband and the presumed right to unlimited sexual access. Instead, it placed the sole control of sexual relations with the wife, as it was the wife that bore the physical, emotional, and social consequences of pregnancy. It was a theory of abstinence that placed the right of reproductive control within the singular hands of the woman.

Stanton also wrote a great deal about infanticide, rather than abortion.  Infanticide was the more shocking claim as it alleged a woman had killed her infant after its natural birth. Stanton defended women accused of infanticide and demand mercy rather than the death penalty. She trumped the defense of Hester Vaughn, an eighteen-year-old English working-class girl convicted of infanticide when her baby was found dead next to her where she had given birth alone, starving, in a freezing cold tenement.  Stanton used infanticide to illustrate the injustice of a legal process that included women as jurors, judges, lawyers, lawmakers and even witnesses. For in heavy-handed prosecution of this crime, without prosecution of the male partner or attacker who caused the crime and without mercy from women who understood the situations of such a pregnancy, the law was patently unjust.

December 16, 2016 in Abortion, Books, Family, Legal History | Permalink | Comments (0)

Friday, November 4, 2016

Politicizing Motherhood: A Closer Look at the Maternalism of Phyllis Schlafly's Anti-ERA Activism

Natalia Mehlman Petrzela, Politicizing and Practicing Motherhood

“I’d like to burn you at the stake,” pioneering feminist Betty Friedan famously spat at conservative activist Phyllis Schlafly during a 1973 debate about the Equal Rights Amendment. Her loathing reflected the recognition of a formidable opponent. Though our largely liberal profession took several decades to recognize Schlafly’s power in shaping political culture, the flurry of insightful reflections from historians in the wake of her recent death affirms Schlafly’s rightful place in the historical record even as her anti-feminist and anti-gay politics position her on what many agree is the wrong side of history.

 

A hallmark of Schlafly’s public persona was portraying the world as a series of stark opposites. Her feminist straw woman was joyless man-hater; in 1977, she contrasted a conservative, “positive woman” with the “miserable” who embraced the new feminist honorific “Ms.”[1] But if we treat Schlafly exclusively as the conservative complement to this caricature, we miss important dimensions of her function in the history of feminism as more than a reactionary foil. An illuminating way to read Schlafly as a more complex figure is to look beyond her rich public life to explore how she perceived motherhood not just as a political symbol but also as a personal practice.

 

I’m not the first historian to suggest that Schlafly demands a nuanced approach.[2] For one, the feminism Schlafly railed against ironically enabled her political career. Moreover, that illustrious career was constrained by the same misogyny that thwarted women of all political affiliations, as her unsuccessful attempts in the 1950s to break into the old-boys’ foreign policy network proved. For Schlafly’s homages to homemaking (and her frequent infuriating introductory anecdote that she had asked permission of her husband to speak publicly), she rivaled Friedan in her efforts to mobilize a generation of female political neophytes. She sent detailed handwritten notes to housewives, precisely instructing how to organize around “women’s issues” such as education, abortion, and “the homosexual agenda,” which made “family values” a central plank of contemporary conservatism and launched her into public life. Like her early-twentieth-century progressive foremothers, Schlafly used a form of “maternalism” to access the political arena, though in order to promote rather than challenge traditional gender roles even as her very participation embodied such a challenge.

November 4, 2016 in Abortion, Family, Legal History | Permalink | Comments (0)

Tuesday, July 12, 2016

From Standing With Planned Parenthood to Moving Forward

 Photo

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.   

 

Unqualifiedly, “I stand with Planned Parenthood,” consistent with the viral social media hashtag that so mobilized the reproductive rights movement this year.   I’ve made my donations.  I’ve changed my Facebook status picture.  I’ve defended the reputation and profound importance of Planned Parenthood.   

I also celebrated last month’s decision in Whole Woman's Health v. Hellerstedt  . . . but I did so more privately and discreetly, a point this blog seeks to explore.  Whole Woman’s Health challenged the motive and methodology of state legislatures enacting restrictive laws regulating abortion and abortion providers.  It concluded that the state does impose an “undue burden” on a woman’s right to choose when it enacts laws that are not medically justified and that restrict access to as many women as the Texas provisions did.  I celebrate this decision for its affirmation of the undue burden standard, its demand for sound legislation supported by medicine and science, and the potential it offers to push back on the increasing frequency and intensity of restrictive measures.

Yet, for the most significant Supreme Court decision protecting a woman’s right to choose in decades, what form of mobilized and energized support could be seen away from the Supreme Court steps?  I, for one, did not change my social media imagery.  In fact, I did not post anything on social media at all, not even a simple link to the decision or news coverage of it.  It seemed that only a small handful of my colleagues and friends who are active in this area posted anything other than a few vague social media posts best characterized as  “phew” points, more than substantive or celebratory posts.     

Interestingly, who was busy blogging and posting about women and what they need and what their rights are . . . . opponents to abortion access!  Notably, opponents to the decision were not characterizing this as judicial overreach or inconsistency – like the dissenting justices had – rather, they were tweeting and blogging about how the Supreme Court failed to protect women and make abortion safer for women. 

As we breathe a sigh of relief from this legislative and Supreme Court term, we now stand poised to assess the carnage of the past years, and the last year particularly, and to assess the reproductive rights movement’s trajectory.  Social movements, like the reproductive rights movement, are about collective action to bring change.  They require an oppositional frame and they develop a collective identity.  This collective identity defines what it means to join the movement and how its members recognize themselves and are recognized externally.  This creates a shared sense of oneness or we-ness.  Historic framings of reproductive rights were broadly tethered to larger understandings of women’s equal citizenship and participation in public and private life, including women’s health, women’s autonomy, and women’s freedom.

Contrasting the social and political responses to attacks on Planned Parenthood over the past year to responses to the Whole Woman’s Health decision or even contrasting social and political responses to Whole Women’s Health to historic reproductive rights successes, it merits thoughtful reflection on what the consequences have been to the reproductive rights social movement in having spent so much time in a defensive posture.  The movement’s defensive posture in the past year has forced us to shift our emphasis to the myopic focus on defending an institution instead of defending the people and issues that it protects, serves, and saves.  When I declare that “I stand with Planned Parenthood,” I am not declaring more directly the politically and historically grounded points that I stand for women’s equal autonomy to make medical decisions and the central importance of women’s reproductive autonomy to control their political, social, professional selves as men do.  This focus arose out of necessity, but centralizing a social or political movement so squarely around one institution a worrisome long-term strategy that places too much weight and pressure on the institution’s leaders?  Does this institutional focus compromise the collective action or “oneness” of women supporting reproductive rights more broadly?

As I defend the relevance and importance of Planned Parenthood, I worry that its four walls limit me and perhaps the movement’s trajectory.  As we stand and defend the four walls of Planned Parenthood and its access to funding, there is reason to worry that the opposition is swiftly co-opting the gendered framing of abortion and the broader rights at stake for women. 

I worry that the muted reaction to Whole Woman’s Health reveals a deeper shift and narrowing of the framing of the reproductive rights movement.  I write, not to be critical of the past, but looking to the future.  There was a critical time and need to “stand with Planned Parenthood.”  But we cannot maintain a movement for reproductive justice and women’s bodily autonomy just by defending the necessity and credibility of one institution or even one procedure.  I do stand with Planned Parenthood.  I also stand with midwives.  I also stand with birthing women . . . at home and in hospitals.  I stand with women seeking birth control, just as I stand with those not using birth control for reasons religious or otherwise.  As we move forward, now is the time to expand the base, expand the conversation, and reach for new allies, not narrow and institutionalize the conversation.  We stood in defense of a fortress when we needed to do so.  Now we must move forward in ways that restore a sense of “oneness” that is tethered to issues and people. 

July 12, 2016 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, July 11, 2016

Abortion Politics in the Age of Zika

Carol Sager, Abortion Politics in the Age of Zika, US News

It seems clear then that neither Zika transmission nor pregnancy can be wholly prevented. Despite the most diligent attempts to contracept, unwanted pregnancy happens, whether through contraceptive failure, a partner's refusal to cooperate or bad luck. (Forty-five percent of pregnancies in the U.S. are unintended.) All this procreation takes place against the background of the mosquito season now upon us.

 

This is where public health runs smack into the politics of reproduction. The CDC advises pregnant women with the virus to seek a medical diagnosis for microcephaly and have it confirmed after their baby is born. But some women may wonder whether they want to continue their pregnancies at all under these circumstances. Here, three facts stand out. First, not all Zika-infected women transmit the virus to their fetuses. Second, if the virus is transmitted, common results are serious birth defects – hearing and vision impairment, seizures, intellectual and physical disability – for which there is no cure. Third, at present doctors are unable to confirm microcephaly until around the 20th week of pregnancy. On these facts, decisions about what course to follow may well be complicated, though at least women in the U.S. have a choice. Unlike most of Central and South America where abortion remains a crime, women in the U.S. have a constitutional right to decide whether or not to terminate a pregnancy.

 

Yet in a number of U.S. states, exercising that right has been made increasingly difficult. In attempts to create abortion-free zones, states have been hacking away at the abortion right any way they can. The general strategy is to make abortion harder to get – harder legally, financially, emotionally and practically. Common tactics include waiting periods, mandatory ultrasounds and burdensome requirements on clinics and providers. Last week the Supreme Court struck down two such provisions in Texas on the ground that neither advanced the health of pregnant women. But among the Texas regulations still in effect is a total ban on abortion after 20 weeks. Recall that microcephaly cannot be definitively diagnosed until after 20 weeks. This means pregnant women may be timed out of legal abortion in Texas, and may not have the resources to go elsewhere.

 

Timing isn't the only legal problem. Indiana and North Dakota ban abortions sought on the basis of fetal disability, claiming that such abortions are a form of discrimination. Babies born with microcephaly will certainly be disabled.

July 11, 2016 in Abortion, Healthcare | Permalink | Comments (0)

Monday, June 27, 2016

SCOTUS Strikes Down Abortion Restrictions

The decision in Whole Woman's Health is here.  Decision by Breyer for 5 justice majority -Kennedy, Kagan, Ginsburg, and Sotomayor.  Striking down requirements of admitting procedures and hospital surgical centers.

June 27, 2016 in Abortion | Permalink | Comments (0)

Friday, May 27, 2016

Court Hears Appeal of Woman's 20-Year Conviction for Abortion

Purvi Patel Appeals in Feticide, Neglect Case

The fate of a Northern Indiana woman sentenced to serve 20 years in prison in connection with the end of her own pregnancy is now in the hands of the Indiana Court of Appeals.

 

Attorneys for Purvi Patel sought Monday to overturn her 2015 convictions of feticide and neglect of a dependent. While the state's interpretation of its feticide law has drawn national interest in the case, Monday's hearing heavily focused on the evidence used to secure Patel's convictions, including whether the prosecution sufficiently proved that the Granger woman knew her child had been born alive.

 

According to court documents, Patel sought medical help at St. Joseph Hospital in July 2013 after delivering a child at home. When pressed by doctors about her condition, Patel told them she had delivered a stillborn child and discarded the body in a dumpster.

 

Prosecutors, however, alleged at trial that Patel had ordered abortifacients online, and that her child had been born alive.

 

On Monday, Patel's attorney, Lawrence Marshall, outlined his case for appeal.

 

"The evidence in this case was not there whatsoever," Marshall said. "Not a single expert ever said — in any sort of declarative way — that yes, this infant would have survived had Ms. Patel done differently."

 

Critics of Patel’s convictions argue that the feticide charge was never intended to be used against a pregnant woman, but was instead meant to punish illegal abortion providers. Patel was the first Indiana woman to be convicted of feticide in a case like this.

 

Marshall lambasted the state's use of the feticide statute in court. He said the law has no role in criminalizing this type of abortion and never should have been applied in Patel's case.

 

Marshall also took issue with the prosecution's case for neglect, which he said it failed to make at trial. The state, he said, never asked its experts whether his client's child would have made any noise or shown any visible signs of life that would signal to Patel that the baby was not stillborn. Nor did prosecutors ever present any evidence that the baby, born several weeks prematurely, would have survived if taken to a hospital, he added.

May 27, 2016 in Abortion, Courts | Permalink | Comments (0)