Tuesday, November 25, 2014
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.
Thursday, October 30, 2014
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.
Thursday, October 23, 2014
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.
Tuesday, October 14, 2014
Thus reads the article title from the NYT's on Tuesday. The story:
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.
Tuesday, September 23, 2014
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.”
Thursday, July 17, 2014
Democrats in the Senate on Tuesday took a major step in pushing back against the growing trend of regulations that are designed to shut down safe abortion clinics. The Senate Judiciary Committee is hearing testimony on a bill introduced by Sens. Richard Blumenthal and Tammy Baldwin, a bill that would do significant damage to anti-choice efforts to go around Roe v. Wade by regulating abortion clinics out of existence. It's called the Women's Health Protection Act, and it would end the attacks on abortion clinics through one simple measure: requiring states to regulate abortion providers in exactly the same way they do other clinics and doctors who provide comparable services. No more singling out abortion providers.
The bill goes into detail about the specific abortion-only regulations that would not be allowed, but the general principle is that if you don't require it for other outpatient procedures, you can't require it for abortion. Want to force women seeking abortion to listen to a script full of lies and then make them wait 24 or 48 hours to think it over? Better be prepared to do the same for people who need colonoscopies. Want to require a bunch of unnecessary visits before a woman is allowed to have a procedure? Now you need to do that for a biopsy, too. Want to force abortion clinics to meet ambulatory surgical center standards and abortion providers to have hospital admitting privileges? Well, dentists will have to meet the same standards before they can drill a tooth. If this bill passes (more on that below), states would be forced to let abortion providers operate in peace or make everyone else—including, gasp, men—endure the same kind of hassles and mistreatment women seeking abortion now have to endure in much of the country.
Saturday, July 12, 2014
From the Reproductive Rights Blog, Senate Judiciary Committee to Hold Hearing on Women's Health Care Protection Act
The Senate Judiciary Committee will hold a hearing on S.1696, The Women’s Health Protection Act: Removing Barriers to Constitutionally Protected Reproductive Rights on July 15. The hearing will be live streamed on the Committee's website.
Via the Center for Reproductive Rights:
The Women's Health Protection Act would prohibit laws and regulations that single out the provision of abortion services for restrictions that are more burdensome than those imposed on medically comparable procedures, do not significantly advance women's health or the safety of abortion services, and make abortion services more difficult to access. The bill currently has 34 co-sponsors in the Senate and 121 in the House. It includes a list of regulations that are per se violations, which you can read here. . . .
Thursday, July 10, 2014
Yes, still more on Hobby Lobby. For women, this is a game-changing decision with both significant legal and practical consequences. It's not going to go away quietly.
Congress takes action. NYT, Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives
Saturday, June 28, 2014
The US Supreme Court has issued three decisions on abortion buffer zones:
McCullen v. Coakley 573 US ___(Roberts, J.) (2014) unanimous court strikes down MA abortion buffer zone
Hill v. Colorado, 530 US 703 (2000) (Stevens, J.) 6-3 upholds CO abortion buffer zone law
Madsen v. Women’s Health Center, 512 US 753 (1994) (Rehnquist J.) upholds FLA abortion buffer zone
As legislators consider other possible options, it might be helpful to compare and contrast the factual differences:
1. Distance: 100 ft (8 ft. no approach person) Hill / 35 ft McCullen / 36 ft. Madsen
2. Place: Health care facility Hill v. Reproductive health care facility McCullen v. clinic Madsen
3. Legislature v. Judiciary: Injunction (Madsen) v. Statute (Hill & McCullen)
4. Prophylactic: imposing additional safeguards to prevent future violations of law (All)
5. Prior illegal conduct: Madsen & Hill. Not McCullen.
6. The most empathetic party:
Hill: "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases."
Madsen: The patients and employees subjected to assaults and intimidation, and also the political speech rights of the protestors
McCullen: The caring, godly, helpful counselor.
7. Content neutral: All
8. Where: Public place or sidewalk McCullen v. Public way or sidewalk area Hill v. public right-of-way Madsen
9. “Sidewalk counseling”: Offensive speech Hill v. personal, caring, consensual conversation McCullen
10. Less restrictive alternatives tried: None. McCullen v. Prior statute Hill v. narrower injunction Madsen.
Thursday, June 26, 2014
In today’s other decision, McCullen v. Coakley, all nine justices concluded that Massachusetts’ abortion clinic buffer zone law violated the First Amendment. So here we have yet another opinion unanimous in the judgment. That makes 48 out of 71 decisions thus far this term, or 67.6 percent.
Writing for the Court, the Chief Justice concludes that the statute was content-neutral, and thus avoids strict scrutiny, but is not narrowly tailored because it burdens more speech than is necessary to advance the government’s interests in ensuring clinic access and public safety. Four justices (Scalia, Thomas, Kennedy, and Alito) concurred in the judgment would have gone further. The opinion is here.
I previously blogged about the case here.. Some observations on today's option:
1. It did seem to matter to the Court that this was legislation rather than a remedy. The opinion notes that the government did not seek "one single prosecution or injunction." Thus suggesting, as the Court has previously held in Madsen v. Women's Health Center (1994), that prophylactic injunctions to remedy particular instances of abortion protesting problems are ok.
2. The Court calls the protestors' speech "personal, caring, consensual conversation" that is just trying to "help" the women. How is intimidating, harassing, inflammatory, confrontational personal assault caring and helpful? The patients and employees might call these "fighting words." Such a characterization perpetuates the paternalistic and protectionist rhetoric of the Gonzales v. Carhart (2007) abortion decision to help women too emotionally fragile and incompetent to exercise their own autonomy. What was Ginsberg thinking in signing on to this opinion?
Tuesday, June 24, 2014
Samuel Wolfe Calhoun (Washington & Lee), has posted Justice Lewis F. Powell's Baffling Vote in Roe v. Wade, 71 W&L Law Rev. 925 (2014):
This article explores Justice Powell’s vote with the majority in Roe v. Wade. The piece builds upon the unissued 1970 abortion opinion of Judge Henry J. Friendly, who, although personally pro-choice, concluded that the Fourteenth Amendment does not require abortion freedom. The article also presents research from the Powell Archives at Washington and Lee University School of Law. On its face, Powell’s Roe vote is perplexing due to its inconsistency with his stated philosophy of judicial restraint.
Calhoun quickly dismisses what seems to me to be the most pursuasive explanation: that Powell voted based on his own personal experience. As I noted in my recent article, Back to the Future of Regulating Abortion Rights in the First Term , 29 Wis. J. L, Gender & Soc'y 47, 70 (2014), that's how Powell himself explained it.
When the conservative Justice Powell was later asked why he supported abortion, he answered based on personal experience rather than constitutional theory. Linda Greenhouse, Lewis Powell, Crucial Centrist Justice, Dies at 90, N.Y. TIMES, Aug. 26, 1998, at A1; David Westin, Eulogy: Lewis Powell, TIME, Sept. 7, 1998. He told the story of a young, black messenger at his old law firm in Richmond, Virginia who was terrified that he would be arrested for the death of his girlfriend, for whom he had helped get an illegal abortion from a “back-alley butcher.” Greenhouse, supra. Powell helped negotiate with the city prosecutor and no charges were ever brought. Id. Powell gained an appreciation for the practical implications of the legal issue of abortion and its impact of people of different races and economic class. Id.
This is familiar as a basic precept of feminist legal theory--that realities and personal experiences do matter to the interpretation of law. And reminds me of the conclusion of a recent study that conservative judges vote for women's rights in discrimination cases when they have a daughter.
Tuesday, June 17, 2014
Yesterday, the Supreme Court in Susan B. Anthony List v. Driehaus unanimously allowed a pro-life group to challenge a state election law prohibiting lies in election speech. An analysis of the opinion is here: SCOTUS Opinion Analysis
Tuesday, April 29, 2014
I have just published Back to the Future of Regulating Abortion in the First Term, 29 Wisconsin J. Law, Gender & Soc'y 47 (2014). In this work, I draw on original research of oral histories and recovered documents to explore the historical and legal context that spawned informed consent laws so early after Roe v. Wade seemingly resolved the legal question over abortion.
From the abstract:
This article contextualizes the recent aggressive anti-abortion legislation by examining the backstory and historical context of two early U.S. Supreme Court cases challenging abortion regulation in the first term: City of Akron v. Akron Center for Reproductive Health, and Ohio v. Akron Center for Reproductive Health . Little has been written about these foundational cases. Yet at the time of the first Akron case, the Supreme Court’s decision was “celebrated as the most far-reaching victory on reproductive rights since Roe v. Wade.” Now the arguments, strategies, and motivations of the Akron cases have renewed relevance, as first-term regulations are fast tracked through the judicial system and placed at the center of the ongoing debate over abortion. ***
This legal history offers insights and analyses gleaned from a review of the historical record found in archives and long-forgotten files in dusty basements. It relies on interviews with key players in the cases to fill in the story between the black and white lines of judicial opinions.Revisiting the legal and factual details of the foundational cases of first-term abortion regulation offers a more nuanced understanding of the opposition to abortion and the unsatisfactory nature of the judicial compromises.
Friday, April 18, 2014
Beth Burkstrand-Reid (Nebraska) joins us as guest blogger this month. Her research focuses on reproductive rights and women's health, specifically abortion, birth control and pregnancy-related law. She is the recipient of the 2014 Award for Outstanding Contribution to the Status of Women, presented by the UNL Chancellor and the Chancellor's Commission on the Status of Women . Prior to her legal career, Professor Burkstrand-Reid was a journalist, with her writing appearing in The New York Times, The Washington Post and The Wall Street Journal. She's on Twitter @beth_burkstrand.
Former first-daughter Chelsea Clinton announced yesterday that she is pregnant, news that was used by some as an opportunity to talk about abortion. (Yes, abortion).
It seems that Chelsea's use of the word "child" when making her announcement struck a nerve:
Abortion supporter Chelsea Clinton announced today that she’s pregnant — not with a fetus or clump of cells but with a "child." This is the same Chelsea Clinton who lamented last year that her grandmother didn’t have access to Planned Parenthood." Clinton’s news was greeted with similar responses on Twitter.
The announcement also spawned speculation over whether impending grandmotherhood spells the end of Hillary Clinton’s presidential aspirations:
Others have noted that Hillary Clinton has seemed more cheerful and relaxed in recent appearances, fueling theories that there was good news in her life. With continued speculation around the former first lady’s plans for the 2016 presidential race, where she is the presumed frontrunner for the Democratic nomination, some have wondered whether a grandchild might make Clinton less likely to enter the fray.
“Some” have also wondered if that issue would ever have been raised if it was a grandfather-to-be mulling the race.
Thursday, April 17, 2014
Next week the US Supreme Court hears argument in Susan B. Anthony List v. Driehaus. The case involves an election campaign attack ad by the anti-abortion group, Susan B. Anthony List, which arranged to post a billboard sign against then-Congressional representative Steve Driehaus to read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” The claim was based very loosely on Driehaus's vote for Obamacare, even though that federal healthcare law prohibits taxpayer funding of abortion. But never mind the facts.
Ohio has a truth-in-election law that prohibits false statements in a campaign. Ohio Rev. Code § 3517.21 (eff. 1995). The election comission sided with Driehaus. Much of the case now before the Supreme Court is procedural. The state of Ohio"borked" by filing dualing briefs, it's required brief in defense of the law and also an amicus brief challenging it on First Amendment grounds.
So is this case really about a First Amendment right to lie? Even the petitioner's name is a lie, since nineteenth-century feminist Susan B. Anthony did not advocate anti-abortion positions, or really say much about abortion at all, as I and other scholars have explained. Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle Law Rev. 1, 15 (2012); Ann Gordon & Lynn Sherr, Sarah Palin is No Susan B. Anthony, Wash. Post Blog, May 21, 2010.
Tuesday, March 18, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.
Whom are we studying when we study the history of gender and the law? Some answers to this question seem obvious. We study pioneers like Elizabeth Cady Stanton and Alice Paul. We celebrate the accomplishments of thinkers like Ruth Bader Ginsburg and Catharine MacKinnon. In researching my book, I often found the answer to this question much less clear-cut. In contemporary politics, the identities of the pro-choice and pro-life movements seem stable and straightforward. In the immediate aftermath of the Roe decision, things were far less simple. An influential committee in the ACLU worked to identify fetal rights compatible with reproductive liberty for women. Feminists viewed issues like fetal tissue research with ambivalence. Influential antiabortion activists fought for federal legislation banning pregnancy discrimination. Indeed, some pro-lifers argued for what they saw as women’s right to choose, claiming that women did not enjoy true reproductive freedom unless the State protected them against both pregnancy discrimination and the perils of poverty.
A rapidly shifting gender politics forced many of these lawyers and grassroots activists to make painful choices. The mobilization of the New Right and Religious Right, the focus of abortion-rights activists on electoral politics, and the realignment of both political parties helped to create the “pro-choice” and “pro-life” categories we now know. So too did difficult and hotly debated strategy decisions made by members of each opposing movement. For many, the creation of contemporary abortion politics was a painful change, forcing women to choose between two identities when neither accurately reflected their fundamental beliefs about gender or sex discrimination.
Part of the task for historians of women and the law is to remain open to the stories of those who don’t always come to mind when we think about feminist legal history. These stories may not change our politics or our views of the relationship between gender and the law today. Just the same, these stories powerfully illustrate why gender matters and how gender changes. They remind us how entrenched political and legal realities once seemed—and may once again seem—far from inevitable
Thursday, March 13, 2014
New Jersey Judge Rules Women Can Keep Fathers Out of the Delivery Room, or at least non-marital fathers.
A New Jersey judge likely made history this week when he released an opinion that found women can keep the biological father of their children out of the delivery room.
The case was argued by telephone — while the New Jersey woman was in the hospital to give birth.
The judge ruled that requiring the father's presence would pose 'unwarranted strain' on the mother.
He cited a patient's right to privacy and a pregnant woman's right to control her body. The ruling says women also are not obligated to inform a father when they're going into labor. Some fathers' rights groups say the decision is discriminatory. The New Jersey ruling applies only to biological fathers not married to the mother.
Across the U.S., more than 40 percent of births are outside marriage.
Tuesday, March 11, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care. Her post last week introduced her topic of exploring feminist legal history.
What do we mean when we talk about feminism? My book project has forced me to reconsider how I would answer this question. My scholarship fits comfortably within any classic definition of feminist legal history: I focus on the intersection of law and history in the context of reproductive health, divorce, marriage, and abortion. I consider myself a feminist and a historian. I brought these understandings of myself and my work to the book and the question at its core: how did Roe v. Wade impact social-movement debate and what can the history of the decision teach us about law as a tool for social change, in the context of gender relations more broadly? Research for the project took me to over seventeen archives, to the basement of convents, and the offices of anti-feminists. The most fun came in the oral histories I conducted with over 100 of those who participated in the abortion wars in the decade after Roe. I spoke with men and women, doctors and homemakers, lawyers and activists, abortion opponents and population controllers, and feminists of every stripe. What I learned made me wonder what it meant to be “pro-choice” or “pro-life.” As importantly, the research made me question who should count as a proper object of study for women’s legal history.
At the beginning of my research, I had treated pro-choice activism as synonymous with the women’s movement—unquestionably a core subject for feminist legal historians. I learned that the relationship between women’s rights and the legalization of abortion was much more contested than I had predicted. Identifying a cause with women’s rights had profound ideological and strategic ramifications. Physicians, population controllers, and even feminists wondered if embracing the rhetoric of women’s rights would set back the progress of abortion reform.
Law also played a surprising and unanticipated role in the creation of the abortion-rights cause. On the one hand, feminists could use the Roe decision in arguing that their movement should frame abortion as an issue of women’s rights. The Supreme Court’s approval made the idea of abortion as a woman’s right more legitimate, more mainstream, and more politically palatable. On the other hand, feminists’ wish to preserve that victory created damaging internal debates about the proper scope of a reproductive-justice agenda, about protections against sterilization abuse, and about what counted as true reproductive liberty.
I wonder how often causes and social movements we identify as feminist have a more troubled history. Did different legal movements once count as feminist? Might social causes associated with feminism today once have had a radically different meaning, both legally and politically? It is questions like these that make Women’s History Month more exciting than ever for feminist legal historians.
Friday, February 28, 2014
Saturday, February 8, 2014
The Women’s Equality Act codifies Roe v. Wade, ensuring that a woman can get an abortion within 24 weeks of pregnancy, and protects providers from prosecution. It also closes loopholes in equal pay laws, extends protections against sexual harassment to all workplaces, allows the recovery of attorney fees in harassment cases, ends employment discrimination based on whether a woman has children or is pregnant, stops housing discrimination toward victims of domestic violence, and strengthens order of protection laws and human trafficking laws in the state.