Thursday, July 23, 2015
Linda Greenhouse (NYT/Yale) and Reva Siegel (Yale), Casey and the Clinic Closings: When "Protecting Health" is an Undue Burden, Yale L. J (forthcoming).
Abstract:We seek in this article to understand how the Supreme Court's abortion jurisprudence addresses laws that invoke, not potential life, but women's health as a reason to single out abortion for burdensome regulation that closes clinics. We approach this project with a sense of urgency. The current wave of health-justified restrictions — prominently including laws that require abortion providers to secure admitting privileges at nearby hospitals or to become the functional equivalents of hospitals themselves — is destroying the clinic infrastructure on which women depend in order to exercise their constitutional right to terminate a pregnancy.
There is now a sharp circuit conflict over how judges are to evaluate the states' claims that admitting privilege laws protect women's health. Some circuits read Planned Parenthood of Southeastern Pennsylvania v. Casey and the Court’s subsequent decision in Gonzales v. Carhart to require courts to examine whether health-justified regulations actually and effectively serve health-related ends. Others construe the cases to require judicial deference to the states' claims. We argue that Casey/Carhart require judicial scrutiny of health-justified regulations to ensure these regulations do not obstruct abortion by unconstitutional means.
The analysis of health-justified restrictions we offer rests on an understanding of Casey's undue burden standard — reaffirmed in Carhart — as the product of a compromise over Roe v. Wade. While prohibiting states from banning abortion before fetal viability, Casey allowed government to express a preference for childbirth throughout a woman's pregnancy by trying to persuade her, through a 24-hour waiting period and the provision of information, to forego abortion. Persuasion is the heart of the Casey compromise: government may protect potential life, but not in ways that obstruct women from acting on their constitutionally protected choice.
Regulations that close clinics in the name of women's health, but without health-related justification, do not persuade; they prevent. In so doing, they violate the constitutional principle at the core of the Casey compromise: that government express respect for the dignity of human life by means that respect the dignity of women.
Tuesday, July 14, 2015
Following up on my prior post What Does the Same-Sex Marriage Case and its "Right to Individual Autonomy" Mean for Abortion Rights, suggesting that some of Kennedy's language of autonomy and personal choice might apply to protect abortion rights, here is a view that the SSM decision is not useful to abortion rights.
I find myself increasingly disappointed in Kennedy’s articulation of the right to same-sex marriage. Not because I don’t appreciate the way he discussed marriage as a fundamental right crucial to the dignity of gay and lesbian individuals, but because he doesn’t locate a woman’s right to reproductive autonomy in that same sphere of dignity. ***
When it comes to women reserving dignity for themselves—the dignity to make the most personal choice—whether or not to have children—Kennedy has devolved into patriarchal notions about women’s frailty and inconstancy, with language steeped in stereotypes and gender-normative claptrap.
However useful Kennedy finds it for expanding constitutional protections for certain rights, dignity is a gendered double-edged sword. It’s great for men and it has turned out to be great for same-sex couples who want to get married. But dignity as a concept is worthless when it comes to reproductive rights.
In her article, “Aborting Dignity: The Abortion Doctrine After Gonzales v. Carhart,” Victoria Baranetsky examined the limitations of dignity as a useful constitutional principle, and describes its dual meaning. She wrote, “Dignity has two radically different meanings: femininesocial obligation and masculine autonomy.” (Emphases in original.)
Tuesday, July 7, 2015
Buried among the Supreme Court's orders on Monday was a decision to vacate a Fourth Circuit ruling requiring North Carolina to make pro-choice license plates. Before that ruling, North Carolina made anti-abortion license plates—but refused to make any plates supporting abortion rights. The Fourth Circuit held that its rejection of pro-choice plates violated the First Amendment, and ordered the state to make plates reflecting both sides of the debate.
But then, in mid-June, the Supreme Court ruled, by a 5-4 vote, that Texas could ban Confederate flags on its license plates. License plate designs, the court held, constituted "government speech," not private speech. Thus, states may refuse to make a proposed plate—purely on ideological grounds—without violating the freedom of speech. As I noted then, the decision, called Walker v. Sons of Confederate Veterans, seemed destined to have ramifications in the abortion debate. Some states (like New York) permit only pro-choice plates. Some states (like North Carolina) permit only anti-abortion plates. The justices' decision in Walker, I suggested, implicity condoned this blatant censorship.
On Monday, the court proved me right. By vacating the Fourth Circuit's pro-speech ruling and directing it to reconsider the case in light of Walker, the justices all but ordered Fourth Circuit to reverse itself and allow the state's censorship. Despite its rejection of a Confederate flag plate, Walker was not a victory for civility or tolerance. It was an invitation for states to engage in the suppression of expression
Saturday, July 4, 2015
Though it may have generated the most buzz, Governor Cuomo’s new sexual assault bill was not the only legislative gain for New York women’s rights to come out of this year’s session in Albany. Capital New York points out that New York lawmakers also passed nine out of ten bills in the Women’s Equality Act — a significant advance for gender equality in the state, and, strangely, one that no one seems to be talking about.
Cuomo first introduced the package back in January 2013, and after failing to pass it, made it a keystone of his 2014 re-election campaign. The 10-point legislative plan is impressive in scope: It includes strengthening equal pay laws, outlawing discrimination against parents and pregnant women in the workplace, increasing protections for victims of domestic violence, strengthening laws against human trafficking, and safeguarding reproductive health by codifying Roe v. Wade into New York State law.
It’s this last component of the bill — the abortion plank — which proved to be a sticking point with Senate republicans. Supporters point out that the existing New York abortion law, which decriminalized the procedure, dates back to 1970 — three years before the Supreme Court decision on Roe v. Wade. Most important, the current law does not protect the woman’s health if serious complications develop late in pregnancy; legally, the woman is only protected if her life is deemed to be in danger.
The proposed abortion bill included in the Women’s Equality Act would ensure that women can get an abortion up to 24 weeks into their pregnancy, or when necessary to protect their life or health, and would also protect physicians who offer abortions within the scope of their practice from being criminally prosecuted. Though Cuomo asserted that the language of the bill “in no way expands abortion rights but only codifies federal law,” he ultimately agreed to drop the provision from the Women’s Equality Act in the face of opposition this March.
Without the abortion bill, the other nine measures of the act passed through the assembly with little opposition. While there are still plenty of other legal measures that would help advance gender equality — paid family leave and raising the minimum wage, to start — we shouldn’t ignore these significant legislative gains.
Tuesday, June 30, 2015
A federal district court today dismissed a lawsuit filed by the American Civil Liberties Union and the ACLU of Michigan on behalf of a pregnant woman who was denied appropriate medical treatment because of the hospital’s religious directives.
In terminating the lawsuit brought by Muskegon resident Tamesha Means against the U.S. Conference of Catholic Bishops, the U.S. District Court for the Western District of Michigan said it was doing so, in part, because resolution of the case would involve reviewing religious doctrine. ***
In 2010, Ms. Means rushed to Mercy Health Partners when her water broke after only 18 weeks of pregnancy. The hospital, which was the only one in Muskegon County, sent her home twice even though she was in excruciating pain. Because of its Catholic affiliation and binding directives, the hospital told Ms. Means that there was nothing it could do, and it did not tell Ms. Means that terminating her pregnancy was an option and the safest course for her condition.
When Ms. Means returned to the hospital in extreme distress and with an infection, the hospital prepared to send her home for a third time. While staff prepared her discharge paperwork, she began to deliver. Only then did the hospital begin tending to Ms. Means’ miscarriage.
Saturday, June 27, 2015
What does the Same-Sex Marriage Case and its "Right to Individual Autonomy" Mean for Abortion Rights?
The Court's decision in Obergefell v. Hodges contains some interesting language about personal choice that arguably could be relevant in abortion cases. Kennedy very carefully describes the fundamental right as one of personal choice and autonomy.
- "In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs." Obergefell, 10.
- "A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. Obergefell, 12.
- "There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”). Obergefell, 13.
- The opinion relies on the birth control cases of Eisenstadt, Griswold, and Poe, and the maternity rights of LaFleur.
- And Justice Roberts in dissent rejects "this freewheeling notion of individual autonomy."
Tuesday, June 16, 2015
Yesterday, the Supreme Court denied cert in Walker-McGill v. Stuart thus upholding the 4th Circuit's decision that the mandatory abortion ultrasound law violates the provider's First Amendment rights.
On the 4th Cir. decision: Natl L. J, NC Abortion Ultrasound Rule Violates First Amendment, Court Says
Caroline Corbin's (Miami) article Compelled Disclosures, 65 Alabama L.Rev. 1277 (2014) concluding that mandatory ultrasound disclosures violate the provider's free speech rights.
There is now a circuit split, with the 5th and 8th Circuits upholding the ultrasound laws, and the 4th striking it down.
Tuesday, May 19, 2015
Rona Kaufman Kitchen (Duquesne), Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother, 26 Hastings Women's L.J. (2015).
From the abstract:
In its zealous effort to protect the lives and health of unborn children, the law frequently views the expecting mother with suspicion. In its most extreme form, the law regards the potential mother as a potential murderess. This perspective does not reflect the nature of pregnancy, it undermines the autonomy of loving mothers, and it is detrimental to children. Regardless of whether there is any conflict between mother and fetus, the State presumes the mother to be a threat to her fetus and subjugates her rights as a result. The State interferes with the mother’s autonomy, bodily integrity, parental rights, and physical freedom. This overreach of authority has disastrous consequences for mothers, children, and families. This article proposes a reconceptualization of pregnancy that reflects maternal and scientific understandings of pregnancy. Further, it offers a path toward recognition of the pregnant woman as an expecting mother.
Saturday, May 9, 2015
Pleased to announce that my article, Back to the Future of Regulating Abortion in the First Term, 29 Wisconsin J. Law, Gender & Soc'y 47 (2014), received the annual award for best faculty scholarship granted by the Alumni Association.
The article tracks the backstory of the U.S. Supreme Court decisions in Akron v. Akron Center for Reproductive Health and Ohio v. Akron Center for Reproductive Health. It draws 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.
Thursday, April 23, 2015
Before the passage of the Affordable Care Act (ACA), Geneva College, which is associated with the Reformed Presbyterian Church of North America, regularly notified its insurance carrier that it would not provide coverage for four contraceptives that it deemed to be abortifacients, namely, emergency contraceptives Plan B and ella and two intrauterine devices. Similarly, the Roman Catholic Bishops and Dioceses of Pittsburgh and Erie, Pennsylvania, along with their affiliated nonprofit organizations Catholic Charities, Prince of Peace Center, St. Martin Center, and Erie Catholic Cathedral Preparatory School, regularly notified their insurance carriers that they would not provide any contraceptive insurance. Geneva College administrators believe some contraceptives cause abortion and abortion is immoral; Catholic officials believe all contraception is immoral.
After the passage of the ACA, Geneva College is required to tell either its insurance company or the Department of Health and Human Services (HHS) that it will not provide coverage for four contraceptives that it deems to be abortifacients, namely, emergency contraceptives Plan B and ella and two intrauterine devices. Similarly, the Roman Catholic organizations are required to tell either their insurance companies or HHS that they will not provide contraceptive coverage to their employees.
Post-ACA, however, the religious organizations argue that filling out a simple notification form, just as they did in the past, substantially burdens their religion in violation of the Religious Freedom Restoration Act (RFRA). They argue that filling out a form makes them “complicit” in the sins of abortion and contraception because their signatures immorally “trigger” abortion and contraception.
Four courts of appeals—the Sixth, Seventh, D.C., and, most recently, the Third Circuits, in Geneva College v. Burwell— rejected that argument. The “trigger” to insurance coverage, those courts concluded, is the ACA itself, which legally requires contraceptive access for employees. Thus there is no “causal link” or trigger between the notification forms and contraception. Without a trigger, there is no substantial burden on religion, because women’s independent access to contraception is not a substantial burden on the religious organizations’ religious exercise. As the Third Circuit shrewdly observed:
The appellees’ real objection is to what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the appellees give notice of their objection.
The court then refused to give the religious organizations a veto over women’s rights on such non-substantial ground.
There things stood until Justice Samuel Alito shot down women’s rights last week by staying the Third Circuit’s opinion for the Catholic plaintiffs. Geneva College has asked the Court for a similar stay.
Saturday, April 11, 2015
April Shaw (Arizona), How Race-Selective and Sex-Selective Bans on Abortion Expose the Color-Coded Dimensions of the Right to Abortion and Deficiencies in Constitutional Protections for Women of Color, NY Review of Law & Social Change (forthcoming)
The Supreme Court’s framework on the right to abortion as articulated in Roe v. Wade and Planned Parenthood v. Casey fails to take into account how race impacts women’s access to abortion. I argue that the race “neutral” framework of Casey’s undue burden test simultaneously erases the racial context of abortion and imposes a conceptual blind spot on how race is used to place a greater burden on women of color relative to white women. Specifically, States are using race to burden women’s access to abortion, but because the right to abortion does not explicitly take race into account, race is not used to measure whether regulations pose a heavier burden on certain groups of women. Applying race as a conceptual lens of analysis is not about inserting race into the legal framework, it is about showing how the current legal framework obscures the impact of race and almost inevitably perpetuates racial stereotypes, disproportionate burdens, and racial inequalities so as to systematically ensure that the right to an abortion as a fundamental right is less secure for women of color.
Thursday, April 2, 2015
For excellent coverage of the case, see Emily Bazelon, NYT, Purvi Patel Could be Just the Beginning
Patel’s case stands out, for the draconian length of the sentence she received, and for the disturbing image of a baby left in a Dumpster. But it is also part of a pattern. “This case shows how easy it is to sweep up women who’ve had miscarriages and stillbirths into a criminal justice framework,” Paltrow told me. For her, the key question is how to ensure that fewer women become as desperate as Patel must have been about her pregnancy. “Do you think these cases will be less rare if you terrify people and make them criminals?” she said.
Purvi Patel was sentenced Monday to 41 years in prison on charges of feticide and felony neglect of a dependent after an Indiana jury in early February found her guilty of the charges. She was ordered to serve 20 years in prison after receiving a 30-year sentence on the felony neglect charge, with an additional ten years suspended.***
Patel in July 2013 went to a hospital emergency room suffering from heavy vaginal bleeding. She denied that she had been pregnant, but eventually told doctors that she had miscarried and placed the stillborn fetus in a bag and placed the bag in a dumpster.
Police questioned Patel without a lawyer present while she was in the hospital. Police also searched the text messages in Patel’s phone, which prosecutors claim revealed that she had communicated to a friend that she was pregnant and had purchased drugs online to terminate the pregnancy. Patel, who is Indian-American, lived in a conservative Hindu household in which it was expected that she would not engage in premarital sex, and wanted to keep the pregnancy a secret from her parents.
In order to support the contradictory charges of feticide and felony neglect of a dependent, the state was required to prove that Patel both “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus,” and that she neglected a dependent.
A charge of feticide requires a dead fetus, while a charge of neglect of a dependent requires a live birth.
Alyson M. Zureick, "(En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman or Degrading Treatment," 38 Fordham Int'l L. J. 1 (2015)
From the abstract:
The regulation of abortion has long been considered a prerogative of the state. In recent years, however, international human rights bodies have begun to consider the conformity of domestic abortion regulations with a state’s human rights obligations. This paper examines a notable trend among human rights bodies: namely, finding that denying or obstructing a woman’s access to abortion can amount to cruel, inhuman, or degrading treatment under multiple human rights treaties. First, human rights bodies have found that states can be responsible for CIDT inflicted on women who are harassed and denied services that are legally available to them under the state’s laws. Second, human rights bodies have found that the application of restrictive abortion laws themselves may inflict CIDT by depriving women of an abortion in particularly serious cases, such as rape or when the woman’s life is threatened. I argue that these findings reflect an understanding that certain restrictions on abortion — or the state’s failure to act to prevent de facto restrictions from arising — are unjustifiable and disproportionate to lawful state aims. They also demonstrate a limited but important recognition that deprivations of autonomy in the reproductive rights context can lead to the kind of pain and suffering that is unacceptable in modern societies. At the same time, I argue that human rights bodies should further strengthen their understanding of women’s autonomy interests in this context, particularly the ways in which the frustration of their reproductive autonomy can inflict severe and unacceptable pain or suffering tantamount to CIDT.
Wednesday, March 25, 2015
LINCOLN, Neb. (AP) — The biological fathers of children conceived through a sexual assault would lose their parental rights under a proposal reviewed by Nebraska lawmakers.
Sen. Tommy Garrett of Bellevue presented the proposal to the Judiciary Committee on Wednesday. Garrett says women who are sexually assaulted often feel pressure to terminate their pregnancy or put the child up for adoption to keep their assailant out of their lives.
Garrett says 29 other states have passed laws to end fathers' parental rights in rape cases. Supporters of the bill say 25,000 to 32,000 pregnancies occur because of rapes each year.
Garrett says the bill allows fathers to reclaim parental rights if their convictions are overturned. He says the bill still needs some work, but creates important protections for women.
The bill is LB358
Tuesday, March 17, 2015
“I had hoped to turn to her next week, but if we can’t finish the trafficking bill, she will be put off again,” saidmajority leader Mitch McConnell on CNN on the delay in Lynch’s confirmation. This delay is the latest in a series of interruptions in the more than four months since Lynch’s nomination, who would make history as the first black woman to serve as the Attorney General.
The trafficking bill in question is the Justice for Victims of Trafficking Act, sponsored by Republican Senator John Cornyn (R-TX). The bipartisan bill had been expected to pass smoothly through Congress, until Democratic party noticed a small provision of the bill that would effectively strengthen the Hyde Amendment, which bans spending federal dollars on abortion.
“This bill will not be used as an opportunity for Republicans to double down on their efforts to restrict a woman’s health-care choices,” said Sen. Patty Murray (D-WA). “It is absolutely wrong and, honestly, it is shameful. I know there are a whole lot of us who are going to fight hard against any attempt to expand the Hyde Amendment and permanently impact women’s health.”
Democrats are hopeful that the trafficking bill can be settled and passed quickly, so long as there is Republican support to remove the language limiting abortion access.
“We can finish this bill in 20 minutes,” said Democratic leader Senator Harry Reid. “The only thing that needs to be done is the language relating to abortion should come out of this bill. Abortion and human trafficking have nothing to do with each other.”
Monday, March 16, 2015
Prosecutors have been accused of leaving the door “wide open” for gender abortion in Britain after blocking an attempt to bring charges against two doctors accused of agreeing terminations based on the sex of unborn baby girls.
Dr Prabha Sivaraman and Dr Palaniappan Rajmohan were facing the first ever private prosecution on gender abortion charges after being filmed apparently agreeing to arrange terminations because of the gender of the foetus in an undercover Telegraph investigation in 2012.
The pair had been summoned to courts in Manchester and Birmingham to answer allegations laid by Aisling Hubert, a pro-life campaigner from Brighton, and supported by the Christian Legal Centre, in what would have been a landmark prosecution.
But the CPS has announced that it is to use its powers to quash the case.
It said that, although there is potentially enough evidence to bring a successful prosecution, it had concluded it would not be in the “public interest” to pursue the case.
Saturday, March 14, 2015
Ohio may not have gotten the national attention of say, Texas, but a steady stream of abortion restrictions over the past four years has helped close nearly half the state's clinics that perform the procedure.
Tuesday, February 17, 2015
U.S. Supreme Court Justice Ruth Bader Ginsburg told MSNBC she does not expect the high court to overturn Roe v. Wade, the 1973 ruling that declared a woman’s right to abortions.
“I don’t want to make any predictions,” Ginsburg told MSNBC reporter Irin Carmon in an interview that aired Monday night. “But precedent is important in this court.”
Ginsburg said overturning Roe “could happen, but I think it’s not a likely scenario.” She pointed to the 1992 Planned Parenthood v. Casey decision as the main precedent that is likely to rescue Roe from reversal.
Saturday, February 14, 2015
Reva Siegel offers an excellent, concise and insightful analysis in Abortion and the "Woman Question": Forty Years of Debate, 89 Indiana L. J. 1365 (2014)
This lecture commemorates Roe’s fortieth anniversary by reconstructing how the woman question became entangled in the abortion debate in the twentieth century. The abortion debate is commonly thought to concern the question of when life begins. But the question of when life begins is not the only question that makes the abortion debate explosive. I will show how the entrance of women’s rights claims into the abortion debate fatefully changed it, and led opponents of abortion to engage the woman question in terms that have changed shape over the last several decades, from the frames of “pro-family” to the more contemporary discourse associated with claims that “abortion hurts women.” Tracing the four-decade arc of this conversation allows us to see more clearly the many forms in which the “woman question” can be expressed in cases that will reach the Roberts Court in the coming decade.
Thursday, January 22, 2015
House Republican leaders abruptly dropped plans late Wednesday to vote on an anti-abortion bill amid a revolt by female GOP lawmakers concerned that the legislation's restrictive language would once again spoil the party's chances of broadening its appeal to women and younger voters.
In recent days, as many as two dozen Republicans had raised concerns with the "Pain Capable Unborn Child Protection Act" that would ban abortions after the 20th week of a pregnancy. Sponsors said that exceptions would be allowed for a woman who is raped, but she could only get the abortion after reporting the rape to law enforcement.
A vote had been scheduled for Thursday to coincide with the annual March for Life, a gathering that brings hundreds of thousands of anti-abortion activists to Washington to mark the anniversary of the Supreme Court's 1973 Roe v. Wade decision that legalized abortion.
But Republican leaders dropped those plans after failing to win over a bloc of lawmakers, led by Reps. Rene Ellmers (R-N.C.) and Jackie Walorski (R-Ind.), who had raised concerns.