Tuesday, February 17, 2015

Ginsburg Says Overturning Roe "Not a Likely Scenario"

Ginsburg Doubts Roe v. Wade will be Overturned

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

 

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

 

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

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

Saturday, February 14, 2015

How Women's Rights Changed the Abortion Debate

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

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

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

Thursday, January 22, 2015

Female GOP Legislators Get Abortion Bill Dropped

WaPo, Abortion Bill Dropped Amid Concerns of Female GOP Lawmakers

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

Thursday, January 8, 2015

Legal Scholar Argues Technology May Moot Right to Abortion

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

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

 

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

 

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

Professor Giles explains further in his abstract to the article:

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

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

Legal Scholar Argues Technology May Moot Right to Abortion

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

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

 

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

 

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

Professor Giles explains further in his abstract to the article:

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

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

Thursday, December 11, 2014

Study Shows Gender Bias in Student Evaluations of Professors

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

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

 

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

 

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

 

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

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

 

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

Tuesday, November 25, 2014

The Constitutional Right (Not) to Procreate

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

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

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

Thursday, October 30, 2014

ND SCT Strikes Down Medicated Abortion Law Despite Finding it Unconstitutional

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

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

***

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

 

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

 

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

 

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

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

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

Thursday, October 23, 2014

More on Elizabeth Cady Stanton and Abortion

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

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

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

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

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

Tuesday, October 14, 2014

"Supreme Court Allows Texas Abortion Clinics to Stay Open"

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

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

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

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

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

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

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

Tuesday, September 23, 2014

Mother Jailed for Buying Abortion Pill for Teenage Daughter on Internet

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

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

 

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

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

Thursday, July 17, 2014

Federal Legislation Proposes to Regulate Abortion Clinics Like All Other Health Clinics

Women's Health Protection Act: A Brilliant Bill to Protect Abortion Rights

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. 

 

July 17, 2014 in Abortion, Reproductive Rights | Permalink | Comments (0)

Saturday, July 12, 2014

The Women's Health Care Protection Act

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. . . .

July 12, 2014 in Abortion, Reproductive Rights | Permalink | Comments (0)

Thursday, July 10, 2014

More Hobby Lobby Fallout

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.

Dahilia Lithwick, After Hobby Lobby, McCullen and Harris v. Quinn: The Men of the Supreme Court Leave Women Reeling

Congress takes action. NYT, Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives

Protesters Swarm Hobby Lobby Grand Opening

July 10, 2014 in Abortion, Equal Employment, Healthcare, Workplace | Permalink | Comments (0)

Saturday, June 28, 2014

Contrasting the Abortion Buffer Zone Decisions: McCullen, Hill, and Madsen

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.

June 28, 2014 in Abortion | Permalink | Comments (0)

Thursday, June 26, 2014

SCOTUS Declares Abortion Buffer Zone Law Unconstitutional

From WaPost: Yet Another Unanimous Judgment in McCullen v. Coakley

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?    

 

 

June 26, 2014 in Abortion, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 24, 2014

Explaining Justice Powell's Decision on Abortion

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.  

June 24, 2014 in Abortion, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 17, 2014

SCOTUS Allows Challenge to Anti-Abortion Political Speech

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

I commented on the case before in Susan B. Anthony List's Right to Lie and again here about the political misuse of Susan B. Anthony's name and representation as an anti-abortion icon. 

June 17, 2014 in Abortion, Reproductive Rights | Permalink | Comments (0)

Tuesday, April 29, 2014

The Backstory of Abortion Informed Consent Laws

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. 

April 29, 2014 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)