Reproductive Rights Prof Blog

Troubling Trend Continues in Latin America Toward Criminalizing All Abortions

The Guttmacher Institute: A Dangerous Trend: Dominican Republic Adopts Draconian Abortion Restriction, by Sharon L. Camp & Dr. Fatima Juarez: 

When the Dominican Republic's National Assembly voted in April 2009 to amend its constitution to include a right to life beginning at conception, the country continued a troubling trend among Latin American jurisdictions toward virtually eliminating women's recourse to safe abortion care. Under Dominican law, doctors who perform abortions -- and women who obtain them -- face harsh penalties, including prison sentences.

The constitutional amendment was introduced by President Leonel Fernández and was widely supported by the national assembly. The measure echoes similar changes enacted at the state level in Mexico, where 12 states have recently adopted constitutional amendments declaring that life begins at conception. These amendments -- which essentially aim to preempt any liberalization of existing abortion laws and may even prohibit abortions that had previously been legal, for instance in cases of rape -- appear to be a backlash against the 2007 legalization of first-trimester abortion in Mexico City.

These moves follow the criminalization of abortion under all circumstances by Nicaragua in 2006, and El Salvador in 1998. In 2007, both Human Rights Watch and Ipas issued reports documenting the deaths of women whose lives would have been saved had therapeutic abortion been allowed.

This trend toward draconian abortion restrictions -- banning the procedure outright in places where it was already highly restricted -- ignores strong evidence from Latin America and other parts of the world showing that abortion rates are often as high, or higher, in countries where abortion is highly restricted as in those where it is broadly legal.

More on Sotomayor's Abortion Rulings

Broadsheet (Salon.com): Sotomayor and abortion, by Lynn Harris:

Even amidst the deserved and moving kudos, some feminist organizations' responses to Judge Sotomayor's nomination have seemed just a teeny bit ... polite. That, as Judy Berman noted here  yesterday, is because few reproductive rights advocates were fans of Sotomayor's ruling in Center for Reproductive Law and Policy v. Bush -- her only major decision involving abortion -- in which she sided with, well, guess who. Upholding a challenge to the late, unlamented "global gag rule" (Mexico City Policy), Sotomayor noted that (as often quoted) "the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds." (So maybe these guys should be more polite.)

Sotomayor's Stance on Abortion Not Clear Enough for Some Pro-Choice Advocates

NY Times: On Sotomayor, Some Abortion Rights Backers Are Uneasy, by Charlie Savage:

WASHINGTON — In nearly 11 years as a federal appeals court judge, President Obama’s choice for the Supreme Court, Sonia Sotomayor, has never directly ruled on whether the Constitution protects a woman’s right to an abortion. But when she has written opinions that touched tangentially on abortion disputes, she has reached outcomes in some cases that were favorable to abortion opponents.

Now, some abortion rights advocates are quietly expressing unease that Judge Sotomayor may not be a reliable vote to uphold Roe v. Wade, the landmark 1973 abortion rights decision. In a letter, Nancy Keenan, president of Naral Pro-Choice America, urged supporters to press senators to demand that Judge Sotomayor reveal her views on privacy rights before any confirmation vote.

But Cecile Richards, President of Planned Parenthood Federation of America, was more positive in her remarks on the nomination:

WASHINGTON - May 26 - "This historic nomination of Judge Sonia Sotomayor to the U.S. Supreme Court sends a strong signal that President Obama understands the importance of ensuring that our Supreme Court justices respect precedent while also protecting our civil liberties.

"Judge Sotomayor has vast experience in nearly every aspect of the law, having served as a big-city prosecutor and a corporate litigator, a federal trial judge on the U.S. District Court, and an appellate judge on the Second Circuit Court of Appeals. What our nation needs from our Supreme Court justices is a deep understanding of the law, an appreciation of the impact of the court's decisions on everyday Americans, and a commitment to the protection of our individual liberties. Judge Sotomayor will bring this dedication and commitment with her to the bench.

"There is no doubt that Judge Sotomayor's story is an inspiration to all. Her nomination as the first Hispanic woman justice reminds us that, with hard work and commitment, all things are truly possible in America."

Cal. Supreme Court Upholds Prop 8; Opponents Vow to Continue Fight

NY Times: Proposition’s Opponents Say Fight Will Continue, by Jesse McKinley:

Supporters of same-sex marriage in California wasted little time on Tuesday turning away from their courtroom defeat on Proposition 8, and toward a potential campaign to overturn the measure.

As expected, the California Supreme Court upheld the proposition, which passed last November and defines marriage as between a man and a woman. But while many gay groups seemed shocked by the ballot measure’s passage, the decision on Tuesday was met with more resignation and, it seems, resolve.

Sonia Sotomayor's Record on Abortion

SCOTUSblog summarizes Judge Sotomayor's civil appellate opinions, including one of the few cases she has decided that addressed abortion (via a challenge to the Global Gag Rule, which President Obama repealed in January):

Maternal Mortality in Africa

NY Times: Where Life's Start is a Deadly Risk, by Denise Grady:

BEREGA, Tanzania— The young woman had already been in labor for two days by the time she reached the hospital here. Now two lives were at risk, and there was no choice but to operate and take the baby right away.

The operating room, powered by a rumbling generator, was the only spot of light in this village of mud huts and maize fields. A mask with a frayed cord was fastened over the woman’s face. Moments later the cloying smell of ether filled the room, and then Emmanuel Makanza picked up his instruments and made the first cut for a Caesarean section.

Mr. Makanza is not a doctor, a fact that illustrates both the desperation and the creativity of Tanzanians fighting to reduce the number of deaths and injuries among pregnant women and infants.

Pregnancy and childbirth kill more than 536,000 women a year, more than half of them in Africa, according to the World Health Organization.

Most of the deaths are preventable, with basic obstetrical care.

Obama Picks Sonia Sotomayor for Supreme Court

NY Times: Obama Selects Sotomayor for Court, by Peter Baker & Jeff Zeleny:

President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.

Judge Sotomayor, who stood next to the president during the announcement, was described by Mr. Obama as “an inspiring woman who I am confident will make a great justice.”

Earlier this month, Darren Hutchinson wrote about the use of gender-coded language in criticisms of Judge Sotomayor, including in a now notorious piece by Jeffrey Rosen that relied heavily on anonymous sources (primarily law clerks for other judges) in attempt to call into question Sotomayor's qualifications.  (See also this post by Professor Hutchinson reponding to the Rosen piece.)

Most Laws Mandating "Counseling" and Waiting Periods Before Abortion Have Little Impact

The Guttmacher Institute has published a report, Most Laws Mandating Counseling and Waiting Periods Before Abortion Have Little Impact, by Rebecca Wind. Here is the news release: 

Most Laws Mandating Counseling and Waiting Periods Before Abortion Have Little Impact

However, Laws Requiring In-Person Counseling Cause Delays, Create Additional Burdens; Poor Women Most Likely to be Affected

Laws that require counseling and waiting periods before abortion, but that allow counseling to be delivered over the Internet, by phone or by mail, appear to have little impact on birth and abortion rates. Yet, according to a new Guttmacher Paperanalyzing the relevant literature, these laws may postpone the timing of some abortions. These findings imply that counseling requirements do not cause women to change their minds about having an abortion, and that waiting period requirements do not impose significant barriers to abortion services.

Currently, 24 states require women to wait, usually for 24 hours, between an initial counseling session and the abortion procedure. The laws in seven of these statesrequire in-person counseling at least 18–24 hours prior to the procedure. Multiple studies of such a law in Mississippi have found that the requirement was associated with a decline in the state’s abortion rates, an increase in the number of residents going out of state for an abortion, and delays in accessing abortion services. These findings suggest that an in-person counseling requirement places an additional burden on some women by forcing them to take more time off from work, arrange child care or stay away from home overnight when the distance to the clinic is great.

“When we looked at the laws across the board, we found little impact,” said the lead author of the new report, Theodore Joyce. “But the Mississippi studies consistently found that an in-person counseling requirement was associated with fewer abortions overall, but more abortions obtained out-of-state and more second-trimester procedures. In other words, some women had to travel greater distances, and as a result, they decided not to have the procedure or to have it later in pregnancy, when the procedure is less safe and more expensive.”

Research from other Guttmacher studies has shown that poor and low-income women—who have the highest unintended pregnancy and abortion rates—are also those most affected by abortion restrictions. Disadvantaged women who have trouble raising the funds for their abortion frequently take up to three weeks longer than better-off women to obtain an abortion and have the greatest difficulties taking time off from work, getting child care and affording the travel costs to obtain the procedure. A requirement of multiple in-person visits imposes even more barriers, which disproportionately affect the most vulnerable women.

According to previous Guttmacher research, abortion providers report that almost all women obtaining abortions are sure of their decision to terminate their pregnancy before they have even picked up the phone to make an appointment. While it is important to ensure that women have the information they need to make an informed decision, the evidence suggests that mandated counseling serves only to delay women’s access to a procedure they have already chosen, rather than to inform their decision making.

“Requiring women to make two trips to obtain an abortion is unnecessary,” says Guttmacher Paper coauthor Lawrence Finer.“These laws are intended primarily to block abortion access, and the most disadvantaged women, who already have trouble accessing services, are disproportionately affected.”

Law & Society Roundtable Will Address "Critical Thinking on Reproductive Rights & Society"

A message from Martha Davis (Northeastern University):

For those who will be attending the Law & Society Conference in Denver, Colorado, please join us at a Roundtable titled "Critical Thinking on Reproductive Rights and Society."  Participants will include Pam Bridgewater (American University), Nancy Ehrenreich (University of Denver), Khiara Bridges (Columbia University), Suzanne Stolz (Center for Reproductive Rights) and Martha Davis (Northeastern University).  The panel description reads: 

In recent years, access to reproductive rights continues to contract, with the U.S. Supreme Court's 2007 decision on Gonzales v. Carhart marking the first time the Court had accepted restrictions on abortion access that jeopardize women's health. Drawing on multiple disciplines (history, anthropology, law) and multiple perspectives (practitioner, academic), this roundtable will explore both the social and legal contexts for these developments. In particular, participants will examine the continuing role of race in shaping  reproductive rights discourse, and the utility and implications of alternative rights-based paradigms, such as human rights, as a vehicle for re-shaping the domestic reproductive rights dialogue. Comparative legal approaches will also be explored.

The panel will be held on May 28, from 8:15 a.m. - 10:00 a.m.  The specific room has not yet been assigned, but will be available on the Law & Society website, www.lawandsociety.org.  We expect a lively discussion, so please join us if you're in Denver, and circulate to colleagues who may be going!

Researchers Say Children Who Are Exposed to Smoking Prenatally or at Young Ages Are More Likely to Become Smokers

It annoys me that this headline is so exclusively focused on pregnant women.  It seems the data shows not just that pregnant women should avoid smoking but that all parents of young children, regardless of gender, should not smoke near their children.

USA Today/HealthDay: Scientists believe kids more apt to smoke if mom did while pregnant, by Steven Reinberg:

Smoking while pregnant "biologically primes" the unborn child to become a regular smoker as a teen and young adult, according to a theory put forth by University of Arizona researchers.

"Somehow smoke is changing the brain chemistry," said the lead researcher, Dr. Roni Grad, an associate professor of clinical pediatrics at the university.

"If you are exposed to smoking prenatally or in the early years of life, you are much more likely to be a chronic smoker at the age of 22," Grad said.

In fact, these children are four times more likely to become regular smokers, according to the research, which was to be presented May 19 at the American Thoracic Society's international conference in San Diego.

Why the obsessive focus on mothers, when the inconclusiveness of the study clearly indicates that no one should smoke around young children?

"Nobody should smoke," Grad said. "I would definitely discourage any mother from smoking around her child. If children have been exposed in early life to smoke, I would really go the extra mile to try to keep them from experimenting, because they may be at higher risk of becoming nicotine dependent very quickly."... (emphasis added)

Edelman said that the researchers seem to favor a biologic explanation, such as an alteration of brain neurochemistry during pregnancy. "However, the study does not include enough information to rule out social factors, such as increased smoking of others in the household even though the mother stops after childbirth."

Maya Manian on Gonzales v. Carhart and The "Woman-Protective" Anti-Abortion Argument

Maya Manian (University of San Francisco School of Law) has posted The Irrational Woman: Informed Consent and Abortion Decision-Making on SSRN. Here is the abstract:

In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because the State knows better than the woman herself that her “ultimate” role is as a mother. Carhart’s woman-protective reasoning has pernicious and far reaching implications for gender equity in healthcare. This Article critiques the woman-protective anti-abortion argument from the perspective of healthcare law. It compares women’s healthcare decision-making under abortion law to patient decision-making under more general law. This Article is the first to demonstrate that the woman-protective argument against abortion is an anomaly in the law’s treatment of patient healthcare decision-making. It argues that the denial of pregnant women’s decision-making capacity in abortion law unjustifiably diverges from the law’s respect for patient decision-making capacity in both the tort law doctrine of informed consent and in constitutional law cases governing medical decision-making. In contrast to both private and public law on patient decision-making, abortion law treats competent adult women as incompetent to make decisions about their own healthcare. That abortion law treats women as poorer decision-makers bolsters the claim that sex discrimination underlies abortion regulations.

The Problem with the Gallup Poll

TheHill.com: Pro-life and pro-choice, by Mark Mellman:

Obtaining meaningful poll results requires asking meaningful questions. It seems obvious, but too often this basic rule is observed in the breech.

Typically, after some useless result escapes into the ether, reporters and interest groups proceed to spin some new theory of public opinion based on faulty analysis of a meaningless question.

Last week’s Gallup poll on abortion followed this oft-repeated pattern. Gallup confined itself to reporting the accurate, if misleading, result — “51 percent of Americans call[ing] themselves ‘pro-life’ on the issue of abortion and 42 percent ‘pro-choice.’ This is the first time a majority of U.S. adults have identified themselves as pro-life since Gallup began asking this question in 1995.”

A Wall Street Journal blog twisted the result to suggest a substantive interpretation not in evidence — “A majority of Americans now say they oppose abortion rights, according to a Gallup poll released today.” Leave it to those who want to make all abortions illegal to move way beyond the facts, citing the poll results as proof the anti-abortion cause “is a vibrant, growing, youthful movement.”

What did these Gallup results actually reveal about American public opinion? Damn little.

E.J. Dionne on Obama's Notre Dame Speech

Wash. Post Op-Ed: Obama Conciliatory Fighting Words, by E.J. Dionne:

...For his part, Obama gave what may have been both the most radical and the most conservative speech of his presidency. Acknowledging the Roman Catholic Church's role in supporting his early community organizing work, the president drew on the resources of Catholic social thought. It combines opposition to abortion with a sharp critique of economic injustice and thus doesn't squeeze into the round holes of contemporary ideology.

"Too many of us view life only through the lens of immediate self-interest and crass materialism," Obama declared. "The strong too often dominate the weak, and too many of those with wealth and with power find all manner of justification for their own privilege in the face of poverty and injustice."...

And on abortion, the issue that ignited the protests against him, Obama endorsed a broad agenda: "Let's reduce unintended pregnancies. Let's make adoption more available. Let's provide care and support for women who do carry their children to term."

More Abortion Polls

MSNBC FirstRead: A LOOK AT ABORTION POLLING NUMBERS, by Harry Enten:

Per a new CNN/Opinion Research poll, 69% of Americans do not want the Supreme Court to overrule Roe v. Wade. That result comes as other recent polls have suggested that more Americans are pro-life rather than pro-choice on the contentious issue of abortion.

A Fox News/Opinion Dynamics poll released yesterday found more respondents (49%) who consider themselves pro-life than those who see themselves as pro-choice (43%). It confirmed a Gallup poll released last week that found -- for the first time since the organization began asking Americans about abortion in 1995 -- a majority (51%) call themselves pro-life, with 42% calling themselves pro-choice.

Supreme Court Rules Against Women Who Took Pregnancy Leaves Before 1979

LA Times: AT&T wins court case over maternity leave, by David G. Savage:

Reporting from Washington -- The Supreme Court on Monday dealt a setback to women who took pregnancy leaves from work before 1979.

The year before, Congress changed the law and said pregnancy must be treated like other temporary disabilities. In a 7-2 decision, the court agreed with AT&T Corp. and refused to award pension credits to those who took a pregnancy leave before the change. The ruling in AT&T vs. Hulteen reversed a decision of the U.S. 9th Circuit Court of Appeals.

Some women's rights advocates compared the ruling to the pay discrimination decision against Lilly Ledbetter two years ago. "This decision is an all-too-timely reminder of the importance of having on the Supreme Court justices who understand the real-world impact of the law," said Marcia Greenberger of the National Women's Law Center.

See also: SCOTUSblog: Opinion Recap: AT&T v. Hulteen

NH Gov. Lynch Promises to Sign Amended Bill Allowing Same-Sex Marriage

Concord Monitor: Revisions will legalize gay marriage, by Lauren R. Dorgan:

Gov. John Lynch will sign a bill legalizing same-sex marriage, he announced yesterday - but only if the Legislature passes extra protections for religious groups and their employees, allowing them to steer clear of weddings that contradict their beliefs. If not, Lynch said, he would veto the bill.

See also: Boston Globe: N.H. set to OK same-sex marriage

Cahn and Collins on Restricting Access to Fertility Treatment

Naomi Cahn (GW Law) and Jennifer Collins (Wake Forest) have posted Eight is Enough on SSRN.  Here is the abstract:

January 26, 2009, the nation's second set of live-born octuplets was delivered. The public fascination with this event quickly turned ugly when the media revealed that the mother was thirty-three year-old Nadya Suleman, who is single, unemployed, and already caring for six children under the age of eight.

The cultural backlash against Suleman has focused on three separate issues. The first revolves around Suleman herself, and her ability as a single, unemployed mother to parent fourteen young children successfully. A second set of concerns revolves around the medical procedures at her fertility clinic. How could the clinic agree to implant a woman under the age of thirty-five with at least six embryos? A final set of issues concerns more fundamental questions about screening parents. How could a clinic provide a single woman with six children with treatment that could double the number of children she has? As a result, commentators and legislators are calling for new, more restrictive regulation of the fertility industry.

We support some of these initiatives, specifically more meaningful limits on the number of embryos that may be transferred in any single IVF procedure. But we are far more troubled by another set of proposals: some commentators are now urging the imposition of restrictions on which individuals may receive fertility treatment. Under this theory, women with a certain number of children, or with limited financial resources, should be precluded from receiving further treatment. Our conclusion here differs from our position about regulating the medical procedures themselves: as we explain, neither fertility clinics nor the state should be in the business of restricting access to reproductive technology.

Thanks to my research assistant!

Now that the semester is over, I would like to thank my research assistant, Christina Tenuta (CUNY rising 3L), who has been faithfully researching for this blog now for several semesters.

President Obama Addresses Abortion in Commencement Speech at Notre Dame

NY Times: At Notre Dame, Obama Calls for Dialogue on Abortion, by Peter Baker & Susan Saulny:

President Obama directly confronted America’s deep divide over abortion on Sunday as he appealed to partisans on both sides to find ways to respect one another’s basic decency and even work together to reduce the number of unwanted pregnancies....

“Maybe we won’t agree on abortion,” Mr. Obama told graduating students, relatives and professors, “but we can still agree that this heart-wrenching decision for any woman is not made casually. It has both moral and spiritual dimension.

“So let us work together to reduce the number of women seeking abortions. Let’s reduce unintended pregnancies. Let’s make adoption more available. Let’s provide care and support for women who do carry their children to term.”

The encounter was a rare foray into one of the most volatile areas of public life for Mr. Obama, who supports abortion rights but has sought to avoid becoming enmeshed in the issue. As recently as last week, aides said he would mention the controversy in his speech without dwelling on it. But ultimately, he decided to devote most of his address to bridging the chasm over abortion and other moral issues.

Nicholas Kristof on Maternal Mortality in West Africa

NY Times: This Mom Didn’t Have to Die, by Nicholas Kristof:

On this trip through West Africa with my “win-a-trip” contest winner, I was reminded of one of the grimmest risks to human life here. Despite threats from warlords and exotic disease, it’s something even deadlier: motherhood.

One of the most dangerous things an African woman can do is become pregnant. So, along with the winner of my contest for college students, Paul Bowers, I have been visiting the forlorn hospitals here in West Africa. According to the World Health Organization, Sierra Leone has the highest maternal mortality in the world, and in several African countries, 1 woman in 10 ends up dying in childbirth.

It’s pretty clear that if men were dying at these rates, the United Nations Security Council would be holding urgent consultations, and a country such as this would appoint a minister of paternal mortality. Yet half-a-million women die annually from complications related to pregnancy or childbirth without attracting much interest because the victims are typically among the most voiceless people in the world: impoverished, rural, uneducated and female.