Monday, August 29, 2011
Priscilla J. Smith (Yale Law School - Information Society Project) has posted Give Justice Ginsburg What She Wants: Using Sex Equality Arguments to Demand Examination of the Legitimacy of State Interests in Abortion Regulation on SSRN. Here is the abstract:
Sex equality jurisprudence, both in theory and now in constitutional doctrine, has developed in two important ways that have the potential to provide new tools to advocates challenging abortion regulations. First, Supreme Court jurisprudence now recognizes sex inequality in laws that reinforce a hierarchy of the sexes under what has been referred to as a, “dominance and subordination,” model of sex equality. Second, the relationship between sex equality doctrine and laws restricting women’s control over reproduction has also evolved. Doctrine has put the infamous case Geduldig v. Aiello in its place, and now allows us to argue that restrictions on abortion violate constitutional sex equality guarantees, at least where their purpose is to reinforce outmoded forms of stereotyping.
Despite the positive evolution of sex equality analyses in both equal protection and liberty jurisprudence, and despite urging from the academy to press sex equality arguments, litigators have not wholeheartedly pursued these arguments in federal court challenges to restrictions on abortion. In Part I of this essay, I briefly outline sex equality arguments and argue that, even if they do not earn heightened scrutiny in litigation, these arguments offer specific advantages that can assist embattled litigators and supplement the use of liberty claims. In Part II, I review the greatest weakness of the liberty claim, describing how a well-developed anti-abortion strategy has resulted in tepid inquiry into legitimate state interests or legislative purpose. In Part III, I then examine some of the stated reasons for litigators’ reluctance to press sex equality arguments in their cases, including some of the practical impediments to bringing and preserving these claims, as well as ongoing skepticism about the benefits of equality arguments. I argue that there are important reasons to overcome the reluctance to press sex equality arguments and, though I recognize and sympathize with the difficulty of the task, that the practical impediments can be overcome. I conclude in Part IV that using sex equality arguments to bolster the battered liberty argument, “sistering the joist,” may not necessarily provide heightened scrutiny of abortion restrictions in the form of traditional, “intermediate,” or, “strict,” scrutiny and may not result in greater overall success in the courts. However, sex equality arguments, which have not been as widely criticized by commentators as the liberty right has been, not only provide additional support for a woman’s right to abortion, but will also force courts to grapple with the regressive views of women that propel many abortion restrictions.
Sunday, August 28, 2011
Theresa Glennon (Temple University – Beasley School of Law) has posted Choosing One: Resolving the Epidemic of Multiples in Assisted Reproduction on SSRN. Here is the abstract:
Fertility treatments have helped many individuals and couples exchange the heartbreak of infertility for the joys of parenthood. However, patients are often directed towards practices that greatly increase health risks by increasing their chances for multiple gestations. This Article highlights features of the context surrounding “assisted reproduction” that steer potential parents toward choices that heighten health risks for them and their hoped-for children.
The decision-making context patients confront in assisted reproduction leads many towards treatment choices that markedly increase the probability of twins, triplets, and higher order births. As a result, 30-35% of the births related to assisted reproduction are multiples. The public health community views the dramatic rise in multiple births related to assisted reproduction as a preventable epidemic. They emphasize that much more needs to be done to prevent the multiple pregnancies related to assisted reproduction. This policy imperative, however, runs head long into the market-based and institutionally fractured approach to fertility treatment in the United States.
The significant risks associated with multiple gestation raise an obvious question: why, despite strong evidence that single embryo transfer is the best way to reduce multiple gestations, do most women in the United States still select treatment approaches - hormone therapy or implanting multiple embryos in IVF - that often lead to multiple gestations? These practices stand in sharp contrast to several European countries, where women use IVF and transfer only one embryo at a time, the treatment approach best designed to reduce the risk of multiples? An important part of the answer to this puzzle lies in the context in which potential parents in the United States make decisions about assisted reproduction.
This Article critically analyzes the dominant approach to understanding patient choice in assisted reproduction. Drawing upon well-established findings in cognitive psychology and behavioral economics, it evaluates how patients are steered towards choices about assisted reproduction that disserve their long-range interests and well-being and reduce social welfare. This research demonstrates the myriad ways that organizational and legal rules and incentives substantially influence individual choice. In highlighting how patient choices are swayed by the context within which they seek medical assistance to conceive children, I provide a novel application of a school of thought that is gaining greater attention in the legal literature and in policy-making communities.
The Article also analyzes various legal and institutional strategies that other countries have used to address the risks created by multiple gestations related to assisted reproduction. This comparative perspective highlights shortcomings in the U.S. approaches to assisted reproduction and advances understanding of the strengths and limits of alternative policy options. Finally, and perhaps most importantly, I provide suggestions for both public and private actors to reshape the assisted reproduction decision-making context to guide patients towards one healthy baby.
The Illinois Religious Freedom Protection and Civil Union Act (RFPCU) took effect on June 1, 2011. It recognizes civil unions, affording unionized parties “the same legal obligations, responsibilities, protections and benefits as are afforded to spouses.” Parties may be “of either the same or opposite sex.” The RFPCU reflects federal constitutional equalities. As declared in Eisenstadt v. Baird, 405 U.S. 438 (1972), “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental inrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Notwithstanding the directive for “same” treatment, however, marriages and opposite sex unions are naturally different than same sex unions. At times there can be no absolute sameness. Consider parenthood. Same sex unions can never produce children genetically-tied to both partners. Similarly, though husbands and wives are generally accorded equal treatment regarding children born into marriage, here too there are differences. Only wives bear children. The U.S. Supreme Court has declared that mothers automatically are accorded parental rights at birth, while fathers only have parental opportunity interests which must be affirmatively seized.
How should legal parenthood at birth arise when children are born into civil unions? Should the standards differ between same sex female and male couples? Between married and unionized opposite sex couples? These questions are addressed in the article, which explores the Parentage Act, the Gestational Surrogacy Act, and voluntary paternity acknowledgment practices. The article concludes that Illinois legislators should consider new parentage laws rather than leaving important family law policies to the Illinois courts which can only resolve assisted reproduction and other parentage cases “on the particular circumstances presented.” In re Parentage of M.J., 203 Ill.2d 526 (2003). “Unitary” families, subject to significant potential governmental protections under Michael H. v. Gerald D., 491 U.S. 110 (1989), deserve more clarity so that parent-child relationships can develop early on with little fear of later disruptions.
Saturday, August 27, 2011
The New York Times: Failing Forward, by Charles M. Blow:
Sometimes I push back on my heels, look at this country and wonder aloud: “What on earth are we doing?”
We have a growing crisis among the nation’s children, yet our policies ignore that reality at best and exacerbate it at worst.
According to a report issued this week by the Guttmacher Institute, the unintended pregnancy rate has jumped 50 percent since 1994, yet a July report from the institute points out that politicians are setting records passing laws to restrict abortion. It said: “The 80 abortion restrictions enacted this year are more than double the previous record of 34 abortion restrictions enacted in 2005 — and more than triple the 23 enacted in 2010.” Add to this the assault by conservatives on Planned Parenthood, and what are we saying?
This is what we’re saying: actions have consequences. If you didn’t want a child, you shouldn’t have had sex. You must be punished by becoming a parent even if you know that you are not willing or able to be one.
This is insane. . . .
The Nation: Teaching Sexuality Education, by Anna Lekas Miller:
In 1982, Martha Roper received her first death threat.
Martha—perhaps better known as Ms. Roper—is not a drug trafficker or a gang member. She does not work for the government, or involve herself in dangerous, secret operations. She does not even run an abortion clinic. She teaches sexuality education.
Martha Roper is an award-winning, widely acclaimed sexuality education teacher and author in the state of Missouri. She holds a master’s degree in family and community relations from Teacher’s College, Columbia University, and taught sexuality education in Missouri for over thirty years.
“I had a 13-year-old son around that time,” Ms. Roper told me. “Fortunately, he had a sense of humor, and when a letter addressed to ‘Lesbian Slut’ or ‘Sex Sinner’ would arrive in the mail box, he would say, ‘I think this one’s for you, Mom.’”
Ms. Roper began receiving death threats and hate mail in the early eighties, and they have never completely stopped. Since the advent of the Internet and online technologies such as Google Earth and Google Maps, Roper has had to become much more quiet for her own safety. . . .
Groups Challenge Arizona Law that Withholds Resources from Organizations Providing Abortion Referrals or Counseling
Extreme Law Withholds Resources from Organizations that Provide Abortion Referrals or Counseling
PHOENIX – The American Civil Liberties Union filed a lawsuit today against a law that would exclude any nonprofit organization that provides abortion referrals or counseling from receiving donations through the state’s Working Poor Tax Credit Program. The law is so broad that it could prevent groups from even discussing abortion or other reproductive health services with women in crisis.
The ACLU filed the suit, along with the ACLU of Arizona and the Arizona Coalition Against Domestic Violence (AzCADV).
“At a time when assistance for the poor and underserved is so crucial, this bill aims to take existing resources away from the most vulnerable and to limit their access to information and services,” said Alessandra Soler Meetze, executive director of the ACLU of Arizona. “That’s not only a violation of the First Amendment, it’s cruel.” . . .
August 27, 2011 in Abortion, In the Courts, Poverty, Pregnancy & Childbirth, Reproductive Health & Safety, Sexual Assault, State and Local News, Women, General | Permalink | Comments (0) | TrackBack (0)
Planned Parenthood, which called the ruling a victory for women, asked the court in July to stay the measure that denies it state and federal funds used to subsidize family planning services and to provide teen pregnancy prevention programs.
Judge James A. Beaty Jr. ruled that the budget measure appeared to be unconstitutional, writing that it seemed to have been "adopted specifically to penalize Planned Parenthood for its separate abortion-related activities.". . .
Susan B. Anthony List Appeals Defamation and Free Speech Rulings Relating to Its Accusations About Healthcare Reform
The Hill’s Healthcare Blog: SBA List appeals ruling on healthcare law and abortion, by Sam Baker:
The Susan B. Anthony List on Thursday filed an appeal in its lawsuit over claims that the healthcare reform law provides government funding for abortion.
Former Rep. Steve Driehaus (D-Ohio) sued SBA List for defamation after the group tried to buy billboards that accused him of supporting government-funded abortion through healthcare reform. SBA List sought to have the suit dismissed and also said Ohio's election laws are an unconstitutional limit on free speech.
Earlier this month, a federal judge dismissed SBA List's constitutional challenge and allowed Driehaus's suit to proceed. In the process, the judge said the reform law plainly does not provide government funding for abortion. . . .
Courier-Journal: Kentucky Supreme Court asked to allow lawsuit in accidental death of early-term fetus, by Andrew Wolfson:
2008 death of fetus is basis of appeal
Fourteen weeks pregnant, Desiree Amber Stevens was heading east on Ky. 52 in Estill County on Aug. 16, 2008, when another driver tried to cross the highway in front of her, causing a horrific crash that killed Stevens and her unborn child.
The other driver, Gina Flynn, and Stevens’ insurance carrier, Progressive Direct, settled a wrongful death suit for an undisclosed amount that was filed by Thomas A. Stevens on his 24-year-old daughter’s behalf.
But Flynn and Progressive refused to pay a penny for the wrongful death of Stevens’ unborn grandson — and Circuit Judge Thomas Jones said they didn’t have to.
“Harsh as it seems,” Jones wrote, damages for a “non-viable fetus are not recoverable.”
The Kentucky Court of Appeals affirmed that ruling last month, the second time in two years that it has denied damages for the alleged negligent death of an early-term fetus.
Now Stevens, a retired state trooper, and his lawyer, J.T. Gilbert of Richmond, are asking the Kentucky Supreme Court to reconsider the case. . . .
Catholics for Choice: Censored Condoms4Life Campaign Is Beamed Around the World:
This week, The Condoms4Life Campaign brought the message that good Catholics use condoms and condoms save lives to the pilgrims of World Youth Day and the people of Madrid. Despite attempts by the local authorities to ban our ads, hundreds of thousands of people saw them via the materials we handed out, our nightly projections on buildings throughout central Madrid, and the thousands of clings and posters that were put up around the city.
After the local authorities censored our ads, we targeted their offices and other key players with our projections: the offices of Publimedia—who initially accepted and then rejected our ads for buses and bus shelters; the office of city council member Ana Botella who was reported to be behind the decision to ban the ad and the residence of Archbishop Antonio María Rouco Varela of Madrid, the local prelate, among other high-profile venues. . . .
The New York Times: If You Really, Really Wanted a Girl ..., by Pam Belluck:
This month brought news that could alter the landscape of American pregnancy.
Tests using DNA to determine a fetus’s sex were shown to be remarkably accurate, able to tell with 95 percent certainty as early as seven weeks into pregnancy, if a woman is carrying a boy or girl. The tests, which detect the fetus’s DNA in a mother’s blood or urine, are available in drugstores and online, and reports about their accuracy are likely to increase their popularity.
But the tests also raise ethical questions: whether couples will abort fetuses of an unwanted sex — as has happened in China and India, where boys now outnumber girls. The possibility discomfits many, and is also providing fuel for anti-abortion politics. . . .
Tucson Citizen: Planned Parenthood to end abortions at 7 Arizona sites, by Ginger Rough:
The move means there will no longer be abortion services in communities outside of metro Phoenix and Tucson. The announcement comes on the heels of an appellate court ruling that upheld a 2009 law placing new restrictions on the procedure — including the requirement that nurse practitioners no longer perform surgical abortions. . . .
Huffington Post: Catholic Priest Forgiving Abortion At World Youth Day Confessionals:
Catholic priests have been empowered to forgive the sin of abortion during this week's World Youth Day festivities in Madrid, Spain. Church officials have ordered that any individual at the event who confesses to having had an abortion -- a sin normally punished by excommunication -- will be forgiven and welcomed back into the Church. . . .
Landmark Human Rights Case Finds that Failure to Enforce a Restraining Order and Indifference to Domestic Violence Led to Daughters’ Deaths:
WASHINGTON, D.C. – In a landmark decision, an international tribunal has found the U.S. government responsible for human rights violations against a Colorado woman and her three deceased children who were victims of domestic violence.
Jessica Lenahan (Gonzales) v. United States is the first case brought by a domestic violence survivor against the U.S. before an international human rights body, the Inter-American Commission on Human Rights (IACHR). The IACHR ruling also sets forth comprehensive recommendations for changes to U.S. law and policy pertaining to domestic violence.
The case concerns a tragic 1999 incident in which police in Castle Rock, Colorado failed to respond to Jessica Lenahan’s repeated calls for help after her estranged husband, Simon Gonzales, kidnapped their three young children in violation of a domestic violence restraining order. Ten hours after Lenahan’s first call to the police, her husband drove up to the Castle Rock Police Department and began firing his gun at the police station. The police returned fire, killing Gonzales. Inside the truck, the police found the bodies of the three girls – Rebecca, Katheryn, and Leslie – who had been shot dead. Local authorities failed to conduct a proper investigation into the children’s deaths, resulting in questions about the cause, time, and place of their deaths that remain to this day.
“I have waited 12 years for justice, knowing in my heart that police inaction led to the tragic and untimely deaths of my three young daughters,” said Lenahan. “Today’s decision tells the world that the government violated my human rights by failing to protect me and my children from domestic violence.”
Lenahan is represented by the Human Rights Clinic at the University of Miami School of Law, the Columbia Law School Human Rights Clinic and the American Civil Liberties Union.
“The commission’s determination that the United States violated Ms. Lenahan’s and her children’s human rights by failing to ensure their protection from domestic violence has far-reaching implications,” said Professor Caroline Bettinger-Lopez, director of the Human Rights Clinic at the University of Miami School of Law. “As our country seeks to promote human rights of women and children around the world, we must also look at our own record here at home.”
The commission’s decision stands in stark contrast to the U.S. Supreme Court’s decision in Town of Castle Rock v. Jessica Gonzales (2005), where the justices ruled that Lenahan (then Gonzales) had no constitutional right to police protection, and that the failure of the police to enforce Lenahan's order of protection was not unconstitutional. Lenahan then filed a petition against the U.S. before the IACHR, alleging violations of international human rights.
“Now that the commission has appropriately found the police and the United States responsible for their appalling lack of action, it is critical that they be held accountable,” said Lenora Lapidus, director of the ACLU Women’s Rights Project. “We can no longer accept police departments' failure to treat domestic violence seriously and to regard it as simply a private matter unworthy of serious police attention.”
Established in 1959, the Inter-American Commission on Human Rights is charged with promoting the observance of and respect for human rights throughout the Americas. The commission is expressly authorized to examine allegations of human rights violations by all 35 member-states of the Organization of American States, which includes the United States, and to investigate specific allegations of violations of Inter-American human rights treaties, declarations and other legal instruments.
"We know that the issue of violence against women is one that the Obama Administration cares deeply about,” said Peter Rosenblum, director of the Columbia Law School Human Rights Clinic. “We encourage the Administration to work with the appropriate state and local officials to address and adapt the Commission’s recommendations in a meaningful way."
More information on the case can be found at:
http://www.aclu.org/human-rights-womens-rights/jessica-gonzales-v-usa; http://www.law.miami.edu/hrc/hrc_gonzalez_usa.php; http://www.law.columbia.edu/human-rights-institute/initiatives/interamerican/gonzales
Sunday, August 21, 2011
The Washington Independent: Low-budget anti-abortion rights film director aims to influence more policy, get message to youth, by Sofia Resnick:
Despite its minuscule marketing budget and no national distributor, the anti-abortion rights film “Bloodmoney” has already influenced public policy. “Bloodmoney” filmmakers are hoping that as more people, particularly high school and university students, see the film, the impact on the abortion debate will go even further.
“Bloodmoney” was produced by Maryland-based TAH LLC and tells the story of legalized abortion in America from the perspective of some of the most powerful anti-abortion rights activists in the country. The film’s director, David K. Kyle, recently told The American Independent he sells copies of “Bloodmoney’ regularly, though it has not been screened in any U.S. movie theater.
The film’s various narratives tread familiar ground: that abortion intentionally targets African-Americans (narrator Alveda King, Martin Luther King Jr.’s niece, says that abortion has caused more damage to the black community than slavery); that abortion directly leads to suicide and psychological damage; and that abortion providers are money-hungry and negligent. . . .
Texas Slashes Family Planning Services While Increasing Funds for Anti-Choice "Crisis Pregnancy Centers"
Ms. Magazine: TX Cuts Family Planning, Funding Allocated for CPCs:
Starting on September 1, approximately 180,000 women in Texas will be without access to contraception and preventive services as a result of the state Legislature's cuts to family planning services by two-thirds. However, state lawmakers voted to increase funding by $300,000 for Alternatives to Abortion Services, a state program comprised of 26 crisis pregnancy centers, adoption agencies, and maternity homes. The 26 centers receiving money from Texas Pregnancy Care Network, a charity contracted with the Texas Health and Human Services Commission. . . .
New York Times: Center Typifies New Face of Pregnancy Services, by Thanh Tan:
Nearly 180,000 Texas women and men are likely to lose access to birth control and preventative examinations next month because the Legislature recently slashed financing for family planning services by two-thirds.
But socially conservative lawmakers succeeded in their efforts to increase money for a small state program, Alternatives to Abortion Services, more ideologically aligned with their politics. Lawmakers added $300,000 to the program’s budget for each of the coming two fiscal years, bringing it to $8.3 million for 2012 and for 2013. . . .
Wednesday, August 17, 2011
The Wall Street Journal: Judge Dismisses Discrimination Suit Against Bloomberg LP, by Chad Bray:
A federal judge dismissed a long-running lawsuit against financial news and media company Bloomberg LP, in which the company founded by New York Mayor Michael Bloomberg was alleged to have routinely discriminated against pregnant women and new mothers.
U.S. District Judge Loretta Preska in Manhattan said the Equal Employee Opportunity Commission failed to demonstrate Bloomberg LP engaged in “a pattern or practice” of discrimination.
Instead, the judge said that the company, as a standard operating procedure, increased compensation for women returning from maternity leave more than for those who took similarly lengthy leaves and did not reduce the responsibilities of women returning from maternity leave any more than of those who took similarly lengthy leaves. . . .
Feminist Legal Theory CRN Conference: Invitation and Call for Papers:
The Feminist Legal Theory CRN is a newly-constituted group that seeks to bring together scholars across a range of fields who are interested in feminist legal theory. The inaugural meeting took place at the Law and Society Association meeting in June 2011; the next meeting will be held at George Washington University Law School on Wednesday, January 4, 2012, the day before the AALS annual meeting.
Paper proposals on any topic pertaining to legal feminism are being accepted until September 23, 2011. . . .
Slate: Half-Aborted, by William Saletan:
What's worse than an abortion? Half an abortion.
It sounds like a bad joke. But it's real. According to Sunday's New York Times Magazine, demand is rising for "reduction" procedures in which a woman carrying twins keeps one and has the other aborted. Since twin pregnancies are generally safe, these abortions are largely elective.
Across the pro-choice blogosphere, including Slate, the article has provoked discomfort. RH Reality Check, a website dedicated to abortion rights, ran an item voicing qualms with one woman's reduction decision. Jezebel, another pro-choice site, acknowledged the "complicated ethics" of reduction. Frances Kissling, a longtime reproductive rights leader, wrote a Washington Post essay asking whether women should forgo fertility treatment rather than risk a twin pregnancy they'd end up half-aborting. . . .
RH Reality Check: The NYTimes Whips Up More Moral Agonizing About Women's Reproductive Rights-Enough!, by Sunsara Taylor:
Against the backdrop of a record breaking number of restrictions on abortion being proposed and passed at the state level, as high profile national politicians cut budget deals over the lives of women, as Christian fascist shock troops target courageous abortion doctors, the New York Times has decided to feature yet another article calling into question the morality of women who make their own decisions about their child-bearing.
In their August 14, 2011 Sunday Magazine piece entitled, “The Two Minus One Pregnancy,” the NYTimes agonizes about the ethics of reducing twin fetuses to a single fetus so that a woman can have one child instead of two.
The article attempts to portray its own agonizing over twin reduction as having nothing to do with abortion. For instance, in contemplating where the supposed moral difficulty in twin reduction lies, at one point Ruth Padawer writes, “Perhaps it’s because twin reduction (unlike abortion) involves selecting one fetus over another, when either one is equally wanted.”
However, the article is caught up in the same unscientific thinking that leads so many to believe abortion is – or should be – an agonizing decision, or a decision that should be denied to women outright. . . .
Law Takes Away Existing Coverage for Women
TOPEKA, Kan. – The American Civil Liberties Union and the ACLU of Kansas and Western Missouri filed a lawsuit today challenging a Kansas law that prohibits insurance companies from including coverage for abortion in their comprehensive plans. Since 2010, 13 states have enacted laws that prohibit some or all insurance policies from covering abortion care. Today’s lawsuit, ACLU of Kansas and Western Missouri v. Praeger, is the first to challenge one of these laws.
“Politicians should not interfere in what should remain a private medical decision,” said Kari Ann Rinker, state coordinator for the Kansas chapter of the National Organization for Women. Rinker’s insurance company will eliminate coverage for abortion in her plan because of the law. “For too long, my home state of Kansas has been the epicenter of an effort to erode a woman’s access to abortion. Enough is enough.”
The law prohibits comprehensive insurance plans from covering any abortion other than one to save a woman’s life. This part of the law does permit companies to offer a separate rider to cover non-lifesaving abortions for an additional cost. However, some insurers have indicated they will not offer such riders to some or all of their customers, leaving women to pay out of pocket for a service previously covered by insurance. . . .
Huffington Post: Kansas Abortion Insurance Restrictions Are Challenged In Court, by Laura Bassett:
The American Civil Liberties Union of Kansas filed a lawsuit on Tuesday against a new Kansas law that bans the coverage of abortion as part of standard private health insurance plans. Of the 13 abortion coverage bans that have been passed in state legislatures since 2010, the Kansas law is the first to be challenged in court.
Eighty-seven percent of employer-based insurance policies nationwide covered abortion as of January 2011, according to the Guttmacher Institute, a reproductive health research organization. But Kansas lawmakers passed legislation in May that forces private insurance companies to remove abortion from the list of standard procedures they cover, except when the mother's life is at risk. A woman would have to buy a separate insurance plan to cover abortions in cases of rape or serious health risks, and some insurance companies have said they would not offer such a rider. . . .