Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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Saturday, September 15, 2012

Sue Tolleson-Rinehart on Women’s Rights and Politics

Sue Tolleson-Rinehart (University of North Carolina at Chapel Hill) has posted Women's Rights and the Politics of Health: Contraception, Health Reform, and the 2012 Election on SSRN. Here is the abstract: Image1

What are the very surprising politics of, not just abortion, but birth control, in health reform? Abortion is the perennial women's health Rubicon, but birth control, access to contraception, has been settled for decades, even to the extent of being considered a fundamental right, and the stimulus of Justice Douglas's construction of the right to privacy. And yet the politics of health reform and women's rights in the 2012 election has come to include a surprising juxtaposition of attempts to redefine rape, restrict abortion, and posit contraception as a threat to religious liberty. Will this dispute mobilize a measurable number of voters, and if so, in which direction will the preponderance of mobilization lie? President Obama is the current beneficiary of a substantial gender gap, but whether women voters, and young, single women voters in particular, will turn out as they did in 2008 is the question. Will threats to their access to contraception mobilize them more than social conservative voters will be mobilized by the growing boldness of the pro-life movement? This paper just asks the question: it does not yet offer an answer.

September 15, 2012 in 2012 Presidential Campaign, Abortion, Contraception, Politics, Religion and Reproductive Rights, Reproductive Health & Safety, Scholarship and Research, Sexual Assault | Permalink | Comments (0) | TrackBack (0)

Reva Siegel on the Constitutionalization of Abortion

Reva Siegel (Yale Law School) has posted The Constitutionalization of Abortion on SSRN. Here is the abstract: Image1

This chapter analyzes constitutional decisions concerning abortion in the United States and Germany, their evolution over time, and their influence across jurisdictions. But it approaches this question from a vantage point, less common in the literature, concerned with the question of how abortion was constitutionalized. Examining the conflicts, within and across borders, that led to the first judicial decisions addressing the constitutionality of abortion laws in the 1970s sheds light on questions that prompted the birth of this body of law, and continue to shape its growth. It reveals the roots of the first constitutional decisions on abortion in modern debates over women’s citizenship. Reading the abortion decisions from this vantage point demonstrates how political conflict shapes constitutional law and constitutional law endeavors to shape political conflict.

Constitutional decisions on abortion began in an era when a transnational women’s movement was beginning to contest the terms of women’s citizenship, eliciting diverse forms of reaction, both supportive and resisting. As I show, the woman question haunts the abortion decisions, where it is initially addressed by indirection, and over time comes to occupy a more visible role, whether as an express concern of doctrine, or as a problematic nested inside of the growing body of law articulating a constitutional obligation to protect unborn life.

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September 15, 2012 in Abortion, Fetal Rights, International, Scholarship and Research, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Affirms that Idaho Woman Lacks Standing to Challenge State's Post-20-Week Ban

In its recent decision affirming the district court's preliminary injunction barring the prosecution of an Idaho woman for causing her own abortion, the Ninth Circuit also upheld the district court's ruling that the woman lacked standing to challenge Idaho's "Pain-Capable Unborn Child Protection Act," which bans abortions starting at 20 weeks of pregnancy.  The Ninth Circuit found that she did not face a genuine threat of prosecution given that she was no longer pregnant, had no "concrete plan" to violate the statute, the statute excludes the pregnant woman from criminal liability, and the authorities communicated no "specific warning or threat to initiate proceedings" under the statute. The court noted that its holding "does not foreclose other constitutional challenges to [the statute], in the event that a party can demonstrate standing."  

The decision can be accessed here.

September 15, 2012 in Abortion, Abortion Bans, In the Courts | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Opinion in Idaho Case Is Counter to Recent Trend in Courts of Appeals

RH Reality Check:  Finally a Limit Is Reached: Ninth Circuit Rules McCormack Can't Be Prosecuted For Her Abortion, by Jessica Mason Pieklo:

In terms of restricting access to abortion rights, the Supreme Court in Planned Parenthood v. Casey gave states a broad license to pass nearly any conceivable kind of restriction so long as that restriction did not pose an undue burden on a woman's right to chose to terminate a pregnancy. When faced with the question of what constitutes an undue burden, the federal judiciary has overwhelmingly come down on the side of supporting restrictions at the expense of women's access to abortion care.

We've seen this most recently when the Fifth Circuit Court of Appeals held that mandating invasive and medically-unnecessary ultrasounds prior to an abortion did not pose an undue burden on a woman seeking an abortion. We saw it again when the Eighth Circuit Court of Appeals found that forcing women to listen to misleading and inaccurate medical disclosures designed to persuade them from having an abortion was also not an undue burden on that woman.  But, according to the Ninth Circuit, there is a limit to how a state can restrict abortion access and that limit appears to be criminally prosecuting those women who seek and have abortions. . . .

September 15, 2012 in Abortion, In the Courts | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Blocks Prosecution of Idaho Woman for Self-Induced Abortion

Reuters: U.S. Court says woman can't be charged for inducing abortion, by Dan Levine:

A U.S. appeals court on Tuesday blocked the prosecution of an Idaho woman who aborted her pregnancy by taking pills instead of traveling to a clinic or hospital as required by state law.

Jennie Linn McCormack, an unmarried mother of three, was charged by Bannock County prosecutors last year after she ingested medication to induce an abortion. The drugs were approved for use by the U.S. Food and Drug Administration and prescribed over the Internet, according to the opinion from the 9th U.S. Circuit Court of Appeals. . . .

The Wall Street Journal - Law Blog: Appeals Court Narrows Bar on Enforcing Idaho Abortion Statute, by Chad Bray:

A federal appeals court on Wednesday said that Idaho’s law allowing authorities to bring criminal charges against pregnant women who seek abortions by using medications purchased online will likely be found unconstitutional.

However, despite finding that a lawsuit challenging the statute is likely to prevail at trial, the U.S. Ninth Circuit Court of Appeals said a lower court went too far in broadly barring a local prosecutor from enforcing the law, which allows women to be charged criminally for undergoing procedures that the state deems “unlawful.” . . .

 

September 15, 2012 in Abortion, In the Courts | Permalink | Comments (0) | TrackBack (0)