Reproductive Rights Prof Blog

Proving Fetal Homicide in Cleveland Kidnapping Case Could Be Difficult

TIME: The Challenge of Proving Fetal Homicide in the Cleveland Kidnapping Case, by Kate Pickert:

If the man accused of imprisoning three women for a decade inside his Cleveland home is convicted of the charges filed against him, it seems unlikely he will ever be released from prison. This week, prosecutors charged Ariel Castro with four counts of kidnapping and three counts of rape. . . .

Some may be wondering why Castro wasn’t also charged with homicide. One of his victims, Michelle Knight, reportedly told investigators she became pregnant five times while in captivity and that Castro beat and starved her each  time until she miscarried. . . .

Embryonic Personhood Measure will Appear on North Dakota Ballot

The New York Times: North Dakota to Put End to Abortions on the Ballot, by John Eligon:

North Dakota lawmakers passed a resolution on Friday to allow the public to decide whether the State Constitution should assert that life begins at conception, a move that would essentially ban all abortions in the state. . . .

Bills on North Dakota Governor's Desk Would Bar Abortions for Grave Fetal Anomalies

TIME - Family Matters: Pro-Choice or No Choice? North Dakota Wants to Ban Abortion for Fetal Abnormalities, by Bonnie Rochman:

Testing for fetal abnormalities can alert expectant parents to potential health problems to come. And it’s the parents who should decide on how to act on those results, right?

Not necessarily. In North Dakota, the governor is considering signing two anti-abortion bills that would be among the most restrictive in the nation. . . .

The Guardian Offers Timeline of "2012 War on Women"

The Guardian: The War on Women, by Heather Long:

2012 was a tough year for American females as various aspects of female health and reproduction repeatedly took center stage. Politicians and pundits, mainly Republican, made degrading and factually incorrect remarks about rape and contraception. But Democrats also left their mark with an ill-timed snipe at stay-at-home mom Ann Romney, reinvigorating the "mommy wars".

Here are the key moments in the 2012 War on Women . . . .

Martin Hevia and Carlos Vacaflor on In Vitro Fertilization in Latin America and the American Convention on Human Rights

Martin Hevia (Universidad Torcuato Di Tella – School of Law) and Carlos Herrara Vacaflor have posted The Legal Status of In Vitro Fertilization in Latin America and the American Convention on Human Rights on SSRN. Here is the abstract:

In Latin America, Costa Rica is the only country in the region that absolutely bans access to In Vitro Fertilization (IVF). In 2000, the Constitutional Chamber of the Supreme Court of Costa Rica, invoking article 4.1 of the American Convention on Human Rights, the fundamental legal document of the Inter-American system of human rights recognized the embryos’ right to life. The Constitutional Chamber held that given the great possibility that the embryos would be discarded, IVF should be completely prohibited insofar as it violates the right to life.

Recently, in the 2010 report “Gretel Artavia Murillo and others v. Costa Rica,” the Inter-American Commission of Human Rights (IACHR) concluded that completely prohibiting access to IVF in Costa Rica is incompatible with the ACHR. The commission ruled that the Costa Rica Constitutional Chamber’s decision to establish a total ban on access to IVF constitutes an arbitrary interference and is a restriction incompatible with the exercise of the rights of private and family life and the right to form a family — enshrined in articles 11 and 17 of the ACHR. It also held that impeding access to IVF is discriminatory since it constitutes a burden for a specific societal group: infertile women. Because Costa Rica had not complied with the IACHR recommendation to lift the ban on access to IVF, the Commission brought the case before the Inter-American Court of Human Rights, which is now ready to listen to the parties and resolve the controversy.

A propos the Commission’s report and as a prelude to the debate that will take place before the IACtHR, this paper analyzes the legal regimen on the process of IVF. In order to do so, it will critically evaluate the core of the IACHR report, and from this, determine the extent of the right to privacy and the right to life in these Latin American countries. This task is indispensable to observing whether the current legal status of IVF, in Costa Rica and other countries in the region, is consistent with the ACHR.

Arkansas Senate Approves Bill to Ban Abortions After 20 Weeks

Reuters:  Arkansas Senate passes bill to ban abortions after 20 weeks, by Suzi Parker, Daniel Trotta & Dale Hudson:

The Republican-controlled Arkansas state Senate approved a measure on Monday to ban abortions after 20 weeks of pregnancy except in the case of rape, incest or to save the mother's life.

The Pain Capable Unborn Child Protection Act passed the Senate, 25-7, with amendments that allowed for the exemptions in the case of rape or incest. An earlier version of the bill that passed the Republican-controlled House allowed exemptions only for pregnancies that threatened the mother's life. . . .

North Dakota Senate Approves Embryonic Personhood Amendment; Abortion Restrictions Advance in Mississippi and Oklahoma

Feminist Majority Foundation: ND Personhood Bill Moves to House:

The North Dakota state Senate approved an initiative on a 26 to 21 vote Thursday that, if passed by North Dakota Voters in 2014, would amend the state constitution to state that life begins at conception. The initiative, SB 2303, states it "ensures that the protection that our criminal laws afford[ed] to victims of crimes extends to all human beings born and unborn." If the Personhood Constitutional Amendment initiative also passes in the state House, it will appear on the ballot in the midterm 2014 elections. . . .

Feminist Majority Foundation:  MS Bill to Regulate Abortion Passes the Senate:

Senate Bill 2795, also known as the "Women's Health Defense Act," [PDF] passed in the Mississippi Senate yesterday on a 39 to 12 vote. The Mississippi State Medical Association, concerned that the regulations would potentially criminalize abortion providers, released a memo which stated, "Mississippi physicians have strong and serious concerns about SB 2795." The language of the bill was modified to address these concerns and has since lost support from some abortion opponents that consider the bill that passed to be "watered down.". . .

Feminist Majority Foundation:  OK House Passes Anti-Abortion Bills:

The Oklahoma State House Public Safety Committee passed three abortion-related bills Tuesday that make it more difficult for girls under the age of 18 to receive an abortion without parental consent. In a 7 to 3 vote, the Committee approved two bills that would eliminate the ability for an underage girl to have a judge allow them to receive an abortion without notifying their parents. . . .

Maneesha Deckha on Legislating Respect for the Embryo in Canada

Maneesha Deckha (University of Victoria – Faculty of Law) has posted Legislating Respect: A Pro-Choice Feminist Analysis of Embryo Research Restrictions in Canada on SSRN. Here is the abstract:  

This article investigates the impact of legislating respect and dignity for the embryo in vitro on the legal and cultural status of the embryo in utero. It evaluates the restrictions on embryo re-search in Canada’s Assisted Human Reproduction Act (AHRA) to consider whether they should receive pro-choice feminist support. Specifically, the article explores whether it is possible for feminists to accord respect to the in vitro embryo, as the AHRA attempts to do, without jeopardizing sup-port for abortion. The article canvasses the theoretical possibilities of this position by comparing the compatibility of feminist articulations of a right to abortion (bodily integrity and equality) with feminist arguments against the expansive use of embryos in research (commodification and exploitation). The article argues that it is logically compatible for feminists to promote “respect” and “dignity” for in vitro embryos while maintaining a pro-choice position on abortion. The article nevertheless cautions against feminist support for AHRA as it currently stands given that, on a practical basis, a feminist understanding of the AHRA’s restricted embryo research regime is difficult to achieve in the public sphere. The article explains why the more likely result for the public sphere will be an unqualified discourse of respect and dignity for embryos in general, which could then problematically revive the abortion debate and destabilize the non-personhood status of the in utero embryo. As a remedy, the article provides recommendations for how AHRA should be amended so as to better ensure that legislative restrictions on embryo research signal a legislative intent that respects women’s reproductive autonomy.

"Heartbeat" Abortion Ban Rejected in Wyoming but Easily Passes Arkansas Senate

Feminist Majority Foundation:  Wyoming House Rejects Heartbeat Bill:

Yesterday a Wyoming state House committee voted 5 to 3 to reject a bill that would have prohibited abortion once a fetal heartbeat can be detected. . . .

Feminist Majority Foundation:  "Fetal Heartbeat" Bill Passes in AK Senate:

The Arkansas state Senate passed the Human Heartbeat Protection Act in a 28 to 6 decision Thursday. This act would require women who are seeking to terminate their pregnancies to undergo a vaginal ultrasound, reported Reuters. If the probe is able to detect a fetal heartbeat, the woman would not be allowed to undergo an abortion on the grounds that a fetus with a heartbeat is a human being. . . .

In Colorado Med Mal Case, Catholic Hospital Argues Fetuses Are Not Persons

The Colorado Independent: In malpractice case, Catholic hospital argues fetuses are not people, by John Tomasic:

Lori Stodghill was 31-years old, seven-months pregnant with twin boys and feeling sick when she arrived at St. Thomas More hospital in Cañon City on New Year’s Day 2006. She was vomiting and short of breath and she passed out as she was being wheeled into an examination room. Medical staff tried to resuscitate her but, as became clear only later, a main artery feeding her lungs was clogged and the clog led to a massive heart attack. Stodghill’s obstetrician, Dr. Pelham Staples, who also happened to be the obstetrician on call for emergencies that night, never answered a page. His patient died at the hospital less than an hour after she arrived and her twins died in her womb. . . .

Maya Manian on Personhood Legislation

Maya Manian (University of San Francisco School of Law) has posted Personhood Legislation, Abortion Regulation, and Side Effects on Women's Health on SSRN. Here is the abstract:

State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far no personhood laws have passed. Why? This Article offers a possible explanation. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion has led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, fertility, and women’s health in general. Public concern over the “side effects” of personhood laws seems to have persuaded even those opposed to abortion to reject personhood legislation. If this is so, personhood opponents may have struck on a strategy that could apply more broadly. As this Article explains, various anti-abortion regulations — not just personhood laws — have deleterious “side effects” on women’s health. Focusing the public’s attention on these spillover effects could create stronger support for access to abortion care and thereby better promote women’s health across the full spectrum of women’s healthcare needs.

Paul Ryan Cosponsors Embryonic Personhood Bill

Huffington Post: Paul Ryan Cosponsors New Fetal Personhood Bill, by Laura Bassett:

Despite the deep unpopularity of fetal personhood bills in 2012, Rep. Paul Ryan (R-Wis.) has again decided to cosponsor the Sanctity of Human Life Act, a bill that gives full legal rights to human zygotes from the moment of fertilization. . . .

Guttmacher Institute Releases 2012 State Policy Review on Reproductive Health and Rights

Guttmacher Institute:  Laws Affecting Reproductive Health and Rights:  2012 State Policy Review:

                      

Reproductive health and rights was once again the subject of extensive debate in state capitols in 2012. Over the course of the year, 42 states and the District of Columbia enacted 122 provisions related to reproductive health and rights. One-third of these new provisions, 43 in 19 states, sought to restrict access to abortion services. Although this is a sharp decrease from the record-breaking 92 abortion restrictions enacted in 2011, it is the second highest annual number of new abortion restrictions. . . .

State Court Temporarily Blocks Georgia Abortion Ban

ACLU of Georgia press release: STATE COURT TEMPORARILY HALTS GEORGIA ABORTION BAN:

The Superior Court of Fulton County last Friday temporarily suspended a Georgia law banning pre-viability abortions. The law would have criminalized virtually all abortions starting at 20 weeks of pregnancy, with only an extremely narrow exception for the woman's health.

The American Civil Liberties Union and the ACLU of Georgia challenged the law on behalf of three Georgia obstetrician-gynecologists whose patients include women in need of this essential medical care. . . .

Michigan Legislature Considers Measure to Allow Fetuses to be Claimed as Dependents for Tax Purposes

Feminist Majority Foundation - Feminist Daily News:  Michigan Considering Fetus to Qualify as a Dependent:

Lawmakers in Michigan are considering allowing fetuses that are at least 12 weeks in gestation to qualify as a dependent under the state's tax law. Two House Bills, HB 5684 and HB 5685, have been proposed in the Michigan House Tax Policy committee and were debated last week. The measures were originally scheduled to be discussed further today, however several committee members are not ready to vote on them, according toMLive. . . .

Virginia State GOP Leaders Poised To Drop Fetal Personhood Effort

The Examiner: Virginia Republicans to let 'personhood' bill die this week, by Steve Contorno:

A late effort to bring new life to a bill which would grant a fetus the same rights as an everyday citizen has likely failed, an early sign that Virginia Republicans may be less inclined to press forward on controversial social issues that overshadowed this year's session when they return to Richmond in January. . . . 

See also: 

The Huffington Post: Bob Marshall: Virginia GOP Pressures Me '7 Days A Week' To Drop Anti-Abortion Agenda, by Laura Bassett:

Virginia Del. Bob Marshall (R-Prince William), the author of the state's fetal personhood bill, says he has always been a bit of a thorn in the side of the mainstream Republican Party. But since the 2012 election, he said, the party is "more overtly gun-shy" about dealing with abortion, and the pressure from GOP leadership to back off of his socially conservative agenda is constant. . . .

Mark Osler on the Legal Significance of Viability in Roe v. Wade

Mark William Osler (University of St. Thomas School of Law) has posted Roe's Ragged Remnant: Viability on SSRN. Here is the abstract:

In "Roe's Ragged Fringe," the consequences of one odd choice made in Roe v. Wade are explored. In Roe, the majority chose viability as the threshold at which the state's interest in the fetus became significant enough to allow abortion to be barred. However, it chose a different threshold, birth, as the point at which the unborn child itself gained any rights. This article assails the illogic of choosing two points in time to describe the same essential event. At the very least, personhood rights should attach to the unborn child at viability, as at that point the pregnancy can be terminated without an abortion -- through a live birth. The essential trade-off changes from being between freedom of the mother versus the life of the child, to the cost of the premature birth versus the life of the child; a very different calculus. This article urges that this oddity be corrected, and viability be seen as a crucial threshold not only for the interests of the state, but the interests of the child.

Michele Bratcher Goodwin at the University of Utah: The New Reproductive Battlefront

Monday November 5, 12:15 p.m. MST
(2:15 p.m. EST, 11:15 a.m. PST)

Michele Bratcher Goodwin, the 47th Annual Leary Lecturer, is the Everett Fraser Professor in Law at the University of Minnesota. She holds joint appointments at the University of Minnesota Medical School and the University of Minnesota School of Public Health.

Women's reproduction dominates recent political platforms and debates. However, relatively little attention has focused on the criminal policing targeted at pregnant women across America. Since the late 1980s, state legislatures have enacted punitive feticide laws that ostensibly apply to a broad range of activities, including falling down steps, suffering drug addiction, refusing cesarean sections, and attempting suicide. Legislators and prosecutors from both political parties have decided that a very strong "stick" should be used against pregnant women. Indeed, despite the fact that early feticide laws were intended to protect women from third party harms to their pregnancies, such as domestic violence, because women are more likely to be the targets of domestic violence during their pregnancies, now fetal protection laws—in 38 states—lead to unreasonable arrests and senseless convictions of pregnant women. The scope of the problem is difficult to measure. Yet, what is clear from the legal cases and news reports is that most of the victims are poor and many are women of color. In this year’s Leary Lecture, Professor Goodwin examines the expanded use of criminal laws and civil commitments to shape new reproductive health norms. Watch Live Online >>.

Free and open to the public. No registration required. One hour CLE.
Call 801-585-3479 or visit law.utah.edu.

U.S. Supreme Court Declines to Review Oklahoma Personhood Case

CNN: Supreme Court rejects abortion-related appeal, by Bill Mears:

The U.S. Supreme Court declined on Monday to review an abortion-related appeal, a sign the justices were not eager to jump into the contentious social issue.

The case dealt with the constitutionality of state "personhood" laws that say life begins at conception, and would give human embryos the rights and privileges of citizens. . . . 

Opinion Piece Challenging Purported Appeals to Science in Support of "Fetal Pain" Abortion Bans

The New York Times - Opinionator:  Can Neuroscience Challenge Roe v. Wade?, by William Egginton:

When I was asked this summer to serve as an expert witness in an appellate case that some think could lead to the next Supreme Court test of Roe v. Wade, I was surprised.

Rick Hearn is the attorney representing Jennie McCormack, an Idaho woman who was arrested for allegedly inducing her own abortion using mifepristone and misoprostol — two F.D.A.-approved drugs, also known as RU-486 — and for obtaining the drugs from another state over the Internet. While the case against Ms. McCormack has been dropped for lack of evidence, Mr. Hearn, who is also a doctor, is pursuing a related suit against an Idaho statute, the “Pain-Capable Unborn Child Protection Act” (Idaho Code, Section 18-501 through 18-510), and others like it that cite neuroscientific findings of pain sentience on the part of fetuses as a basis for prohibiting abortions even prior to viability. . . .