Wednesday, July 18, 2018
The Washington Post (Jul. 17, 2018): Who gets the embryos? Whoever wants to make them into babies, new law says, by Ariana Eunjung Cha:
New court cases cases are grappling with the decision of what to do with frozen embryos created during a marriage that later dissolves. In many cases that Cha reports on, the couples chose to create and freeze several embryos in the wake of a cancer diagnosis and treatment schedule that threatened later fertility.
When these same couples faced divorce, there were bitter divides over what should be done with the embryos: one party wanted to maintain "ownership" of the embryos for a future chance at children while the other wanted the embryos destroyed, fearing unwanted future financial or relationship obligations.
With the number of frozen embryos in the United States soaring into the millions, disputes over who owns them are also on the rise. Judges have often — but not always — ruled in favor of the person who does not want the embryos used, sometimes ordering them destroyed, following the theory that no one should be forced to become a parent.
In Arizona, though, a "first-in-the-nation law" went into effect on July 1 that states "custody of disputed embryos must be given to the party who intends to help them 'develop to birth.'"
The legislation represents for some lawmakers the idea that frozen embryos have their own right to life, and many imagine that the implications could eventually include a delineation of when life begins and a claim to a separate set of embryonic rights of their own as human beings (rather than the discussion being centered on who "owns" the embryos).
Some groups, like the anti-abortion Thomas More Society, advocate for that embryos to be considered "children" in the legal sense, asking judges to make decisions on disputes based on the best interest of the "child."
Debates to extend personhood to unborn embryos and fetuses abound in anti-abortion work. Abortion rights advocates are concerned that these discussions could further disintegrate the right to abortion in the United States. "If a days-old embryo in a freezer has a right to life, why not a days-old embryo in utero?"
While judges have historically ordered disputed embryos destroyed based on the wishes of the party who does not want a child, an Arizona judge chose to balance one party's "probable inability to have a child without the embryos" against the other party's "desire to not be a father" a different way.
Maricopa County Superior Court Judge Ronee Korbin Steiner held that Ruby Torres, who wanted the embryos in order to have biological children one day, had no right to them. The judge did not order them destroyed, though, and instead ordered that they go up for donation.
Torres appealed the decision and expects a new ruling any day.
The new Arizona law that states embryos shall be given to the party who intends to develop them to birth was written in response to this case to "help" people in Torres' situation. It also attempts to recognize the rights of those who do not want the embryos used by providing that those parties would not be liable for child support in the future.
Both the judicial decisions and the legislation continue to prove extremely controversial:
The Center for Arizona Policy, a conservative lobbying group that has successfully pushed antiabortion legislation in the state, supported the measure, saying the bill would “lead to more consistent rulings.”
The American Society for Reproductive Medicine, which represents doctors, nurses and other professionals who work on fertility issues, opposed the measure, arguing that it would have a profound impact on reproductive medicine.
Medical professionals foresee profound complications to stem-cell research in particular, which relies on embryos donated to science. Such research is believed essential in developing treatments for many diseases and conditions like Parkinson's and Alzheimer's. The treatment and storage of embryos as a result of the new legislation will likely make embryonic stem cells much more scarce.
In a friend-of-the-court brief in Torres' pending appellate case, the Academy of Adoption and Assisted Reproduction Attorneys urged judges in the Arizona Court of Appeals to balance the interest of each former spouse. They argue that the parties claims are not equal and that "the constitutional protection against compulsory parenthood is [generally] greater than any procreative interest in pre-embryos."
Time will tell both if the appellate judges affirm Judge Steiner's controversial ruling (likely leading to further appeals) while we also wait for the inevitable challenges to Arizona's new embryo law.
July 18, 2018 in Abortion, Assisted Reproduction, Bioethics, Culture, Current Affairs, Fertility, Fetal Rights, In the Courts, Medical News, Parenthood, Politics, Public Opinion, Scholarship and Research, State and Local News, State Legislatures, Stem Cell Research | Permalink | Comments (0)
Wednesday, June 28, 2017
Romper (Jun. 23, 2017): This New Hampshire Law Accidentally Let Pregnant Women Get Away With Murder, by Kenza Moller
New Hampshire lawmakers recently passed a bill defining a fetus of 20 weeks or older as a human with full rights, exposing anyone who causes the death of such a fetus to the risk of being charged with a homicide.
Senate Bill 66 is soon-to-be one of about 38 fetal homicide laws currently on the books throughout the country. Supporters generally think of fetal homicide laws as providing an avenue for women to press charges if their unborn children are killed in an incident such as a car crash or violent assault. Opponents, however, criticize such legislation, citing it as an attack on women's reproductive rights. Fetal homicide laws, they argue, can be construed to punish women who miscarry or are suspected of inducing an abortion.
Republican lawmakers here, though, added a clause to the bill intended to assuage pro-choice fears, but the initial wording implied possible scandalous results.
The bill read that "any act committed by the pregnant woman" or her doctor wouldn't apply in any second-degree murder, manslaughter, or negligent homicide cases, according to Slate. The fine print there, of course, is that "any act" could include far more than just an abortion.
Technically, that would make physician-assisted suicide and murder A-OK for pregnant ladies. Whoops. Once lawmakers noticed the fairly serious loophole, however, they quickly fixed it on Thursday in a legislative move (called an "enrolled bills process") usually reserved for correcting spelling or grammatical errors.
New Hampshire Governor Chris Sununu is expected to sign the bill into law--without granting pregnant women the right to murder--going into effect January 1, 2018.
Thursday, May 12, 2016
New York Times (May 5, 2016): Utah Law on Fetal Pain Stokes Fight on Abortion, by Jack Healey:
At 20 weeks or more into a pregnancy, women undergoing an abortion in Utah will first have to be given anesthesia for the fetus. The new requirement, which took effect yesterday, is the latest development in the abortion controversy over the idea of fetal pain. Most scientists agree that a fetus's brain and nervous system are not capable of registering pain until 27 weeks of gestation. Proponents of the law purport to be acting out of concern for the fetus and "common decency"; opponents cite concerns ranging from the law's intrusion into the doctor-patient relationship to its baffling vagueness and scientific unsoundness. Some doctors have asked what types of anesthesia the law requires and whether it must be injected through the woman's abdominal wall. The law contains exceptions for rape and incest, fetuses that have "uniformly lethal" conditions, and the life and health of the woman.
Thursday, September 24, 2015
AL.com with ProPublica: Alabama Leads Nation in Turning Pregnant Women into Felons, by Nina Martin:
This is a comprehensive analysis of Alabama's "chemical endangerment of a child" law, the country's toughest criminal law banning prenatal drug use. In recent years, Alabama authorities have been aggressive about removing newborns from the custody of mothers who abuse drugs,typically placing a baby with a relative or foster family under a safety plan that can continue for months or years.
The law was passed during Alabama's war on methamphetamine and specifically "targeted parents who turned their kitchens and garages into home-based drug labs, putting their children at peril." But now prosecutors and courts are turning the law on women who used controlled substances while pregnant, "even if [the] baby is born perfectly healthy, even if [the mother's] goal was to protect her baby from greater harm. The penalties are exceptionally stiff: one to 10 years in prison if her baby suffers no ill effects, 10 to 20 years if her baby shows signs of exposure or harm and 10 to 99 years if her baby dies."
Friday, April 3, 2015
Vox: An Indiana woman is facing 20 years in prison for "feticide", by Christophe Haubursin:
Indiana did something unprecedented this week: it sentenced a woman to a 20-year prison sentence for violating a decades-old feticide law.
Purvi Patel's conviction, announced on Monday, is the first American case in which a court has found a pregnant woman guilty of violating a fetal homicide law. . . .
Some Colorado Legislators Aim to Exploit Brutal Attack on Pregnant Woman to Promote Fetal Personhood
The Daily Beast: Colorado Seeks Fetal Murder Law After Attack On Pregnant Woman, by Brandy Zadrozny:
Energized by national outrage over a grisly attack on a pregnant woman whose unborn baby died after being cut from her womb, a Colorado lawmaker is poised to push a new fetal homicide law in the state, leading to concern that Republicans might be turning a tragedy into a talking point for anti-abortion legislation. . . .
Anyone who believes these laws don't pose a threat to pregnant women need look no further than Indiana.
Saturday, March 21, 2015
Associated Press: Ala. Abortion Law Lets Judges Appoint Lawyers for Fetuses, by Kim Chandler:
The American Civil Liberties Union on Wednesday asked a federal judge to block an Alabama law that allows a fetus to be represented in court when a minor is seeking judicial permission for an abortion.
While abortion opponents have rolled out a variety of new restrictions on abortion in recent years - including new requirements on clinics and doctors - ACLU staff attorney Andrew Beck said the Alabama law was unique. . . .
Here's the Daily Show's take on it (from January):
Tuesday, March 17, 2015
ThinkProgress: ‘Fetal Anesthesia': The Creative New Way To Limit Abortion Access And Enshrine Bad Science Into Law, by Tara Culp-Ressler:
Montana lawmakers are preparing to debate a proposed bill that furthers the anti-abortion strategy of emphasizing “fetal pain” — the unscientific theory that fetuses are sentient after about 20 weeks of pregnancy. An increasing number of states are moving to enact 20-week abortion bans under the guise of preventing pain that scientists agree doesn't actually exist. But Montana is taking an even more creative approach.
Under House Bill 479, drafted by State Rep. Albert Olszewski (who is an orthopedic surgeon), abortion doctors would be required to administer anesthesia to fetuses past the 20th week of pregnancy. . . .
The concept of fetal anesthesia for abortion procedures didn’t originate in Montana. It’s the next step in a carefully coordinated strategy being pioneered by pro-life activists who want to narrow the window for legal abortion services by casting the medical procedure as barbaric, and arguing that fetuses are suffering in pain. . . .
Sunday, February 22, 2015
The New York Times: In Pre-Primary Pivot to Right, Walker Shifts Tone on Abortion, by Trip Gabriel:
It was a memorable political ad: Gov. Scott Walker of Wisconsin spoke directly into the camera in a 30-second spot last fall and called abortion an “agonizing” decision. He described himself as pro-life but, borrowing the language of the abortion rights movement, pointed to legislation he signed that leaves “the final decision to a woman and her doctor.”
That language was gone when Mr. Walker met privately with Iowa Republicans in a hotel conference room last month, according to a person who attended the meeting. There, he highlighted his early support for a “personhood amendment,” which defines life as beginning at conception and would effectively prohibit all abortions and some methods of birth control. . . .
Sunday, November 9, 2014
NPR: Two Of Three States Reject Ballot Measures Restricting Abortion, by Jennifer Ludden:
Amid all the shakeout from this week's midterm elections, many are trying to assess the impact on abortion.
Two abortion-related ballot measures were soundly defeated. A third passed easily. And those favoring restrictions on abortion will have a much bigger voice in the new Congress. . . .
The Los Angeles Times: On abortion, election delivered mixed messages, by Maria La Ganga:
The 2014 midterm election was a mixed bag for abortion rights supporters: Two out of three state ballot measures that would have regulated the procedure went down to defeat, but control of the U.S. Senate swung to the Republican Party, with its antiabortion candidates claiming victory.
"It is a happy day for us, a great day for pro-lifers," said Marilyn Musgrave, vice president for government affairs with the Susan B. Anthony List, which advocates for female antiabortion candidates. "The life issue won." . . .
Mother Jones: The Fight for Abortion Rights Just Got a Whole Lot Harder, by Molly Redden:
Activists thought they had a chance to expand reproductive rights. The Red Wave put an end to that
The GOP wave didn't just crash into the US Senate. It flooded state legislatures, as well. By Wednesday evening, Republicans were in control of 67 of the nation's 99 state legislative chambers—up from 57 before the election. It's still unclear which party will control two other chambers.
Already, anti-abortion advocates are calling it a big win. Hundreds of the country'smost extreme anti-abortion bills pop up in these statehouses every year, and Tuesday's results won't do anything to put a stop to that. But reproductive rights advocates also suffered big setbacks Tuesday in places where they had actually been playing offense. Now, Democratic losses in states like Colorado, Nevada, New York, and Washington could torpedo their efforts to expand reproductive rights. . . .
Tuesday, November 4, 2014
The Huffington Post: Colorado And North Dakota Voters Reject Fetal Personhood Measures, by Laura Bassett:
Voters in Colorado rejected an anti-abortion ballot measure on Tuesday that would have granted personhood rights to developing fetuses from the moment of fertilization.
The ballot measure, known as Amendment 67, would have amended the state's criminal code to include fetuses in the category of "human" and "child." Supporters of the measure said it would have more harshly prosecuted someone who caused a pregnant woman to lose her baby in a situation like a drunk driving accident.
Opponents warned that it also would have criminalized women who have abortions, without exception for rape or incest.
Colorado voters rejected the amendment by a vote of 63 percent to 37 percent -- the third time they have voted down a personhood measure in the past few years. . . .
Colorado voters on Tuesday did, however, elect to the Senate Republican Cory Gardner, who co-sponsored fetal personhood legislation in the House of Representatives.
North Dakota voters on Tuesday also rejected a personhood ballot measure by a margin of 64 percent to 36 percent. The measure would have amended the state constitution to say, "The inalienable right to life of every human being at any stage of development must be recognized and protected.'" . . .
Thursday, October 23, 2014
ThinkProgress: North Dakota Is Quietly Preparing To Enact The Most Radical Abortion Measure In The Country, by Tara Culp-Ressler:
In less than two weeks, North Dakota voters will head to the polls and cast their ballots on a radical effort to overhaul the state’s constitutionand redefine legal personhood in a way that includes fertilized eggs. The latest polling indicates that Amendment 1 may have enough support to pass, making North Dakota the first state in the country to enact a radical “personhood” measure — something that abortion opponents have been attempting to do for four decades. But hardly anyone is talking about it. . . .
MSNBC: This conservative cause is the GOP’s worst nightmare, by Irin Carmon:
There is one word that has defined the Colorado Senate race and it’s a word that Republican Rep. Cory Gardner and other GOP candidates across the country are tired of hearing. The word is “Personhood.”
For months, local reporters have been asking Gardner, who is challenging Democratic Sen. Mark Udall, to explain his contradictory and opaque positions on a Colorado Personhood measure Gardner once supported and a federal bill he still does. Such measures would extend legal protection to fertilized eggs and are intended to ban all abortion as well as common in-vitro fertilization processes and some forms of birth control, including the IUD and emergency contraception. . . .
It was quiet that afternoon on the Personhood terrace, when Keith Mason openly admitted he doesn’t expect Amendment 67 to pass. Then he nodded towards Planned Parenthood and grinned: “We just cost them $4 million.” . . .
Wednesday, August 27, 2014
The Daily Beast: Indiana 'Feticide' Charge Is the Latest Fallout From States' Strict Anti-Abortion Laws, by Sally Kohn:
Anyone who doubts that laws restricting abortion rights actually restrict the freedom of women to fundamentally control their bodies and health should look at Indiana. In that state, a 33-year-old woman has been charged with “feticide” after suffering premature delivery and seeking hospital treatment. She becomes the second woman to recently be charged with “feticide” in Indiana. Nationwide, at least 37 other states have similar laws that have restricted the rights of pregnant women under the guise of supposedly protecting fetuses. . . .
Monday, June 23, 2014
Jezebel: Awful Law Would Force Brain Dead Pregnant Women to Incubate Fetuses, by Erin Gloria Ryan:
A new law waiting to be signed into law by Louisiana governor Bobby Jindal would require that pregnant and brain dead women be kept on life support, regardless of the stated wishes of her family. If the pro-life crowd is trying to disprove accusations that they only care about women to the extent that they are incubators for fetuses, they're not doing a great job. . . .
According to MSNBC's Clare Kim, the HR 1274, which easily sailed through Louisiana's conservative state legislature last week, would require that pregnant women who become mentally incapacitated remain attached to life support, even if her husband or family members would like her to be unplugged and allowed to die. The only exceptions to this rule are if a woman explicitly wrote in her legal will that she doesn't wish to be artificially kept alive if pregnant and incapacitated, or if she's less than 20 weeks pregnant. Conservative governor and IRL Kenneth the Page Bobby Jindal is likely to sign the bill into law; yesterday, he decided that a Baptist church was an appropriate setting in which to sign a law that will close many of the state's abortion clinics. . . .
Friday, April 4, 2014
ProPublica: Judge Throws Out Murder Charge in Mississippi Fetal Harm Case, by Nina Martin:
The ruling means that the woman whose drug use had her facing a possible life term can at most be charged with manslaughter in the death of her stillborn daughter.
A Mississippi judge has thrown out murder charges against a young woman in the 2006 death of her stillborn child, a significant setback for prosecutors in a controversial case that has been closely followed both by women's rights groups and those interested in establishing rights for the unborn.
Rennie Gibbs, who was 16 when she gave birth to her stillborn daughter Samiya, had been indicted for "depraved heart murder" after traces of a cocaine byproduct were found in the baby's blood. The charge — defined under Mississippi law as an act "eminently dangerous to others...regardless of human life" — carries a maximum sentence of life in prison. . . .
Sunday, January 26, 2014
The New York Times: Texas Woman Is Taken Off Life Support After Order, by Manny Fernandez:
A Fort Worth hospital that kept a pregnant, brain-dead woman on life support for two months, followed a judge’s order on Sunday and removed her from the machines, ending her family’s legal fight to have her pronounced dead and to challenge a Texas law that prohibits medical officials from cutting off life support to a pregnant woman.
On Friday, a state district judge ordered John Peter Smith Hospital to remove the woman, Marlise Muñoz, from life-support machines by 5 p.m. on Monday. . . .
Saturday, January 11, 2014
DallasNews: Texas denies pregnant woman's grieving family the right to say goodbye, by Jacquielynn Floyd:
Marlise Munoz died the week after Thanksgiving.
Doctors believe she suffered a pulmonary embolism -- a blood clot to the lungs -- that cut off her oxygen. When her husband, Erick, found Marlise in their Tarrant County home, she wasn’t breathing and had no pulse.
She was gone.
If there is any mercy in the sudden loss of this happy young wife and mother, it’s that she doesn’t know she has since lingered in a hopeless twilight, her respiration artificially supported by machines.
She made it clear she didn’t want this. Her grieving husband and parents don’t want it either. But a not-very-well known statute under state law says Marlise, 33, doesn’t have the same right to a peaceful, natural death as other Texans because she is pregnant. . . .
DallasNews: Texas laws unclear in case of pregnant Fort Worth woman kept on life support, by Brittney Martin:
Conflicting Texas statutes are contributing to confusion about whether a hospital must keep a pregnant Tarrant County woman on life support against the wishes of her family. . . .
Tuesday, November 12, 2013
Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call interest creep. Interest creep is the uncritical expansion of underspecified interests like national security and child protection to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts.
This Article examines interest creep through the illuminating lens of reproduction law in which it has thrived. Courts have resolved disputes including surrogacy contracts, genetic testing torts, and property claims for lost embryos by casual appeal to the state’s interest in “potential life” that Roe v. Wade designated as the canonical kind that can override rights. My analysis of every case and statute that has invoked this potential-life interest reveals its use to mean not one but four species of government concern. These distinct concerns for prenatal welfare, postnatal welfare, social values, and social effects operate under different conditions and with varying levels of strength. I apply this novel conceptual framework to live controversies involving fetal pain, sex selection, and stem cell research. These case studies demonstrate how ordinary interpretive methods equip courts to unravel the complexity of concerns that interests like “potential life” absorb over time amidst evolving facts and competing values. More broadly, this examination provides a model for how in other areas of law, from campaign finance to affirmative action, judges and lawmakers can repair the confused decisionmaking that interest creep promotes.
See also: The Huffington Post: The Forgotten Holding of Roe v. Wade, by Dov Fox:
Most people identify Roe v. Wade with a single landmark judgment. This is the case that extended the constitutional right of privacy to a woman's decision about whether to keep a pregnancy. Indeed, political, judicial, and scholarly debates about Roe have fixated on the source, content, and legitimacy of that individual right to abortion. . . .
Thursday, October 24, 2013
Lawsuit Challenges Wisconsin Law Allowing Pregnant Women To Be Incarcerated For Conduct Deemed Risky to Their Fetuses
The New York Times: Case Explores Rights of Fetus Versus Mother, by Erik Eckholm:
Alicia Beltran cried with fear and disbelief when county sheriffs surrounded her home on July 18 and took her in handcuffs to a holding cell.
She was 14 weeks pregnant and thought she had done the right thing when, at a prenatal checkup, she described a pill addiction the previous year and said she had ended it on her own — something later verified by a urine test. But now an apparently skeptical doctor and a social worker accused her of endangering her unborn child because she had refused to accept their order to start on an anti-addiction drug. . . .
(h/t David Nadvorney)
I found this quotation from one doctor especially chilling:
“She exhibits lack of self-control and refuses the treatment we have offered her,” wrote Dr. Breckenridge, who, according to Ms. Beltran, had not personally met or examined her. [Dr. Breckenridge] recommended “a mandatory inpatient drug treatment program or incarceration" . . . .
This sounds like something out of The Yellow Wallpaper.
Wednesday, September 18, 2013
Slate: Fetal Fact Check, by William Saletan:
The doctors cited by pro-lifers say their fetal pain research doesn’t support abortion bans
In much of this country, over the last three years, pro-lifers have banned abortions 20 weeks after fertilization. They’ve justified these bans by asserting—contrary to the most authoritativestudies—that fetuses at this stage of development can feel pain. Their assertions, in turn, are based on research by several doctors. But the doctors don’t buy the pro-lifers’ conclusions. They say their research doesn’t support the bans. . . .
Here's what William Saletan gets right in this column: The science supporting claims that human fetuses can perceive pain at 20 weeks after fertilization is weak. Here's where he goes on irrelevant tangents:
(1) Dr. Kanwaljeet J. S. Anand, apparently the only known researcher who believes fetuses can feel pain at this stage, also believes "that 'fetal pain does not have much relevance for abortion, since most abortions are performed before the fetus is capable of experiencing pain.'" Who cares? If fetal pain marks the (moral) point at which abortion should be banned, why does it matter how few abortions are implicated? Any abortion after that stage, proponents would argue, is immoral and should be banned.
(2) Dr. Anand believes that his research does not support post-20-week abortion bans. (Anand says that pain could be averted through anesthesia or causing a quick fetal demise before beginning the abortion procedure.) Again, so what? This point seems to misapprehend how anti-choice activists are using Anand's research. They claim that the ability to perceive pain marks a moral threshold of human development sufficiently significant that abortion should not be permitted after this point. That might be an important moral claim meriting a response (if not necessarily agreement), if the science backed up their assertions. But while Anand believes fetuses can perceive pain at 20 weeks post-fertilization, he is contradicted by numerous other experts who conclude otherwise. The best evidence suggests that a human fetus's ability to perceive pain does not occur before fetal viability, after which states can already ban abortions under Roe v. Wade.
(3) There is a "gap" between the claim that fetuses feel pain and the claim that abortions should be banned, since pain could be addressed in ways other than banning abortion. While this is absolutely true, it fails to take the anti-choice argument seriously. As explained above, anti-choice activists obviously do not believe that abortion is morally acceptable so long as fetuses don't feel pain. They are asserting that fetal pain is a critical marker of human development: once a fetus can feel pain, it has reached the stage where it is morally unacceptable to kill it. Saletan describes the "gap" between (doubtful) assertions of fetal pain and banning abortion as a "sleight of hand." But he overlooks the real deception. Anti-choice activists will not be content with banning abortions at 20 weeks. For these activists, pain perception is not in fact the definitive moral milestone that they claim it is. Their ultimate goal is to ban all abortions from the moment of fertilization, when the pre-embryo can scarcely be seen with the naked eye. The question of fetal pain is thus totally irrelevant to their moral claims. They are simply trying to get the public to move one smallish step with them toward their ultimate goal, without reminding the public of what that goal really is.