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.
Tuesday, September 17, 2013
The New York Times: Complex Science at Issue in Politics of Fetal Pain, by Pam Belluck:
It is a new frontier of the anti-abortion movement: laws banning abortion at 20 weeks after conception, contending that fetuses can feel pain then.
The science of fetal pain is highly complex. Most scientists who have expressed views on the issue have said they believe that if fetuses can feel pain, the neurological wiring is not in place until later, after the time when nearly all abortions occur. . . .
See also: ThinkProgress: Scientists Studying ‘Fetal Pain’ Don’t Actually Want Their Research To Justify Abortion Bans, by Tara Culp-Ressler.
Wednesday, June 19, 2013
The Daily Beast: The Uncertain Science of Fetal Pain, by Michelle Goldberg:
As the Republican-led House of Representatives passes a far-reaching bill that would ban most abortions after 20 weeks based on the science of ‘fetal pain,’ Michelle Goldberg reports on whether the unborn can feel hurt.
Despite being passed by the House of Representatives, the Pain-Capable Unborn Child Protection Act, which bans abortion after 20 weeks, has no chance of becoming law as long as Democrats control the Senate and the White House. It’s significant, though, as evidence of a broad new legislative assault on Roe v. Wade, one that aims to use the uncertain science of fetal pain to ban abortion before viability. . . .
Tuesday, June 18, 2013
The Atlantic: The Point Michael Burgess Was Trying to Make About Fetal Masturbation, by David A. Graham:
The Texas lawmaker's comments are really just another way to talk about the doggedly debated topic of whether fetuses feel pain.
Another week, another awkward remark about pregnancy from a Republican lawmaker.
Last week, it was Rep. Trent Franks' comments about the frequency of pregnancy from rape, the validity and meaning of which have been subject to a tediously hair-spliting debate. This week, it's Rep. Michael Burgess, a Texan, with this:
Watch a sonogram of a 15-week baby, and they have movements that are purposeful. They stroke their face. If they're a male baby, they may have their hand between their legs. If they feel pleasure, why is it so hard to believe that they could feel pain? . . .
Wednesday, May 22, 2013
The Ninth Circuit rules Arizona's 20-week "fetal pain" abortion ban clearly unconstitutional...
The New York Times: Arizona Law on Abortions Struck Down as Restrictive, by Fernanda Santos:
A federal appellate panel struck down Arizona’s abortion law on Tuesday, saying it was unconstitutional “under a long line of invariant Supreme Court precedents” that guarantee a woman’s right to end a pregnancy any time before a fetus is deemed viable outside her womb — generally at 24 weeks.
The law, enacted in April 2012 despite vociferous protest by women’s and civil rights groups, made abortions illegal if performed 20 weeks after a woman’s last menstrual period, or roughly 18 weeks after fertilization, even if the woman learned that the fetus had no chance of surviving after birth. . . .
...but Arizona's Rep. Trent Franks vows to push for a similar ban in Congress:
The Huffington Post: Trent Franks Uses Kermit Gosnell Case To Push 20-Week Abortion Bill, by Laura Bassett:
Rep. Trent Franks (R-Ariz.) told reporters on Wednesday that there is a "good chance" House leadership will bring his nationwide 20-week abortion ban to the floor this year for a full vote in light of the Kermit Gosnell trial.
While Franks' bill, which only applied to the District of Columbia the previous times he introduced it, has never been brought to the floor for a vote, he said the Gosnell trial has caused leadership to take it more seriously this year. . . .
The Ninth Circuit Court of Appeals struck down a similar bill in Arizona on Tuesday, declaring it unconstitutional. But Franks said he doesn't trust or respect the Ninth Circuit. . . .
The opinion is available here.
Thursday, May 9, 2013
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. . . .
Monday, March 25, 2013
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. . . .
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. . . .
Tuesday, March 5, 2013
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 . . . .
March 5, 2013 in 2012 Presidential Campaign, Abortion, Abortion Bans, Anti-Choice Movement, Congress, Contraception, Fetal Rights, In the Media, Mandatory Delay/Biased Information Laws, Parenthood, Politics, Pregnancy & Childbirth, Religion and Reproductive Rights, Reproductive Health & Safety, Sexual Assault, Sexuality, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)
Monday, February 25, 2013
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
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.
Tuesday, February 19, 2013
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. . . .
Monday, February 18, 2013
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. . . .
Saturday, February 16, 2013
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.
Tuesday, February 5, 2013
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. . . .
Thursday, January 24, 2013
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. . . .
Friday, January 18, 2013
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.
Wednesday, January 9, 2013
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. . . .
Sunday, January 6, 2013
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. . . .
January 6, 2013 in Abortion, Contraception, Fetal Rights, Mandatory Delay/Biased Information Laws, Pregnancy & Childbirth, Scholarship and Research, Sexuality Education, Sexually Transmitted Disease, State Legislatures, Targeted Regulation of Abortion Providers (TRAP), Teenagers and Children | Permalink | Comments (0) | TrackBack (0)