April 17, 2013
Khiara M. Bridges on Pregnancy as Injury
Khiara M. Bridges (Boston University School of Law) has posted When Pregnancy Is an Injury: Rape, Law, and Culture on SSRN. Here is the abstract:
This Article examines criminal statutes that grade more severely sexual assaults that result in pregnancy. These laws, which define pregnancy as a “substantial bodily injury,” run directly counter to positive constructions of pregnancy within culture. The fact that the criminal law, in this instance, reflects this negative, subversive understanding of pregnancy creates the possibility that this idea may be received within culture as a construction of pregnancy that is as legitimate as positive understandings. In this way, these laws create possibilities for the reimagining of pregnancy within law and society. Moreover, these laws recall the argumentation that proponents of abortion rights once made – argumentation that one no longer hears and sees in the debates surrounding abortion. However, recent developments in antiabortion argumentation – namely the notion accepted in Carhart II that it is abortion that injures women – counsel the retrieval of the argument that unwanted pregnancies are injuries to women. Thus, the sexual assault laws are means to legitimatize a claim that may serve as an effective counterdiscourse to prevailing antiabortion argumentation.
October 30, 2012
Courtney Cahill on Abortion and Disgust
This Article uses disgust
theory — defined as the insights on disgust by psychologists and social
scientists — to critique disgust’s role in abortion lawmaking. Its point of
departure is a series of developments that independently highlight and call
into question the relationship between abortion and disgust. First, the Supreme
Court introduced disgust as a valid basis for abortion regulation in its 2007
case Gonzales v. Carhart. Second, psychologists have recently discovered a
strong enough association between individual disgust sensitivity and abortion
opposition to suggest that disgust might drive that opposition. They have also
discovered that “abortion disgust” appears to be unrelated to the harm concerns
— e.g., harm to the fetus — on which oppositional abortion rhetoric and
restrictive abortion laws often explicitly rest. Third, legislatures around the
country have passed hundreds of restrictive abortion laws in 2010 and 2011. If
the moral psychologists are right, then disgust underwrites most, if not all,
of those laws.
Taking these developments seriously, this Article synthesizes the key insights of psychology, social science, and sex equality scholarship to make two arguments, one descriptive and the other constitutional. First, abortion disgust is not a reaction to harm/death but rather to perceived gender role violation by women. Second, this genealogy of abortion disgust constitutes the best reason why we ought to reject disgust as a basis for abortion regulation, allied as that emotion is to unconstitutional sex stereotyping — or what the Court has called unconstitutional “role typing.” This Article concludes by suggesting that “rejecting disgust” in abortion lawmaking might mean subjecting all abortion laws to heightened scrutiny under the Equal Protection Clause, given disgust’s likely role in animating all abortion regulation.
February 14, 2012
Susan Appleton on Reproduction and Regret
What is the legal significance of regret following a reproductive decision or outcome? In Gonzales v. Carhart, a Supreme Court majority offered one answer to this question, famously invoking the regret of some women for their past abortions as a reason to uphold a federal law criminalizing a particular abortion procedure. But Gonzales is not the first case to confront what I call 'reproduction and regret,' and the Court’s approach in Gonzales ignores the contrasting judicial responses from these other cases.
This Article supplies the missing analysis - contextualizing Gonzales’s treatment of reproduction and regret by identifying and developing five additional models. These additional models come from disputes about adoption surrenders, the performance of surrogacy arrangements, support obligations arising from children born of unplanned pregnancies, the use of previously frozen embryos, and the status of sperm donors. Each model depicts a different understanding of reproduction and regret, supplementing Gonzales and the ensuing commentary on that case with a more expansive inquiry into the work courts have used regret to perform and the unarticulated assumptions or normative commitments that might explain the doctrinal and rhetorical inconsistencies. This wider lens illuminates regret’s regulatory function across the range of cases.
This Article’s examination of regret as a regulatory tool in turn has three analytical payoffs. First, it disrupts Gonzales’s depiction of regret as a natural and self-generated emotion, clarifying the role of the state in producing regret. Second, it reinforces the critiques of Gonzales’s use of maternal stereotypes with a more robust account of gender that not only includes stereotypes of fatherhood but also exposes a specific link among regret, heterosexual intercourse, and unexamined beliefs about sexual pleasure. Finally, it highlights deep policy rifts in family law, a field that continues to prioritize the regulation of sex in particular, despite rhetoric to the contrary.
The importance of the jurisprudence of reproduction and regret transcends the particular disputes that exemplify it. As a general matter, contemporary family law celebrates what the Supreme Court has called 'the private realm of family life' and scholars have called “the republic of choice.” This vision not only puts a premium on individual decision making; it also complicates the question of what the legal significance of an actor’s own second thoughts about such decisions should be. An analysis of reproduction and regret thus offers a window into family law’s foundational values and contests writ large, providing insights into the principles, themes, and clashes dominating family law today.
December 29, 2010
Gonzales v. Carhart Emboldens State Legislatures
Wash. Post: Tests of 'Roe' more frequent since justices upheld late-term abortion ban in '07, by Robert Barnes:
LINCOLN, NEB. - Mike Flood, the 35-year-old speaker of Nebraska's legislature, had a problem: He wanted to stop the state's well-known abortion provider from offering late-term abortions.
A long line of Supreme Court precedents seemed to stand in his way. But Flood believes that a 2007 decision offers hope for him and other state legislators looking for ways to restrict abortion.
Using that decision as a road map, this spring Flood wrote and won passage of legislation that bans abortions after 20 weeks. Introducing into law the concept of "fetal pain," it marked the first time that a state has outlawed the procedure so early in a pregnancy without an exception for the health of the woman.
The law shut down LeRoy Carhart, the provider who had planned to expand his practice outside Omaha and provide late-term abortions to women across the Midwest.
The importance of Flood's bill is likely to be felt far beyond Nebraska. . . .
December 03, 2010
Jessie Hill on the Rhetoric of the Body in Abortion Law
The body occupies an ambiguous position within the law. It is, in one sense, the quintessential object of state regulatory and police power, the object that the state acts both upon and for. At the same time, the body is often constructed in legal discourse as the site of personhood - our most intimate, sacred, and inviolate possession. The inherent tension between these two concepts of the body permeates the law, but it is perhaps nowhere more prominent than in the constitutional doctrine pertaining to abortion. Abortion is one of the most heavily regulated medical procedures in the United States, and yet it is at the same time the subject of relatively robust constitutional privacy protections - often even treated as synonymous with the word “privacy” itself.
This brief Article focuses on the rhetoric of the body in abortion law - specifically, on how the Supreme Court’s language constructs the female body in Gonzales v. Carhart, which upheld the federal Partial Birth Abortion Ban Act against a constitutional challenge. A number of commentators have remarked upon the troubling rhetoric employed by Justice Kennedy’s majority opinion in that case, primarily because of its paternalistic and sentimental view of motherhood. But the focus of this Article is on the often overlooked, yet equally striking, language of the Court’s opinion that graphically describes and details the regulated abortion procedure itself.
Several themes emerge from this close reading of the Court’s rhetoric: disappearance, dismemberment, and displacement of borders. These themes intertwine to construct the female body as a sort of geographical space, a dangerous terrain that not only permits but also requires regulation. This Article contends that Gonzales represents a uniquely literal and uniquely visual representation of those concepts. Indeed, the notions of disappearance, dismemberment, and displacement of borders are united by their association with this case’s unusually graphic - that is to say visual - approach. The Article then concludes with some brief reflections on the significance of the Court’s language in the context of abortion law in general.
November 13, 2010
Margo Kaplan on Pregnant Women's Right to Refuse Medical Treatment After Gonzales v. Carhart
Margo Kaplan (Brooklyn School of Law) has posted A 'Special Class of Persons': Pregnant Women’s Right to Refuse Medical Treatment after Gonzales V. Carhart on SSRN. Here is the abstract:
As several scholars have noted, the Supreme Court’s Gonzales v. Carhart decision upholding the federal Partial Birth Abortion Ban Act of 2003 (PBABA) represents a major departure from its previous abortion jurisprudence. What has received little attention is the ease with which Carhart’s rationale can be imported into cases involving the medical treatment of women who wish to continue their pregnancies to term. This article analyzes the implications of Carhart in a context that has thus far been overlooked and, in doing so, argues that its reasoning is broader and more troubling than the majority acknowledged or perhaps even intended.
While common and constitutional law protects the right to refuse medical treatment, courts have compelled the medical treatment of pregnant women on rare occasions, citing the states’ interest in protecting fetal life as recognized in abortion jurisprudence. Until Carhart, abortion jurisprudence provided very limited support for compelled medical treatment of pregnant women more generally. Carhart interprets the state interests in fetal life and maternal health so broadly that it essentially creates new, dubious state interests that, in the context of compelled treatment cases, expand state justifications for requiring medical treatment of pregnant women, even where such treatment would harm women’s health. The expansion of state power to compel medical treatment has disturbing implications for women’s liberty and equality. Carhart paves the way to designating women as a “special class of persons” who have more limited rights to bodily autonomy and informed consent. . . .
October 07, 2010
Supreme Court's Stealth Attack on Women's Rights
Slate Magazine: Watch as We Make This Law Disappear, by Barry Friedman & Dahlia Lithwick:
It's dark and silent. Reporters trickle into the grand ceremonial room from a door on the left; like everyone, they've been instructed that no recording devices of any sort are allowed. A clutch of spectators, some of whom have been waiting for hours, enters at the rear. At 10 a.m. on the dot, never earlier and never later, the marshal utters her incantation: "The honorable, the chief justice and the associate justices of the Supreme Court of the United States." Then they file, from behind the velvet curtain, wearing long black robes; they sit behind a tall dais, sipping water from silver cups. Silent footmen glide back and forth bearing thick books. For the justices, it's a typical oral argument day, but if you didn't know better, you'd think you were watching the initiation into Harry Potter's school for wizards, Hogwarts; or, better yet, the Penn and Teller show at the MGM Grand in Vegas. Magic, mystery, and hush everywhere you look. . . .
How does the Roberts Court work its magic in that marble mega-mall of the law? Here, revealed, are the top tricks of the illusionist Roberts Court.
Trick 1: Stacking the Deck . . . .
Here's another example: Roe v. Wade. The conservative justices don't like it, but they can't simply overrule it because … well, there's that public opinion to consider, and this pesky legal issue known as "precedent." This time they whittled by taking a 2005 case, Gonzales v. Carhart, involving what in media parlance is called "partial birth abortion." The law bans late-term abortions in which the fetus is partially delivered before its brains are sucked out and skull collapsed. If you find it hard even to read that, you've caught the point: That's deck-stacking. . . .
June 28, 2010
Kagan on Gonzales v. Carhart and Health Exceptions in Abortion RegulationC-Span offers a searchable video and transcript of the Kagan hearings here. If you search for "abortion," you can hear the (short and not exactly illuminating) exchange between Kagan and Senator Feinstein on Gonzales v. Carhart and the need for a health exception in abortion regulations. Kagan tries somewhat feebly to distinguish the 2007 decision upholding a congressional ban on so-called "partial-birth abortions," which lacked a health exception, as hinging on the "medical uncertainty" of "that procedure." Kagan obviously had to answer carefully here, and I was glad to hear her say that, Gonzales v. Carhart notwithstanding, abortion regulations still require a health exception. It seems to me she could have pointed out, however, that Gonzales itself did not rule that women's health could be subordinated to state interests, but rather suggested that as-applied challenges were the appropriate way to address any potential harm to women's health caused by that particular ban. Kagan's answer instead seemed to reinforce the Court's misguided deference to Congress on the scope of the ban and medical safety of intact D&E.
May 20, 2009
Maya Manian on Gonzales v. Carhart and The "Woman-Protective" Anti-Abortion Argument
Maya Manian (University of San Francisco School of Law) has posted The Irrational Woman: Informed Consent and Abortion Decision-Making on SSRN. Here is the abstract:
February 09, 2009
Hastings Constitutional Law Quarterly Symposium on Roberts Court and Facial Challenges
I had the honor of participating in a fascinating and timely symposium Friday (2/6) at UC Hastings, on the Roberts Court and facial challenges. David Faigman (Hastings) and David Franklin (DePaul) also presented papers. Kevin Walsh (Villanova) responded to Professor Faigman's piece and Maya Manian (USF) reponded to mine. Ashutosh Bhagwat (Hastings) moderated. Ayotte v. Planned Parenthood and Gonzales v. Carhart featured prominently, for obvious reasons. All of the articles and responses are forthcoming in the Hastings Constitutional Law Quarterly.
October 20, 2008
Helen Knowles on Kennedy's Opinion in Gonzales v. Carhart
Helen J. Knowles (State University of New York - SUNY at Oswego) has posted Clerkish Control of Recent Supreme Court Opinions? A Case Study of Justice Kennedy's Opinion in Gonzales v. Carhart on SSRN. Here is the abstract:
In recent years, several analyses have furthered our understanding of the roles of U.S. Supreme Court clerks. This article applies the insights provided by these works to a case study of some of the language in Justice Kennedy's opinion in Gonzales v. Carhart (2007). The study considers whether both the theory and content of this language were largely the work of one of the crop of clerks who worked for the Justice during the October '06 Term.
Justice Kennedy's vote and his authorship of the majority opinion were unsurprising. However, some of the opinion content was unexpected; its paternalistic approach to abortion rights is inconsistent with the otherwise libertarian arguments that he has employed in previous abortion cases. I hypothesize that this might be explained by the presence, within the quartet of Kennedy's clerks, of an individual who wrote these particular views into the Justice's opinion.
At the end of the day, the name on the opinion in Carhart is Kennedy's. He bears the public burden of shouldering responsibility for the opinion's content. However, recent studies tell us never to underestimate the importance of those who clerk for U.S. Supreme Court Justices. In order to understand Carhart, might we have to accept that it is an example of clerkish control?
July 28, 2008
Fourth Circuit Accepts En Banc Review of Virginia "Partial-Birth Abortion" Ban
Via How Appealing: "Federal appeals court to review Va. abortion ban":
The Richmond Times-Dispatch has a news update that begins, "The full 4th U.S. Circuit Court of Appeals will rehear a challenge to Virginia's ban on a late-term abortion procedure. On two occasions a three-judge panel of the same court ruled 2-1 that the challenge was successful -- that the Virginia ban on what opponents call 'partial-birth abortion' was unconstitutional."
The Associated Press reports that "Full court will consider Virginia ban on 'partial-birth abortion.'"
And at "SCOTUSblog," Lyle Denniston has a post titled "A new test of a 'partial-birth' abortion ban."
July 20, 2008
South Dakota Abortion Propaganda Law Takes Effect
Wash. Post: Ruling Gives South Dakota Doctors a Script to Read, by Peter Slevin:
CHICAGO -- In a victory for antiabortion forces, doctors in South Dakota are now required to tell a woman seeking an abortion that the procedure "will terminate the life of a whole, separate, unique living human being."
The U.S. Court of Appeals for the 8th Circuit last week lifted a preliminary injunction that prevented the language from taking effect. A spokesman for Planned Parenthood, which runs the state's only abortion clinic, said doctors will begin reciting the script to patients as early as this week.
On another front, South Dakota voters will be asked in a Nov. 4 referendum to consider broad limits on abortion for the second time since 2006. The ballot measure includes exceptions for rape, incest and the woman's health that were not part of the 2006 wording rejected by voters.
Antiabortion forces in South Dakota have been trying for years to halt the procedure and to build a winnable challenge to Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide....
The measure on the SD ballot in November, Initiative 2-7, would ban all abortions except for those:
in which the pregnancy results from rape or incest, provided the abortion occurs prior to the end of the 20th week gestation and the physician reports the rape or incest to law enforcement, identifying the woman and the perpetrator if possible; or where the abortion “is necessary to avert the death of the pregnant woman”; or where the abortion “is necessary because there is a serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system of the pregnant woman should the pregnancy be continued.”
This initiative is the second attempt by anti-choice forces in the state, where voters in 2006 rejected a proposal to ban abortions with no health, rape or incest exceptions.The strategy behind the new proposal is laid out in a chilling memo from anti-choice strategists as the best way to overturn Roe and Casey. The key to their approach is grounding the initiative in a "legitimate exercise of the State's power to prohibit abortion in order to protect, not just the life of the unborn child, but the interests, rights and health of their pregnant mothers." (p. 8) In other words, to protect women from the "severe depression and loss of esteem [that] can follow" an abortion, as the Supreme Court declared in Gonzalez v. Carhart, 127 S. Ct at 1634.
This new "woman protective abortion amendment" strategy, to use Reva Siegel's phrase, is where the anti-choice movement is heading, and the SD vote in November is the tip of the spear. Reva has an article forthcoming in Duke Law Journal tracing the political history of the strategy, from pregnancy "counseling centers" to government reports to legislation.
If the SD initiative passes, we will see similar laws pop up around the country. And four years from now, give or take, we may see five Justices of the Supreme Court uphold it.
July 19, 2008
Joshua E. Perry on the Biopolitics of Gonzales v. Carhart
The United States Supreme Court decision in Gonzales v. Carhart upheld the constitutionality of the Partial-Birth Abortion Ban of 2003, despite the law's failure to include an exception for the health of the mother. This paper argues that the Court's decision in Carhart opens new doors for future politicized governmental interference in the lives of patients and their doctors. Those concerned with biopolitics, the use of governmental power to regulate and control the personal and private space of one's health care decisions, have new reasons to be worried about the future of reproductive freedoms and the exercise of clinical medical judgment.
July 02, 2008
The Uncertain Future of Facial Challenges in the Roberts Court
ABA Journal: Supreme Court Report: About Face, by David G. Savage:
The U.S. Supreme Court under Chief Justice John G. Roberts Jr. has been sending a message to lawyers who want to challenge state laws as unconstitutional. It goes like this: Show us the proof. Be specific. And if you want us to throw out an entire law because it may infringe the rights of a few people, you may be wasting your time.
Here’s another way to say it: Facial challenges are out. As-applied challenges are in.
The article discusses the particular impact of this trend on abortion cases. Shortly after Gonzales v. Carhart was decided, I wrote this post on the decision's implications for facial vs. as-applied challenges.
June 27, 2008
Eighth Circuit to Pregnant Women: You're Not Carrying a Dolphin!
The Eighth Circuit has issued its long-awaited en banc decision in Planned Parenthood v. Rounds, lifting a preliminary injunction against a South Dakota so-called "informed consent law." The law requires doctors to give women seeking abortions a written statement that tells them, among other things, "that the abortion will terminate the life of a whole, separate, unique, living human being."
The court admitted that this statement "certainly may be read to make a point in the debate about the ethics of abortion." You think?! Well... you think wrong, actually. The court admonished that the statement must be read in conjunction with a "limiting definition" found elsewhere in the statute. This definition specifies that “human being” means “an individual living member of the species of Homo sapiens . . . during [its] embryonic [or] fetal age.”
This, said the court, transforms what appears to be a moral lecture into nothing more than the imparting of scientific fact. Moreover, the court opined, "this biological information about the fetus is at least as relevant to the patient’s decision to have an abortion as the gestational age of the fetus." I fully agree! Just think of all those scores of women who have flocked to abortion clinics under the sad misimpression that they were carrying developing dolphins. The women of South Dakota can rest safely in the knowledge that, thanks to their wise legislators, they will at last understand the mystery of their pregnancy (but only if they decide to terminate it).
Not surprisingly, the court quoted at length a now-famous passage written by Justice Kennedy in Gonzales v. Carhart, in which the Supreme Court upheld the federal "Partial-Birth Abortion Ban Act." (As I wrote after Carhart was issued, "it is almost as if this passage were meant instead to go in an opinion upholding a biased information requirement like the South Dakota law currently under consideration by the Eighth Circuit Court of Appeals.") In it, Justice Kennedy described abortion as entailing "a difficult and painful moral decision" that some women would "regret." He warned that "[s]evere depression and loss of esteem can follow," although he admitted that "we find no reliable data to measure the phenomenon." That passage seemed to make sense only as a blatant signal to the Eighth Circuit, since it was so misplaced in an opinion that addressed how abortions may be performed, not what kinds of information must be given to women seeking abortions.
Via How Appealing:
En banc Eighth Circuit vacates preliminary injunction that prevented the 2005 version of South Dakota's statute regulating informed consent to abortion from becoming effective: You can access today's en banc ruling of the U.S. Court of Appeals for the Eighth Circuit at this link. Of the eleven judges who took part in the ruling, seven voted to overturn the preliminary injunction, while four voted to uphold it.
And here's coverage from the Associated Press.
May 28, 2008
MI House Approves State Version of Federal Abortion Ban
Chicago Tribune/AP: Mich. House votes to ban partial birth abortions, by Tim Martin:
LANSING, Mich. - Michigan lawmakers moved closer to a state-level ban of what opponents call partial birth abortion on Tuesday.
The Democratic-led House passed the ban by a 74-32 vote late Tuesday. The Republican-controlled Senate has approved similar legislation. But Democratic Gov. Jennifer Granholm doesn't support the bill and might veto it because it doesn't include an exception for the health of the mother, setting the scene for a possible override showdown.
If this story makes you frown, maybe this headline (on the same story) will bring a smile (even if it doesn't quite cause you to split your sides): Sides split on expected veto for partial-birth abortion.
May 23, 2008
Ronald Turner the "Women's Regret" Rationale in Gonzales v. Carhart
Ronald Turner (U. of Houston Law Center) has posted Gonzales v. Carhart and the Court's 'Women's Regret' Rationale on SSRN. Here is the abstract:
In its 2007 decision in Gonzales v. Carhart the Supreme Court of the United States, by a 5-4 vote, rejected a facial challenge to the constitutionality of the Federal Partial-Birth Abortion Ban Act of 2003. This essay focuses on and questions one aspect of the Court's opinion: the statement that "some women come to regret their choice to abort the infant life they once created and sustained." In referring to (while acknowledging that there is no reliable data to measure) this phenomenon, the Court gave to certain abortion-rights opponents something they have sought for many years - express recognition of and reliance on a "women's regret" rationale in the Court's review of anti-abortion legislation. The Gonzales Court's articulation of the "women's regret" rationale, and the Court's acceptance and, indeed, endorsement of what it viewed as the "unexceptionable" and "self-evident" premise that some women regret their choice to have an abortion, are discussed and critiqued herein. In addition, the essay argues that the Court's recognition of the rationale is an important politico-legal victory for determined participants engaged in a decades-long campaign to place the "women's regret" rationale front and center in judicial and legislative arenas and debates.
May 21, 2008
Federal Court of Appeals Strikes Down VA Abortion Ban
The New York Times: Virginia Abortion Ban Struck Down, by Adam Liptak:
A federal appeals court panel in Richmond, Va., struck down on Tuesday a Virginia law that made it a crime for doctors to perform what the law called “partial birth infanticide.”
In a 2-to-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit ruled that the Virginia law was more restrictive than the federal Partial-Birth Abortion Ban Act, which the United States Supreme Court upheld last year in Gonzales v. Carhart.
Both laws prohibited the procedure known medically as intact dilation and extraction. It involves removing an intact fetus and, typically, piercing or crushing its skull. The more common second-trimester abortion procedure, dilation and evacuation, involves dismembering the fetus in the uterus.
The key difference between the two laws, Judge M. Blane Michael wrote for the majority, was that the federal law imposes criminal charges only when doctors intend at the outset to perform the procedure, while Virginia law also made it a crime for doctors to perform the prohibited procedure by mistake.
May 15, 2008
Steven Calabresi on Substantive Due Process After Gonzales v. Carhart
This Essay begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Essay goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Essay concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.