Wednesday, July 6, 2016
AfricLaw (June 3, 2016): Uganda: Why the Constitutional Court Should Rule on the Right to Health, by Michael Addaney:
Responding to the shocking statistic that thirteen women giving birth in Uganda die each day due to circumstances that could be prevented (e.g., severe bleeding, infection, hypertensive disorders and obstructed labor), Michael Addaney notes that universal human rights could play a role in addressing the crisis. The current obstacle, he notes, is the political question doctrine, which forbids courts from deciding certain cases because the question lies in the province of elected officials.
In 2011, a non-governmental organization sued Uganda for violating the constitutional rights to health and life by not providing basic minimum maternal health care. The court ruled that the petitioners had presented a political question. Addaney notes, however, that the International Court of Justice has questioned judicial dodging of "political" questions "whenever the rights, interests or status of any person are infringed or threatened by executive action." The Supreme Court of Uganda appears to agree. In 2015, it reversed the ruling of the lower court, holding that "the petition has critical questions that need constitutional interpretation."
Addaney is hopeful that with the evolution of human rights and modern constitutionalism the political question doctrine will see its end.
Thursday, June 23, 2016
Jezebel (May 17, 2016): Report Finds Pregnant Massachusetts Inmates Are Still Being Illegally Shackled, by Anna Merlan:
In 2014, Massachusetts passed legislation prohibiting the shackling of pregnant inmates. The law prohibits shackling women when they are in labor, in their second or third trimester of pregnancy and immediately post-delivery. Despite the law a recent report found that many Massachusetts counties fail to enforce law and even have written policies that explicitly violate it.
The report published by Prisoners' Legal Services and the Prison Birth Project
charges that neither the state Department of Corrections nor a single county sheriff’s office is fully implementing the anti-shackling law, and that knowledge of what the law even entails “varies not just from one prison or jail to another, but among corrections personnel who work for the same prison or jail.”
The report documents instances of shackling during labor and in hospital beds post-delivery. The report also found violations of the law's requirement that pregnant women be transported in vehicles with seatbelts to prevent the danger caused by sliding around in van seats or benches while handcuffed.
Massachusetts is one of 22 states that have anti-shackling laws. Its experience illustrates the need for monitoring and implementation of these laws.
Friday, May 20, 2016
Macaulay Honors College, CUNY, hosts Policing Reproduction Symposium, by Elizabeth Reis, Professor Macaulay Honors College:
As readers of this blog are well aware, since 1973, the year of the historic Roe v. Wade decision legalizing abortion rights, hundreds of pregnant women, particularly women of color, have been arrested, detained, and jailed for matters relating to their pregnancies. Some have had miscarriages and yet have been suspected of feticide; others have admitted drug or alcohol use to their physicians and have been arrested for harming the fetus; yet others have faced legal scrutiny for refusing bed rest orders or requesting VBAC (vaginal deliveries) instead of cesarean sections. Authorities have prosecuted pregnant women based on the idea of “fetal personhood,” the notion that an unborn fetus has the same rights as a pregnant woman.
On May 15 and May 16 Macaulay Honors College at The City University of New York hosted a symposium called Policing Reproduction that brought together a diverse range of scholars, students, and the public to discuss these alarming trends in women’s reproductive health. On May 15, Johanna Schoen, Professor of History at Rutgers University read from her new book, Abortion After Roe. On May 16, symposium panelists included Lynn Paltrow, J.D., Founder and Executive Director of National Advocates for Pregnant Women; Jeanne Flavin, Professor of Sociology at Fordham University; Kimberly Mutcherson, Vice Dean and Professor of Law at Rutgers Law School, Miriam Zoila Perez, a journalist and activist based in Washington, D.C. and author of The Radical Doula Guide: A Political Primer for Full-Spectrum Pregnancy and Childbirth Support; Michele Goodwin, Chancellor’s Professor of Law at UC Irvine School of Law as well as Founder and Director of the Center for Biotechnology and Global Health Policy at Irvine and author of the forthcoming Policing the Womb; and Civia Tamarkin, award-winning journalist and filmmaker who is working on a film about these issues, Misconception: A War Story.
The range and depth of the symposium’s presentations and the lively discussions surrounding them can’t be easily summarized. But among the most important themes that emerged was that the systematic erosion of women’s access to abortion and other reproductive health services is part of a larger, under-acknowledged assault on women’s basic rights as citizens and persons.
Tuesday, May 3, 2016
Center for Reproductive Rights Press Release (Apr. 1, 2016): Case of Illegal Detention and Death of Woman at Hospital Heads to High Court of Nigeria:
With support from the Center for Reproductive Rights, an advocacy group has filed suit in the case of a woman illegally detained by a hospital to which she was admitted after suffering complications in the course of a cesarean section at another hospital. Folake Oduyoye was discharged after two months but was locked in a guarded ward that lacked toilet facilities and mosquito netting because she could not pay her bill in full. Oduyoye eventually died from post-partum sepsis and pneumonia.
The lawsuit seeks a declaration that the detainment was illegal, unconstitutional, and in breach of Oduyoye's rights, along with financial reparations and a public apology.
The Center has been working to end the mistreatment of women in maternity hospitals.
Monday, May 2, 2016
The Journal IE (Mar. 30, 2016): The Horrific Case Involving a Young Pregnant Brain-dead Woman May not Be a One-off, by Kate Butler:
Two years ago, the Eight Amendment to the Irish Constitution resulted in a judicial circus act as the court wrestled to define the rights of the 15-week-old unborn fetus carried by a brain-dead pregnant woman reposing in an Irish hospital. The fetus was highly unlikely to survive. The woman's family was forced to bring a petition to the High Court asking it to order that the woman's artificial life support be terminated.
The court held that it was in the best interests of the unborn child to authorise the withdrawal of life support, and said that maintenance of life support would deprive the mother of dignity in death and subject her father, her partner and her young children to “unimaginable distress in a futile exercise.”
Butler notes that this case is not a "one-off." Indeed, new legislation in Ireland grants individuals autonomy to employ advanced healthcare directives to choose the course of their end-of-life care, except if the individual is a pregnant woman. The legislation requires medical professionals to refuse the wish of a pregnant woman to refuse life-prolonging care. Those same professionals have no discretion in the matter. They must refer the case to the judiciary.
Butler is concerned about how the Irish Constitution's guarantee of the right to life of the unborn will apply in cases where the fetus has a greater chance of survival if the brain-dead woman is kept on life support.
The ambiguities . . . are not accidental or due to some governmental oversight. They are intentional. This new legislation makes that clear.
Butler is calling on the new government to launch a referendum to repeal the Eighth Amendment.
Tuesday, March 15, 2016
New York Times (Mar. 5, 2016): The Return of the D.I.Y. Abortion, by Seth Stephens-Davidowitz:
The recent surge in state-level anti-abortion legislation, such as the Texas TRAP law at issue in Whole Woman’s Health v. Hellerstedt, has led to the closure of many abortion providers across the country. While the impact of such laws on access to safe abortions is clear, the response of pregnant women is less so due to the silencing stigma surrounding the procedure.
Google searches can help us understand what’s really going on. They show a hidden demand for self-induced abortion reminiscent of the era before Roe v. Wade.
This demand is concentrated in areas where it is most difficult to get an abortion, and it has closely tracked the recent state-level crackdowns on abortion.
While only 34% of people involved in an abortion – that is, people who have had an abortion or their partners – tell anyone about the procedure, Google searches offer a window into the decision behind an abortion.
Search rates for self-induced abortion were fairly steady from 2004 through 2007. They began to rise in late 2008, coinciding with the financial crisis and the recession that followed. They took a big leap in 2011, jumping 40 percent. The Guttmacher Institute singles out 2011 as the beginning of the country’s recent crackdown on abortion; 92 provisions that restrict access to abortion were enacted. There was not a comparable increase in searches for self-induced abortions in Canada, which has not cracked down.
These statistics do not reveal the true trends in self-induced abortions across the country, but they certainly indicate a disturbing increase in demand in states where abortion services have become all-but impossible to obtain.
Monday, March 14, 2016
Guttmacher Institute (Mar. 2, 2016): U.S. Unintended Pregnancy Rate Falls to 30-Year Low; Declines Seen in Almost all Groups, but Disparities Remain, by Rebecca Wind:
A new analysis from the Guttmacher Institute, just published in the New England Journal of Medicine, shows that the U.S. unintended pregnancy rate declined substantially between 2008 and 2011. According to “Declines in Unintended Pregnancy in the United States, 2008–2011,” by Lawrence B. Finer and Mia R. Zolna, there were 45 unintended pregnancies for every 1,000 women aged 15–44 in 2011, down from 54 per 1,000 in 2008. The 2011 rate was the lowest observed in three decades. Although unintended pregnancy rates have declined among nearly all demographic groups examined, disparities still remain, particularly for poor women and women of color.
The study, released last week, can be found here.
Tuesday, March 1, 2016
ACLU Blog (Feb. 25, 2016): The Rising Threat of Religious Hospitals Denying Women Medical Care, by Alexa Kolbi-Molinas:
Catholic hospitals across the country follow the religious directives of the United States Conference of Catholic Bishops. This means that such hospitals will, for example, withhold medical services when a pregnant woman is hemorrhaging until her death is sufficiently imminent rather than induce labor to complete a miscarriage.
Currently, 10 of the 25 largest hospitals in the US are Catholic-affiliated. These hospitals receive federal funds, but they follow religious policies that deviate from the medical standard of care. These unlawful procedures have prompted the ACLU to file suit in cases such as Tamesha Means v. United States Conference of Catholic Bishops in order to force changes in policy.
Tuesday, February 23, 2016
RH Reality Check (Feb. 18, 2016): Pope Francis Suggests that Contraception May Be Acceptable for Catholics Fearing Zika Virus, by Jodi Jacobson:
The Zika virus, now found in 34 countries, may cause microcephaly in infants born to recently infected women. Some countries, including El Salvador, have responded to the recent increase in microcephaly by advising that women avoid pregnancy for up to two years. Last week, Pope Francis responded to questions about Zika virus, saying that it may be acceptable for Catholics to use contraception to avoid pregnancy when fearing possible infection.
Asked during a press conference whether abortion or birth control could be considered a “lesser evil” in response to the Zika virus, which appears to be linked to birth defects, the Pope replied that he believes abortion is a crime and is never acceptable, but that the use of modern birth control (“artificial contraception” in church parlance) may be permitted in exceptional circumstances.
Abortion “is an evil in and of itself” the Pope claimed. “On the other hand, avoiding pregnancy is not an absolute evil,” he said, referring to prior circumstances in which the church has sanctioned the use of birth control, such as in the 1960s, when nuns were subject to rape as a weapon of war in the Belgian Congo.
The Pope's statements may encourage Catholic countries to make contraceptives more readily available, thus avoiding increased birth defects due to Zka virus.
Friday, February 19, 2016
New York Times (Feb. 11, 2016): Pregnancy Clinics Fight for Right to Deny Abortion Information, by Erik Eckholm:
At more than 3,000 crisis pregnancy centers (CPCs) run by religious opponents of abortion, a woman cannot obtain information on where to obtain an abortion. To fight a California law requiring such centers to post a notice that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, some CPCs are claiming a free-speech right to withhold such information. Attempts in other states to regulate CPCs in this fashion have been struck down by federal courts. But courts in California have so far refused to enjoin the regulations, the theory being that they do not force the CPCs to declare their religious beliefs but merely require them to provide factual information about public programs. There are lingering concerns that CPCs are misleading pregnant women with false information about the complications of abortion and its longer-term effects.
Wednesday, February 17, 2016
New York Times (Feb. 9, 2016): Chinese Who Violated One-Child Policy Remain Wary of Relaxed Rules, by Kiki Zhao:
Before China dismantled its one-child policy, couples who violated it often could not surmount the hurdle of obtaining the registration document (hukou) necessary for their second child to attend state schools, receive health care, marry, open a bank account or even buy train tickets. Now that hukous have been declared a right of all citizens and the one-child policy has been lifted, parents are still worried that they will be required to pay a fine for violating the one-child policy when it was the law. Municipal governments throughout China have not been clear or uniform in their messages about whether fines will be imposed retroactively.
Thursday, November 5, 2015
RH Reality Check (Nov. 4, 2015): Coerced C-Sections: The Latest Reach of Fetus First Laws, by Jessica Mason Pieklo:
Michelle Mitchell is suing her doctor for assault and battery alleging that she was coerced into having a c-section. The case is scheduled to go to trial in Augusta Circuit Court Nov. 4. Jessica Mason Pieklo writes:
According to court documents, Mitchell claims that once she was admitted to the hospital, [her doctor] demanded she have a c-section based on an ultrasound image performed a week earlier . . . and concerns over the baby’s size. Mitchell says that her previous doctor had recommended an induction of labor or c-section, but gave her no indication that vaginal birth was medically not an option or that a c-section was required.
Mitchell says that she signed a document refusing consent for the c-section, and that over the next four hours, [the doctor] and other employees of the hospital threatened her in various ways, including calling Child Protective Services to take her expected child away should she fail to consent. According to the complaint, after hours of this treatment, Mitchell relented.
The doctor has argued that Mitchell changed her mind after signing the signed refusal and consented to the surgery. Pieklo notes that the number of c-section births have grown in this country making the question of patient autonomy increasingly important.
Friday, May 8, 2015
TIME: How a New Study on Premature Babies Could Influence the Abortion Debate, by Eliza Gray:
A new study showing that a tiny percentage of extremely premature babies born at 22 weeks can survive with extensive medical intervention could change the national conversation about abortion, though the research is unlikely to have a major effect on women’s access to abortions in the short term.
Pro-life advocates said the study—which was published by theNew England Journal of Medicine on Wednesday and found that 3.5% percent of 357 infants born at 22 weeks could survive without severe health problems if hospitals treated them—could benefit the pro-life movement by sparking discussion about the viability of premature babies. . . .
This article correctly points out that the study in no way contradicts or forces reconsideration of Supreme Court precedent governing pre- and post-viability abortions. Unlike what some articles suggest, the Supreme Court has never set viability at a specific point in pregnancy (even in Roe), but rather has left the determination of viability to the provider to determine based on the individual facts surrounding each pregnancy. Viability depends on many factors, including the type of medical facilities available.
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, February 7, 2015
The Huffington Post: Another GOP Lawmaker Wades Into Rape Debate, by Laura Bassett:
A Republican state lawmaker said Thursday that women who become pregnant from sexual assault should not be exempt from an anti-abortion measure, because childbirth resulting from rape is "beautiful."
"Obviously rape is awful," West Virginia Del. Brian Kurcaba (R) said during a committee hearing on a new abortion restriction, according to David Gutman, a Charleston Gazette reporter. "What is beautiful is the child that could come from this." . . .
Thursday, January 29, 2015
The Washington Post (The Fix blog): States that are more opposed to abortion rights have fewer abortions — but not fewer unintended pregnancies, by Aaron Blake:
Abortion in America is an extremely divisive issue, splitting Republicans and Democrats with often very strong feelings.
It also divides the states. In 2010, according to a new study from the Guttmacher Institute, an abortion rights group, an estimated 11 percent of all unintended pregnancies in South Dakota were aborted. In New York, it was 54 percent.
In general, Guttmacher's numbers show that states with more people who oppose abortion rights tend to have lower abortion rates. But views on abortion tend to have much less impact on something else related to all this: unintended pregnancies. . . .
The piece includes charts and interactive maps.
Sunday, December 7, 2014
ACLU press release: ACLU Files Suit on Behalf of Mother Fired for Breastfeeding at Work:
DENVER – The American Civil Liberties Union and the ACLU of Colorado filed a lawsuit yesterday on behalf of Ashley Provino, a Grand Junction, Colo. woman who was fired from her job, in violation of state and federal anti-discrimination laws, for asserting her right to pump breast milk at work.
Provino, a new mother, requested permission from her employer, Big League Haircuts, to take a short break every four hours in the back room of the hair salon to express breast milk, as is her right under state and federal law. The company denied Provino’s request and cut her hours dramatically. When Provino requested to be returned to a full-time schedule with breaks so she could pump breast milk and continue breastfeeding her child, she was fired.
Colorado’s Workplace Accommodations for Nursing Mothers Act, passed by the state legislature in 2008, unequivocally recognizes the societal and health benefits of breastfeeding and requires employers to make reasonable accommodations to allow new mothers to express milk at work. The ACLU complaint invokes the 2008 statute, as well as federal laws that prohibit sex discrimination, pregnancy discrimination and retaliation for protesting such discrimination.
“The recently enacted laws guaranteeing the right to pump at work are designed to make sure that women like Ashley Provino can do what they believe and what medical professionals agree is best for their babies, while still keeping their jobs,” said Galen Sherwin, senior staff attorney with the ACLU Women’s Rights Project. “No woman should face retaliation for asserting her rights under these laws.”
Women who breastfeed must pump milk regularly throughout the day to ensure that they will keep lactating. A broad consensus exists among medical and public health experts that breastfeeding is optimal for infants for a year (or longer) following birth, and that breastfeeding has broad developmental, psychological, social, economic and environmental benefits.
“Discrimination against breastfeeding mothers in the workplace is not only illegal, it is also bad for Colorado families and businesses, because it forces women out of the workplace,” said ACLU of Colorado cooperating attorney Paula Greisen of King Greisen LLP.
In September 2012, the ACLU of Colorado and the ACLU Women’s Rights Project successfully negotiated a settlement with a Jefferson County charter school on behalf of Heather Burgbacher, a teacher who lost her job after she requested accommodations to express breast milk at work. The ACLU of Colorado also worked with DISH Network earlier this year to vastly improve accommodations for nursing mothers at the company’s corporate headquarters in Englewood following complaints from employees that the conditions provided by the company lacked adequate space and privacy.
The complaint is available at:
More information on this case is available at:
Monday, December 1, 2014
The Washington Post: Former UPS driver at center of pregnancy discrimination case before Supreme Court, by Brigid Schulte:
Peggy Young didn’t want to become a national icon for pregnant workers. She never imagined she would be at the center of a Supreme Court case that has united every major women’s rights organization on the left with major anti-abortion rights groups on the right. . . .
The Supreme Court will hear arguments in Young v. United Parcel Service this Wednesday, Dec. 3.
Sunday, November 23, 2014
HealthLawProf Blog: Guest Blogger Professor Maya Manian: The Criminalization of Pregnant Women:
In a recent New York Times editorial, Lynn Paltrow and Jeanne Flavin bring to light the chilling reality of the criminalization of pregnant women in the United States. Stories of prosecutions of pregnant women in other countries, such as El Salvador, have received significant attention. Yet, similar stories within our own borders remain under the radar even while we constantly debate the issue of abortion.
As Paltrow and Flavin point out, the push to restrict women’s access to abortion and expand rights for fetuses impacts more than just those women specifically seeking abortion care. Anti-abortion measures threaten the rights of all pregnant women, even those who want to be pregnant. As Paltrow and Flavin’s peer-reviewed study on criminal prosecutions of pregnant women demonstrates, prosecutors and judges have relied on anti-abortion reasoning to arrest, detain, and force medical treatment on pregnant women who suffered from miscarriages, depression, or simply wanted to make their own medical decisions about how to proceed with childbirth.
Although many of the women in the cases described by Paltrow and Flavin were not seeking abortion care, the criminalization of pregnant women who seek to self-abort appears to be an increasing threat. . . .