Reproductive Rights Prof Blog

Study Looks at What Happens to Women Who Are Denied Abortions

The New York Times Magazine: What Happens to Women Who Are Denied Abortions?, by Joshua Lang:

When Diana Greene Foster, a demographer and an associate professor of obstetrics and gynecology at the University of California, San Francisco, first began studying women who were turned away from abortion clinics, she was struck by how little data there were. A few clinics kept records, but no one had compiled them nationally. And there was no research on how these women fared over time. What, Foster wondered, were the consequences of having to carry an unwanted pregnancy to term? Did it take a higher psychological or economic toll than having an abortion? Or was the reverse true — did the new baby make up for any social or financial difficulties? . . .

Rebecca Cook on Brazilian Maternal Mortality Case

Rebecca J. Cook (University of Toronto Faculty of Law) has published Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision. The article is available on readcube.  Here is the abstract:

This article explores the effectiveness of the decision of the Committee on the Elimination of Discrimination against Women in the case of Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, concerning a poor, Afro-Brazilian woman. This is the first decision of an international human rights treaty body to hold a state accountable for its failure to prevent an avoidable death in childbirth. Assessing the future effectiveness of this decision might be undertaken concretely by determining the degree of Brazil’s actual compliance with the Committee’s recommendations, and how this decision influences pending domestic litigation arising from the maternal death. Alternative approaches include: determining whether, over time, the decision leads to the elimination of discrimination against women of poor, minority racial status in the health sector, and if it narrows the wide gap between rates of maternal mortality of poor, Afro-Brazilian women and the country’s general female population. Determining the effectiveness of this decision will guide whether to pursue a more general strategy of judicializing maternal mortality.

Martha Fineman on Masculinities Scholarship and Feminist Legal Theory

Martha Fineman (Emory Univ. School of Law) has posted Feminism, Masculinities, and Multiple Identities on SSRN. Here is the abstract:

Masculinities scholarship could be seen as distinct from and complementary to feminist theory — an independent and parallel companion theory, developed by men. In this regard, from a feminist’s perspective masculinities scholarship might be thought of as ethnography, helpfully providing insights into the operations and assumptions of a distinct masculine culture. This approach would seem to validate the notion that there are significant differences between men’s and women’s experiences and perspectives, and consideration of both is necessary to form a complete legal theory picture. Feminist legal theory and masculinities theory are thus seen as both contrasting and complementary in nature.

On the other hand, masculinities scholarship can be understood as providing the basis for a critique of feminist legal theory. This approach begins with the allegation that feminist legal theory generally and incorrectly treats men as a monolithic group when there is in fact a multiplicity of male identities. Masculinities scholarship, in this framing, could be categorized as the male-focused companion to critiques that have been made over the past thirty years that feminist legal theory is excluding and essentializing. It is this understanding of the significance of masculinities to feminist legal theory that prompted this Essay.

Kara Swanson on the "End of Men"

Kara Swanson (Northeastern Univ. School of Law) has posted The End of Men, Again on SSRN.  Here is the abstract:

The current attention to the “end of men” is occurring as men’s role as biological fathers is becoming radically deemphasized through assisted reproductive technologies and alternative family formation. As other historians have noted, since the nineteenth century, there have been serial crises of masculinity in the United States, in which the perceived loss of power by white middle-class heterosexual men has been decried. This essay, written for an on-line forum considering Hanna Rosin's The End of Men, analyzes the current crisis in the context of earlier explorations of the biological end of men, from early twentieth century feminist utopian fiction to lesbian dreams of virgin birth in the 1970s.

Caroline Corbin on Compelled Disclosures

Caroline Mala Corbin (Univ. of Miami Law School) has posted Compelled Disclosures on SSRN.  Here is the abstract:

Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that recent appeals court decisions have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.

Large Majority of Women Favor Over-the-Counter Birth Control Pill

Reuters (Health):  Most women back over-the-counter birth control pill, by Genevra Pittman:

Close to two-thirds of women favor making contraceptive pills available over the counter, according to a new nationally-representative survey.

In addition, about 30 percent of women using either no birth control or a less effective method - such as condoms - said they would likely take the Pill if it was sold without a prescription, researchers found. . . . 

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. 

Shakira Maxwell on Reproductive Rights in Jamaica

Shakira Maxwell (The University of the West Indies) has posted Fighting a Losing Battle? Defending Women's Reproductive Rights in Twenty-First Century Jamaica on SSRN. Here is the abstract:

Since 1975, the Government of Jamaica has acknowledged that the practice of unsafe abortions and high rates of maternal mortality in the island are a significant public health problem affecting women. Unfortunately, any attempt to focus on this issue through legal reform has often been sidelined by both religious and moral groups. In 2008 the issue came back on the Government’s agenda, however once more, the public discourse has been sidelined away from the main issues concerns women’s health. As a result, many women in the island continue to face health complications as a result of unsafe abortions which are practiced under unhealthy and unsanitary conditions. 

This paper will examine the most recent aspects of the debate on the legalization of abortion in Jamaica. It will also highlight the recommendations of the Abortion Policy Review (APR) Group which reviewed health implications in Jamaica and assessed existing laws in the wider Caribbean on abortion and conditions thereof. Using feminist analysis it will also explore the challenges faced by those arguing for legislative reform on abortion services in Jamaica within the larger framework of reproductive health and rights.

Neil S. Siegel and Reva B. Siegel on Equality Arguments for Abortion Rights

UCLA Law Review Discourse has published Equality Arguments for Abortion Rights, by Neil S. Siegel (Duke University School of Law) & Reva B. Siegel (Yale Law School).  Here is the abstract:

Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. But in the forty years since Roe, the U.S. Supreme Court has come to understand the abortion right as an equality right, as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, equality arguments have appeared in the opinions of the Court and of the justices. Finally, we explain why there may be independent political significance in grounding abortion rights in equality values.

Steven Resnicoff on Abortion, Assisted Reproductive Technologies, and Jewish Law

Steven H. Resnicoff (DePaul University College of Law) has posted Family Planning and Government Regulation - Jewish Law Perspectives on SSRN. Here is the abstract: 

Jewish law highly prizes human life. It strongly promotes human reproduction and the protection of human health. For these reasons, Jewish law generally opposes abortion. Governmental measures that would require Jews or Jewish organizations to assist or enable conduct that violates Jewish law, such as religiously impermissible abortions, would impinge on their religious freedom. In addition Jewish law usually encourages humankind’s creative use of intellect and technology to accomplish desired objectives, such as curing and preventing physical infirmities and even more so with respect to saving human life.

Jewish law authorities have manifested a much more ambivalent attitude regarding the use of modern reproductive technologies. There is a consensus that Jewish law does not require extraordinary measures be used to create human life. However, authorities are acutely sensitive to the fact that many people unable to reproduce in the traditional manner yearn to have children. Moreover, some Jewish law authorities believe that by using certain modern reproductive technologies, a person may fulfill a religious duty to procreate. Nevertheless, other authorities argue that some such technologies actually violate Jewish law. Furthermore, even if the use of particular technologies is permitted, their use, or their possible misuse, could cause considerable societal harm. 

This paper, which emerged from a conference held by the DePaul University Health Law Institute, examines these complicated issues in a way that makes the relevant Jewish precepts readily accessible.

Linda Greenhouse and Reva Siegel on Roe, Perry, and Court-Caused Backlash

Linda Greenhouse (Yale Law School) and Reva Siegel (Yale Law School) have posted Backlash to the Future? From Roe to Perry on SSRN. Here is the abstract:

Does a judicial decision that vindicates minority rights inevitably give birth to a special kind of backlash, a more virulent reaction than legislation achieving the same result would produce? We examine this question with respect to Roe v. Wade, so often invoked as the paradigmatic case of court-caused backlash, and with the pending marriage cases in mind. As we have shown, conflict over abortion escalated before the Supreme Court ever ruled in Roe, driven by movements struggling over legislative reform and Republican Party efforts to recruit voters historically aligned with the Democratic Party. These and other features of the abortion conflict suggest that the Court's decision in Roe was not the abortion conflict's sole or even its principal cause.

When change through adjudication or legislation threatens the status quo, it can prompt counter-mobilization and "backlash." We do not doubt that adjudication can prompt backlash. But we do doubt that adjudication is distinctively more likely than legislation to prompt backlash and that the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement.

Contraception Brings Multiple Benefits to Women, Families, and Society

Salon: Report: Contraception is good for the economy, everything else, by Katie McDonough:

A comprehensive review finds that a woman's ability to control her own fertility is good for women -- and society

Women with reliable access to contraception tend to delay and space out when they have babies. And according to a new Guttmacher Institute review of more than 66 studies conducted over three decades, a woman’s ability to control her fertility affects much more than just if and when she’ll start a family; contraception plays a big a role in the financial, professional and emotional lives of American women, too.

In fact, access to contraception was found to be related to all sorts of positive outcomes in family, mental health, children’s well-being and general life satisfaction. . . .

Atli Stannard on Criminalization of Failure to Disclose HIV-Positive Status in Canada

Atli Stannard has posted When Failure to Disclose HIV-Positive Status Vitiates Consent to Sex in Canada on SSRN. Here is the abstract:

A number of jurisdictions have grappled with a particularly difficult question in respect of the Human Immunodeficiency Virus (HIV): when does failure to disclose that one is HIV-positive, combined with engaging in otherwise consensual sexual relations, make that act of engagement in sex a criminal offence?

In two recent cases, the Supreme Court of Canada examined this question. The cases ultimately turned on rather different matters, but were heard in tandem. This case note focuses first on Mabior, then outlines its “sister case” of D.C. Together, they provide a good understanding of the current Canadian approach to the criminalisation of exposure to HIV without disclosure – treating it as a sexual offence, rather than an offence against the person. The case note draws out the "Williams Paradox" and the use of statistics in the cases. It compares the Canadian approach to that in England and Wales, Australia, and New Zealand. . . .

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

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

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

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

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

Maneesha Deckha on Legislating Respect for the Embryo in Canada

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

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

Eoin Carolan on Ireland and Abortion

Eoin Carolan (University College Dublin – School of Law) has posted Reviewing Ireland's Abortion Regime on SSRN. Here is the abstract:

The recent death of a woman from septicaemia following a miscarriage has focused attention on the legal regime regulating the carrying out of abortions within Ireland. The point of this piece is not to discuss the merits of the current controversy but instead to provide some brief background to Ireland’s constitutional position and to identify some of the aspects of the current regime that have given rise to particular difficulties: an exercise which may have wider significance, given the recent trend in various American states to follow the Irish approach of conferring constitutional protection on the unborn.

The piece considers whether the Irish experience suggests that the ‘resolution’ of a controversial issue at the constitutional level may discourage political action by providing sufficient legal authority, however imprecise, to make legislative inaction a viable, if inefficient, option.

The piece was originally posted on the I-Connect blog.

Feminist Legal Theory Conference (March 7-8, 2013)

University of Baltimore School of Law Center on Applied Feminism: Sixth Annual Feminist Legal Theory Conference, March 7-8, 2013:

Join the University of Baltimore School of Law, the University of Baltimore Law Review, and the Center on Applied Feminism for the sixth annual Feminist Legal Theory Conference. There is no charge to attend, but pre-registration is requested as seating is limited.   

RSVP here if you are interested in attending the full-day conference on Friday, March 8, 2013. Registrants for the full-day conference will be automatically registered for the keynote presentation.  

There is also a workshop session the afternoon of March 7, 2013, which you can register for here. For additional details about the conference, including accommodations and parking information, please visit our website.

Ronald Dworkin Dies at 81

The New York Times: Ronald Dworkin, Legal Philosopher, Dies at 81, by Adam Liptak:

Ronald Dworkin, a legal philosopher and public intellectual of bracingly liberal views who insisted that morality is the touchstone of constitutional interpretation, died Thursday in London. He was 81. . . .

Professor Dworkin’s most influential book was “Law’s Empire,” on the nature and role of adjudication. It was among the most-cited books on law of the last century. He also wrote “Life’s Dominion,” on abortion, euthanasia and the questions they raise . . . .

Call for Submissions: NAWL Law Student Writing Competition

National Association of Women Lawyers: 2012-13 Selma Moidel Smith Law Student Writing Competition: 

The National Association of Women Lawyers (NAWL) is a national voluntary legal professional organization whose mission is the advancement of women in the legal profession and women’s rights. Since 1899, NAWL has served as an educational forum and active voice for the concerns of women lawyers in this country and abroad.  NAWL continues to support and advance the interests of women in and under the law, and in so doing, supports and advances the social, political, and professional empowerment of women. Through its programs and networks, NAWL provides the tools for women in the profession to advance, prosper and enrich the profession.  NAWL has established the annual Selma Moidel Smith Law Student Writing Competition to encourage and reward original law student writing on issues concerning women and the law. The rules for the competition are as follows:

Entrants should submit a paper on an issue concerning women’s rights or the status of women in the law.   The most recent winning paper was “All Things Being Equal, Women Lose. Investigating the Lack of Diversity Among the Recent Appointments to the Iowa Supreme Court” written by Abigail Rury, Michigan State University School of Law.

Essays will be accepted from students enrolled at any law school during the 2012-13 school year. The essays must be the law student author’s own work and must not have been submitted for publication elsewhere.  Papers written by students for coursework or independent study during the Summer, Fall or Spring semesters are eligible for submission.  Notwithstanding the foregoing, students may incorporate professorial feedback as part of a course requirement or supervised writing project.

FORMAT: Essays must be double-spaced in 12-point font, Times New Roman font type. All margins must be at least one inch. Entries must not exceed fifteen (15) pages of text, excluding notes, with footnotes placed as endnotes. Citation style should conform to The Bluebook – A Uniform System of Citation. Essays longer than 15 pages of text, excluding notes, or which are not in the required format may not be read.

JUDGING: NAWL Women Lawyers Journal^® designees will judge the competition. Essays will be judged based upon content, exhaustiveness of research, originality, writing style, and timeliness.

QUESTIONS: Questions regarding this competition should be addressed to the chair of the Writing Competition, Professor Jennifer Martin atjmartin@stu.edu.

SUBMISSION AND DEADLINE: Entries must be received by May 1, 2013. Entries received after the deadline will be considered only at the discretion of NAWL. Entries must provide a cover letter providing the title of your essay, school affiliation, email address, phone number and mailing address.  Entries must be submitted in the following format: email an electronic version (in Microsoft Word or PDF format) tojmartin@stu.edu.

AWARD: The author of the winning essay will receive a cash prize of $500. NAWL will also publish the winning essay in NAWL’s Women Lawyers Journal in the summer of 2013.

Scott Gaylord and Thomas Molony on Casey and Ultrasound Mandates

Scott W. Gaylord & Thomas J. Molony (both of Elon Law) have published Casey and a Woman's Right to Know:  Ultrasounds, Informed Consent, and the First Amendment in the Connecticut Law Review.  Here is the abstract:  

Twenty years after Planned Parenthood of Southeastern Pennsylvania v. Casey was decided, courts across the country are being called on to apply the Court’s undue burden test to novel abortion regulations.  The most recent wave of regulation involves the use of ultrasound technology.  Twenty-three states currently require physicians to perform, offer to perform, or follow specific protocols when performing an ultrasound prior to any abortion procedure.  National attention, however, has focused on the growing number of states that require physicians to display and describe the ultrasound images to a woman seeking an abortion.  Four states—Texas, North Carolina, Oklahoma, and Louisiana—have already passed such legislation, and several other states currently are considering similar bills.

The ultrasound statutes in Texas, North Carolina, and Oklahoma were immediately challenged in state and federal courts.  Instead of focusing on the woman’s Fourteenth Amendment due process rights, the central issue in the federal cases has been whether physicians have a First Amendment right to be free from compelled disclosures relating to the ultrasounds.  The federal courts have struggled with how to resolve these First Amendment claims within the abortion context.  While the Fifth Circuit Court of Appeals upheld the Texas speech-and-display statute, a North Carolina federal District Court enjoined a similar North Carolina statute.

This Article explores the split between and among the courts that have addressed the First Amendment challenges to mandatory speech-and-display requirements.  In particular, the Article evaluates how Casey’s undue burden test affects the First Amendment speech rights of physicians in the abortion context.  Drawing on Casey’s references to Wooley v. Maynard and Whalen v. Roe, the Article concludes that the government has broad authority to mandate disclosures designed to inform a woman’s decision about an abortion.  Under Casey, mandatory speech-and-display requirements that do not impose a substantial obstacle to a woman’s exercise of her right to abortion are constitutional if they are reasonable, which Casey defines as being truthful, non-misleading, and relevant.  As a result, the Article contends that courts should uphold the Texas, North Carolina, Oklahoma, and Louisiana ultrasound statutes—as well as the similar statutes being considered by state legislatures across the country—against First Amendment challenges of physicians.