Tuesday, November 19, 2013
Lori R. Freedman (University of California, San Fransisco) & Debra B. Stulberg (The University of Chicago Medical Center) have published Conflicts in Care for Obstetric Complications in Catholic Hospitals in AJOB Primary Research. Here is the abstract:
A recent national survey revealed that over half of obstetrician-gynecologists working in Catholic hospitals have conflicts with religious policies, but the survey did not elucidate the nature of the conflicts. Our qualitative study examines the nature of physician conflicts with religious policies governing obstetrician-gynecologist (ob-gyn) care. Results related to restrictions on the management of obstetric complications are reported here. Methods: In-depth interviews lasting about one hour were conducted with obstetrician-gynecologists throughout the United States. Questions focused on physicians’ general satisfaction with their hospital work settings and specific experiences with religious doctrine-based ob-gyn policies in the various hospitals where they have worked. Results: Conflicts reported here include cases in which Catholic hospital religious policy (Ethical and Religious Directives for Catholic Health Care Services) impacted physicians’ abilities to offer treatment to women experiencing certain obstetric emergencies, such as pregnancy-related health problems, molar pregnancy, miscarriage, or previable premature rupture of membranes (PPROM), because hospital authorities perceived treatment as equivalent to a prohibited abortion. Physicians were contractually obligated to follow doctrine-based policies while practicing in these Catholic hospitals. Conclusions: For some physicians, their hospital's prohibition on abortion initially seemed congruent with their own principles, but when applied to cases in which patients were already losing a desired pregnancy and/or the patient's health was at risk, some physicians found the institutional restrictions on care to be unacceptable.
H/t: Linda Hutjens
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. . . .
Saturday, November 2, 2013
Guttmacher Institute: A Year of Magical Thinking Leads to...Unintended Pregnancy, by Rebecca Wind:
In-depth interviews with 49 women obtaining abortions in the United States found that most of the study participants perceived themselves to be at low risk of becoming pregnant at the time that it happened. According to "Perceptions of Susceptibility to Pregnancy Among U.S. Women Obtaining Abortions," by Lori Frohwirth of the Guttmacher Institute et al., the most common reasons women gave for thinking they were at low risk of pregnancy included a perception of invulnerability, a belief that they were infertile, self-described inattention to the possibility of pregnancy and a belief that they were protected by their (often incorrect) use of a contraceptive method. Most participants gave more than one response. . . .
Thursday, October 24, 2013
Call for Papers: Intersections in Reproduction: Perspectives on Abortion, Assisted Reproductive Technologies, and Judicial Review
Call for Papers: Intersections in Reproduction: Perspectives on Abortion, Assisted Reproductive Technologies, and Judicial Review:
Abortion and reproductive technologies have historically occupied separate realms in law, policy, and academia. In spite of some obvious and natural overlap, scholarship exploring the relationship between abortion and assisted reproduction is sparse. In 2014, Judith Daar (Whittier Law School) and Kimberly Mutcherson (Rutgers Law-Camden) will co-guest edit an issue of the Journal of Law, Medicine & Ethics devoted to articles reflecting on this relationship. JLME is a peer-reviewed journal published by the American Society of Law, Medicine & Ethics.
The guest editors are open to a wide range of scholarship from authors steeped in various aspects of reproductive justice, reproductive rights and reproductive technologies who can explore the future of assisted reproduction and abortion as matters of scholarly concern and legal regulation, especially when viewed as part of a larger movement for reproductive rights and reproductive justice. The term reproductive technologies should be interpreted broadly in this context to go beyond IVF and include a range of techniques used in conjunction with assisted methods of conception.
Sunday, September 29, 2013
Ramya Kumar (Dalla Lana School of Public Health) has posted Misoprostol and the Politics of Abortion in Sri Lanka on SSRN. Here is the abstract:
Misoprostol, a WHO essential medicine indicated for labour induction, management of miscarriage and post-partum hemorrhage, as well as for induced abortion and treatment of post-abortion complications, came up for registration in Sri Lanka in December 2010. The decision on registration was postponed, indefinitely. This has wide-ranging implications, as misoprostol is widely available and used, including by health professionals in Sri Lanka, without guidance or training in its use. This paper attempts to situate the failure to register misoprostol within the broader context of unsafe abortion, drawing on data from interviews with physicians and health policymakers in Sri Lanka. It demonstrates how personal opposition to abortion infiltrates policy decisions and prevents the issue of unsafe abortion being resolved. Any move to reform abortion law and policy in Sri Lanka will require a concerted effort, spearheaded by civil society. Women and communities affected by the consequences of unsafe abortion need to be involved in these efforts. Regardless of the law, women will access abortion services if they need them, and providers will provide them. Decriminalizing abortion and registering abortion medications will make provision of abortion services safer, less expensive and more equitable.
Monday, September 23, 2013
Caroline Mala Corbin (University Miami School of Law) has posted Corporate Religious Liberty on SSRN. Here is the abstract:
Do for-profit corporations have a right to religious liberty? This question is front and center in dozens of cases challenging the Obama administration’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression, and one the Supreme Court is likely to answer in the next few years. Most scholars writing on this issue argue, “yes,” they do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United.
This essay argues “no,” for-profit corporations do not and should not have religious liberty rights. As a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Citizens United changes nothing in religious liberty jurisprudence, as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers.
As a normative matter, for-profit corporations should not have free exercise rights. There is no principled basis for extending a purely personal right to profit-making corporations, and for-profit corporations cannot be equated to churches or other voluntary religious associations. Finally, granting religious exemptions to corporations risks trampling on the religious liberty of individual employees.
Monday, August 5, 2013
Guttmacher Institute Press Release: One Week Later, Women Denied an Abortion Feel More Regret and Less Relief Than Those Who Have One:
Women who are denied an abortion feel more regret and less relief one week later than women who undergo the procedure, according to “Women’s Emotions One Week After Receiving or Being Denied an Abortion in the United States,” by Corinne H. Rocca of the University of California, San Francisco, et al. Specifically, while 41% of women who had an abortion near the provider’s gestational age limit reported feeling regret about it, 50% of women turned away because they requested an abortion beyond that limit did so. And while 90% of women who obtained a near-limit abortion reported feeling relief, 49% of those turned away expressed this emotion.
Researchers used data on 843 women seeking abortions at 30 U.S. facilities between 2008 and 2010, who were interviewed as part of a larger, five-year study on the health and socioeconomic consequences of receiving or being denied an abortion in the United States. The women were asked about six emotions: relief, happiness, regret, guilt, sadness and anger. They were questioned separately about their pregnancies and their experiences seeking an abortion, so as not to confuse their emotions about the two.
Tuesday, July 23, 2013
Roger Magnusson (University of Sydney) has posted Law's Role in Promoting Sexual Health in Australia on SSRN. Here is the abstract:
This paper explains some of the principle ways in which public health laws seek to influence sexual behaviour and rates of transmission of STIs (sexually transmissible infections), with particular reference to HIV. It then presents two competing models for identifying, evaluating and debating the values inherent in legal and policy responses to STIs in Australia. These are, firstly, the “contain and control” model inherited from historical responses to contagious diseases, and secondly, a “human rights” model, which seeks to implement a harm minimization approach to STIs and assumes a happy alignment, in most circumstances, between the public health interest and individual rights and interests. Elements of both approaches are evident in Australian laws responding to HIV and other STIs. Despite the acknowledged success of Australia’s response to HIV, the rate of new infections is rising, contributing to debate about the appropriate limits of a human rights-focused approach. The paper evaluates, in particular, debates about the persistent criminalization of HIV and STI transmission as a public health tool; the policy challenges posed by risk-seeking behavior; and the challenge to “HIV exceptionalism” posed by the “test and treat” strategy in the United States, which emphasizes opt-out HIV testing and wider use of HIV test data.
Monday, July 22, 2013
Call for Abstracts for Special Issue of Studies in Law, Politics, and Society: "Problematizing Prostitution: Critical Research and Scholarship":
Deadline August 15, 2013
We invite submissions from scholars contributing to the literature in the field of prostitution or sex work. Please submit your abstract for consideration for a special issue of Studies in Law, Politics, and Society entitled “Problematizing prostitution: Critical research and scholarship.”
For this special edition, we seek research and scholarship that problematizes the prevailing understanding about sex work and prostitution. Ideally, the scholars who contribute to this issue will utilize diverse research methods to examine the lived experiences of people engaged in prostitution and the people and institutions that process them. Such critical research might examine the production of knowledge about prostitution by institutional stakeholders or how legal responses to prostitution and trafficking are affected by class, race, ethnicity, and migration. Other possible topics include critiques of a pathology-based focus in scholarship, policy, and practice; reexamination of the feminist pro-sex/abolition divide; critical reexamination of the historical theories and practices of prostitution; ethical concerns around research with people engaged in prostitution; problematizing victim-framing and conceptions of agency; challenging prostitution typologies; new configurations of sex, gender, and prostitution; and the influence of trafficking discourses on our analysis of prostitution and responses to prostitution.
We seek manuscripts that contribute innovations and challenges to prevailing prostitution theory, research, and ethics. Manuscripts that consider different types of prostitution and sex work as well as geographical variation are encouraged.
Please submit your abstracts to special issue organizers, Corey Shdaimah (firstname.lastname@example.org) and Katie Hail-Jares (email@example.com) by August 15th, 2013. After reviewing the abstracts, selected authors will be invited to submit an article for inclusion in the special edition by September 1st. More information about manuscript submission will be included in that invitation. Final submissions will be due February 1st, 2014. The journal and its editors retain final discretion about editorial and publication decisions.
For more information on Studies in Law, Politics, and Society see the homepage: http://www.emeraldinsight.com/products/books/series.htm?id=1059- 4337&PHPSESSID=vl01h74uvho5teclfslsuujai7
Thursday, June 20, 2013
Caroline Mala Corbin (University of Miami) and Steven Douglas Smith (University of San Diego) have posted Debate: The Contraception Mandate and Religious Freedom on SSRN. Here is the abstract:
In this online exchange, Steven D. Smith and Caroline Mala Corbin debate the wisdom of religious exemptions from the contraception mandate.
Professor Smith argues that as applied to objecting religious employers, the mandate violates the Religious Freedom Restoration Act, and that contrary arguments are better understood as taking a position against rather than under RFRA. In his conclusion, Prof. Smith argues that free exercise extends to religious associations and institutions, not just to religious individuals.
Professor Corbin disagrees on both points. First, one need not oppose RFRA to conclude that it does not require exemptions from the contraception mandate. Not every asserted burden amounts to the type of substantial burden that RFRA was designed to accommodate. Second, granting extensive religious liberty rights to employers, whether corporations or their owners, overlooks the rights of their less privileged and less powerful employees.
Wednesday, June 19, 2013
Martín Hevia & Carlos Herrera Vacaflor on Ensuring a Right to Health Under A Framework Convention on Global Health
Martín Hevia (Universidad Torcuato Di Tella) and Carlos Herrera Vacaflor have published Effective Access to Justice Against State and Non-State Actors in the Framework Convention on Global Health: A Proposal in Health and Human Rights: An International Journal. Here is the abstract:
A Framework Convention on Global Health (FCGH) seeks to have a profound, effective, and broad impact: bringing access to health rights to the largest global community possible. One of the main issues the FCGH will address is how to make the right to health justiciable. An FCGH must articulate functional remedies for violations of the right to health by state or non-state actors. This paper analyzes one approach to ensuring the recognition of the rights defended in a future FCGH. Following the incremental development approach inspired by the architecture of other successful framework convention protocols, we propose the inclusion of access to health justice guidelines in an FCGH. This proposal is based on the amparo remedy, a figure already extant in the legislation of several Latin American countries; since its incorporation, these countries have witnessed a significant increase in litigation defending health rights. This is only one of many important advantages to broadly adopting guidelines based on the amparo remedy. The proposed guidelines would serve as a basic agreement on broad principles on access to health justice.
Thursday, June 13, 2013
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? . . .
Thursday, May 23, 2013
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.
Tuesday, May 14, 2013
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.
Monday, May 13, 2013
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.
Friday, May 10, 2013
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.
Monday, May 6, 2013
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. . . .
Wednesday, April 17, 2013
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.
Monday, April 15, 2013
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.
Friday, April 12, 2013
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.