Thursday, February 12, 2015
Healthcare providers require prior consent to treat patients. Consent can be different for legal purposes, and be expressed in different ways. Simple consent affords providers protection from liability for assault, but negligence can arise if the consent is inadequately informed.
Providers cannot coerce or improperly induce consent; patients’ agreement that a provider wrongly influences is compliance, not true consent. Attempts to rescue patients in peril may be lawful on the presumption of their implied consent, unless patients negate the presumption. In special cases, laws may require that consent be written, but generally consent can be given by speech or conduct. Informed consent depends on patients’ comprehension, but consent for treatment of uncomprehending patients may come from third parties, including legally recognized substitutes or judges. There may be legal limits to reproductive procedures to which patients may consent, under laws that can be respectfully tested, but have to be obeyed.
Wednesday, February 11, 2015
Ciara O'Connell (University of Sussex) has posted Women's Reproductive Rights in the Inter-American System of Human Rights: Conclusions from the Field, June - September 2014 on SSRN. Here is the abstract:
The Inter-American System of Human Rights has proven to be a forum for the advancement of women’s reproductive rights in the Inter-American region. However, the Inter-American System faces significant challenges in promoting structural transformative change that enables women’s enjoyment of their reproductive health rights. This report examines three reproductive rights cases from the Inter- American Commission on Human Rights and the Inter-American Court of Human Rights: María Mamerita Mestanza Chávez v. Peru; Paulina Ramirez Jacinto v. Mexico; and Artavia Murillo et al. v. Costa Rica. In the summer of 2014, interviews were conducted with representatives in each of the case study countries, with the objective of the research being two-fold: (1) to understand how each of the cases developed, and the subsequent challenges and advancements; and (2) to learn from these cases in order to suggest recommendations for how actors can make better use of the Inter-American System as one of several avenues for protecting, promoting and fulfilling women’s reproductive rights. The report first discusses challenges in implementing women’s reproductive health rights, and then explores how the Inter-American System can strengthen its work on women’s reproductive health rights.
Wednesday, October 15, 2014
The Richmond Journal of Law & the Public Interest is seeking submissions for our 2015 Spring volume. We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.
We currently have five total openings for articles for the two general issues of our volume. As a Journal that centers in large part on the Public Interest, we would be happy to accept and review articles on a broad range of topics that affect citizens on a national level or in the Commonwealth of Virginia. For a sense of what we are seeking for our general issues, please feel free to visit http://rjolpi.richmond.edu/archive.php.
If you would like to submit an article for review and possibly publication, or if you have any questions at all, please do not hesitate to contact our Lead Articles Editors - Rich Forzani and Hillary Wallace. They can be reached, respectively, at firstname.lastname@example.org and email@example.com.
Friday, June 6, 2014
The University of Chicago Law School International Human Rights Clinic, National Asian Pacific Women's Forum, and Advancing New Standards in Reproductive Health: Replacing Myths With Facts: Sex-Selective Abortions In the United States:
Sex selection is the practice of attempting to control the sex of one’s offspring in order to achieve a desired sex. One method of sex selection is sex-selective abortion. Laws banning sex-selective abortion are proliferating in the United States. Eight states have enacted laws prohibiting sex- selective abortion. Twenty-one states and the federal government have considered such laws since 2009. Those laws prohibit the performance of an abortion if sought based on the sex of the fetus and provide for both criminal and civil penalties in most cases...
A great deal of misinformation exists regarding sex selection in the United States. We have identified six inaccuracies commonly associated with sex-selective abortion and laws prohibiting it. They appear, among other places, in statements made by legislators, testimony submitted to legislatures, and reports issued by legislative committees that have considered or adopted laws banning sex- selective abortion. We present each piece of inaccurate information as a “myth.” This Report draws on legal research, empirical analysis of U.S. birth data, field-work, and an extensive review of scholarly publications in social sciences, law and other disciplines to replace these myths with facts. . . .
Wednesday, May 28, 2014
NPR: Research: Children Of Judges May Influence Court Decisions, by Shankar Vedantam:
It's been suspected that judges are swayed by their personal beliefs and affiliations. An analysis found that judges become more likely to rule in "pro-feminist" ways if the judges have daughters. . . .
In this paper, we ask whether personal relationships can affect the way that judges decide cases. To do so, we leverage the natural experiment of a child's gender to identify the effect of having daughters on the votes of judges. Using new data on the family lives of U.S. Courts of Appeals judges, we find that, conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and it is the first paper to show that empathy may indeed be a component in how judges decide cases. . . .
Sunday, May 11, 2014
The Guttmacher Institute news release: U.S. TEEN PREGNANCY, BIRTH AND ABORTION RATES REACH HISTORIC LOWS:
Teen Pregnancy Rates Declined in Every State and Among All Racial and Ethnic Groups
Rates of teen pregnancy, birth and abortion have declined dramatically in the United States since their peak in the early 1990s. In 2010, some 614,000 pregnancies occurred among teenage women aged 15–19, for a rate of 57.4 pregnancies per 1,000 women that age. This marks a 51% decline from the 1990 peak, and a 15% decline in just two years, from 67.8 in 2008, according to “U.S. Teenage Pregnancies, Births and Abortions, 2010: National and State Trends by Age, Race and Ethnicity,” a new study by the Guttmacher Institute. Similarly, the teen birthrate declined 44% from the peak in 1991 (from 61.8 births per 1,000 to 34.4 per 1,000); and the teen abortion rate declined 66% between its 1988 peak and 2010 (from 43.5 abortions per 1,000 to 14.7 per 1,000). . . .
Friday, March 7, 2014
live.science: Free Birth Control Has Little Effect on Women's Sexual Behavior, Study Suggests, by Cari Nierenberg:
Offering free contraception to women and teenage girls does not cause them to increase their risky sexual behavior over time, a new study suggests.
Researchers found that after receiving free birth control, most women reported no change in their number of sexual partners, and only a modest increase in sex frequency, from an average of four times a month before getting free birth control to six times a month after receiving it. . . .
Wednesday, February 26, 2014
Anibel Faundes, et al., have posted Brazilians Have Different Views on When Abortion Should Be Legal, But Most Do Not Agree with Imprisoning Women for Abortion on SSRN. Here is the abstract:
Unsafe abortions remain a major public health problem in countries with very restrictive abortion laws. In Brazil, parliamentarians − who have the power to change the law − are influenced by “public opinion”, often obtained through surveys and opinion polls. This paper presents the findings from two studies. One was carried out in February–December 2010 among 1,660 public servants and the other in February–July 2011 with 874 medical students from three medical schools, both in São Paulo State, Brazil. Both groups of respondents were asked two sets of questions to obtain their opinion about abortion: 1) under which circumstances abortion should be permitted by law, and 2) whether or not women in general and women they knew who had had an abortion should be punished with prison, as Brazilian law mandates. The differences in their answers were enormous: the majority of respondents were against putting women who have had abortions in prison. Almost 60% of civil servants and 25% of medical students knew at least one woman who had had an illegal abortion; 85% of medical students and 83% of civil servants thought this person(s) should not be jailed. Brazilian parliamentarians who are currently reviewing a reform in the Penal Code need to have this information urgently. . . .
Thursday, February 6, 2014
My commentary, In Abortion Litigation, It's the Facts that Matter, has been published by the Harvard Law Review Forum. Here is a summary:
This brief commentary argues that courts need to do a better job of closely examining the facts underlying abortion legislation. Courts applying the undue burden standard generally demand from the plaintiffs fact-intensive proof that an abortion law will cause harm. At the same time, courts are highly deferential to the states’ own fact-based assertions about why these laws are needed. Although the “purpose prong” of the undue burden standard has largely been written off as toothless, courts can smoke out illegitimate purposes indirectly by looking more skeptically at the factual foundations supposedly necessitating abortion laws. Recent challenges to virtually identical abortion restrictions have turned on judges’ willingness or refusal to examine more closely the governments’ factual assumptions. This explains the opposite (preliminary) conclusions reached by the Fifth and Seventh Circuits, respectively, on the constitutionality of laws requiring abortion providers to obtain admitting privileges at nearby hospitals, an issue the Supreme Court appears likely to consider.
Saturday, February 1, 2014
abcNEWS.com: Viewing Ultrasound Unlikely to Deter Women from Abortion, Study Finds, by Gillian Mohney:
A new study has found that pregnant women who plan on having an abortion are not often dissuaded by viewing an ultrasound.
The study, designed to find out if pregnant women who view their ultrasounds are significantly less likely to go through with a planned abortion, was published this month in the Obstetrics and Gynecology Journal. It looked at the cases of more than 15,000 women, the total number of pregnant women who went to a Planned Parenthood clinic in Los Angeles in 2011 and were planning to have an abortion. . . .
Monday, January 13, 2014
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not.
The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Saturday, January 11, 2014
Slate - XX Factor blog: Does Looking at the Ultrasound Before an Abortion Change Women's Minds?, by Katy Waldman:
The journal Obstetrics & Gynecology published an important study this month: the deepest inquiry yet into whether viewing ultrasound images can influence a woman’s decision to have an abortion. . . .
Researchers analyzed 15,575 medical records from an urban abortion care provider in Los Angeles. . . .
Monday, January 6, 2014
Law Students for Reproductive Justice announcement:
Law Students for Reproductive Justice (LSRJ) in collaboration with the Center for Reproductive Rights, is pleased to announce the Call for Submission for the ninth annual Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights.
This year, the Sarah Wedding prize will have no specific theme, but will be open to fresh student scholarship exploring a wide range of issues that affect reproductive health, rights, and justice in the U.S. For more information, please download the 2014 Call for Submissions.
The deadline for submission is January 15, 2014.
Winning authors will receive cash prizes: $750 (1st place), $500 (2nd place), or $250 (3rd place). The first place winner will also have a chance at publication with the NYU Review of Law and Social Change
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.