Reproductive Rights Prof Blog

Student Scholarship: The Right to Abortion in Taiwan

Hsiaowei Kuan (Penn Law) has posted Abortion Law and Abortion Discourse in Taiwan: Rights, Social Movements and Democratization on SSRN.  Here is the abstract:

My dissertation tells a story of the abortion right in Taiwan: how abortion was not a right either before or after its legalization, how it became a right after the mobilization of social movements and democratization, and finally, what sort of right it is today. Abortion was legalized in Taiwan in 1985, for the purposes of population control and social and economic development of the nation. The legalization debates of the 1980s (the Old Abortion Debate), did not include a rights discourse. Twenty years later, when new abortion bans were submitted to the Legislature for review, a fresh round of debate (The New Abortion Debate) began in which a rights discourse emerged. My dissertation compares the abortion discourses of the Old Abortion Debate with the New Abortion Debate. I examine in what way they are different and, in particular, whether the use of the language of rights increased. Based on an empirical analysis of legislative records, I conclude that the quantity of abortion rights discourse significantly increased in Taiwan in the period of the New Abortion Debate. I explore the factors that appear to have contributed most to the emergence of the rights discourse. I argue that structural change in the legislative forum and the ideological change in the concept of rights altered the political atmosphere, creating the possibility of adopting rights discourse in the New Abortion Debate. However, the framing of feminist proabortion movement affected the abortion rights discourse more directly. Feminists framed women's abortion right as a right to abortion autonomy rather than what North Americans refer to as a private choice or a freedom. Under the strong influence of feminists, abortion autonomy has become the dominant perspective in the abortion rights discourse in Taiwan.

Ruthann Robson on Sexual Democracy

Ruthann Robson (CUNY Law School) has posted Sexual Democracy on SSRN. Here is the abstract:

Conceptualizing the relationship between sexuality and democracy requires not only an interrogation of both terms, but also an exploration of the ways in which democracy seeks to accommodate and appropriate the sexual. Recent litigation and legislation regarding same-sex relationships in South Africa casts a spotlight on the interaction between sexuality and democracy, but the illumination is partial. It is necessary to explore sexuality in a broader context, including discomfiting sexual practices, as a matter of the democratic constitutional norms of equality and dignity. Otherwise, a sentimentalized version of sexuality, with certain lesbians and gay men installed as a model minority, threaten to become the democratic standard.

Michele Alexandre on the Possibility of Feminist Polygamy

Michele Alexandre (Univ. of Memphis School of Law) has posted Big Love: Is Feminist Polygamy an Oxymoron or a True Possibility? on SSRN.  Here is the abstract:

For the past few decades, Islamic reformists have attempted to reverse patriarchal set-ups in Islamic practices. In light of these efforts, the time is ripe to consider what role women's agency will play in the implementation of such reforms. The way we account for agency in advocating for women's rights is an issue with which feminist legal scholars struggle. It has been explored particularly when analyzing women's rights in the area of pornography and prostitution. As the reform movements in Islamic law become concrete, similar explorations will have to take place. Agency driven explorations in the area of Islamic law will have to be tailored to issues of particular relevance to Islamic women. In addition, Feminist legal scholars will have to take care not to project western-based analysis into unique Islamic settings. Borrowing from transformative arguments advocated by feminist legal scholars like Martha A. Fineman, the author attempts to explore the implications of recognizing the possibility for agency in Islamic polygamous structures. The central idea is to analyze the possibility for a feminist based form of polygamy for women who decide to live in a polygamous structure. This exploration in no way assumes that Muslim women are solely defined by their religion. On the contrary, it recognizes that women's identities are so diverse that, even when given options, a number of them might opt for polygamy rather than monogamy. In this context, an assessment of the value of monogamy compared to polygamy is irrelevant. What comes to matter, instead, is the fact that women who choose polygamy, like those who make any other legitimate choice, must be protected.

The rising number of pro-polygamous movements indicates that it is imperative that we investigate the possibilities for a women centric polygamy. Islamic women have diverse views regarding polygamy and do not all seem to view it as detrimental. There exist some Muslim women who are unequivocally against Polygamy, but want to remain faithful to their Islamic faith, while there are others who are not against polygamy but would like to reform the practice to fit their needs. The common denominator in these two camps, however, is that women in both camps yearn for more choice and control over the decisions that affect their family life. The desire to enter or remain in a polygamous union does not necessarily equate in their eyes with a diminishment of their rights and privileges. This article intends to show that equal rights for women and Islamic faith are not necessarily mutually exclusive if the allocation of rights is based on the spirit of Islam. Furthermore, the article will demonstrate that Islam's inherent concern with justice and equality for women necessitates that women's desires and wishes serve as foundation for any system of polygamy.

Kahane, Paton, and Simmons on The Relationship Between Abortion and Crime

Leo Kahane, David Paton (Nottingham University Business School), and Rob Simmons have posted The Abortion Crime Link: Evidence from England and Wales on SSRN. Here is the abstract:

Using data from England and Wales, we test the hypothesis that legalizing abortion reduces crime. The timing of changes in crime rates in aggregate data is generally inconsistent with this hypothesis. Using panel data on recorded crime from 1983 to 2001, we are able to replicate the negative association between abortion rates and reported crime that J. J. Donohue and S. D. Levitt found for the United States. However, this association breaks down under the scrutiny of robustness checks and is not present when we examine data on convictions broken down by age. Overall, we find no clear, consistent relationship between abortion and crime in England and Wales.

Student Scholarship: The ADA and Selective Abortion

Dov Fox and Christopher Griffin (both of Yale Law School) have posted The Collateral Effects of Law on Social Behavior: The Case of Antidiscrimination Law and Selective Abortion on SSRN.  Here is the abstract:

This Article explores the powerful ways in which changes in the law can bring about unexpected changes in social behavior that is unrelated to that which the law regulates. We puzzle through this unexamined phenomenon by considering the relation between a major antidiscrimination law, the Americans with Disabilities Act (ADA), and a routine reproductive practice, selective abortion on the basis of Down syndrome. Our empirical analysis of U.S. natality data suggests that the ADA has the surprising effect of preventing the existence of the very class of people the law was intended to protect. We explain this paradox by showing how the ADA's implementation mechanism generates stigmatizing attitudes toward people with disabilities. The law's requirement that those seeking its protection prove the limitations caused by their disability does damage to our understandings and expectations about what it means to be disabled. Using formal regression analysis, we find suggestive evidence that the ADA significantly increased the incidence of decisions to terminate a pregnancy following a positive test for Down syndrome. We discuss the implications of this expressive externality for disability, reproduction, and antidiscrimination law in the United States.

Ronald Turner the "Women's Regret" Rationale in Gonzales v. Carhart

Ronald Turner (U. of Houston Law Center) has posted Gonzales v. Carhart and the Court's 'Women's Regret' Rationale on SSRN.  Here is the abstract:

In its 2007 decision in Gonzales v. Carhart the Supreme Court of the United States, by a 5-4 vote, rejected a facial challenge to the constitutionality of the Federal Partial-Birth Abortion Ban Act of 2003. This essay focuses on and questions one aspect of the Court's opinion: the statement that "some women come to regret their choice to abort the infant life they once created and sustained." In referring to (while acknowledging that there is no reliable data to measure) this phenomenon, the Court gave to certain abortion-rights opponents something they have sought for many years - express recognition of and reliance on a "women's regret" rationale in the Court's review of anti-abortion legislation. The Gonzales Court's articulation of the "women's regret" rationale, and the Court's acceptance and, indeed, endorsement of what it viewed as the "unexceptionable" and "self-evident" premise that some women regret their choice to have an abortion, are discussed and critiqued herein. In addition, the essay argues that the Court's recognition of the rationale is an important politico-legal victory for determined participants engaged in a decades-long campaign to place the "women's regret" rationale front and center in judicial and legislative arenas and debates.

Steven Calabresi on Substantive Due Process After Gonzales v. Carhart

Steven Calabresi (Northwestern Law) has posted Substantive Due Process after Gonzales v. Carhart on SSRN.  Here is the abstract:

This Essay begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Essay goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Essay concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.

Dan Moller on Abortion and Moral Risk

Dan Moller (Philosophy, U. of Maryland) has posted Abortion and Moral Risk on SSRN.  Here is the abstract:

It is natural for those with permissive attitudes toward abortion to suppose that, if they have examined all of the arguments they know against abortion and have concluded that they fail, their moral deliberations are at an end. Surprisingly, this is not the case, as I argue. This is because the mere risk that one of those arguments succeeds can generate a moral reason that counts against the act. If this is so, then liberals may be mistaken about the morality of abortion. However, conservatives who claim that considerations of risk rule out abortion in general are mistaken as well. Instead, risk-based considerations generate an important but not necessarily decisive reason to avoid abortion. The more general issue that emerges is how to accommodate fallibilism about practical judgment in our decision-making.

I. Glenn Cohen on Rights Not To Procreate

I. Glenn Cohen (Harvard Law School) has posted The Constitution and the Rights Not to Procreate on SSRN.  Here is the abstract:

Does the Federal Constitution protect a right not to procreate, and what does that mean? Modern reproductive technology has made this question both more salient and more problematic. For example, a number of courts and commentators have assumed the existence of a federal constitutional right not to procreate and relied on it to resolve disputes over stored frozen preembryos that couples have fertilized in the course of in vitro fertilization (IVF).

In this Article, I challenge that assumption. I argue that these authorities err by relying on a monolithic conception of the right not to procreate. I instead contend that the right is best conceived as a bundle of rights containing three possible sticks: the right not to be a genetic parent, the right not to be a legal parent, and the right not to be a gestational parent. Using this framework, I show that while the Supreme Court's jurisprudence unquestionably protects a right not to be a gestational parent as a fundamental right, it does not compel recognizing a right not to be a genetic parent, when genetic parenthood is unbundled from the obligations of legal and gestational parenthood. I also examine three other challenges to the Court's and commentators' constitutional claim. First, I suggest that even if there is a fundamental right not to be a genetic parent, infringement thereof might survive constitutional scrutiny under the appropriate standard of review. Second, I argue that there is no state action in preembryo disputes and others like them, such that the Constitution is not implicated at all. And finally, I argue that the asserted constitutional right not to be a genetic parent may be subject to advance waiver, as are many other constitutional rights.

Katharine Wright on Competing Interests Arising out of IVF Treatment

Katharine Wright (Nuffield Council on Bioethics) has posted Competing Interests in Reproduction: The Case of Natallie Evans on SSRN.  Here is the abstract:

Under the Human Fertilisation and Embryology Act 1990, embryos created for IVF treatment can be stored and used only with the consent of both 'gamete providers' (biological parents). Natallie Evans, whose frozen embryos represented her last chance to bear a child genetically her own, fought in both the domestic courts and in Strasbourg for the right to continue with treatment despite the fact that her former partner had withdrawn his consent. This article analyses the legal issues in the case, both those relating to statutory construction and those based on human rights, and highlights some significant differences in approach despite the apparent unanimity of the courts in concluding that Ms Evans' claim must be dismissed.

Bridget Crawford on Motherhood and Third-Wave Feminism

Bridget Crawford (Pace Law School) has posted Third-Wave Feminism, Motherhood and the Future of Legal Theory on SSRN.  Here is the abstract:

This paper theorizes the noticeable absence of law from discussions of motherhood by feminists who came to political consciousness in and after the 1990's. Young women loudly proclaim their difference from feminists who have come before, but in doing so, they over-emphasize and even elevate women's reproductive achievements over others. First-person narratives like Rebecca Walker's Baby Love, Evelyn McDonnell's Mama Rama, and Peggy Orenstein's Waiting for Daisy reify motherhood into a sought-after and revered state. These authors, perhaps unwittingly, contribute to the very mythology of motherhood that prior feminists sought to vanquish. They seemingly reject the feminist adage that the personal is political. For Walker, McDonnell, Orenstein and others, the political is personal all over again.

By offering a critique from squarely within the generation of women who have proclaimed a third-wave of feminism, this article speaks directly to my peer group of legal scholars. I am a third-wave feminist by strict demographic definition, but not by preference, politics or proclivity. Women like me (and our allies) who grew up and first studied law in a post-ERA, post-Title IX and post-coeducation era need to develop our own account of the law's limitations and potential. This account should be informed by our own experiences but also needs to understand preceding feminist concerns and methodologies. Writings of young feminists, when read in the context of the work of Martha Fineman, Robin West and Adrienne Rich, among others, can articulate a feminist theory of motherhood. In fusing contemporary third-wave feminist writing with extant feminist legal scholarship, one can discern the beginnings of a potentially rich third-wave feminist legal theory with its sights on pragmatic gender justice.  

Reva Siegel on "Woman-Protective Anti-Abortion Argument"

Reva Siegel (Yale Law School) has posted The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument on SSRN.  Here is the abstract:

This Lecture investigates the social movement dynamics that produced woman-protective antiabortion argument. The Lecture explores the political conditions under which leaders of the antiabortion movement began to supplement or even to supplant the constitutional argument abortion kills a baby with a new argument, abortion hurts women - a claim that achieved widespread public notice with the Supreme Court's 2007 decision in Gonzales v. Carhart.

The Lecture's genealogy of a social movement claim begins in the 1980s, when members of the antiabortion movement asserted that abortion subjects women to regret, trauma, and psychological illness, a condition they termed post-abortion syndrome (PAS). My story then follows changes in the abortion-harms-women claim as it was transformed from PAS - a therapeutic discourse initially employed to dissuade women from having abortions and to recruit women to the antiabortion cause - into woman-protective antiabortion argument (WPAA), a political discourse forged in the heat of social movement conflict that sought to persuade audiences outside the movement's ranks in electoral campaigns and in constitutional litigation.

Whereas PAS grew up as a mobilizing discourse deployed primarily among women volunteers and clients in the antiabortion movement's crisis pregnancy network - a context in which abortion-hurts-women testimonials had important expressive functions - WPAA took shape in political contexts in which the abortion-hurts-women argument had important strategic functions. In the 1990s, antiabortion advocates sought to explain to audiences that ambivalently supported the abortion right why women would benefit from legal restrictions on abortion. As they did so, they fused PAS claims and stories with traditional gender-paternalist argument, justifying restrictions on women's agency as needed to protect women from male coercion and to free women to be mothers. As a political discourse designed to rebut feminist, pro-choice claims, WPAA came to internalize elements of the very arguments it sought to counter - fusing the public health, trauma, and survivors idiom of PAS with the idiom of the late twentieth-century feminist and abortion-rights movements. As the Lecture shows, social movement mobilization, conflict, and coalition each played a role in the evolution and spread of the woman-protective antiabortion argument, in the process forging new and distinctly modern ways to talk about the right to life and the role morality of motherhood in the therapeutic, public health, and political rights idiom of late twentieth-century America.

The Lecture concludes by considering the new gender-paternalist justifications for abortion restrictions discussed in Carhart. With the spread of woman-protective antiabortion argument and its seductively modern justifications for using law to impose motherhood on women, Justice Kennedy and the nation will once again have to decide - not only how to balance the liberty of the pregnant woman against the state interest in protecting potential life - but more fundamentally, about the kind of women that constitutional guarantees of liberty and equality protect. This question is far from abstract, as South Dakota once again considers whether to adopt an abortion ban, justified by fetal-protective and woman-protective argument, in the 2008 elections.

Student Scholarship: Procreative Rights, and Child Welfare and Future Persons

Carter Dillard (LLM candidate, NYU) has posted two articles on SSRN.  Here are the abstracts:

Rethinking the Procreative Right:

Few principles are as universally accepted in legal scholarship today, but based on such scant support, as the fundamental nature and broad scope of the right to procreate. What is perceived as a vague but nonetheless justified legal and moral interest to procreate freely without regard to others is, upon closer examination, based on little more than misconstrued or inapposite case precedent and blurry statements in non-binding sources of international law. By relying on this authority, conflating procreation with conceptually distinguishable behaviors, presuming its intrinsic value, and ignoring competing rights and duties, lawyers have largely overlooked procreation and its legal and normative limits. Interpreting U.S. constitutional and international law sources, and finally employing Locke's model of natural rights, this Article redefines the right in law and practice as satiable and narrow, acknowledging the competing rights and duties that both qualify and justify the right. It posits that the procreative right, properly stated, includes at least the act of replacing oneself and at most procreation up to a point that optimizes the public good.

Child Welfare and Future Persons:

While ethicists have delved deep into the rights and wrongs inherent in procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore future persons and their interests, and the misperception of a fundamental rights boundary that absolutely forbids state intervention. But recently a small door has opened in the wall between law and ethics, as some courts faced with having to constantly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent slowly begins to form and the possibility of ex ante regulation of procreation and parenthood begins to grow, a moral and legal debate is beginning over what duties prospective parents owe their future children and the society with which they will interact, the resolution of which will in part define the actual constituency of the future state. This Article is the first to cut through the debate, which is a muddle of conflicting state and constitutional law, uncovering the essential principle at its core, and arguing for codification of that principle. It posits, largely through deductive reasoning, that there is a moral and legal duty on a prospective parent to be fit when he or she has a child, one arising from or creating correlative claim-rights shared by the state and prospective children, and a prospective parent has no liberty to have a child until he or she is fit. It argues for codification of this principle to be applied in cases of recurring abuse and neglect, taking courts out of the sea of confusion where they have been left by politically sensitive legislatures, and allowing them to best protect the various interests involved and avoid irreparable harm.

Call for Papers: Reproductive Justice Anthology

Via SisterSong: Women of Color Reproductive Health Collective:

SisterSong is excited to announce that the creation of a special anthology on Reproductive Justice is currently underway. Please accept this invitation from SisterSong to submit a contribution to be considered for this ground-breaking anthology....

The theory, strategy and practice of Reproductive Justice was created by African American women in 1994 because we were looking for a way to articulate the needs of our communities of color that face multiple forms of reproductive oppression. We needed an intersectional analysis defined by the human rights framework -- based on the practice of self-help -- that would be inclusive and applicable to everyone. SisterSongs three core Reproductive Justice principles developed since our founding in 1997 reflect the theory and practice we collectively learned and shared. We believe that every woman has the right to:

1. Decide if and when she will have a baby and the conditions under which she will give birth

2. Decide if she will not have a baby and her options or preventing or ending a pregnancy

3. Parent the children she has with the necessary social supports in safe environments and healthy communities, and without fear of violence from individuals or the government.

The deadline is June 1, 2008.  More information and submission guidelines are available here.

Student Scholarship: A Feminist Legal Response to Plan B Regulation

Amanda Allen (3L, CUNY Law School) has posted A Plan C for Plan B: A Feminist Legal Response to the Ways in Which Behind-the-Counter Emergency Contraception Fails Women on SSRN.  Here is the abstract:

On August 24, 2006, the Food and Drug Administration approved Plan B, the brand-name drug sold for emergency contraception, for sale to pharmacy customers eighteen and over without a prescription. However, Plan B must be shelved behind the pharmacy counter; thus, a customer over the age of eighteen seeking this medication must ask a pharmacist for it. A pharmacist with a moral or religious objection to emergency contraception can, therefore, still pose a barrier to a customer seeking to obtain it.

I use a feminist legal perspective to examine the regulation of behind-the-counter sale of emergency contraception to customers over the age of eighteen, addressing two problems with the regulation. First, because the regulation permits only behind-the-counter sale of Plan B, pharmacists are in a unique position to decide whether they think the customer should receive the requested medication - thus making pharmacist refusals possible. Second, the regulation surreptitiously adds an age requirement that was neither contemplated by the manufacturer nor medically justified, which hinders the access of young women and women without the required identification.

first map out a litigation strategy to challenge pharmacist refusals to dispense emergency contraception. Using New York law as a model, I discuss the various theories of relief upon which a refusing pharmacist could be sued, including professional causes of action and administrative causes of action. I further posit private causes of action - including sex discrimination, wrongful conception, and breach of fiduciary duty - as a way to hold refusing pharmacists accountable to customers seeking emergency contraception.

I next discuss Tummino v. von Eschenbach, a lawsuit that challenges the regulation's age restriction. I argue that the age restriction privileges both age (adults) and gender (male purchasers/non-users) in ways that are unrelated to the use of the drug or its risks. This section applies a feminist legal perspective on the age restriction through use of constitutional theories supporting invalidation of the age restriction, in particular minors' right to decisional privacy.

Clementine Rossier on Abortion Secrecy in Burkina Faso

Clementine Rossier has posted Abortion: An Open Secret? Abortion and Social Network Involvement in Burkina Faso, Reproductive Health Matters, Vol. 15, No. 30, pp. 230-238, November 2007, on SSRN.  Here is the abstract: 

Abortion in Burkina Faso is a subject that neither abortion providers nor women want to talk about. Abortion providers fear criminal prosecution; women's silence is dictated more by the wish to avoid the stigma of a shameful pregnancy....What prompts women and providers to reveal something they want to be kept totally secret, and how do women keep their abortion secret while nevertheless talking to others about it? The study found that young women in Burkina Faso are impelled to talk to their boyfriends, friends and in fewer cases women relatives about their unplanned pregnancy, first to decide to have an abortion and then to get help in finding a clandestine provider.

Law Student Writing Contest: Alice Paul Feminist Jurisprudence Essay

The Women and the Law and Legal Rhetoric programs at American University Washington College of Law are seeking student submissions for the Alice Paul Feminist Jurisprudence Essay Contest. 

The award is $1000 for the best unpublished student essay. The winner will deliver her or his paper at Washington College of Law and will receive help in placing the essay in a publication.

For more information, visit the contest website.

Dr. Pablo Rodriguez on the POPLINE Controversy

RH Reality Check: A Slippery Slope: The POPLINE Controversy, by Pablo Rodriguez, MD:

Call it censored, call it buried, call it lost—the search term “abortion” was all of the above for approximately a month on POPLINE —a publicly-funded database that its administrators describe as “Your connection to the world’s reproductive health literature.”

Last week, researchers at the University of California, San Francisco, uncovered this ironic situation while trying to “connect” to “reproductive health literature.” Health care providers, researchers, and advocates around the country were alarmed to learn that POPLINE (POPulation information onLINE), had rendered the search term “abortion” a stopword—which directs the database to ignore the term when used in a search....

The medical and scientific needs of the reproductive health professional community were impeded by POPLINE’s decision to remove abortion as a search term on its publicly funded database. If this action had gone unchecked, the decision would have limited the medical and scientific community’s ability to access information on a range of patient care scenarios, including women experiencing both wanted and unintended pregnancies.

Dean of Johns Hopkins Public Health School Lifts Database Restrictions on Searches for "Abortion"

NY Times: Health Database Was Set Up to Ignore ‘Abortion’, by Robert Pear:

Johns Hopkins University said Friday that it had programmed its computers  to ignore the word “abortion” in searches of a large, publicly financed database of information on reproductive health after federal officials raised questions about two articles in the database. The dean of the Public Health School lifted the restrictions after learning of them.

See also Medical News Today: Reproductive Health Professionals Criticize Censorship Of Content Related To Abortion On USAID-Funded Database; Applaud Dean's Reversal  (statement by the Association of Reproductive Health Professionals).

Book Review: Fatal Misconception, by Matthew Connelly

Wall Street Journal: The War Against Fertility, by Martin Morse Wooster:

It is a cliché but nevertheless true that philanthropists and government bureaucrats often do more harm than good, not least when they set out to change the world. In the second half of the 20th century they actually tried to control the world's population. The idea was to encourage -- even coerce -- the women of the Third World to have fewer children. In "Fatal Misconception," Matthew Connelly, a professor at Columbia University, traces the rise and fall of the population-control movement and describes its bitter legacy.

Mr. Connelly's narrative begins in the late 19th century, but it takes on real momentum in the early 20th, with the crusading efforts of Margaret Sanger (1879-1966). In 1914, Mr. Connelly recounts, Sanger and her allies tried to come up with a phrase that would capture the idea of population control and encourage women to limit their fertility. They pondered "voluntary motherhood," "voluntary parenthood," "family control" and (tellingly) "race control." They ended up with "birth control."

H/T: Suja Thomas

Michael Stokes Paulsen on Prospective Abolition of Abortion

Michael Stokes Paulsen (University of St. Thomas Law School) has posted Prospective Abolition of Abortion: Abortion and the Constitution in 2047, University of St. Thomas Journal of Law and Public Policy, Vol. 1, No. 57, 2007, on SSRN.  Here is the abstract:

What if those who fashioned the Missouri Compromise of 1820, instead of drawing a geographical line in the sand, had drawn a 'time'-line instead, prohibiting slavery at a then-seemingly-distant date of 1860, forty long years into the future? Might the events of 1860 (and thereafter) played out much differently? Is it possible slavery would have been abolished sooner, and without the loss of 600,000 lives in the Civil War?

This short essay asks the question of whether abortion might be prohibited by constitutional amendment, effective some forty years in the future. Might it be possible to reach consensus that an absolute, unrestricted right to abortion should not exist forever?

Luke Milligan on Fetal Homicide Laws and Rawls

Luke M. Milligan (University of Louisville Law School) has posted A Theory of Stability: John Rawls, Fetal Homicide, and Substantive Due Process, Boston University Law Review, Vol. 87, No. 5, 2007, on SSRN.  Here is the abstract:

This Article evaluates the bifurcated approach to fetal rights in the light of John Rawls's political philosophy. In particular, it seeks to discern whether fetal-homicide laws, as they presently exist, suggest a societal recognition of fetal personhood, and, if so, whether this renders the right to abortion inconsistent with Rawlsian principles of justice.

Noa Ben-Asher on "Baby-Making Markets"

Noa Ben-Asher (Associate-in-Law at Columbia Law School) has posted The Curing Law: On the Legal Evolution of Baby-Making Markets on SSRN. Here is the abstract:

How has morality shaped current baby-making markets? What bargaining conditions have been set for individuals seeking to participate in those markets? The article offers a new paradigm to examine the legal regulation of reproductive technologies. The main argument is that a paradigm of cure has shaped historical and current legal baby-making markets. Namely, reproductive technologies that have historically been understood as forms of cure (such as sperm donations and egg donations) have developed into market commodities, while others (such as full surrogacy) which have not been understood as cure, have not. The article examines and critiques the cure paradigm. Specifically, the article challenges one current manifestation of the cure paradigm: the legal distinction between "full surrogacy" (where a surrogate impregnated using her own ova) and "gestational surrogacy" (where an embryo is created in vitro and then transferred into the surrogate‘s uterus). Gestational surrogacy has been established by many state courts and legislatures as a legitimate form of curing female infertility, while full surrogacy has generally been either prohibited or deemed unenforceable. This distinction is problematized in this article not only because it is based on contestable values, but also because it is has produced serious market failures that have effectively excluded many potential participants from entering the baby-making markets. Thus, the article argues that it is time to reevaluate the cure paradigm, and that the first step in this reevaluation involves the legalization of full surrogacy by state courts and legislators.

Carlos Ball on Privacy and Public Sex

Carlos A. Ball (Penn State) has posted Privacy, Property and Public Sex on SSRN. Here is the abstract:

This Article argues that the constitutional right to sexual liberty should include the right to engage in public sex under certain circumstances. In doing so, the Article contends that the right to sexual liberty should not, as the Supreme Court has held, be site-dependent, that is, its scope should not be limited to sexual conduct that takes place in the home and other private places. The Article reviews the sociological literature on public sex to explain how sexual actors frequently and effectively privatize public sex sites. By analogizing to the privacy protection afforded by the Fourth Amendment, the Article argues that what should ultimately matter in determining the scope of the right to sexual liberty under the Due Process Clause is not where the sex takes place but whether the sexual actors' expectations of privacy are reasonable. In the end, the Article seeks to problematize the seemingly intuitive notion that, in matters of sex and sexuality, the concept of privacy is inextricably linked to geographic sites that are private.

Caitlin Borgmann on Judicial Deference to Legislative Factfinding

Caitlin Borgmann (CUNY Law School) has posted Rethinking Judicial Deference to Legislative Factfinding on SSRN.  Here is the abstract:

It is traditionally assumed that the role of ascertaining and evaluating the social facts underlying a statute belongs to the legislatures. The courts, in turn, are tasked with deciding the law and must defer to legislative factfinding on relevant issues of social fact. This simplistic formula, however, does not accurately describe the courts' confused approach to legislative factfinding. Although the courts often speak in terms of deference, they follow no consistent or predictable pattern in deciding whether to defer in a given case. Moreover, blanket judicial deference to legislative factfinding would not be a wise general rule. Because social factfinding plays a decisive role in constitutional analysis, blind judicial deference would undermine the courts' responsibility to protect individual rights. Judicial treatment of legislative factfinding is thus sorely in need of a coherent theory.

This Article proposes a new approach, a paradigm of selective independent judicial review of social facts. Under this model, the courts should independently review the factual foundation of all legislation that curtails individual rights, even when those rights do not receive strict or heightened scrutiny. This approach is unique in ensuring a baseline protection for all individual rights, including emerging rights, while respecting the division of power between the branches of government. The paradigm is needed because, this Article asserts, legislatures are poorly positioned to gather and assess facts dispassionately, especially when addressing laws that restrict controversial or minority rights. The process of factfinding in federal trial courts ensures a superior factual record when such rights are at stake. This Article illustrates the courts' and legislatures' contrasting capacities for factfinding through case studies, including "partial-birth abortion," gay parenting, and indecency on the Internet. Moreover, the Article argues, because of the courts' vital role in protecting individual rights, the proposed paradigm honors constitutional structural principles.

Comments are welcome.  The article includes a case study constrasting legislative and judicial factfinding on the federal and state "partial-birth abortion" bans.

S.C. Law Review Symposium on Equality and the Roberts Court

I am looking forward to participating today in the South Carolina Law Review Symposium, The Roberts Court and Equal Protection: Gender, Race, and Class.  I will be speaking on the panel on gender along with Deborah Brake (Pittburgh), David Cohen (Drexel), and Teresa Collett (St. Thomas).  The full list of panels and speakers is available here.

Marsha Garrison on Regulating Assisted Reproductive Technology

Marsha Garrison (Brooklyn Law School) has posted Regulating Reproduction on SSRN. It will be published in the George Washington Law Review. Here is the abstract:

Can - should - the United States abandon the laissez-faire, market-based approach to reproductive technology in favor of a regulatory model? This article argues that regulation is permissible and that it is sometimes desirable. It also lays out a framework for developing regulatory standards that relies on related areas of law, arguing that because we permit adult patients to undergo risky experimental treatments, we should permit adult ART patients to accept similar risks or adopt uniform rules that proscribe the use of experimental treatments in both contexts; because we allow would-be parents to abort fetuses with undesirable characteristics, we should allow would-be parents who utilize ART to select out unwanted fetuses with undesirable characteristics or adopt rules that uniformly forbids some or all trait selection; because we do not allow parents to subject their children to serious medical risks, we should not allow would-be parents using ART to subject their future children to serious medical risks; and because we outlaw commercialism in transfers of body parts and human beings, we should outlaw commercialism in transfers of sperm and ova or uniformly permit commercialism.

The article concludes that, because ART involves complex, rapidly evolving medical procedures, a quasi-public regulatory entity like that which the federal government has already established in the area of organ transplantation appears to be the most promising regulatory structure and one that fits well within the decentralized U.S. medical-care system.

Nina Crimm on the Global Gag Rule

Nina J. Crimm (St. John's University School of Law) has published and posted The Global Gag Rule: Undermining National Interests By Doing Unto Foreign Women and NGOs What Cannot Be Done At Home, Cornell International Law Journal,Vol. 40, No. 587, 2007, on SSRN. Here is the abstract:

The Mexico City Policy, also known as the Global Gag Rule (GGR), is an executive-based foreign assistance policy that constrains USAID financial aid for family planning programs in developing countries. It has had enormous unconscionable impact on the lives of individuals and to the operations of foreign nongovernmental organizations (NGOs). The policy has compromised women's health and welfare, jeopardized children's well-being, and adversely affected victims of HIV/AIDS. It unjustly has denied women's rights to self-determination and dignity with respect to reproductive matters. The GGR also has caused NGOs to curtail programs vital to maintaining health clinics and essential to delivery of critical healthcare services. It financially has threatened the existence of some foreign NGOs, has caused the demise of others, and has precluded alliances of NGOs essential for solving public health crises. The GGR has chilled the speech and stifled expressive associations of foreign NGOs, which likely would be constitutionally impermissible with respect to domestic NGOs. The many problematic consequences of the policy have been contrary to U.S. national interests in advancing the spread and stability of political democracies, free markets, and in enhancing the health, education and economic well-being of populations in developing countries. And, as a foreign assistance policy not true to the best U.S. traditions adopted from Judeo-Christian precepts, the GGR has tainted the image of the U.S. as a model democracy. Its real, but objectionable, contribution has been only to the self-interests of several U.S. presidents. So, now the Senate and House of Representatives, with their recently installed Democratic majorities, should enact legislation to reject the GGR.

Julie Goldscheid on Sex Equality Theory and Domestic and Sexual Violence

Julie Goldscheid (CUNY School of Law) has posted Elusive Equality in Domestic and Sexual Violence Law Reform, Florida State University Law Review, Vol. 34,  2007, on SSRN. Here is the abstract:

This Article evaluates the application of sex equality theory to the harms resulting from domestic and sexual violence. Sex equality theory and related antidiscrimination remedies widely have been heralded as holding the potential both to advance victims' economic recovery and to transform public understanding of the problem. Laws such as the civil rights remedy of the 1994 Violence Against Women Act struck by the U.S. Supreme Court in United States v. Morrison are rooted in this theory. Because Morrison rested on questions of federalism, the decision neither resolved nor addressed a large category of concerns that led to the enactment of that and similar laws.

To reinvigorate discussion of those important issues, this Article reconsiders the value of framing the harm that flows from domestic and sexual violence as a civil rights violation. I argue that civil rights remedies are important legal tools for victims of domestic and sexual violence. Nevertheless, their practical appeal necessarily will be bounded by realities inherent in the nature of the remedy and in the nature and experience of abuse. A variety of considerations, including survivors' rational reluctance to reengage with an abuser, will deter victims from invoking civil rights remedies. Civil rights remedies' transformative potential to produce either policy or other forms of social change will be limited unless their enactment and use are closely tied to grassroots organizing efforts. I advocate alternative and complementary approaches to the remedies' dual and laudable goals of expanding avenues for economic recovery and transforming the discriminatory attitudes that allow domestic and sexual violence to persist.

John Breen on Abortion and Legal Modesty and Moralism

John M. Breen (Loyola University Chicago) has posted Modesty and Moralism: Justice, Prudence and Abortion- A Rely to Skeel & Stuntz on SSRN. Here is the abstract:

In a recent article, Christianity and the (Modest) Rule of Law, law professors David Skeel and William Stuntz argue that American law should be modest in its ambitions. They contend that law is not an appropriate response to many social problems, including abortion. They argue that the rule of law suffers when law attempts to regulate that which it cannot change – a vice they refer to as “legal moralism.” Skeel and Stuntz make these arguments from an Evangelical Christian perspective.

This essay examines Skeel and Stuntz's ideas concerning legal modesty and legal moralism, particularly regarding abortion. I argue that their essay could have benefited from a more thorough engagement with the Christian intellectual tradition.

I also argue that Skeel and Stuntz undermine their claim that law is frequently incapable of affecting social change by relying on Gerald Rosenberg's deeply flawed discussion of abortion prior to Roe v. Wade. By relying solely on Rosenberg's book, Skeel and Stuntz ignore evidence that abortion increased following the state reform efforts of the late 1960s and early 1970s and the decision in Roe.

Many commentators have argued that law should be used in a non-coercive manner to curb the incidence of abortion through greater social assistance to women and families. I show that data indicates that these sorts of laws would have a marginal effect on the nearly 1.3 million abortions that take place each year.

Skeel and Stuntz see that culture enjoys a priority over law in influencing individuals' choices. However, they misunderstand the importance of law in shaping culture. I argue that abortion as a social problem cannot be resolved solely by legal means. Instead, law should be part an effort of cultural transformation. I offer the example of how law has worked with cultural norms in significantly reducing the incidence of drunk-driving fatalities beginning in the 1980s.

Christopher Elmendorf on the Right to Vote and the Right to Abortion

Christopher S. Elmendorf (UC Davis) has posted Undue Burdens on Voter Participation (Is the Right to Vote Like the Right to an Abortion?) on SSRN. The