The Connecticut state Senate gave final approval late Friday to a novel plan to turn the state into an abortion safe haven for patients who live in conservative states that are moving rapidly to restrict access to the procedure.
Monday, May 16, 2022
Scary Mommy tells a powerful story of how a grieving mother and scientist has identified the cause of Sudden Infant Death Syndrome. The findings were published in the June 2022 publication of The Lancet. The publication provides the following contextual summary of the research:
Evidence before this study
Despite the effectiveness of public health campaigns in reducing the incidence of Sudden Infant Death Syndrome (SIDS), SIDS remains the major cause of infant death in western countries. The “triple risk model” hypothesises that SIDS deaths result from coincident occurrence of a vulnerable infant, a critical developmental period, and an exogenous stressor. Despite intensive research, identification of any specific vulnerability prior to the sudden death has remained elusive. And, while autonomic dysfunction has long been considered a candidate for this vulnerability, studies have been hampered by reliance on post-mortem samples.
Added value of this study
We found that Butyrylcholinesterase Activity, measured in dried blood spots taken 2-3 days after birth, was significantly lower in babies who subsequently died of SIDS compared to living controls and other Non-SIDS infant deaths. This study identifies a biochemical marker that differentiates SIDS infants from control cases and those dying from other causes, prior to their death. We postulate that this decreased activity of Butyrylcholineserase represents an autonomic cholinergic dysfunction and therefore an inherent vulnerability of the SIDS infants.
Implications of all the available evidence
This finding represents the possibility for the identification of infants at risk for SIDS infants prior to death and opens new avenues for future research into specific
These findings have implications for the patchwork of state laws governing SIDS throughout the country.
Raquel E. Aldana, Patrick Marius Koga, Thomas O’Donnell, Alea Skwara, and Caroline Perris have posted a forthcoming article, Trauma as Inclusion, on SSRN. The article is forthcoming in Summer 2022 in the Tennessee Law Review. It "brings together a historian and law, public health, psychiatry, psychology, and neuroscience faculty and researchers to document how trauma is understood across disciplines and how it has developed in U.S. immigration law largely to exclude but increasingly to include migrants whose lives have been uprooted or otherwise impacted by borders." It describes, for example, how refugee and asylum law "largely fail to protect individuals and groups facing persecution by private actors, such as women and LGBTQIA+ individuals, even when private violence has become indistinguishable from state sponsored persecution." It then explores how the Violence Against Women Act has more potential for a model of "trauma as inclusion":
Unfortunately, several obstacles, including evidentiary barriers impede the full potential of the VAWA self-petition process. Proving trauma for domestic violence victims is difficult, even in cases involving physical abuse, given the barriers to reporting. Moreover, when the alleged hardship is based on “extreme cruelty,” an immigrant’s narrative alone can be deemed insufficient to establish eligibility. For immigrants who can afford it, sometimes psychological evaluations can help document psychological trauma that is not otherwise documentable. However, even these types of evidence may not help overcome the Western clinical conceptualizations of trauma that undermine the lived experiences of more resilient women, especially when one considers the different ways that victims respond to trauma. Worse yet, these types of psychological evaluations can be used against immigrants to deny relief, such as when documented depression and suicidal thoughts trigger mental health grounds of inadmissibility.
The infant formula crisis continues in the United States as covered by Reuters and numerous media outlets. Here's a look at the cities in which supplies are the most depleted from Bloomberg. Consumer safety groups and pediatricians are warning consumers not to try to make products at home. Attention is focused on what the government can do to offer support. Reuters previews:
The U.S. Food & Drug Administration (FDA) will announce new steps in the coming days regarding importing certain infant formula products from abroad, the White House said, and Biden has asked the Federal Trade Commission (FTC) to probe reports of predatory conduct such as price gouging.
The House will also hold a hearing on the crisis on May 25.
The Atlantic Monthly does a deep dive on what is behind the shortage and the role of law and policy.
FDA regulation of formula is so stringent that most of the stuff that comes out of Europe is illegal to buy here due to technicalities like labeling requirements. Nevertheless, one study found that many European formulas meet the FDA nutritional guidelines—and, in some ways, might even be better than American formula, because the European Union bans certain sugars, such as corn syrup, and requires formulas to have a higher share of lactose. * * *
U.S. policy also restricts the importation of formula that does meet FDA requirements. At high volumes, the tax on formula imports can exceed 17 percent. And under President Donald Trump, the U.S. entered into a new North American trade agreement that actively discourages formula imports from our largest trading partner, Canada.
America’s formula policy warps the industry in one more way. The Department of Agriculture has a special group called WIC—short for Special Supplemental Nutrition Program for Women, Infants, and Children—that provides a variety of services to pregnant and breastfeeding women and their young children. It is also the largest purchaser of infant formula in the United States, awarding contracts to a small number of approved formula companies. As a result, the U.S. baby formula industry is minuscule, by design. A 2011 analysis by USDA reported that three companies accounted for practically all U.S. formula sales: Abbott, Mead Johnson, and Gerber.
Thursday, May 12, 2022
More Reliance on Witch Trial-esque Precedent in the Draft Dobbs Opinion and the Case of Eleanor Beare
In the draft Dobbs opinion (p.17), Justice Alito writing for the majority to overturn Roe v. Wade and Casey, features as precedent the 1732 English case of Eleanor Beare. He uses this case to bolster his point that abortion was a crime "dating all the way back to the 13th century."
In 1732, for example, Eleanor Beare was convicted of "destroying the Foetus in the Womb" of another woman and "there-by causing her to miscarry." For that crime and another "misdemeanor" Beare was sentenced to two days in the pillory and three years' imprisonment.
The authority he cites to is 2 Gentleman's Magazine 931 (Aug. 1732). The citation and case are in Dellapenna, Dispelling the Myths of Abortion, a book heavily relied on as the key authority for Alito's history. Dellapenna is a retired law professor with an expertise in water rights turned anti-abortion advocate. Alito excoriates the Roe majority for its "unsupportable" reliance on the work of Cyril Means, a pro-choice supporter who Alito says provided work "the guise of impartial scholarship while advancing the proper ideological goals." Op. at 27. Yet Alito does precisely that here, just selecting an advocate from the anti-abortion side.
Online sources provide a a summary of the trial and what appears to be a transcript of The Tryal of Eleanor Beare of Derby, England. Authenticity is certainly a question as to these sources, but they match quotes used by Alito in his opinion. The trial summary is from The Newgate Calendar, a popular literary book of the 18th and 19th century editorializing and moralizing about legal cases.
Like the Salem witch trials, the proceedings including hearsay, finger pointing by neighbors and former friends, and lack of counsel for the defendant. Eleanor, apparently a midwife and the wife of a "labourer," is asked by three clients to assist in an abortion, and in another case healing a wife who took poison from another. The first charge of homicide seems to carry the case and sentence, as Beare is alleged to have helped a man she met at a bar poison the wife he hated. No allegation of pregnancy or abortion in that charge. Beare, cross-examining herself, says wasn't I just helping you save your wife whom you had poisoned with poison you got from a Mary Tecmans?
Eleanor is punished for these misdemeanors by sentence of standing in the pillory in the marketplace--the stockade of arms and head in the town square--where members of the community pummeled her with eggs, turnips, stones, "and any other filth they could collect." Annals of Crime in the Midland Circuit, or Biographies of Noted Criminals (1859). "She knelt down, and begged mercy of the still outrageous mob." Id. "Stones were thrown, which wounded her to such a degree, that her blood streamed down the pillory." Id. This "somewhat appeased the resentment" of the crowd, and she was returned to jail. Id.
Justice Alito resurrects the ghosts of witch trials past in the draft opinion in Dobbs. He relies on the authority of Lord Hale, infamous English jurist who hanged women as witches, created the marital rape exception, and crafted the jury instruction to warn against believing women in rape allegations. He also features the Salem-esque trial of Eleanor Beare and her punishment by pummeling with eggs and turnips in the town square. More on Eleanor in part 2 of this post.
When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.
The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.
Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards. ***
Hale became Lord Chief Justice of England in 1671.***
Courts have long leaned on precedents established by old cases and the scholarship of legal authorities from centuries gone by. But what happens when you trace citations back to their ancient source? In Hale’s case, you sometimes find a man conceiving precepts out of thin air. Other times it was the opposite, as he clung to notions that were already becoming anachronistic in the last half of the 17th century.
Consider the marital rape exemption. In “Pleas of the Crown,” Hale wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” So, according to Hale, marriage, for a woman, amounts to contractual forfeit, in which she loses legal protection or recourse should her husband sexually assault her.
Hale’s pronouncement became the accepted common law and served as foundation in the United States for immunizing a husband accused of raping his wife. And where did Hale’s pronouncement come from? What did he base it upon? Who knows? “Hale appears to have been the first to articulate what later would become an accepted legal principle, that a husband cannot be charged with raping his wife,” according to a footnote in one law review article. Another law review article, titled “The Marital Rape Exemption: Evolution to Extinction,” called Hale’s pronouncement “an unsupported, extrajudicial statement” lacking in authority.
Starting in the 1970s, states began to abandon the marital rape exemption, in whole or in part.***
In “Pleas of the Crown,” Hale called rape a “most detestable crime.” Then, in words quoted many times since, he wrote, “It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”
Hale evoked the fear of the false accuser — and made for that fear a legal frame, which lasted for more than 300 years. In weighing the evidence in cases of alleged rape, jurors (all men, in Hale’s time and for long after) needed to consider a series of factors, Hale wrote. Did the woman cry out? Did she try to flee? Was she of “good fame” or “evil fame”? Was she supported by others? Did she make immediate complaint afterward?
Hale’s words and formulation became a standard feature of criminal trials in the United States, with jurors instructed by judges to be especially wary of allegations of rape.***
Then there was Hale’s role in what today is synonymous with the perversion of justice: witch trials.
In 1662, Hale presided at a jury trial in Bury St. Edmunds in which two women, Amy Denny and Rose Cullender, were accused of being witches. In a book on this case, “A Trial of Witches,” authors Ivan Bunn and Gilbert Geis wrote that by 1662, “belief in witches was in retreat in England.” Hale, however, was not part of that retreat. He believed witches were real. “Hale represented not a mainstream position but rather one rapidly becoming anachronistic,” Bunn and Geis wrote.
What’s more, Hale instructed the jurors that witches were real.
Just days after Politico published the leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, Saturday Night Live opened with its own comedic analysis of the Supreme Court decision purportedly overturning Roe v. Wade. “Justice Samuel Alito explains that no woman has a right to an abortion, and, in fact, abortion is a crime,” a narrator explains, before highlighting several excerpts from the draft citing 13th century common law on punishments for ending a pregnancy after the “quickening” of a “foetus.”
The opening sketch then takes viewers back in time to dramatize the “profound moment of moral clarity” that Alito seems to believe should be the basis of our abortion laws in 2022. British actor Benedict Cumberbatch, in a mock medieval pageboy haircut, comes to a “revelation” about the need to criminalize abortion in an age of constant plague, disastrous hygiene, witch obsession, and flat-earth maps. The sketch brilliantly demonstrates the absurdity of reading a 21st century Constitution in light of a legal and scientific history most Americans would not embrace today.
The SNL skit posed an obvious question: Why would it make sense to rely upon 13th century law to decide something so important to half the population of the United States? It’s a question best answered by constitutional law scholars like myself. We all know Alito’s interpretive move—it’s called originalism or textualism—and it is full of theoretical complexity. For the most part, this is legal inside baseball. So why this lesson on originalism on SNL? And why now?
Because Alito’s leaked opinion in Dobbs was a bombshell. It takes up some of the most extreme rhetoric of the anti-abortion movement while citing, as SNL points out, centuries-old and outdated legal ideas. And so when people sat down to read the opinion, even the comedy writers at SNL saw what ordinarily the public pays no attention to: the absurdity of a constitutional methodology called originalism at work.
Michele Goodwin, The New Jane Crow, The Atlantic
With the Supreme Court poised to overturn Roe v. Wade, abortion access for tens of millions of women and girls across the nation may soon be a matter of the past. For many women of means, who can travel and pay for child care, the loss of Roe will be disruptive. For many poor women—particularly poor women of color—the loss will be deadly. This is the coming of the new Jane Crow.
Certain aspects of the era of the new Jane Crow are already predictable. First, high rates of maternal mortality will persist, and Black and brown women will disproportionately experience the blow and brunt of these deaths. Medicaid will not be expanded in anti-abortion states, nor will welfare benefits increase to meet families’ needs.
Second, states will turn to civil and criminal punishments of women and girls who seek abortions through medication or by traveling out of state. Even now, before Roe has fallen, lawmakers are working on such legislation. Third, just as the Jim Crow era sanctioned racism and racial profiling, the Jane Crow era will be marked by greater surveillance of pregnant women and the curation of laws, practices, and policies to justify stalking, watching, and policing women’s bodies. That is our near future.
Already today, we know how dangerous pregnancy and delivery can be. An American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion—a fact the Supreme Court itself acknowledged in Whole Woman’s Health v. Hellerstedt just six years ago. In Louisiana, giving birth is roughly 57 times more dangerous for women than having an abortion. For Black women, the risk of death is especially dire—and especially in states eager to ban abortions. For example, according to the Mississippi Department of Health’s most recent investigation of maternal health and mortality, Black women accounted for “nearly 80% of pregnancy-related cardiac deaths” in that state; they also suffered from far greater rates of gestational diabetes, sepsis, and hemorrhaging. Black women in Mississippi are 118 times more likely to die from giving birth than from having an abortion. To be Black and pregnant in America is a deadly combination.
Some of this devastation is the result of the anti-abortion movement itself, and in particular its white, male champions in statehouses across the South. These legislatures have targeted abortion providers for decades, stripping them of their ability to provide essential health-care services for poor women, including pap smears, cancer screenings, and contraception. Their efforts have contributed to the United States being the deadliest country in the developed world to be pregnant.
Surely Justice Samuel Alito and the four justices who, according to Politico, voted to sign on to his draft opinion are aware of this. But do they find such data relevant? Seemingly not, as the draft opinion barely acknowledges maternal deaths—and does so only in reference to 1973, not 2022.
Monday, May 9, 2022
The New Jersey Assembly has proposed a bill allowing students experiencing a menstrual disorder to attend school remotely. The summary of the bill explains how the bill works and why it is important:
This bill permits a student enrolled in a school district to attend school through virtual or remote means while experiencing symptoms of a menstrual disorder. The student's parent or guardian will submit a written request for accommodation no later than the start of the school day the accommodation is required. Under the bill, menstrual disorders include, but are not limited to, dysmenorrhea, endometriosis, menorrhea, and polycystic ovarian syndrome.
A parent or guardian will provide medical documentation, as required by the principal of the school in which the student is enrolled, to prove the student meets the requirements for virtual or remote instruction related to menstrual disorders. Under the bill, a day of virtual or remote instruction will be considered the equivalent of a full day of school attendance for the purposes of meeting State and local graduation requirements or the awarding of course credit.
Also under the bill, the Commissioner of Education, in consultation with the Commissioner of Health, will provide school districts with criteria for defining an excused absence from school related to a menstrual disorder.
Menstrual disorders, and the pain and discomfort associated with them, are often cited as the reason menstruating students miss school days. Menstrual disorders are also fairly common; one in five menstruating students experience menorrhagia, and nearly 70 percent of menstruating students experience dysmenorrhea. Students who attend class while experiencing a menstrual disorder often report classroom performance or concentration being negatively affected. Additionally, nearly one third of students who menstruate report missing at least one day of school while experiencing menstruation.
WTOP News in the D.C. area reported on The searing testimony of the Depp-Heard trial and its effect on #MeToo in a podcast. I shared commentary on the case following prior writings about the increasing complexity of defamation suits in the #MeToo era. The podcast is summarized here:
The defamation suit turned spectacle between Amber Heard and Johnny Depp has attracted nearly 10 million views so far. But there will be nothing to watch until May 16 as the trial goes on break after both Depp and Heard delivered searing accounts of their abuse and violence. WTOP’s John Domen summarizes what we’ve missed from the Fairfax County courtroom. And then, Professor of Law at the University of Louisville Jamie Abrams provides a legal perspective on the trial’s significance, how it’s impacting the #MeToo movement and society’s understanding of domestic violence.
Friday, May 6, 2022
Glad to have my work help inform the discussion of this issue of the history of abortion law and practice at the center of the draft Dobbs opinion.
Lawrence Hurley, U.S. Supreme Court: Justice Alito's Abortion History Lesson in Dispute, Reuters
Justice Samuel Alito's draft U.S. Supreme Court ruling that would overturn the landmark 1973 Roe v. Wade decision legalizing abortion nationwide hinges on a contested historical review of restrictions on the procedure enacted during the 19th century.
Lawyers and scholars backing abortion rights have criticized Alito's reading of history as glossing over disputed facts and ignoring relevant details as the conservative justice sought to demonstrate that a woman's constitutional right to terminate a pregnancy was wrongly recognized in the Roe ruling.***
His reasoning was that a right to abortion was not "deeply rooted in this nation's history." Alito relied upon a reading of state laws on the books in 1868 when the U.S. Constitution's 14th Amendment, which among other things protects due process rights, took effect in the immediate aftermath of the U.S. Civil War and the end of slavery.
To Alito, the scope of 14th Amendment rights must be considered in the context of the times in which it was devised. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then-37 U.S. states "had enacted statutes making abortion a crime" even early in a pregnancy. This shows, Alito argued, that there was no understanding at the time of any right to abortion.
Some lawyers who support abortion rights said many states lacked criminal abortion restrictions until the mid-19th century and some banned it only when performed at a point later in a pregnancy - known as "quickening" - when the woman could feel the fetus move, usually at four to five months of gestation.
Tracy Thomas, a professor at the University of Akron School of Law in Ohio, said Alito selectively cited history as presented by anti-abortion activists.
"We do have to interpret history, but we also have to see the nuance, and he is missing the nuance," said Thomas, who favors abortion rights.
A brief filed in the case by groups representing historians supportive of abortion rights said that in 1868 "nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening."
Even in places where all abortions were banned, "ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy," the brief said.
University of California, Davis School of Law professor Aaron Tang has argued that state laws enacted in the 19th century were not understood to ban abortion before quickening.***
David Garrow, a legal historian, said lawyers on both sides of the abortion debate have disregarded the practical reality that the procedure was commonplace even in states where it was banned when the 14th Amendment was added and that criminal prosecutions were rare.
"If you wanted to argue that abortion is deeply rooted in American history you don't argue about state statutes," Garrow said. "You argue about the evidence of demographic reality."
Tang's article is here: The Originalist Case for an Abortion Middle Ground
This understanding plausibly supports a narrower abortion right. As of the founding, every state respected the right to abortion before quickening, or the first noticeable fetal movement that often occurs at 15 or 16 weeks in pregnancy. To be sure, some states took a different view by the time of the Fourteenth Amendment’s ratification, punishing pre-quickening abortion due in part to misogynistic views of women’s proper “role” in society. But contrary to both the received scholarly wisdom and Mississippi’s claim in Dobbs, this Article shows that this was only a minority position among the states. As of ratification, 21 of 37 states continued to recognize the very pre-quickening abortion right that was universally embraced at the founding. In other words, throughout America’s early history, pregnant people in most states enjoyed a right to abortion during roughly the first 15 weeks of pregnancy. This is the originalist case for an abortion middle ground.
David Garrow's book is Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade
The amicus brief by the historians and the American Historical Association is here. Alito had the information he needed to include the full history, but did not.
This brief, based on decades of study and research by professional historians, aims to provide an accurate historical perspective.***
The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.***
These central claims were accurate in Roe and remain so today. In the five decades since Roe, our ability to confirm this history has grown through the digitization of historical newspapers and records. These records show that the influence of the common law persisted even as states slowly began to create laws of their own.
Newly accessible historical evidence further refutes any claim that, from the adoption of the Constitution through 1868, our nation had a settled view on the criminality of abortion.
Instead, Alito relies on the work and amicus brief of a sole individual, law professor Joseph Dellapenna, an expert on water rights, who wrote the anti-abortion advocacy book, Dispelling Abortion Myths (2006). In the prologue to the book, "A Personal Aside," Dellapenna describes the work as an "argumentative book," based on his personal belief that abortion should be banned at 8 weeks, and coming from his experience as "a white man who has fathered at least five children," who offered a different view than "politically correct women." Dispelling, at ix, xii.
Dellapenna's brief also cites an anonymous newspaper article from the women's rights paper, The Revolution, commonly invoked by anti-abortion groups like Feminists for Life that incorrectly attributes an unsigned blurb to women's rights pioneer, Elizabeth Cady Stanton. I have literally written a book, as well as an article, disputing this attribution to Stanton and any support from her for the anti-abortion laws. See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016) ; Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).
Thursday, May 5, 2022
If the Supreme Court overturns Roe v. Wade, it would not outlaw abortion. Instead, states would be able to individually determine the procedure’s legality.
Thirteen states across the country have signaled their readiness to ban abortion by passing so-called trigger laws, which would effectively ban abortions almost immediately after a decision from the Supreme Court to overturn Roe v. Wade.
“Some states that are very strongly anti-abortion, having been frustrated that they couldn’t ban abortion because of Roe v. Wade, decided to pass laws that would be on the books and operative immediately in the future event that the court ever removed the protections of Roe,” said Donna Crane, an adjunct professor at San José State University with an expertise in women’s rights and reproductive rights.
The states are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, Wyoming. Read the full article for details on each of the state laws.
“Legislators in [antiabortion] states have made clear that their intent is not only to ban abortion within their own states borders but to ban it in states where it is expressly permitted,” said state Rep. Matt Blumenthal (D), one of the sponsors of the bill.***
But while some other states have focused largely on laws that codify the right to abortion within their own borders, legal experts say the Connecticut plan stands out for its effort to shield against new efforts in the antiabortion movement to stop abortion patients from crossing state lines to seek care in places with less restrictive laws.
Greer Donley, an assistant professor at the University of Pittsburgh School of Law who has studied antiabortion legislation, said the Democratic states that seek to protect abortion rights — but focus inward only — are adopting laws that might not withstand the challenges of a post-Roe world where antiabortion states try to legislate beyond their borders.
Those laws “are not necessarily going to provide the protections many people think [they] will,” said Donley, whose research informed some of the provisions in the Connecticut law.
California has proposed bills that offer some of the same protections as the Connecticut legislation, many of which are rapidly moving through the legislature. But no other bill wraps all the protections into one package, said David Cohen, a Drexel University law professor who worked with Donley to research antiabortion legislation.
Donley said she expects the Connecticut law will become a model for other Democrat-led states that want to protect abortion access.
“It’s definitely going to have ripple effects,” Donley said. “Once it’s enacted, people are going to take notice.”
Julie Suk, A World Without Roe: The Constitutional Future of Unwanted Pregnancy, 64 William & Mary L. Rev. (2022)
With the erosion and potential demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the moment that the law has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe.
Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the state, without properly valuing these contributions. This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings and 13th Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Such avenues for reestablishing abortion access as well as public support for pregnancy and parenting imagine a broader world of reproductive justice than the one defined by Roe.
Tuesday, May 3, 2022
There are many things to challenge in the Supreme Court’s leaked draft opinion in the abortion case of Dobbs v. Jackson Women’s Health Organization. Including its rigid application of the standard that fundamental rights recognized as “liberty” within the context of the Fourteenth Amendment’s Substantive Due Process Clause must be “deeply rooted in the nation’s history.” Yet even taking the Court’s standard and definition of that standard at face value—the Court, I think, gets the legal history wrong.
In ascertaining what it views as the relevant history, the Court looks to a few reported English opinions from 1600 and 1700 and American criminal statutes passed after 1868. This gap speaks volumes. For what existed in the gap of early America between its earliest organization around 1776 to a century later, was an accepted practice of permitting abortions until quickening. Quickening is about four or five months, or just after the end of the first trimester. This was the line of demarcation Roe recognized in recognizing a woman’s fundamental right to choose an abortion in the first trimester, unregulated. This is even the same basic idea of new conservative fifteen-week abortion bans as in Dobbs itself, recognizing something different about that early period of pregnancy.
The leading sources on this legal history are James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979) and Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stanford L. Rev. 261 (1992). I have done some historical work here as well, focusing on the women’s movement for “voluntary motherhood” in the nineteenth century recognizing women’s right to choose not to be pregnant. See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).
Many of Justice Alito’s own sources in the appendix support this point, showing that the early prohibitory statutes were for a “woman quick with child.” Other statutes applied to a “pregnant” woman, and the historians explain how prove a woman was “pregnant” required physical evidence such as a showing or knowledge such as quickening. The absence of menstruation was insufficient, as women know, because periods can be missed for physical and mental stress, hunger, physical illness, nursing, among many others.
Justice Alito addresses this significant period of time only briefly. He says: “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.” But this statement shades the point. The subcontext here is the perceived difference between a right and a liberty. They are essentially similar, although some distinction has been made between a “right” that is an affirmative guarantee versus “liberty” which is a freedom unrestrained. The words have also taken on a politicized meaning, with right used by liberals and liberty by conservatives and libertarians. So note Justice Alito’s careful choice of the word right here. He is stating that there was no affirmative guarantee of abortion in the law. That is true. Just as there was no affirmative guarantee of related family rights like marriage, parenting, and procreation. But of course the operative constitutional text is “liberty.” Pre-quickening abortion was a liberty, a freedom permitting the practice unrestrained by law. Such social rights happened in social history, even if they were not embodied in express law. The restraint on these social liberties came historically later in time and later in a pregnancy. Thus, there is a strong argument that a century-long common practice of pre-quickening abortion does establish that it was “deeply rooted in the nation’s history”
CONSTITUTIONAL LAW SCHOLARS FORUM
THE CENTER FOR CONSTITUTIONAL LAW AT AKRON
Friday, October 28, 2022 (virtual)
The Future of Reproductive Rights
The Center for Constitutional Law at Akron seeks proposals for its annual Constitutional Law Scholars Forum. The Center is one of four national centers established by Congress in 1986 on the bicentennial of the Constitution for legal research and public education on the Constitution. Past program topics have focused on the history of race discrimination, LGBTQ rights, civil rights remedies, federal courts, and women’s suffrage. Presenters at the Center have included Justice Sandra Day O’Connor, Justice Arthur Goldberg, Judge Jeffrey Sutton, Professor Reva Siegel, Professor Lawrence Solum, Professor Katie Eyer, Professor Ernest Young, Professor Julie Suk, and Professor Paula Monopoli, among many others.
The 2022 Forum brings together scholars to explore the question of the future of reproductive rights and justice. The U.S. Supreme Court will soon issue a monumental decision in the pending case of Dobbs v. Jackson Women’s Health Organization, altering the fifty-year constitutional consensus on protection for reproductive autonomy under the federal Constitution. What will the parameters of constitution liberty look like after this decision? Anticipating this change, states have already begun legislating for and against reproductive choice. Some of these cases, like those in Texas, have added justiciability hurdles to the debate before the Supreme Court. At the same time, women in the U.S. and abroad continue to seek affirmative rights related to pregnancy, surrogacy, and other reproductive interests. This Forum invites papers and presentations on any and all aspects related broadly to this topic of reproductive rights and justice.
The Forum will be held virtually on Friday, October 28, 2022. This virtual meeting allows for expanded access to scholars by reducing costs, balancing work/life/health demands, and reaching widely across geographic bounds. Papers will then be published in a symposium edition of the Center’s open-access journal, ConLawNOW (also indexed in Westlaw, Lexis, and Hein). Papers are typically shorter, essay style and publication is expedited within four to six weeks of final paper submission. The journal is designed to put issues of constitutional import into debate in a timely manner while they have the opportunity to impact the discussion and decisions.
Those interested in participating in the Constitutional Law Scholars Forum should send an abstract and CV to Professor Tracy Thomas, Director of the Center for Constitutional Law, at firstname.lastname@example.org by August 30, 2022.
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
My initial reactions:
- In the leaked SCOTUS draft opinion overturning Roe, the Court applies rational basis to all abortion regulations and a “strong presumption” of validity with deference to the legislature. Post-Roe is Post-Lochner.
- SCOTUS also rejects the equal protection argument saying abortion is not a sex based classification. That’s right—Geduldig for the win. (In Geduldig, the Supreme Court held that pregnancy classifications are not sex-based classifications)
- The Court distinguishes other privacy and familial fundamental rights recognized as liberties in one quick sentence saying only, well those don't involve "unborn life." I'm pretty sure more is needed to show why these rights are not jeopardized under the Court's holding.
- I think the Court gets the legal history wrong here in this key part to its historical analysis. Justice Alito writes: “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.”
Monday, May 2, 2022
NPR reports on Connecticut's new legislation expanding abortion rights reacting to out-of-state restrictions. Joe Hernandez published this article on May 1 summarizing the bill and its implications:
Under House Bill 5414, people or organizations in Connecticut who are sued for receiving, performing or providing support for abortions in other states can countersue for damages and other costs.
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Connecticut's governor would also be restricted from extraditing someone who did something in Connecticut that leads to a crime in another state if what they did is legal in Connecticut.
The bill also expands who could perform abortions. Advanced practice registered nurses, nurse-midwives and physician assistants would be able to conduct medication and aspiration abortions in Connecticut.
The article reports that the Governor is expected to sign the legislation.
Robyn Powell has placed her forthcoming article, Including Disabled People in the Battle to Protect Abortion Rights: A Call-to-Action, in the UCLA Law Review. A draft is available on SSRN. The abstract previews:
* * * Overturning Roe will have devastating consequences for all people, but most acutely for historically marginalized communities, including people with disabilities. Nonetheless, when disability is invoked in discourse concerning abortion, it is typically done to either support or oppose abortions based on fetal disability diagnoses. Critically, by framing disability and abortion only in the context of disability-selective abortions, activists, scholars, legal professionals, and policymakers fail to recognize that it is actual disabled people—not hypothetical fetuses with disability diagnoses—who abortion restrictions will harm. Indeed, disabled people disproportionately experience pervasive and persistent disadvantages that increase their need for abortion services. They also experience considerable structural, legal, and institutional barriers that already put access to safe and legal abortion out of reach for many.
In response, this Article proposes a vision to help activists, scholars, legal professionals, and policymakers as they imagine the next steps in the battle to protect abortion rights in a way that fully includes people with disabilities. To do so, first, the Article situates the current battle to protect abortion rights within the social context and institutions that propagate reproductive oppression of people with disabilities by examining how reproduction has been weaponized over time to subjugate disabled people as well as presenting contemporary examples of such injustices. Thereafter, it explores disabled people’s unique needs for abortion services and the myriad ways they are disproportionately and adversely affected by restrictions on abortion rights. Next, the Article presents disability reproductive justice, a jurisprudential and legislative framework, and its application to the fight for abortion rights. Finally, drawing from disability reproductive justice, it suggests normative and transformative legal and policy solutions for challenging the current assault on abortion rights and its impact on disabled people.
Jennifer Hickey has published her article, Insuring Contraceptive Equity, in volume 17 of the Northwestern Journal of Law & Social Policy (2022). Jennifer Hickey is a postdoctoral fellow with the Vulnerability and the Human Condition Project at Emory University. The abstract previews:
The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.
While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is the profit motivation of private insurance companies. This Article fills a crucial gap by providing an in-depth examination of the insurance practices that burden contraceptive access for the vast majority of reproductive-aged women on both public and private insurance. Private insurers are afforded substantial discretion in the products they choose to cover and the costs they set, and this causes significant disparities in the availability and affordability of various contraceptive methods. Arguments for equitable and enhanced contraceptive access are traditionally grounded in claims of constitutional rights to reproductive freedom. Unfortunately, this rhetoric of individual rights, rooted in privacy jurisprudence, focuses only on restraining the state from interfering with a woman’s reproductive decisions. This absolves the state of responsibility for family planning and allows women to shoulder the burden of unintended pregnancy as a matter of individual choice and responsibility.
This Article instead applies vulnerability theory to establish state responsibility for just and fair distribution of contraception. A vulnerability approach imposes positive obligations on the state to provide contraception as a form of resilience, rather than allowing the state to abdicate responsibility to the private insurance market and individual women under a limited “consumer protection” role. This approach requires the state to monitor and regulate the discretion afforded to insurance companies in making public decisions regarding coverage of various contraceptive methods. This includes examining inequitable insurance practices and policies and assessing power imbalances between insurers, providers, and pharmaceutical companies and patients. In this manner, the United States can move beyond its narrow consumer-oriented approach to contraception and recognize that contraception is vital to fulfillment of important social obligations, not an individual choice made by empowered consumers.
Thursday, April 28, 2022
The ruling overturns decades of patriarchal family legacy, which largely left women out of the decision-making process.
Italy’s top court ruled on Wednesday that children born in the country will be given their mother’s and father’s surnames at birth, declaring the automatic practice of only giving children their father’s surname “constitutionally illegitimate.”
Parents will be able to choose the order of surnames or decide to use only one, a statement on the ruling from Italy’s Constitutional Court read, citing principles of equality and the children’s interest. Except in certain circumstances, Italian families have been unable to give their children their mother’s surname alone.
“Both parents should be able to share the choice of a surname, which is a fundamental element for one’s personal identity,” the court wrote.
Compared with other European countries where both surnames can be used for children, like France, Germany and Spain, Italy has been slow in embracing the recognition of the mother’s family name.
“The Constitutional Court canceled the last patriarchal legacy in family law,” Cecilia D’Elia, a member of Parliament and a leader on women’s issues in the Democratic Party, wrote on Twitter. “The mother’s name will have the same dignity as the father’s, a sign of civilization.”***
In Italy, wives used to take their husbands’ names and be solely responsible for children before the law. Though norms have since changed, the law automatically giving children their father’s surname has stayed, causing the European Court of Human Rights to rebuke Italy for discrimination.