Tuesday, May 14, 2024

Symposium Advancing Pregnant Persons' Right to Life

Boston University School of Law, Advancing Pregnant Persons' Right to Life

On February 8, 2024, scholars of law, medicine, and religion from across the world came together at Boston University School of Law to discuss the potential of promoting and protecting reproductive justice through advancing pregnant persons’ right to life. Stemming from that event are six articles and an annotated bibliography from leading legal scholars. This historic and important symposium is captured in its entirety in the video below.

The Free Exercise Right to Life
David A. CarrilloAllison G. Macbeth, & Daniel Bogard
104 B.U. Law Review Online 19 (2024)

Religion Clause Challenges to Early Abortion Bans 
Caroline Mala Corbin
104 B.U. Law Review Online 37 (2024)

Medical Authority and the Right to Life
Jessie Hill
104 B.U. Law Review Online 67 (2024)

The Right to Life as a Source of Abortion Rights: Lessons from Kansas
Richard E. Levy
104 B.U. Law Review Online 87 (2024)

Turning Away from Criminal Abortion Laws and Towards Support for Pregnant People and Families
Cynthia Soohoo
104 B.U. Law Review Online 109 (2024)

Reproductive Justice and the Thirteenth Amendment
Rebecca E. Zietlow
104 B.U. Law Review Online 143 (2024)

Annotated Bibliography: “Persons Born” and the Jurisprudence of “Life
Martha F. Davis
104 B.U. Law Review Online 161 (2024)

May 14, 2024 in Abortion, Conferences, Constitutional, Pregnancy, Religion, Reproductive Rights | Permalink | Comments (0)

Monday, April 29, 2024

HHS Publishes Reproductive Health Care Privacy Rules

The Biden Administration issued final rules governing reproductive health care privacy. The key points were summarized in a Press Release from the Department of Health and Human Services. The Final Rule: 

  • Prohibits the use or disclosure of [protected health information] PHI when it is sought to investigate or impose liability on individuals, health care providers, or others who seek, obtain, provide, or facilitate reproductive health care that is lawful under the circumstances in which such health care is provided, or to identify persons for such activities.
  • Requires a regulated health care provider, health plan, clearinghouse, or their business associates, to obtain a signed attestation that certain requests for PHI potentially related to reproductive health care are not for these prohibited purposes.
  • Requires regulated health care providers, health plans, and clearinghouses to modify their Notice of Privacy Practices to support reproductive health care privacy.

The Final Rule is published here

April 29, 2024 in Abortion, Healthcare, Pregnancy | Permalink | Comments (0)

Final Rule Published Implementing the Pregnant Workers Fairness Act

The EEOC published its Final Rule implementing the Pregnant Workers Fairness Act. The Final Rule and its interpretive guidance are available here. The EEOC's announcement highlighted the following key points of the Final Rule: 

  • Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.
  • Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.
  • Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.
  • Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.
  • Explanation of when an accommodation would impose an undue hardship on an employer and its business.
  • Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.

The EEOC also provides the following guidance: What You Should Know about the Pregnant Workers Fairness Act.

 

April 29, 2024 in Abortion, Equal Employment, Family, Healthcare, Pregnancy, Workplace | Permalink | Comments (0)

Thursday, April 25, 2024

Misogyny at the Supreme Court in Debating Emergency Abortion

Dahlia Lithwick & Mark Joseph Stern, The Lawyer Defending Idaho’s Abortion Ban Irritated the One Justice He Needed on His Side, Slate

Justice Amy Coney Barrett famously provided the crucial fifth vote to overturn Roe v. Wade in 2022. So if you are arguing in favor of an abortion ban, you probably don’t want to alienate Barrett—by, say, condescendingly dismissing her concerns when she points out that your legal theory doesn’t make any sense. Yet that is what Joshua Turner did on Wednesday while defending Idaho’s draconian abortion restrictions, and much to Barrett’s evident irritation. Turner—who represented the Idaho solicitor general’s office in the second major abortion case to come before the high court after it promised us in its Dobbs opinion that the court was out of the abortion business in 2022—might just have lost his case by repeatedly mansplaining his self-contradictory position to Barrett and the other three women justices. In his toneless, dispassionate telling, his entirely incomprehensible position was just too complex for them to understand. And so he just kept repeating it, over and over. These justices, including Barrett, sounded increasingly fed up with his chin-stroking dissembling on an issue that’s literally life-or-death for pregnant women in red states. If the court’s male members noticed Turner’s dismissive attitude toward their colleagues, they didn’t care. The gender divide on the court has never been so revealing.

Perhaps because Dobbs was a threat to unknown future women, whereas real women are now being left to hemorrhage, lose the functioning of their reproductive organs, or be popped onto helicopters to receive out-of-state stabilizing care, none of the life-and-death harms being experienced in red states around the country feel very theoretical to anyone who has thought about pregnancy in a serious way. Yet, for male justices more worried about harms to the spending clause, nothing about potentially lethal pregnancies warranted even a moment’s pause.

Wednesday’s case, Moyle v. United States, revolves around a clash between Idaho law and a 1986 federal statute called the Emergency Medical Treatment and Labor Act (or EMTALA). Idaho’s abortion ban has no exception for the health of the patient; rather, it criminalizes abortion unless it’s “necessary to prevent the death of the pregnant woman.” ***

When Solicitor General Elizabeth Prelogar had her turn at the lectern, she faced a barrage of questions from Justices Clarence Thomas and Neil Gorsuch about whether Congress had run afoul of the spending clause when it passed EMTALA, an issue that was not briefed and should not be in the case. Samuel Alito, who brought all of his dictionary-wielding and woman-erasing skills from his star turn in Dobbs to bear, devoted his time to defending the “unborn child” who—in his view—was the real goal of EMTALA’s drafters, laying the groundwork for fetal personhood arguments that were too radioactive even for Turner to take on. Alito hectored Prelogar about her grasp of preemption, her reading of text, and her understanding of the term “unborn child,” casting her as some drunk lunatic who had staggered into court without any comprehension of the law.

Throughout the day doctors were referenced as “he” whereas every nurse was a “she.” Women were, as Alito conceded, “individuals,” but man, oh man, are they ever whiny and demanding. Alito also breathlessly cited Ronald Reagan as the deity who signed EMTALA and would never have wanted it to undermine the precious rights of “unborn children.” And a little “temporary” organ damage, he mused, might not be so bad if suffered for the benefit of a fetus. The task fell to Kagan to remind everyone that in the few months that Idaho has enforced its near-total ban, six women have already been airlifted to other states to receive emergency abortions that are criminal under Idaho law. Real women, flown out in great pain and at great expense, to get treatment that is objectively recognized as the standard of care

 

 

April 25, 2024 in Abortion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, April 15, 2024

New Report on "Minor Abortion Access Research and Advocacy Project"

A valuable new report, published by J. Shoshanna Ehrlich and the ASPIRE Center at Planned Parenthood League of Massachusetts, documents the status of minor abortion access in the United States. The report, titled "Minor Abortion Access Research and Advocacy Project" is available online. There is a useful visual map depicting the status of the law and a useful grading system on pages 11-12 of the study. Its conclusion are excerpted below: 

As documented in this report, parental involvement laws discriminate against teens seeking to terminate a pregnancy when compared to those seeking to carry a pregnancy to term or obtain other kinds of reproductive and sexual health care. The only logical explanation for this discriminatory treatment is abortion exceptionalism, which as we have seen, is the hyper-regulation of abortion due to its disfavored and stigmatized status. A strong argument can be made in abortion-protective states which also have a parental involvement law that the time has come to afford teens equal access to abortion care, rather than leaving them by the wayside when it comes to the protection of abortion rights.

Of course, we recognize that launching this kind of major law reform effort is not currently feasible in abortion-restrictive states. Accordingly, we offer you a brief case study of the successful repeal campaign in Illinois, which took more than a decade of engaged public education about the harms of parental involvement laws. As was the case in Illinois, youth voices can be effectively harnessed to help make this case. As evidenced by the work of both Advocates for Youth and Planned Parenthood Generation Action, “Young people understand that reproductive and sexual health and rights are inextricably tied to social justice and the fight for liberation.”

The passage of abortion protective measures in the wake of Dobbs shows that lawmakers in many states are intent on strengthening their states’ abortion laws to expand and safeguard access within their borders, including for those coming from abortion-ban states. But teens have not been offered the same level of protection – or agency to make to make their own reproductive health decisions – as adults. We hope advocates will leverage the research and findings of this report to identify opportunities in their home state to enact change so that teens have equitable access to abortion. We further hope that advocates can leverage the research and findings to counter any age-specific restrictive measures introduced in their home state aimed at further restricting abortion access for teens.

April 15, 2024 in Abortion, Healthcare | Permalink | Comments (0)

Thursday, April 11, 2024

Law Scholars File Amicus Arguing to Overturn Dobbs in the Idaho Emergency Abortion Case

David Cohen, Greer Donley & Rachel Rebouche, Amicus Brief, Moley v. U.S.

INTRODUCTION AND SUMMARY OF ARGUMENT

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), should be overruled. This case presents the Court with an appropriate vehicle to correct its unworkable and calamitous ruling from two years ago. This case addresses whether the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd, preempts Idaho Code § 18-622’s prohibition of abortion when abortion is necessary to stabilize a pregnant patient in crisis at an EMTALA-covered hospital. Only a handful of states, including Idaho, lack a health exception in their abortion bans, prohibiting emergency care that federal law demands certain hospitals provide. This failure to assure minimal protections to pregnant women’s health has devastated reproductive health care in states with abortion bans and demonstrates a race to the bottom that is sowing enormous chaos and discord. ***

In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current case, and between and among states. These conflicts are proliferating because of the Pandora’s box of constitutional questions Dobbs opened,
implicating travel, federalism, extraterritorial jurisdiction, preemption, and federal executive power. Less than two years after it was decided, it is evident that Dobbs has proven unworkable and should be overruled.

April 11, 2024 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Monday, April 8, 2024

Rachel Rebouché on "Facts on Trial: Alliance for Hippocratic Medicine v. FDA and the Battle over Mailed Medication Abortion"

Rachel Rebouché has published "Facts on Trial: Alliance for Hippocratic Medicine v. FDA and the Battle over Mailed Medication Abortion" in Volume 95 of the Colorado Law Review. The article concludes: 

April 8, 2024 in Abortion, Courts, Healthcare, Science | Permalink | Comments (0)

Monday, April 1, 2024

New Report on Harms of Michigan's Forced Parental Consent Law for Abortion

A new report is available on the harms of Michigan's forced parental consent law. The report was authored by the ACLU of Michigan, Human Rights Watch, and the Michigan Organization on Adolescent Sexual Health after in-depth interviews, data analysis, and a survey of secondary sources. The full report is available here

Its findings are excerpted here: 

Young people who can, do involve a parent in an abortion decision and care. While most young people do talk to a parent when facing a pregnancy, every situation is different, and not every young person can.

Young people who do not involve their parents have compelling reasons, rooted in their safety and well-being. They often fear abuse, alienation, or being forced to continue a pregnancy against their will.

Some young people are belittled, humiliated, or punished by their parents. Some parents even ask doctors to withhold pain medication for young people’s procedural abortions, against medical advice.

Judicial bypass is burdensome and difficult to navigate. For young people without resources or access to information, it can be impossible.

Judicial bypass is invasive, distressing, traumatizing, and often arbitrary. It feels punitive to young people, and may be especially harmful to young people of color.

Forced parental consent delays abortion care. Judicial bypass often delays care by a week or more, limiting patients’ already constrained and time-sensitive healthcare options and pushing them into more expensive and invasive procedures. In some cases, the delays caused by navigating forced parental consent and judicial bypass leave young people ineligible for medication abortion, a noninvasive and more common method of care, available only up to 11 weeks of pregnancy.

Young people are capable of making healthcare decisions. Michigan law allows young people to consent to all other forms of pregnancy-related health care — including those with significantly higher health risks than abortion — such as a C-section.

The Report recommends that "[a]ll young people should be safe and healthy. Michigan should invest in solutions that promote healthy families and strong healthcare networks and keep private family conversations free from intrusive laws and policies." It asks the Michigan legislature to "[r]epeal the Parental Rights Restoration Act 211 of 1990 as a matter of urgency and ensure that young people under 18 can access abortion care without being forced to involve a parent or legal guardian, or a judge, in their decision-making."

April 1, 2024 in Abortion, Courts, Healthcare, Legislation, Pregnancy | Permalink | Comments (0)

Thursday, March 28, 2024

Symposium, Securing Reproductive Justice After Dobbs, in Journal of Law, Medicine & Ethics

Aziza Ahmed, Nicole Huberfeld & Linda McClain, Introduction: Securing Reproductive Justice After Dobbs, 51 Journal of Law, Medicine & Ethics 463 (Fall 2023)

By overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and throwing the question of how to regulate abortion to the “people and their elected representatives,” Dobbs v. Jackson Women’s Health Organization radically reset the legal, ethical, medical, public health, and political landscape. This introduction to a special multidisciplinary symposium, “Seeking Reproductive Justice in the Next 50 Years,” in the Journal of Law, Medicine, & Ethics, sets the stage for the twenty-five symposium articles that map and document the post-Dobbs landscape. Dobbs has already had dire and far-reaching effects on the legal regulation of pregnancy and reproduction. In this new landscape, questions arise about how to secure reproductive justice and about what strategies and approaches hold promise. This essay introduces the several organizing parts of the symposium, Beginnings, Social and Legal Dimensions of the Post-Dobbs Health Care Environment, Legal Regulation of Pregnancy and Reproduction, and New Strategies and Approaches. We explain how each article contributes a critical aspect of the bigger picture, demonstrating the need for working across disciplines.

I was glad to be a part of this symposium. See Tracy Thomas, Protecting Abortion with State Health Care Freedom of Choice, 51 J. Law, Medicine & Ethics 601 (2023).

March 28, 2024 in Abortion, Constitutional, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

The Critical Role of History After Dobbs

Serena Mayeri, The Critical Role of History After Dobbs, 2 Journal of American Constitutional History 171 (Winter 2024)

The Dobbs majority’s reliance on a flawed and impoverished account of “history and tradition” to deny fundamental freedoms today may tempt us to despair of appealing to the past as a source of constitutional rights or principles. But the problem with Dobbs is not its discussion of history per se; rather, it is how and for what purposes the Court looks to the past. History need not preserve archaic values; it can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality.

This essay explores critical roles for history in legal, constitutional, and political arguments about reproductive freedom and democracy after Dobbs. These critical approaches define differently the historical voices and sources that matter; the constitutional principles and lessons to be drawn from the past; and the roles that history and tradition should play in shaping our present and future. Critical histories read the Reconstruction Amendments as a mandate for emancipation and for the eradication of all forms of bodily and reproductive coercion. They elevate the voices of those who long were excluded from political participation and place abortion restrictions in a longer history of reproductive control and anti-democratic political traditions. Critical histories can and do inform the interpretation of state as well as federal constitutional provisions in and outside of court. From courtrooms, legislatures, and campuses to workplaces, street protests, and dinner tables, these histories play a more crucial role than ever in informing legal and political discourse about reproductive justice and the future of democracy.

March 28, 2024 in Abortion, Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Monday, March 25, 2024

Abortion in China's Courts

A new article on abortion in China has been posted on SSRN, titled Contesting and Controlling Abortion in China's Courts. The article is authored by Molly Bodurtha, Benjamin Liebman, Li Chenqian, and Xiaohan Wu. The abstract previews:

 

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has brought renewed global attention to how legal systems protect and restrict women’s reproductive autonomy. Central themes have included how the rollback of reproductive rights in the United States coincides with the Court’s embrace of a broader “jurisprudence of masculinity” and the relationship between abortion restrictions and authoritarianism, as multiple countries have enacted restrictive measures while undergoing democratic backsliding. Comparative inquiry is central to the abortion debate: Dobbs’ majority opinion, Chief Justice Roberts’ concurring opinion, and the dissent all discussed abortion regulations in other countries, with the Chief Justice’s concurrence clearly associating elective abortion with authoritarian governance in China and North Korea.

Despite these comparative references, the scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China, the largest authoritarian state and a country with a high incidence of abortion. This is largely unsurprising: the central challenge facing Chinese women has not been abortion access but state-mandated birth control and abortion. Almost no prior scholarship examines how Chinese courts adjudicate disputes over abortion. This lack of attention reflects the common understanding that courts play no role in regulating reproduction and that abortion remains unproblematic in China.

Yet Chinese courts do confront and decide claims involving abortion. Drawing on a dataset of more than 30,000 civil cases discussing abortion, this article examines claims by men that their wives obtained abortions without the man’s “authorization.” Chinese courts rarely award damages explicitly on this basis. But men’s claims to have legal rights to control women’s reproductive choices are common, despite having no legal basis in Chinese law. The persistence of such claims suggests that women’s access to abortion care is more regulated in China than academic and popular accounts convey.

As China shifts toward encouraging rather than restricting births, traditional views of gender roles and the family increasingly align with the Party-state’s new pro-natalist policies. Courts may be an important venue for adjudicating reproductive rights and for enforcing such policies. China also presents an important example of how abortion and gender are contested in a legal system in which constitutional rights play little role and the legal status of abortion appears to be settled. China demonstrates that resolving the legal status of abortion does not eliminate legal conflict, but rather opens up new areas of legal contestation regarding reproductive rights. Recognizing how and when abortion is litigated in China suggests the need for scholars to place more attention on the role of private law litigation in contesting and restricting reproduction across legal systems. Men’s claims to control women’s reproductive choices in China also highlight the ways in which rights advocacy can serve regressive as well as progressive goals in democratic and authoritarian systems, and also that regime type may not dictate how legal systems address legal conflict over abortion.

March 25, 2024 in Abortion, International | Permalink | Comments (0)

Thursday, March 7, 2024

Paula Monopoli to Speak on Women as Constitution Makers: Revisiting the 19th Amendment After Dobbs

Monday, March 4, 2024

Siegel and Ziegler on "Abortion-Eugenics Discourse in Dobbs: A Social Movement History"

Reva Siegel and Mary Ziegler have posted Abortion-Eugenics Discourse in Dobbs: A Social Movement History on SSRN. It is forthcoming in volume 2 of the Journal of American Constitutional History in 2024. Here is the abstract.

 

Black Americans have long debated whether birth control and abortion threaten or uplift the community. In this Essay, we show that antiabortion advocates have intervened these debates by associating abortion with eugenics. For decades, antiabortion advocates have blamed racially disparate abortion rates on intentional discrimination—often highlighting a shadowy figure named Margaret Sanger—rather than explaining the disparity as resulting from structural racism. We follow this abortion-is-eugenic argument from the streets to the pages of the United States Reports, where it appears in the much-studied 2019 decision of Box v. Planned Parenthood of Indiana & Kentucky and in the Court’s decision overturning Roe v. Wade, Dobbs v. Jackson Women’s Health Organization.

Antiabortion advocates have developed a constitutional memory of "Sanger" to suggest that criminalizing abortion is necessary to achieving racial justice. We demonstrate how that memory is mobilized in constitutional law and politics to legitimize reproductive coercion and to deflect attention from the structural roots of racial disparities in abortion rates today—conditions for which laws criminalizing abortion provide no relief.

March 4, 2024 in Abortion, Courts, Race | Permalink | Comments (0)

#WeCount Public Report Released

The Society of Family Planning has published its next #WeCount Public Report. "#WeCount is a national abortion reporting effort that aims to measure monthly abortion utilization by state" since Dobbs. Some key findings are excerpted below.

  • "States with the greatest declines in abortion volume over 15 months include Texas (46,200), Georgia (24,640), Tennessee (17,545), Louisiana (11,465), and Alabama (9,525)."
  • "States with the largest cumulative increases (also called surges) in abortion volume over 15 months included Illinois (28,665), Florida (15,155), and California (12,515).
  • While most surge states bordered states with abortion bans, we also saw increases in states that were more geographically distant from states with abortion bans, including California, New Jersey, New York, and Massachusetts."

The full report is available here: https://societyfp.org/wp-content/uploads/2024/02/SFPWeCountPublicReport_2.28.24.pdf

March 4, 2024 in Abortion, Healthcare | Permalink | Comments (0)

Monday, February 26, 2024

Ziegler, Cahn, and Suter on "The Massive Legal Fallout from Alabama's IVF Ruling"

Mary Ziegler, Naomi Cahn, and Sonia Suter have published a commentary with MSNBC titled The Massive Legal Fallout from Alabama's IVF Ruling is Just the Beginning. The full published opinion from the Alabama Supreme Court can be accessed here. The Court held that "[t]he central question . . . is whether the Act contains an unwritten exception to that rule for extrauterine children -- that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location."

Ziegler, Cahn, and Suter preview the problematic breadth of this holding. Here is an excerpt: 

Increasingly, since the Dobbs ruling, states like Alabama put a high price tag on pursuing justice for reproductive harms. While the unintentional destruction of embryos that occurred in this case was well-suited to some sort of legal remedy, it seems perverse to choose between a punitive vision of fetal rights and restitution for those grieving the loss of potential parenthood. There are remedies that don’t go all the way to personhood. Even in the Alabama case, the plaintiffs had other claims unrelated to personhood. Others have claimed breach of contract, malpractice, and even loss of the right to become a parent. 

 

Instead, the state court turned a case about three couples’ grief into an opportunity to proclaim the close relationship between Christianity and state constitutional law — and to advance an idea of personhood that so-called abolitionists in the anti-abortion movement argue requires the punishment of women themselves. Strikingly absent from the court’s decision, however, is a meaningful discussion of what the decision means for those who seek to become parents – or for those who don’t. 

February 26, 2024 in Abortion, Courts, Family, Healthcare, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

Friday, February 23, 2024

Challenging the Misuse of Women’s Legal History to Support Anti-Abortion Regulation

It looks like it is time again to reup this article I wrote over a decade ago disputing the use of women’s legal history to claim that nineteenth-century feminist pioneers like Elizabeth Cady Stanton advocated against abortion. Tracy Thomas, Misappropriating Women's History in the Law & Politics of Abortion, 36 Seattle L. Rev. 1 (2012). I also discuss the issue further in my book, Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Post-Dobbs, anti-choice writers have once again resurrected the erroneous claim that Stanton, and other historical feminists like Victoria Woodhull, actively opposed abortion. Erika Bachiochi & Rachel Morrison, Dobbs, Equality and the Contested Meaning of Women's Rights (Texas Review of Law & Politics, forthcoming).

My conclusion as to Stanton was to the contrary. I found that a close look at the historical record shows that Stanton supported—not opposed—women’s right to engage in voluntary, enlightened motherhood by choice. And she opposed state regulation of women’s private decisions and autonomy. Stanton actually said very little about abortion at all, a handful of comments over fifty years, in contrast to her thousands of speeches, writings, and interviews advocating many other demands for women’s rights for social, political, family, and economic citizenship. Instead, Stanton merely used the public debate swirling around abortion triggered by the new criminalization of abortion in the late 1860s as an avenue to voice her other demands for women’s equality, enfranchisement, autonomy, and opportunity.

February 23, 2024 in Abortion, Constitutional, Family, Legal History, Reproductive Rights | Permalink | Comments (0)

Friday, February 9, 2024

Ohio AG Keeps Lawsuit Alive Defending 6 Week Abortion Ban Even After Voters Passed Constitutional Amendment for Reproductive Freedom

News 5 Cleveland, Ohio AG Fighting for "Other Provisions" in 6-Week Abortion Ban, Maintains Ban is Unconstitutional

Ohio Attorney General Dave Yost asked that the Hamilton County Court of Common Pleas throw out a lawsuit that would eliminate the six-week abortion ban, just months after saying that said ban would be void if voters chose to legalize and protect access to abortion.

Now, Yost’s team is explaining that although the filing has no explicit mention of this, the AG only wants to fight for "other provisions" — and not the ban itself.***

The AG’s office filed a procedural document Friday that responds to all claims that were made by six-week ban challengers, including Planned Parenthood and the ACLU of Ohio, and indicates arguments the office will make throughout the life of the lawsuit.

The response by the Attorney General’s Office is a common legal document that is required as part of the legal process, according to Case Western Reserve University constitutional law professor Jonathan Entin.

“The lawyer's job is to provide the strongest case with the strongest set of arguments available on behalf of the client's position,” Entin said. “The attorney general's client is the state.”

Tracy Thomas, University of Akron director of constitutional law, said it came as a surprise that the state attorney is continuing the lawsuit fight to try to save the law.

“Given the vote [on Issue 1], given the governor saying ‘we’re going to respect the vote,’ I think what was expected was not keeping this lawsuit going,” Thomas said.

Immediately after the abortion amendment passed, DeWine told News 5 that he did “certainly accept the results of Issue 1 in Ohio.”” 

But given the polarizing politics on the issue of abortion rights, Thomas said keeping the lawsuit going, if just to delay a ruling until more legislative decisions on reproductive rights can be made, could be one strategy at play.

“Laws and constitutions are only as good as the courts enforcing them,” she said.

February 9, 2024 in Abortion, Courts, Reproductive Rights | Permalink | Comments (0)

Monday, January 29, 2024

Pennsylvania Supreme Court Rules that Prohibition of Medicaid Funding for Abortions Violates the State Equal Rights Amendment

The Supreme Court of Pennsylvania issued its long-awaited decision ruling that prohibiting state Medicaid funds from funding abortion discriminates on the basis of sex in violation of the state's Equal Rights Amendment. 

Allegheny Reproductive Health Center v. Pennsylvania Dep't of Human Services

January 29, 2024 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Thursday, January 11, 2024

The Future of Constitutional Sex Equality Rights after Dobbs

Marc Spindelman, Dobbs' Sex Equality Troubles, 32 William & Mary Bill of Rgst J. 117 (2023)

This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social rights that set the Court on a collision course with the Slaughter-House Cases. Dangers on the economic rights front include reviving Lochner and its political economic principles in new constitutional garb. Dangers on the social rights front, by contrast, include new constitutional family law rules written from the social-conservative right, overriding constitutional and positive law developments that, since the 1960s, have broadly managed family law from and toward the liberal to progressive left. In both these areas, the Court’s decisions would be capable of catching various sex equality protections in their snares. The future in relation to all these prospects may be set by Justice Brett Kavanaugh, the swing-vote justice in Dobbs. So, this article attends to the determinants of Kavanaugh’s Dobbs concurrence, and thus Dobbs’ meaning. While matters could obviously get much worse for sex equality rights after Dobbs, Kavanaugh’s concurrence also offers some reason to hope that they won’t. Struggles for sex equality rights may be intensifying and entering distinctively perilous times. Their future, however, has yet to be determined, including by the Supreme Court

January 11, 2024 in Abortion, Constitutional, Gender, SCOTUS | Permalink | Comments (0)

Protecting Abortion With Health Care Freedom of Choice

Tracy Thomas, Protecting Abortion with Health Care Freedom of Choice, 51 Journal Law, Medicine & Ethics 601 (2023)

With the Supreme Court overturning the fifty year federal constitutional right to abortion recognized in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey, the question returns to state courts and legislatures. One potential avenue for future protection lies in state constitutional provisions. These issues are being litigated in court, and activists in several states have successfully put express constitutional amendments for abortion on the ballot. Concurrently with the previously-recognized federal right, fourteen states had recognized a right to abortion under state constitutional guarantees of equal protection, liberty, autonomy, and/or privacy. Post-Dobbs, there is renewed interest in utilizing these potential foundations for the abortion right under state-specific guarantees.

One possible avenue for recognizing a state constitutional right to choose an abortion may be found in rights to health care. Four states have express constitutional guarantees of freedom of choice in health care, and three states have recently proposed such amendments. Four other states have statutory provisions of health care freedom expressing policy that could be used to interpret constitutional rights of liberty to protect abortion. Courts in Ohio, Wyoming, and Montana have applied their health care freedom amendments to protect the liberty interest in choosing an abortion. These cases offer an example of how to protect abortion as a health care right.

January 11, 2024 in Abortion, Constitutional, Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)