Monday, July 12, 2021

"We Have Been Here Before": SCOTUS and the Demise of Abortion Rights in Casey

Earl Maltz, We Have Been Here Before: Planned Parenthood of Southeastern Pennsylvania v. Casey and the Survival of Abortion Rights 

Nearly half a century after the landmark decision in Roe v. Wade, recent events have given supporters of the pro-choice position good reason to fear that the Supreme Court is likely to soon abandon its support for abortion rights. Although the Court recently struck down an anti-abortion statute in June Medical Services v. Russo, the balance of power in that case was held by Chief Justice John Roberts, whose opinion indicated that, in the future, he was likely to allow states to impose a wide variety of restrictions on access to abortions. Moreover, the pro-choice forces recently lost one of their staunchest allies when Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, whose nomination was roundly cheered by those who argue that Roe should be overruled. Thus, many observers believe that the Court is likely to use Dobbs v. Jackson’s Women’s Health Organization as a vehicle to eliminate or significantly undermine constitutional constraints on the ability of state governments to limit access to abortions.

However, we have been here before. In the decade between 1981 and 1991, Republican presidents who were openly critical of the decision in Roe had the opportunity to nominate five of the nine members of the Supreme Court. Moreover, during this period, the issue of abortion played an increasingly important role in the selection of those justices. Thus, by the early 1990s, most commentators believed that the anti-abortion forces were on the verge of claiming near-total victory in their campaign against Roe and its progeny. But despite the expectations of most commentators, in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a majority of the justices reaffirmed their support for the view that the Constitution protects the right of a woman to terminate her pregnancy without undue interference from the government, and thereby created a regime that has endured for almost three decades. This article will describe the sequence of events that led to the decision in Casey and culminated in the failure of the assault on abortion rights.

July 12, 2021 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, May 19, 2021

The Public Health Turn in Reproductive Rights

Rachel Rebouche, The Public Health Turn in Reproductive Rights,  78 Wash. & Lee L. Rev. (2021) 

Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects.

What might surprise even close observers of abortion policy, however, is how the federal courts, including the Supreme Court, have embraced this new wave of public health research. Recent litigation around the U.S. Food and Drug Administration’s requirement that patients collect in-person the first drug of a medication abortion – a two-drug regimen taken over two days – is an example.

Betting on courts to strike down abortion restrictions, however, is a risky wager, particularly given the current ambiguity about how the constitutional standard for evaluating abortion restrictions applies. This Article shows that abortion law is moving beyond constitutional litigation and toward building capacity for delivering care across state borders. The confluence of regulation, funding, and evidence have helped facilitate remote abortion care (or telehealth for abortion care) and self-managed abortions – overcoming legal barriers imposed by numerous states and extending abortion access despite the evisceration of constitutional rights.

This Article argues that an understudied development in abortion law suggests a way forward that hinges neither on defending nor abandoning a right to an abortion. Scholars in the field of reproductive justice have called for a move beyond constitutional doctrine for a long time. That shift, with its attention to structural and systemic inequalities, has never seemed more urgent – or more possible – than it is right now.

May 19, 2021 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Monday, May 17, 2021

SCOTUS Agrees to Hear Abortion Case that May Overrule Roe by Challenging Viability as the Basis for Regulation

Bloomberg, Supreme Court Agrees to Hear Case that May Slash Abortion Rights

The U.S. Supreme Court will consider gutting the constitutional right to abortion, agreeing to hear Mississippi’s bid to ban the procedure in almost all cases after 15 weeks of pregnancy.

The move suggests the court’s strengthened conservative wing may be ready to roll back, if not overturn, the landmark 1973 Roe v. Wade decision, which legalized abortion nationwide. The clash, which the court will hear in the nine-month term that starts in October, will be its first abortion case since Justice Amy Coney Barrett was confirmed.

Mississippi’s appeal seeks to let states outlaw abortion even before a fetus becomes viable. That would eviscerate the core holding of the 1992 Planned Parenthood v. Casey ruling, which said states can’t impose significant restrictions before viability. The court in Casey didn’t pinpoint when viability occurs but suggested it was around 23 or 24 weeks at the time of the ruling.

In its appeal, Mississippi argued that viability is “not an appropriate standard for assessing the constitutionality of a law regulating abortion.” The state says its ban was designed to protect maternal health as well as the life of the fetus....

“In an unbroken line of decisions over the last fifty years, this court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy,” the clinic argued in a brief that urged rejection of the appeal.

The Mississippi ban makes exceptions only in cases of severe fetal abnormality or major health risk to the woman. A federal district judge and then a federal appeals court said the ban was unconstitutional.

The case is Dobbs v. Jackson Women's Health Center  (SCOTUSblog)

May 17, 2021 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, May 4, 2021

The First Amendment and the Female Listener

Loren Jacobsen, The First Amendment and the Female Listener, 51 New Mexico L. Rev. 70 (2021)

When the Supreme Court has considered whether laws that affect women's decisions about their health and bodies violate the Free Speech Clause, it has ignored the informational needs of the very women that such laws regulate. I argue that, instead, the Supreme Court should value women's informational and decision-making needs and properly place them at the center of a First Amendment analysis of laws that affect women in particular. Towards that goal, the Supreme Court should take a listener-centered approach to laws that affect women's decision-making. There is a strong basis for a listener-centered approach in the Court's Free Speech precedents, particularly in its commercial speech cases. Following this listener-centered approach would allow the Court to apply the Free Speech Clause in a way that is consistent with these precedents, including the way in which the Court has distinguished speech compulsions and speech restraints. More important, an approach that values the female listener would accord women maximum dignity and autonomy, which is appropriate when laws involve free speech, informed consent, and the decisions women make about their bodies and their health.

May 4, 2021 in Abortion, Constitutional, Healthcare | Permalink | Comments (0)

Tuesday, April 13, 2021

New Law in Utah Requires Biological Fathers to Pay Half Out-of-pocket Costs During Pregnancy

New Law in Utah Requires Biological Fathers to Pay Half of Out-of-pocket Costs During Pregnancy

A new law in Utah makes biological fathers responsible for half of the out-of-pocket costs a woman incurs during pregnancy and childbirth, a policy that some experts say falls short in addressing the burden of such expenses.

 

Experts and women’s health advocates say the new law highlights the high cost of prenatal care, but may leave the burden on women to seek financial support. They point to broader resources such as expanded health coverage they say would better help pregnant women. The bill has also been praised by antiabortion groups who argue that it could reduce the number of women seeking the procedure.

 

“It’s really important to acknowledge that pregnancy related costs are significant and that the burden of those costs should be shared,” said Alina Salganicoff, senior vice president and director of women’s health policy at the Kaiser Family Foundation. “But I think there are other ways that legislators can develop policies that protect women from out of pocket costs.”...

 

The bill would require a biological father to pay 50 percent of a woman’s out-of-pocket medical costs during pregnancy, including insurance premiums and other pregnancy-related costs such as a hospital birth. The bill notes that if the paternity of a child is disputed, a biological father would only be responsible for a share of the costs after paternity is confirmed. The bill also adds that the biological father would not be responsible for sharing the financial cost if the woman receives an abortion, unless the abortion is necessary to avoid death, or if the pregnancy was a result of rape or of incest.

April 13, 2021 in Abortion, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Sixth Circuit En Banc Uphold's Ohio's Ban on Abortions After Down Syndrome Diagnosis

  Ohio Can Enforce Ban on Abortions After Downs Syndrome Diagnosis

Ohio's ban on abortions after a fetal diagnosis of Down syndrome doesn't violate a woman's ability to obtain an abortion, a divided Sixth Circuit Court of Appeals ruled Tuesday.

 

The law, passed by Ohio's Republican-controlled Legislature and signed by GOP Gov. John Kasich in 2017, imposes criminal penalties on doctors who perform abortions if they're aware that a Down syndrome diagnosis, or the possibility of a diagnosis, is the reason for seeking the abortion. The penalty is a fourth-degree felony.

 

Four abortion providers filed suit: Preterm-Cleveland, Planned Parenthood of Southwest Ohio, Women's Med, Planned Parenthood of Greater Ohio and a doctor. The law was blocked by a federal judge in March 2018, and the case has been tied up in federal court ever since. 

 

On Tuesday, the full Sixth Circuit Court of Appeals ruled 9-7 that Ohio's law did not "create a substantial obstacle to a woman’s ability to choose or obtain an abortion." The appeals court reversed the injunction blocking the law from taking effect.  

 

The court ruled that a woman's right to an abortion is not absolute. Ohio's law, which prevents a doctor from performing an abortion because of a Down syndrome diagnosis, is not an undue burden on the woman, wrote Judge Alice Batchelder, who was nominated by former President George H. W. Bush.

 

By preventing the doctor from joining the woman as a knowing accomplice to her Down syndrome-selective decision making, House Bill 214 prevents this woman from making the doctor a knowing participant (accomplice) in her decision to abort her pregnancy because her fetus has Down syndrome," Batchelder wrote. "As limitations or prohibitions go, this is specific and narrow."

 

Batchelder said the law only prevented doctors from knowingly performing an abortion because of Down syndrome, but if the woman doesn't provide a reason, the abortion could still proceed.

***

The decision is here: Pre-Term Cleveland v. McCloud (6th Cir. en banc Apr. 13, 2021)

April 13, 2021 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Monday, April 12, 2021

Challenging the Logic of Pro-Life Constitutionalism in June Medical

Reva Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 SUP . CT. REV. (forthcoming 2021)

As the Supreme Court prepares to roll back protections for the abortion right, this Article analyzes the logic of pro-life constitutionalism in June Medical Services L.L.C. v. Russo.

I expand the frame on the admitting privileges law in June Medical to examine the logic of woman-protective health-justified restrictions on abortion. Do these laws protect women or the unborn—and how? By considering the history of the admitting privileges law at issue in June Medical and locating it in broader policy context, we can see how Louisiana legislators who restricted abortion to protect women’s health equated women’s health with motherhood; they supported laws that pushed women into motherhood while declining to enact laws that provided for the health of pregnant women and the children they might bear. Expanding the frame on Louisiana’s pro-woman pro-life law shows us sex-role stereotyping in action, and demonstrates the intersectional injuries it can inflict.

From this vantage point, we can see that judges who refuse to scrutinize pro-life law making—on the grounds that it would involve judges in politics—help legitimate the claims about protecting women’s health that supposedly justify the abortion restrictions, while revising the meaning of the Constitution’s liberty and equality guarantees. Reading the doctrinal debate in June Medical in this context identifies open and hidden efforts to roll back protections for the abortion right—and suggests how the Supreme Court that President Donald Trump helped fashion values women, health, life, truth, and democracy.

April 12, 2021 in Abortion, Reproductive Rights, SCOTUS, Theory | Permalink | Comments (0)

Tuesday, April 6, 2021

Hemingway, Women, and Gender

I had always hated Hemingway.  He was, after all, the classic misogynist. 

It seemed I was forced to read Hemingway every year in school.  Farewell to Arms, The Sun Also Rises, For Whom the Bell Tolls, The Snows of Kilimanjaro, The Old Man and the Sea.  I read them all, against my will.  To me they were boring stories about men.  The words were short, cold, and devoid of beauty or lyricism.  The topics were harsh and violent -- masculine topics of war, bullfighting, and big game hunting.  Moreover, the works were filled with hateful depictions of women. Women were crazy harpies, tempting devils, or dead mothers.  In Hemingway’s semi-autobiographical accounts, women were merely the women objects of antipathy, perhaps like the many wives that he continually traded in like cars.

So when I heard that PBS was featuring a new documentary series on Hemingway, I rolled my eyes and thought, “how tone deaf.”  How misguided to hear yet again about a privileged white man, and one who had already received his acclaim.  In this time of intense public debate of race and gender, in this time when so many women and people of color have not yet been recovered, why return to the same old story.  For indeed, I had not encountered even famous writers like Zora Huston Neale or Daphne du Maurier until my own independent reading, long after school.  But, like so many things that one dismisses, I discovered more complexity and nuance in Hemingway’s story, particular in the realm of gender.

The film reveals Hemingway not as a model of masculinity, but as a man battling with his own masculinity.  Understanding this as toxic masculinity, changed the narrative for me.  We learn of Hemingway’s Freudian early years with a mother who wrote him a rejection letter, and dressed him like a twin to his sister.  We then understand his early attraction to two older woman, maternal figures, one of whom becomes his first wife.  We see the author constrained by family demands--fighting for the time to write and feed his creative muse, diverted by screaming babies, marital demands, and unpaid bills until he can get alone, on the road or with his thoughts.  This is all juxtaposed against the raucous pull of the popular writing crowd, with their carousing and attention-seeking affairs.

The film also shows us a broader range of topics that occupied Hemingway’s mind beyond bulls, bullets, and booze.  One of his earliest stories, Up in Michigan, was about date rape.  A shocking story that barely saw the publishing light, writer Edna O’Brien explains as actually told from the woman’s perspective, which is why it was so powerful.  He wrote about abortion, suicide, STDs, childbirth, Caesarean sections, and death in childbirth – grim accounts of women (and men’s) reality.  A later work, published posthumously, engages with transgender and same-sex attraction.

The short words took on new meaning for me as well.  Rather than just a mimic of his journalism years, the short words were explained as a revolution in writing that left behind conventional indicators of writing prowess.  I discovered the beauty of the short form, in the repetition of the same words that function as the action itself, as when repeating words form the march of the soldiers.  Right, left, right, left, right, left.  Like lawyers learning the impact of plain, unaffected writing, I could now appreciate the power of the staccato, and what the film describes as musical. The film reveals these words slowly on the screen, literally showing us the beauty of the typed word as Jeff Daniels' voice-over reads aloud.

This all came together for me in the discussion of the short story, Hills Like White Elephants In this story, a man pressures his lover, “the girl,” to get an abortion.  Most of the story is the man controlling the conversation, working through various points to win the argument, eventually gaslighting his partner, claiming, “I only want what you want.” He is dismissive of the way in which the young woman sees the world, whether its her vision of the looming white elephants overshadowing their lives or the personal and relational consequences of the abortion.  Eventually, the young woman demands: "Would you please please please please please please please stop talking?" 

See also:

PBS, Video, Hemingway, Gender and Identity

NYT, They Are Giving Hemingway Another Look. So You Can Too.

Esquire, Ken Burns and Lynn Novick Reveal Ernest Hemingway's Private Fascination with Gender Fluidity

April 6, 2021 in Abortion, Books, Gender, Masculinities, Media, Pop Culture | Permalink | Comments (0)

Friday, April 2, 2021

Proposed TN Abortion Bill Would Give Fathers Veto

Tennessee Abortion Bill: Fathers Would Get Veto, No Rape Exception

 In an effort to further restrict abortion in Tennessee, two state  lawmakers have introduced legislation that would allow a father to deny an abortion without the pregnant woman's consent.

The bill, sponsored by state Republicans Sen. Mark Pody and Rep. Jerry Sexton, would give a man who gets a woman pregnant the veto power to an abortion by petitioning a court for an injunction against the procedure.

Tennessee lawmakers already passed one of the nation's most restrictive abortion laws last year, although much of it is held up with legal challenges from abortion rights advocates. The ongoing court battle could stretch for months if not years.

Despite the outlook for potential lawsuits, state lawmakers appear adamant in pushing for stricter abortion laws this legislative session. Including Pody and Sexton's legislation, six bills to further restrict abortion have been filed this year

Pody said Wednesday that he introduced his bill after a Tennessee resident expressed concerns that fathers do not have a say over abortion under the current law. He said his bill would assure fathers' right to make a decision about an unborn child.

"I believe a father should have a right to say what's gonna be happening to that child," Pody said

The US Supreme Court declared a spousal veto to be unconstitutional in Planned Parenthood of Missouri v. Danforth (1976), and spousal notification to be unconstitutional in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

April 2, 2021 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Monday, February 22, 2021

Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality

Caroline Henckels, Ronli Sifris & Tania Penovic, Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality, Federal Law Review (2021)

This article examines the High Court of Australia’s treatment of the concept of dignity as both a value animating the implied freedom of political communication and as a legitimate reason to limit the exercise of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, the where the Court found that laws establishing safe access zones around abortion clinics were compatible with the implied freedom. The use of dignity as a prism through which to view the interests at stake in both abortion and speech cases is a familiar feature of developments abroad, and the Court has laid the foundations for recognition of dignity as one of the axiological bases of the implied freedom in a manner that generally emphasises individual autonomy over other conceptions of dignity that might be described as operating as a constraint on behaviour to protect other interests. Yet while the Court has used dignity as the common measure with which to commensurate competing claims, it has yet to convincingly address concerns regarding incommensurability that attend the balancing stage of proportionality review, not to mention the potential objection that its reliance on dignity is not properly grounded in the text and structure of the Constitution. In light of these issues, the role of dignity ought to be tethered to its central role in facilitating political participation so as to more clearly link the concept to the text and structure of the Constitution, and to identify what is at stake when women’s ability to access reproductive health care is impaired or denied.

February 22, 2021 in Abortion, Constitutional, International, Theory | Permalink | Comments (0)

Thursday, February 18, 2021

Program: The Past and Future of Reproductive Choice

Forum: The Past and Future of Reproductive Choice

February 24, 2021 (Wednesday) / 5:00 pm

LIVE ONLINE EVENT
 
The Past and Future of Reproductive Choice
 
Linda Greenhouse, Senior Research Scholar, Yale Law School
Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School
Serena Mayeri, Professor of Law and History, University of Pennsylvania
 
As the future of Roe v. Wade, the landmark 1973 US Supreme Court case legalizing women’s right to choose an abortion, hangs in the balance, legal scholars Linda Greenhouse and Reva Siegel talk with Serena Mayeri about the long history of the struggle for reproductive justice in the US.  Among the topics they will consider are the past and present of what has been known since the 70s as the “pro-choice” position and how they see it faring both in the courts and in public opinion going forward. 

Cosponsored by the Department of History

February 18, 2021 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, February 1, 2021

Refuting the Claims that Pioneering Nineteenth-Century Feminists Were Anti-Abortion Advocates

Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)

In this article, historian Faye Dudden carefully and persuasively refutes the claims of modern pro-life activists that pioneering feminists Elizabeth Cady Stanton and Susan B. Anthony originated the "feminist" demand for anti-abortion laws and thus serve as appropriate figureheads for the modern movement.  (For example, in the appropriation of Anthony's name for the "Susan B. Anthony List," a pro-life fundraising and political action organization).  Dudden agrees with my own conclusions that 1) the historical evidence attributed to Stanton and Anthony is not theirs, but the work and beliefs of their male co-editor, former minister and abolitionist Parker Pillsbury, and that 2) other early feminists' personal dislike of abortion did not support legal regulation of women's autonomy. See Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 176-85, 232-36 (NYU Press 2016); Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1, 2-68 (2012).

Ever since Roe v. Wade, opponents of legal abortion have invoked women’s history to justify themselves. A group called Feminists for Life (FFL) first came up with the idea that the founders of the women’s rights movement, including Susan B. Anthony and Elizabeth Cady Stanton, had opposed abortion and “worked to outlaw” it. FFL saw their historical vision widely adopted in the Right-to-Life movement in the early 1990s as it tried to appeal to younger women with pro-woman and “women-protective” arguments. When a political action committee was formed in 1993 to support anti-choice candidates, it doubled down on this historical claim by calling itself the Susan B. Anthony List. But FFL and kindred groups have played fast and loose with the evidence, as the historian Ann D. Gordon and others have already pointed out.

In fact, a number of early feminists expressed decided skepticism about outlawing abortion. They disliked abortion but thought anti-abortion laws did not apply “the proper remedies,” according to one nineteenth-century women’s rights pioneer. Such laws “do not touch the case,” declared another. FFL assumed that it was enough to show that “the original feminists condemned abortion in the strongest terms” to infer that they favored legal sanctions.  The sources show, however, that this assumption was wrong; feminists could condemn abortion but remain quite skeptical of its criminalization. This article revisits the sources and context to better understand how early women’s rights advocates thought about both abortion and abortion laws. While discussing disputed evidence in some detail, it goes beyond a verdict of “not proven” on Right-to-Life claims to argue that the early feminists’ insights about the law have lasting power.

h/t Kimberly Hamlin

February 1, 2021 in Abortion, Family, Legal History, Reproductive Rights | Permalink | Comments (0)

Wednesday, January 13, 2021

In Another Shadow Docket Order, SCOTUS Stays Abortion In-Person Medication Requirement During COVID Found Unconstitutional by District Court

In another shadow docket ruling, the Supreme Court stayed a district court's preliminary injunction enjoining the unconstitutional application of a Covid abortion requirement that women seeking medicated abortions appear in person.

The order is here,  FDA v. American College of OB/GYNS (Jan. 12, 2021), with concurrence by Justice Roberts and dissent by Justice Sotomayor.

NYT, Supreme Court Revives Abortion Pill Restriction

In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

January 13, 2021 in Abortion, Constitutional, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, January 12, 2021

COVID, Abortion Restrictions, and Public Health in the Culture Wars

Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, 47 Mitchell Hamline L.Rev. (2020)  

At the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled.

The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy.

Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion.

January 12, 2021 in Abortion, Courts, Healthcare, Reproductive Rights | Permalink | Comments (0)

Thursday, November 19, 2020

Justice ACB on Griswold

NPR, Supreme Court's Abortion Cases Could Threaten Birth Control Too

But many people overlook other things that could flow from new U.S. jurisprudence on abortion — such as erasing the right to birth control that the court recognized in a 1965 case, Griswold v. Connecticut. During her confirmation hearings, Barrett specifically refused to say whether she felt Griswold was correctly decided.

That was a flashing red warning light for Nancy Northup, president of the Center for Reproductive Rights, a legal advocacy group that argues cases on abortion and contraception. Roe, Northup says, is part of a century of jurisprudence based on the idea that the U.S. Constitution protects the liberty of individuals.

"It began with cases about how one educates one's children," Northup says, and includes same-sex marriage, contraception and abortion. You can't just take Roe out and not unravel the whole fabric."

Yet from what Barrett has said and written about the Constitution, Northup says, "it's clear she doesn't believe it protects the right to personal liberty."

NPR, On Contraception Case, Amy Coney Barrett Again Avoids Question

The 7-2 decision in Griswold v. Connecticut is viewed as the basis for Roe v. Wade, the 1973 ruling that legalized a woman's right to abortion nationwide.

Instead of directly answering Coons' question about whether the Supreme Court made the appropriate ruling in Griswold, Barrett said she found it unlikely that decision would ever be overturned.

"It seems unthinkable that any legislature would pass such a law" taking away the right to buy or use contraception, she said. "I think the only reason that it's even worth asking that question is to lay a predicate for whether Roe was rightly decided."

"I think that Griswold is very, very, very, very, very, very unlikely to go anywhere," she added.

November 19, 2020 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, November 4, 2020

Abortion Rights on the Ballot: LA Passes Anti-Abortion Constitutional Amendment, CO Rejects 22 Week Ban on Abortion

Louisiana Just Passed an Amendment

Louisiana voters have just passed an amendment to the state constitution to clarify that nothing in it protects the right to abortion in the state. Given the current makeup of the courts, and, notably, a new anti-choice justice on the Supreme Court, it is a clear step toward preparing for Roe v. Wade to be overturned, which would make abortion access a state issue rather than a federal one. If that happens, Louisiana, it seems, wants to waste no time in banning it. 

As such, the following language will be added into Louisiana’s constitution: “To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Three states—Tennessee, Alabama, and West Virginia--have similar constitutional language.

NY Times Election Results: LA Ban (62% to 37%)

 

Colorado Proposition 115 Results: 22 Week Abortion Ban Rejected

The state remains one of seven with no gestational limits on abortion.

Colorado voters just rejected a measure that would have banned abortion in the state after 22 weeks’ gestation, according to the New York Times and the Associated Press.

The measure, Proposition 115, was backed by the anti-abortion group Due Date Too Late, which argued that abortions after 22 weeks were inhumane. But supporters of abortion rights were concerned about the impact of the measure on pregnant people, not just in Colorado, but around the country.

Abortions in the third trimester of pregnancy are rare, with nearly 99 percent of abortions happening before 22 weeks’ gestation. But a small percentage of patients seek abortion later in pregnancy, sometimes because of severe fetal abnormalities that can only be diagnosed at that time. Proposition 115 did not have an exception for such abnormalities, or for rape, incest, or the health of the pregnant person, allowing abortion only if it was “immediately required to save the life of a pregnant woman.”

Abortion-rights advocates nationwide were especially concerned about the measure because Colorado is one of just seven states in the country with no gestational limit on abortion. That means patients seeking later abortions in states with such limits often come to Colorado for care, sometimes traveling thousands of miles to do so.

NYT, NYT Election Results: Ban Late Term Abortions (59% to 40%)

 

See also Wash Post, Abortion is on the Ballot in Two States, Providing a Glimpse at a Post-Roe World

November 4, 2020 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, November 2, 2020

Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett

I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court.  Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court.  The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.

Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court

 

November 2, 2020 in Abortion, Constitutional, Courts, Healthcare, Judges, LGBT, Same-sex marriage, SCOTUS, Women lawyers | Permalink | Comments (0)

Wednesday, October 21, 2020

The Geography of "Modest-Looking" Abortion Restrictions

Jessie Hill, The Geography of Abortion Rights, Georgetown L.J. (forthcoming 2021)  

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion services within the geographical borders of a particular state and to require people to travel out of state in order to terminate a pregnancy. Other abortion controversies, too, have foregrounded the significance of state and even national borders, as in the cases of unaccompanied immigrant minors who sought abortions while in the custody of the U.S. Government. Thus, an entire subset of abortion restrictions intentionally targets the geography of abortion provision, inevitably impacts the geographical distribution of abortion services, or both. Yet, the geographical dimension of abortion restrictions has gone largely unappreciated in the legal literature. This Article thus aims to provide an overview of the geography of abortion regulation. It first considers the unique impact and attractiveness of spatial regulations, demonstrating that spatial regulations differ from other forms of abortion regulation in their tendency to exploit and aggravate preexisting social inequality in ways that make it appear natural or unavoidable. Second, this Article considers the jurisprudential implications of this “spatial turn” in three specific areas: the right to travel, private non-delegation doctrine, and the concept of viability in abortion doctrine

October 21, 2020 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Wednesday, October 7, 2020

Book Review Reproductive Rights and Justice Stories

Leah Litman, Redefining Reproductive Rights and Justice, reviewing Reproductive Rights and Justice Stories (Melissa Murray, Katherine Shaw, & Reva Siegel, eds. 2019),  118 Mich. L. Rev. 1095 (2020).

Against this backdrop comes Melissa Murray, Katherine Shaw, and Reva Siegel’s edited collection of essays, Reproductive Rights and Justice Stories. The collection could not be timelier. Their volume contains a series of essays that “bring[] together important cases involving the state regulation of sex, childbearing, and parenting.” 

The two goals of the collection are to expand the contours of the field of reproductive rights and justice and to decenter the role of courts in that field. The editors’ pathbreaking volume cements a definition of reproductive rights and justice that is both more coherent and more nuanced than many earlier definitions, which often limited discussions of reproductive rights
and justice to contraception and abortion. The volume makes significant headway in illustrating the many different ways that law affects reproductive rights and justice.

Broadening readers’ understandings about what constitutes reproductive rights and justice has several benefits. It illuminates the many different ways that law and society construct and constrain what parenthood—and particularly motherhood—entails. Unpacking how law and society have made motherhood carry certain roles and expectations clarifies the stakes of
traditional reproductive rights and justice issues. For example, if becoming a parent, and in particular becoming a mother, entails assuming a particular identity, then the autonomy and liberty interests at stake in parentage decisions are much greater than just bodily autonomy.

The collection of essays also offers a lens through which to understand myriad legal issues. The volume makes clear that many different topics— ranging from workplace protections, to labor law, to disability law, to criminal procedure, to insurance law—implicate reproductive rights and justice in addition to decisions about whether to criminalize abortion or contraception. That has the salutary benefit of unearthing the complex web of laws and social conventions that influence parentage decisions. Understanding all of the influences on parentage decisions would also make it easier to construct a system that is supportive of families.

By broadening the definition of reproductive rights and justice to include the many different ways that law and society shape individuals’ decisions about whether to have children, the volume also pushes its readers to think about additional ways in which law and society influence decisions about sex and parentage.

 

October 7, 2020 in Abortion, Books, Family, Reproductive Rights | Permalink | Comments (0)

Friday, October 2, 2020

Making the Case for Accepting Judicial Defeat on Roe v. Wade

Joan Williams, The Case for Accepting Defeat on Roe

The argument that the left has already lost the abortion fight reflects the fact that there’s no abortion clinic in 90 percent of American counties. This is the result of the highly successful death-by-a-thousand-cuts anti-abortion strategy, which has piled on restriction after restriction to make abortion inaccessible to as many American women as possible.

Chief Justice John Roberts’s concurring opinion this summer in June Medical Services v. Russo — the one that mattered — was hailed as a surprise victory for abortion rights, but not by me. Justice Roberts refused to uphold Louisiana restrictions virtually identical to those the court struck down as unconstitutional just four years earlier, but clearly stated that his reluctance was because of his respect for precedent. Anyone with their eyes open could see the justice signaling to abortion opponents to continue the process of eroding Roe v. Wade’s nigh-absolute protection of access to abortion during the first trimester by inventing new types of restrictions, which they have been remarkably creative in doing.

If Judge Amy Coney Barrett becomes the next Supreme Court justice, Justice Roberts’s vote will be irrelevant, anyway. And if things already looked pretty grim, now they look much worse: Up to 21 states have passed laws banning or limiting abortions in ways that are currently unconstitutional. Many will go into effect immediately if Roe is fully overturned.

So what should we do now? Often forgotten is that R.B.G. herself had decided that Roe was a mistake. In 1992, she gave a lecture musing that the country might be better off if the Supreme Court had written a narrower decision and opened up a “dialogue” with state legislatures, which were trending “toward liberalization of abortion statutes” (to quote the Roe court). Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue,” Justice Ginsburg argued. In the process, “a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

What Ginsburg called Roe’s “divisiveness” was instrumental in the rise of the American right, which was flailing until Phyllis Schlafly discovered the galvanizing force of opposition to abortion and the Equal Rights Amendment. Schlafly wrote the culture wars playbook that created the odd coupling of the country-club business elite with evangelicals and blue-collar whites. In exchange for business-friendly policies like tax cuts and deregulation, Republicans now allow these groups to control their agenda on religion and abortion. It’s hard to remember now but this was not inevitable: abortion was not always seen as the partisan issue it is todaynor did evangelicals uniformly oppose abortion.

Whether or not R.B.G.’s assessment of Roe was correct, the best tribute we can pay to her is to do what she suggests: open up the kind of dialogue that occurred in Ireland, where young people knocked on grannies’ doors and persuaded them to vote to legalize abortion, which — much to the distress of the Catholic Church — they did. (At the same time, activists galvanized to ensure that, in the absence of a referendum, women throughout the country would have access to and knowledge about medication abortions.)

I don’t want Roe to be overturned, but if that happens, it could bring political opportunity. The emotional heat that surrounds abortion as an issue manages to obscure that the attitudes driving opposition to abortion actually reveal some surprising common ground with progressives on economic issues.

October 2, 2020 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)