Monday, June 1, 2020
Rachel Rebouche, Contracting Pregnancy, 105 Iowa L. Rev. (2020)
Several states recently have passed laws that permit and regulate gestational surrogacy, changing course from the prohibitions that characterized an earlier era. These statutes require mental health counseling before pregnancy and legal representation for all parties to the contract. Scholars and practitioners alike herald this legislation as the way forward in protecting the interests of both intended parents and surrogates. State law, however, may not resolve a recurrent tension over who controls prenatal decision making in gestational surrogacy agreements. Intended parents want authority to make decisions regarding the pregnancy. Contract provisions cater to that desire and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to manage their prenatal care.
Analyzing the most controversial terms of surrogacy contracts—those governing prenatal testing, prenatal behavior, and abortion—this Article demonstrates that neither statutory rights nor contractual remedies adequately address disputes over prenatal care. Rather, mental health professionals who provide pre-pregnancy counseling and lawyers who draft surrogacy contracts have greater effect on parties’ expectations and conduct. Lawyers, in implementing surrogacy contracts, help build trust between parties that induces compliance with otherwise unenforceable terms. When there is a conflict between the parties, lawyers diffuse it.
This Article identifies the consequences of relational contracting for surrogacy, including shielding parties’ behavior from view and entrenching the power of fertility agencies and brokers. It concludes by suggesting how law might challenge the dominance of professionals and agencies by opening the fertility market to a broader population of participants.
Members of the UN Working Group on Discrimination against Women and Girls issued a statement on Wednesday expressing regret that states such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee “appear to be manipulating the crisis” to curb women’s reproductive rights.
UN experts are concerned some US states – such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee – appear to be manipulating #COVID19 crisis measures to restrict access to essential. services.
“This situation is also the latest example illustrating a pattern of restrictions and retrogressions in access to legal abortion care across the country. We fear that, without clear political will to reverse such restrictive and regressive trends, states will continue pursuing this pattern,” said Elizabeth Broderick, Vice-Chair of the Working Group.***
The Working Group was also extremely concerned by the US insistence to remove references to “sexual and reproductive health and its derivatives” from the Global Humanitarian Response Plan (HRP) on COVID-19, as expressed through a letter on 18 May from USAID to the UN Secretary-General.
“We reiterate that sexual and reproductive health services, including access to safe and legal abortion, are essential and must remain a key component of the UN’s priorities in its responses to the COVID-19 pandemic,” said Ms. Broderick.
“Removing references to sexual and reproductive health from the HRP will have devastating consequences for women worldwide. It will seriously undermine the international community’s joint effort to respond to women’s health needs in this time of crisis.”
Global Times, US Women's Rights Breach
Some US states are exploiting the coronavirus crisis to restrict access to abortion, a group of independent United Nations (UN) rights experts said on Wednesday.
Eight states have used COVID-19 emergency orders - which suspend medical procedures not deemed immediately necessary - to limit access to pregnancy terminations, said the UN Working Group on Discrimination against Women and Girls.
The group singled out Alabama, Arkansas, Iowa, Louisiana, Ohio, Oklahoma, Tennessee and Texas.
"We regret that the above-mentioned states, with a long history of restrictive practices against abortion, appear to be manipulating the crisis to severely restrict women's reproductive rights," said the group's vice-chair Elizabeth Broderick.
The independent experts do not speak for the UN but report their findings to the world body.
"For many women in the US, bans on abortion during this pandemic will delay abortion care beyond the legal time limit or render abortion services completely inaccessible," said Broderick.
Those who do seek termination services will be forced to travel interstate, thereby risking their own health and disregarding public health guidelines, the experts said.
"Abortion care constitutes essential health care and must remain available during the COVID-19 crisis," Broderick added.
"Restrictions on access to comprehensive reproductive health information and services, including abortion as well as contraception, constitute human rights violations and can cause irreversible harm."
The group said it was "inherently discriminatory" to women to deny them access to services only they require.
Thursday, May 28, 2020
Reproductive rights advocates are suing the Trump administration, asking a federal court to suspend restrictions on the abortion drug mifepristone during the coronavirus pandemic.
The drug mifepristone was approved by the U.S. Food and Drug Administration 20 years ago for use in medication abortions in early pregnancy. It's also used to help manage miscarriages for some women trying to avoid surgery.
In a federal lawsuit filed in Maryland on behalf of the American College of Obstetricians and Gynecologists (ACOG) and other groups, the American Civil Liberties Union requests an emergency order lifting regulations requiring patients in the United States to pick up the drug at a hospital or medical facility.
Julia Kaye, an attorney with the American Civil Liberties Union, said that requirement is putting patients at risk during the COVID-19 pandemic.
"A patient who has already been evaluated by a clinician, either through telemedicine or at a prior in person visit, still must make this entirely unnecessary trip just to pick up their prescription," Kaye said during a conference call announcing the lawsuit.
ACOG supports lifting the restrictions, called the Risk Evaluation and Mitigation Strategy or REMS, and has said they are medically unnecessary to preserve patient safety. In 2017, the ACLU filed a federal lawsuit in Hawaii, seeking to force the FDA to remove the REMS for mifepristone.
But this new lawsuit is more narrow, Kaye said, in asking the court to suspend the rules during the pandemic only. The lawsuit asks for an emergency order allowing the mifepristone to be dispensed through the mail or by pharmacies. It notes that in other areas of medicine, federal agencies "have taken substantial action ... to encourage telemedicine use" and "forego unnecessary in-person visits" during the coronavirus crisis.
Friday, May 22, 2020
"Jane Roe" from Roe v. Wade Retracts Anti-Abortion Conversion in Posthumous Documentary, "AKA Jane Roe"
Michelle Goldberg, Jane Roe's Pro-Life Conversion Was a Con
It was a cultural coup for the right when McCorvey publicly turned against legal abortion. Jane Roe rejecting Roe v. Wade was something abortion opponents could throw in the faces of pro-choice activists. So it is a bombshell that McCorvey has revealed, in the posthumous new documentary “AKA Jane Roe,” that it was, at least in some sense, an act. “I am a good actress,” she said.
The movie, which debuts on Friday on FX, also makes clear that anti-abortion leaders understood this. They’ve been perpetrating a scam on us all for 25 years.In the documentary’s final 20 minutes, McCorvey, who died of heart failure in 2017, gives what she calls her “deathbed confession.” She and the pro-life movement, she said, were using each other: “I took their money, and they put me out in front of the cameras and told me what to say, and that’s what I’d say.”
In her career as a pro-life icon, she collected nearly half a million dollars. But at the end of her life, she once again affirmed a belief in the right to abortion, and evinced pride in Roe v. Wade. “Roe isn’t going anywhere,” she said early on election night in 2016, when she thought Hillary Clinton was going to win. “They can try, but it’s not happening, baby.”***
Given the political damage done by her cynical about-face, it’s surprising how sympathetic McCorvey — campy, foul-mouthed and irreverent — comes off. She was a lost soul from a traumatic background. Her father was absent and her mother beat her, and she ended up in reform school after running away from home at 10. She entered an abusive marriage at 16, became addicted to drugs and alcohol, and lost custody of her first child.As she’s told the story, she signed up as the plaintiff in Roe v. Wade not because she wanted to make history but because she was desperate for an abortion. She never got one: By the time the case was decided, she’d given birth and put the baby up for adoption.
Later, McCorvey resented not being given a more prominent role as a pro-choice activist. The movement found her embarrassing, especially when, in 1987, she admitted that she’d lied when she’d said the pregnancy at the heart of Roe was a result of rape.***
“She was not the poster girl that would have been helpful to the pro-choice movement,” Charlotte Taft, a former director of the Abortion Care Network, says in the film. “However, an articulate, educated person could not have been the plaintiff in Roe v. Wade.” It was women like McCorvey — those without the resources to travel to pro-choice states — who endured forced childbirth in the years before Roe was decided. “People who are plaintiffs in cases are usually messy people,” said Kissling.
Many of the headlines about “AKA Jane Roe” have emphasized that McCorvey was paid to renounce abortion rights, but after watching it I don’t think it was all about money. McCorvey wanted respect and attention, to be honored and cherished. At times, people in the pro-choice movement tried to help her; for a while she was represented by the feminist superlawyer Gloria Allred. She made money giving speeches and selling the rights to her story, including for an Emmy-winning made-for-TV movie.
Tuesday, March 31, 2020
5th Circuit Upholds Texas Ban on Abortions During Coronavirus Pandemic, Staying Contrary Ruling of District Court
A federal appeals court on Tuesday ruled that Texas can temporarily enforce a ban on abortions as part of its coronavirus response.
The 5th Circuit Court of Appeals issued a temporary stay on a ruling from a lower court that had blocked Texas from enforcing the ban. State officials argue the ban is intended to conserve medical supplies for health workers on the front lines of the coronavirus response. But abortion rights advocates say states are using the pandemic as an excuse to block access.
In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered. The two judges who ruled in favor of a stay were nominated to their posts by President Trump and former President George W. Bush.
"The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need," Texas Attorney General Ken Paxton said in a statement Tuesday.
Circuit Court Judge James Dennis, a Clinton appointee, dissented, writing “a federal judge has already concluded that irreparable harm would flow from allowing the executive order to prohibit abortions during this critical time.”
Texas Gov. Greg Abbott (R) issued a directive earlier this month suspending nonessential medical procedures in an effort to conserve masks and gloves for health workers on the front lines of the pandemic.
Several states have issued similar orders, but a divide has emerged between red and blue states about whether abortion is an essential procedure.
Federal Courts Enjoin States' Attempts to Prohibit Exercise of Abortion Rights During Coronavirus Pandemic
Federal judges on Monday blocked officials in Texas, Ohio and Alabama from banning most abortions in those states as part of their orders to postpone surgeries and other procedures deemed not medically necessary during the coronavirus crisis.
U.S. District Judge Lee Yeakel in Austin ruled that Paxton’s action “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”
The Texas lawsuit was filed last Wednesday after clinics said they were forced to cancel hundreds of appointments for abortions across the state.
“Abortion is essential healthcare, and it’s a time-sensitive service, especially during a public health crisis,” said Amy Hagstrom Miller, president of Whole Woman’s Health, an abortion provider with three clinics in Texas and a plaintiff in the case.
Dahlia Lithwick, Federal Judges Block Texas and Ohio Coronavirus Abortion Bans
There was bad news on Monday for states trying to use the coronavirus pandemic to halt abortions: Two federal judges ruled that pretextual pretexts are just pretexts. Clinics in Ohio and Texas will remain open, at least for the time being. As my colleague Christina Cauterucci reported last week, Republican governors in both Ohio and Texas tried opportunistically to halt abortions in their states by claiming that the procedures are not-essential and that states should redirect personal protective equipment, including masks and gloves, away from clinics so they can better serve coronavirus patients. Of course, women actually need abortion services even more during such crises, clinics don’t use most of the essential medical equipment necessary to fight the virus, and most abortions are time-sensitive procedures that can’t be delayed indefinitely.Texas and Ohio weren’t alone, though. Iowa, Mississippi, Alabama, and Oklahoma had all recently moved to suspend abortion access using the same excuses. The Texas guidance, which was particularly draconian, would have applied to “any type of abortion that is not medically necessary to preserve the life of the mother,” and violations would include a $1,000 fine or up to 180 days in jail. Meanwhile, Ohio’s deputy attorney general, Jonathan Fulkerson, had sent letters to a handful of abortion clinics accusing them of violating the Ohio order, but the clinics had replied that they were in compliance and continued to perform procedures.Two of these suits have already paid dividends. On Monday, U.S. District Judge Lee Yeakel lifted Texas’ restriction on abortion just a few hours before Senior U.S. District Judge Michael Barrett enjoined Ohio officials from implementing their ban. In his opinion judge Yeakel, a George W. Bush appointee, found that Texas’ attempt to shut down abortions would cause “irreparable harm” to abortion clinics and their patients, and rested his decision in the constitutional right to terminate a pregnancy: “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.”
Federal judges for now blocked Texas, Ohio and Alabama from curbing most abortions amid the new coronavirus pandemic, after the states recently cited the need to preserve medical equipment and public health as reasons to halt the procedure.
U.S. District Court Judge Michael Barrett ruled that Ohio's abortion clinics could perform surgical abortions if they could not be delayed because of a medical condition or the delay would prevent the abortion under Ohio law.
The Ohio Department of Health had threatened to apply the ban on all elective surgeries to surgical abortions, effectively banning all abortions after 10 weeks gestation, according to a motion filed by Ohio's surgical abortion clinics, including Planned Parenthood of Southwest Ohio, on Monday.
Barrett, who granted the temporary restraining order later for 14 days, said the state had not proven that performing surgical abortions would "result in any beneficial amount of net saving of PPE (personal protective equipment) in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion," Barrett wrote.
State officials in Iowa and Ohio were hit with lawsuits on Monday over their decisions to ban abortion during the coronavirus outbreak.
Both states recently deemed abortion a nonessential surgical procedure that must be deferred or canceled in order to preserve medical supplies for the pandemic.
Planned Parenthood Federation of America and the American Civil Liberties Union of Iowa and Ohio are asking district courts to immediately restore abortion access, arguing that it’s an essential, time-sensitive procedure that has been improperly categorized as elective.
A growing number of states largely governed by Republicans are using the coronavirus outbreak to crack down on abortion. In addition to Ohio and Iowa, Texas and Mississippi have ordered health care facilities to stop providing abortions.***
Leading medical experts, such as the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology have urged state leaders to classify abortion as a time-sensitive, essential medical procedure that cannot be delayed.
Friday, March 27, 2020
This is my local rep, supporting the constitutional rights of women.
Last weekend, Ohio Attorney General Dave Yost ordered Ohio reproductive health clinics to cease providing abortions—claiming that abortion services are not “essential” medical care during the COVID-19 pandemic.
When Ohio state House Representative Tavia Galonski—chair of the Ohio Women’s Democratic Legislative Caucus—first heard the news, she felt rage.
“Now is not the time to overturn the U.S. Constitution in the middle of a pandemic,” she said.
After his announcement, Attorney General Yost faced immediate pushback from abortion rights advocates and pro-choice state legislators.
Following a round of intense negotiations, Ohio clinics remain open.
The coronavirus pandemic is deepening the divide on abortion access between blue and red states by sparking a debate over whether the procedure is medically essential.
Anti-abortion forces led by Republican governors in Ohio, Texas and Mississippi are citing the critical shortage of medical supplies in trying to close abortion clinics, in some instances threatening jail time if they don't shut down and donate protective gear and other necessities to local hospitals. Meanwhile, in blue states like New York, Washington and New Jersey, governors are deeming abortion and family planning clinics an essential service that can continue during the pandemic.***
Progressive states that have implemented broad orders shutting down businesses during the pandemic, such as Washington, have clarified that they consider abortion and family planning clinics an essential service that can continue during the pandemic. New Jersey Gov. Phil Murphy was one of a handful of Democratic leaders to explicitly carve out an exception for “the full range of family planning services and procedures, including terminations of pregnancies” from his executive order that suspends elective surgeries.
Meanwhile in New York, clinics are working to expand access to medication abortion. Planned Parenthood is conducting more assessments over its telehealth platform so eligible patients only have to come to centers to pick up medication, as is required by law.
Tuesday, March 24, 2020
Texas and Ohio have included abortions among the nonessential surgeries and medical procedures that they are requiring to be delayed, setting off a new front in the fight over abortion rights in the middle of the coronavirus pandemic in the United States.
Both states said they were trying to preserve extremely precious protective equipment for health care workers and to make space for a potential flood of coronavirus patients.
But abortion rights activists said that abortions should be counted as essential and that people could not wait for the procedure until the pandemic was over.
Pro-choice groups such as the American Civil Liberties Union and Planned Parenthood say the order is an excuse from the state to restrict access to abortion.
Ohio's legislators have sought to curb people's access to abortion prior to the pandemic.
“Planned Parenthood’s top priority is ensuring every person can continue accessing essential healthcare, including abortion,” Planned Parenthood of Ohio said in a statement, adding that they are still being compliant with the state order.
“Under that order, Planned Parenthood can still continue providing essential procedures, including surgical abortion, and our health centers continue to provide services that our patients depend on,” they added.
Despite a state health order banning non-essential procedures during the coronavirus health emergency, Ohio abortion clinics remained open last week.
But after receiving complaints, Ohio Attorney General Dave Yost ordered two of them to follow Ohio Department of Health Director Amy Acton’s orders.
“You and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient,” Yost said.
“If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the [health director’s] order, the Department of Health will take all appropriate measures.”
On Wednesday, Acton issued an order saying “all non-essential or elective surgeries and procedures that utilized [personal protective equipment] should not be conducted.” The state is attempting to preserve supplies of equipment needed in combating the vir
Republicans in states around the country are doing their best to use the growing coronavirus epidemic in order to push through their rightwing, anti-abortion agendas. The latest—on Sunday night, Texas Governor Greg Abbott issued an executive order to “postpone all surgeries and procedures that are not immediately medically necessary” until April 21. In response, the state’s Attorney General Ken Paxton ordered all abortion clinics to stop providing “any type of abortion that is not medically necessary to preserve the life or health of the mother,” or face penalties of up to $1,000 or 180 days of jail time.
The move by Republican officials in Texas comes on the heels of Ohio’s attorney general’s office ordering abortion clinics in Dayton, Cleveland, and Cincinnati to “immediately stop performing non-essential and elective surgical abortions.”
Framing these moves as a way to ensure that health care professionals have the resources they need, which is what officials in both Texas and Ohio have done, is an incredibly manipulative and underhanded way to sneak in anti-abortion measures under the guide of public health. In a statement to Jezebel, NARAL Pro-Choice Texas executive Aimee Arrambide wrote, “Abortion is essential healthcare, but especially in the wake of the public health crisis we are facing now.... Abortion is a procedure where time is of the essence and cannot be delayed without profound consequences.”
Over the weekend, two states made moves to ban certain abortions under the guise of preparing for the expected surge in coronavirus cases. In Ohio, Attorney General Dave Yost sent letters to three abortion clinics ordering them to stop performing “nonessential” surgical abortions that “can be delayed without undue risk to the current or future health of a patient.” In Texas, Gov. Greg Abbott ordered a halt to all procedures performed on patients not facing an immediate risk of “serious adverse medical consequences or death.” The Texas attorney general confirmed on Monday that most abortions would fall under the order.
Both officials have said the bans are necessary to reduce coronavirus-induced strain on health care systems and reserve personal protective equipment, including masks and gloves, for more urgent uses during a time of nationwide medical supply shortages. Their misclassification of abortion as nonessential health care betrays a deep-seated indifference for the health and welfare of pregnant women. Abortion care isn’t a delayable luxury, even during a pandemic. It’s essential preventive care—and if anything, it might be more essential than usual.
Abortion providers in Texas and Ohio have said they consider themselves exempt from the orders and will continue seeing patients, since the care they provide is necessary and time-sensitive. Though abortion care is extremely safe, it gets riskier, more expensive, and more difficult—or impossible—to access as a pregnancy progresses.
Thursday, March 19, 2020
Professor Anita Bernstein opens her book, The Common Law Inside the Female Body, with a startling “strange bedfellows” argument: William Blackstone and modern American feminists want the same thing. “The common law,” she argues “contains precepts and doctrines that strengthen the freedom of individuals; the feminist struggle against the subjugation of women pursues liberty.” Can this be the same Blackstone who articulated the doctrine of coverture and the severe impediments it imposed on the liberty of married women? His pronouncement that “the husband and wife are one person in law” — and that one is the husband — is the centerpiece of a doctrine that deprived married women of a panoply of civil rights like buying property, entering into contracts, and owning their own wages. These disabilities were lifted by statutes known as the “Married Women’s Property Acts,” but some impediments persisted into the twentieth century. But by the end of the book, Bernstein has made a compelling argument that common law principles, despite an inauspicious start, can “liberate women.” Indeed, there is little if anything in those principles that deprives women of the same rights as men. The common law may have “proceeded as if only men could enjoy its opportunities,” but that, she argues, is due to a “historical condition now supplanted.”
Once women became equal participants in civil society as well as in the justice system, there ceased to exist any basis for restricting the benefit of common-law principles to men. And, oh boy, the common law contains some juicy stuff that really could be deployed to advance the cause of gender equality. This Essay will consider and evaluate Bernstein’s argument that the common law supports a virtually unfettered right to terminate a pregnancy. It will situate her argument against the backdrop of the constitutional right of abortion, which has been the primary lens through which women’s reproductive rights have been viewed. The Essay will then consider the newly composed Supreme Court and the threat it portends to reproductive rights. It concludes by suggesting that the common law, as Bernstein understands it, could come to the rescue of women and their full humanity.
Friday, February 28, 2020
Abortion restrictions that were enacted when Republicans controlled Virginia’s General Assembly are being undone in legislation approved by the Democrats who are now in charge.
The House on Thursday gave final passage to a bill that would roll back provisions including a 24-hour waiting period before an abortion and a requirement that women seeking an abortion undergo an ultrasound and counseling. The measure would also undo the requirement that abortions be provided by a physician, allowing nurse practitioners to perform them, and do away with strict building code requirements on facilities where abortions are performed.
The Senate companion measure passed earlier in the week. The legislation now goes to Democratic Gov. Ralph Northam, who supports it.
“When this legislation goes into effect, Virginians will no longer have to navigate an obstacle course of delays and barriers in order to access a safe and legal abortion,” said Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia.
The measures passed largely along party lines, with staunch opposition from Republicans and religious advocacy groups that testified against it in committee hearings.
Republican Del. Kathy Byron said in a floor speech Thursday that the changes would lead to women being less informed about “maybe one of the most important decisions that they ever make.”
“What we're doing today is we're voting to deny women complete information on what an abortion means, its consequences, its implications, its alternatives," she said.
The law, passed Thursday in the House of Delegates, will repeal Virginia’s mandatory waiting period, which requires patients to wait 24 hours after a consultation to receive an abortion. It will allow certified nurse midwives and nurse practitioners to perform first-trimester abortion services and remove the requirement that providers give counseling to patients seeking abortions. It will also eliminate the requirement for an ultrasound before an abortion, a practice that can be traumatizing for patients. The American Medical Association says mandatory ultrasounds provide no “additional medically necessary information.” ***
“Those restrictions in the code were politically charged,” says Herring, “and it had nothing do with the provision of good care.”
Democratic state lawmakers across the country have passed similar abortion protections in the past year, as attacks on abortion access have ramped up in conservative states. In 2019, nine states—Illinois, New York, Rhode Island, Vermont, Maine, California, Nevada, New Jersey, and Hawaii—passed legislation protecting or expanding the right to an abortion. Maine also voted to allow certified nurse midwives and nurse practitioners to provide non-surgical abortions. Four states codified Roe v. Wade by enshrining the right to an abortion in their state law.
Herring says she hopes Virginia will be the next state to codify the right to an abortion. She notes that there are a record number of women from both parties in the legislature. “When women are elected and in power,” she says, “there will be a tendency that we make sure that we are protecting our interests.”
Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge Univ. Press 2020)
With the Supreme Court likely to reverse Roe v. Wade, the landmark abortion decision, American debate appears fixated on clashing rights. The first comprehensive legal history of a vital period, Abortion and the Law in America illuminates an entirely different and unexpected shift in the terms of debate. Rather than simply championing rights, those on opposing sides battled about the policy costs and benefits of abortion and laws restricting it. This mostly unknown turn deepened polarization in ways many have missed. Never abandoning their constitutional demands, pro-choice and pro-life advocates increasingly disagreed about the basic facts. Drawing on unexplored records and interviews with key participants, Ziegler complicates the view that the Supreme Court is responsible for the escalation of the conflict. A gripping account of social-movement divides and crucial legal strategies, this book delivers a definitive recent history of an issue that transforms American law and politics to this day.
Thursday, February 6, 2020
Symposium Book Discussion: The Common Law Inside the Female Body by Anita Bernstein
Symposium Contributors: Bridget J. Crawford, David S. Cohen, Joanna L. Grossman, Cyra Akila Choudhury, Margaret Chon, Maritza I. Reyes, Teri A. McMurtry-Chubb, Anita Bernstein
The Common Law Inside the Female Body: In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.
Wednesday, January 29, 2020
Medication abortion is incredibly common in the United States; it’s also incredibly safe. And it’s because of this relative ease and safety, in fact, that conservative states are now targeting it in the same ways they have targeted providers and clinics in recent decades: In 18 states, a provider must be physically present to prescribe abortion medication, a barrier compounded by the fact that nearly 40 percent of women in the U.S. aged 15–44 live in a county without an abortion clinic. A number of states also have laws on the books that criminalize people who terminate their own pregnancies, and “there have been at least half a dozen U.S. cases where women have been arrested and charged after attempting to self-induce an abortion using illicitly obtained abortifacients,” according to the Guttmacher Institute.
It is now 47 years after Roe v. Wade, and we are still someplace we’ve already been. But that sense of familiarity goes back even further than the landmark abortion case: 200 years ago, as medicines and tonics meant to cause abortion were made more accessible through advertising, laws targeted their use as well.
Abortion has gone from being legal to illegal in this country before, and with Roe in jeopardy, advocates for reproductive freedom have forecast a future that looks much like our past, when pills were a major part of abortion access—and an obsessive target for abortion opponents.
The story of abortion regulation and criminalization in the U.S. begins, in some ways, with the sale of abortion pills. Such open business was part of the reason states pushed to pass the first laws governing abortion in the 1820s and 1830s, according to Lauren MacIvor Thompson, historian at Georgia State University and author of the forthcoming Battle for Birth Control: Mary Dennett, Margaret Sanger, and the Rivalry That Shaped a Movement. “But they were mostly only governing the advertising and sale of abortifacient drugs.” The laws were meant to regulate, not to outlaw, abortion, she told me in an email.
This didn’t quell the demand for abortion—which was not really the point. Neither did criminalization drive abortion fully underground. Into the 1860s and 1870s, New York readers could still learn, however euphemistically, of the alleged effects and availability of “Dr. Vlcaoli’s Italian Female Monthly Pills” or “Chichester’s English Pennyroyal Pills,” in big city and local papers alike, from the New York Evening Telegram to the Syracuse Daily Standard. People using titles like “Professor of Midwifery” or “Professor of Diseases of Women” offered “A Certain Cure,” “safe and healthy,” for “immediate removal of all special irregularities in females, with or without medicine, at one interview.”
H/T Kimberly Hamlin
David Cohen & Carole Joffe, Obstacle Course: The Everyday Struggle to Get an Abortion in America (Introduction)
Book available here.
It seems unthinkable that citizens of one of the most powerful nations in the world must risk their lives and livelihoods in the search for access to necessary health care. And yet it is no surprise that in many places throughout the United States, getting an abortion can be a monumental challenge. Anti-choice politicians and activists have worked tirelessly to impose needless restrictions on this straightforward medical procedure that, at best, delay it and, at worst, create medical risks and deny women their constitutionally protected right to choose.
This forthcoming book tells the story of abortion in America, capturing a disturbing reality of insurmountable barriers people face when trying to exercise their legal rights to medical services. Authors David S. Cohen and Carole Joffe lay bare the often arduous and unnecessarily burdensome process of terminating a pregnancy: the sabotaged decision-making, clinics in remote locations, insurance bans, harassing protesters, forced ultrasounds and dishonest medical information, arbitrary waiting periods, and unjustified procedure limitations.
Based on patients’ stories as well as interviews with abortion providers and allies from every state in the country, Obstacle Course reveals the unstoppable determination required of women in the pursuit of reproductive autonomy as well as the incredible commitment of abortion providers. Without the efforts of an unheralded army of medical professionals, clinic administrators, counselors, activists, and volunteers, what is a legal right would be meaningless for the almost one million people per year who get abortions. There is a better way—treating abortion like any other form of health care—but the United States is a long way from that ideal.
Monday, December 9, 2019
Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life
The old claims that feminist suffrage leaders like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul were pro-life, are getting dusted off and used as the basis for pro-life advocacy, seeking a connection to the 2020 centennial of women's suffrage. One problem, however, is that they are not true.
Organizers of the March for Life have chosen "Life Empowers*: Pro-Life Is Pro-Woman" for the 2020 rally and march in Washington.
In embracing the theme, Jeanne Mancini, president of the March for Life Education Fund, cited the coming centennial of the 19th Amendment, which gave women the right to vote, and the views of early suffragists, including the best-known figure of the movement, Susan B. Anthony.***
Leaders of the suffrage movement, Mancini said, knew that "mothers and babies were not at odds with each other." Citing Alice Paul, leading strategist of the 19th Amendment, Mancini said Paul "referred to abortion as "the ultimate exploitation of women."
This was reinforced by another panelist, Serrin Foster, president of Feminists for Life, who said early American feminists condemned abortion "in no uncertain terms."
Abortion, Foster said, "was constantly referred to as child murder," and it was a frequently discussed topic in the feminist newspaper edited by Elizabeth Cady Stanton and to Anthony, the best known feminist leader of her age, was a frequent contributor.
A page on the website of the Susan B. Anthony House and Museum in Rochester, New York, disputes the notion Anthony can be considered a heroine to the pro-life movement, insisting her writings for the paper, called The Revolution, were mostly appeals to support the publication.
Similar claims have been made by the pro-life movement since the mid-1990s, in prior political campaigns, in college recruitment -- and in amicus briefs to the U.S. Supreme Court. This is not merely political rhetoric, but is being used as historical evidence to advocate for legal truth in the courts of law.
I've written extensively to dispute this claim, particularly the claim of pro-life as applied to pioneering feminist leader Elizabeth Cady Stanton. See Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. J. 1 (2012); Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, chp. 5 (NYU Press 2016).
As I explained the general context:
The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony, have traditionally opposed abortion. If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.
The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women’s rights. Since the second wave of the women’s liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest. The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman’s right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.
The lack of popular knowledge about the lives and work of women’s rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women’s lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it.
Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true.
The evidence alleged of Stanton's position is meager, a handful of quotes, only 2 of which can be attributed to Stanton, and the two do not endorse a pro-life stance. The other anonymous articles published in Stanton's newspaper were more likely written by, and selected by, the male managing editor of the paper, Parker Pillsbury, a former minister who was on the record as opposing abortion (although against criminalization of it).
What Stanton did talk about was women's reproductive choice, and voluntary motherhood. Maternity was woman's sole choice, unrestricted by men or government. Stanton also took up the public defense of Hester Vaughn, a young woman convicted of infanticide. Her extensive writings on both these subjects reveal a strong support for women's autonomy and choice in reproduction, a precursor to the modern pro-choice movement.
As to Susan B. Anthony, scholars of her life and work -- eminent historians Ann Gordon, Lynn Sherr, Stacy Schiff, and Christine Stansell, all strongly refuted that Anthony was pro-life, or said much of anything about it at all. These historians concluded that “Anthony spent no time on the politics of abortion. It was of no interest to her despite living in a society (and a family) where women aborted unwanted pregnancies.”
- Ann Gordon & Lynn Sherr, Sarah Palin is No Susan B. Anthony, WASH. POST (May 21, 2010)
- Stacy Schiff, Desperately Seeking Susan, NYT (2006)
- Christine Stansell, Meet the Susan B. Anthony List, the Anti-Abortion Group Pushing Presidential Politics to the Extreme Right, New Republic (2011)
As I concluded:
It is simply not the case that nineteenth-century feminist leaders expressed explicit and unanimous support for the criminalization of abortion because of the concern of the morality of prenatal life. . . . [T]he few feminist voices joining the periphery of the abortion debate did not support the regulation of abortion. Instead, these writers defended women against the abortion campaign’s attack and shifted the moral blame to men and to society’s oppression of women. What feminists did unanimously endorse was voluntary motherhood and the right of women to control procreation through abstinence. Stanton expanded on this idea, arguing for a woman’s right to be the “sovereign of her own person,” which meant the right to choose when and under what conditions she would become pregnant. Stanton empathized with women who had unwanted pregnancies and argued against a legal system that imposed punishment upon women for infanticide. This advocate of women’s individual right to control makes an unlikely leader for today’s antiabortion movement.
Tuesday, November 5, 2019
Since at least the 1960s, public debate over abortion rights has frequently turned to issues of disability. Those who argue for liberalization of abortion laws have often been successful by raising the specter of fetal disability — whether caused by Thalidomide, or rubella, or otherwise. Those who agitate for restricting or banning abortion, by contrast, have often argued that pro-choice advocates devalue the lives of people with disabilities.
In the spring of 2019, disability and abortion rights collided at the Supreme Court. Indiana had adopted a law “barring the knowing provision of sex-, race-, or disability-selective abortions by abortion providers.” The Seventh Circuit invalidated that law. In Box v. Planned Parenthood of Indiana & Kentucky, the Supreme Court denied certiorari (though it summarily reversed the Seventh Circuit’s invalidation of a separate Indiana law regulating the disposal of fetal remains). Justice Thomas concurred in the denial of certiorari, but he filed a lengthy separate opinion arguing that the ban on selective abortions was constitutional. He argued that “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written in a case in which individuals with developmental disabilities challenged a District of Columbia policy that denied them the right to make decisions about their medical care. The case was Doe ex rel. Tarlow v. District of Columbia. The D.C. Circuit reversed a district court decision enjoining that policy. Judge Kavanaugh’s opinion did not say anything specifically about reproductive rights. He treated the case entirely as one about the (lack of a) right of incompetent persons to consent to medical treatment. But the case itself was very much a reproductive rights case. Two of the three plaintiffs had been forced to have abortions without their consent; they sued precisely to challenge the policy that had taken away their power to choose. Although Kavanaugh had a reputation as a strong “pro-life” judge, here he voted to uphold government decisions to require individuals with intellectual disabilities to have abortions. Debate over disability and reproductive rights has typically focused on the issues raised by Justice Thomas’s opinion in Box — whether fetal disability is an acceptable reason for terminating a pregnancy, and what the law should do about it. Those are important questions. But any full assessment of the intersection between disability and reproductive rights must also address the issues raised by then-Judge Kavanaugh’s opinion in Doe. Disabled people are frequently denied their own rights to conceive, bear, and parent children, whether through forced sterilization or abortion, the denial of assisted reproduction, or the denial of parental rights once their children are born. Some of these practices — notably forced sterilization — are emblematic of the Eugenics Era. But they are not at all confined to the past. Indeed, the practices that prevent people with disabilities from having and raising children — practices like the law Kavanaugh upheld in Doe — are in many ways the disability analogues of the race-based eugenic practices that Justice Thomas himself decried in his Box opinion.
This essay offers a fuller consideration of the intersection of disability and reproductive rights. It does so by considering the legal and societal treatment of fetuses and children with disabilities alongside the legal and societal treatment of parents with disabilities. And it does so by bringing to bear insights drawn from two distinct social movements: the disability rights movement, and the reproductive justice movement. The piece argues that, taken together, the disability rights and reproductive justice perspectives offer substantial purchase on the questions raised by Justice Thomas in his Box concurrence. Those perspectives suggest that the questions are serious indeed but that Thomas gave the wrong answer to them. They also suggest that any effort to address the intersection of disability and reproductive rights needs to address the questions raised by then-Judge Kavanaugh’s Doe opinion — and that Kavanaugh, too, gave the wrong answer.
Friday, October 4, 2019
Getting up to Speed on the Issues in June Medical Services, the Abortion Case Just Granted Cert by the Supreme Court
The US Supreme Court granted cert on Oct. 4, 2019, in June Medical Services v. Gee, https://www.supremecourt.gov/orders/courtorders/100419zr_onkq.pdf
The issue is " Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt."
The case page from SCOTUSblog is here, including the docket and prior commentary.
Justice Kavanaugh's opinion dissenting from the grant of a stay in the case in Feb. 2019 is here.
[T]he status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period. I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.
Louisiana’s new law requires doctors who perform abortions to have admitting privileges at a nearby hospital. The question presented to us at this time is whether the law imposes an undue burden under our decision in Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016). All parties, including the State of Louisiana, agree that Whole Woman’s Health is the governing precedent for purposes of this stay application. I therefore will analyze the stay application under that precedent. Louisiana has three clinics that currently provide abortions. As relevant here, four doctors perform abortions at those three clinics. One of those four doctors has admitting privileges at a nearby hospital, as required by the new law. The question is whether the other three doctors—Doe 2, Doe 5, and Doe 6—can obtain the necessary admitting privileges. If they can, then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden for purposes of Whole Woman’s Health. By contrast, if the three doctors cannot obtain admitting privileges, then one or
two of the three clinics would not be able to continue providing abortions. If so, then even the State acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.
The law has not yet taken effect, so the case comes to us in the context of a pre-enforcement facial challenge. That means that the parties have offered, in essence, competing predictions about whether those three doctors can obtain admitting privileges.
My prior blog post on the Kavanaugh dissent in the grant of the stay, and his inversion of the usual standard of the status quo for preliminary injunctions, is here at Understanding More About Justice Kavanaugh's Dissent.
An excellent symposium and deep dive on the implications of the case is at the Take Care blog, here.
June Medical Services v. Gee is the Supreme Court’s next opportunity to weigh in on women’s constitutional right to decide to end their pregnancies
Alicia Bannon & Jennifer Weiss-Wolf, June Medical Services’ Double Threat to the Rule of Law
In recent months, commentators and the justices themselves have raised concerns about declining public confidence in the judiciary. But confidence has to be earned. Enforcing the law and summarily reversing the Fifth Circuit is an essential first step.
Ideological lower court judges have challenged the Supreme Court by defying its precedent. There is one way for the Court to keep from being put in this position time and again. It should summarily reverse, making clear that only the Court will decide when its own precedent is no longer good law.
Mary Ziegler, The Anti-Abortion Movement's Unworkability Strategy
Antiabortion lawyers think that they can turn a fact and evidence-based legal standard into an argument against stare decisis, which would advance their ultimate goal of overturning Roe. In June Medical, it is time for the justices to prove them wrong.
What is clear in June Medical Services v. Gee, as with the other antiabortion measures making their way through the courts, is that these targeted regulations of abortion providers have nothing to do with protecting women or their health
Mary Bonatuo & Shannon Minter,Pavan and June Medical Services
Pavan and June Medical Services are both examples of lower courts bending over backwards to avoid the clear command of Supreme Court precedent. Both merit the same treatment from the Supreme Court – summary reversal.
Leah Litman, June Medical And The End of Reproductive Justice
While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions would allow states to regulate abortion out of existence
Thursday, September 26, 2019
In what could be seen as defiance of the Court and indifference to Whole Woman’s Health, the Louisiana’s legislature did not repeal the “Unsafe Abortion Protection Act” or Act 620—its version of the Texas law, which requires “a physician performing or inducing an abortion” to “[h]ave active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” To place in context the Louisiana legislature’s brazen disregard of Whole Woman’s Health, imagine that state enacted a separate but equal public school segregation law based on race, in the wake of Brown v. Board of Education striking down such legislation.
Even more curious, imagine if the court of appeals upheld it.
One need not study this hypothetical too long nor relitigate the shameful horrors of Jim Crow in Louisiana and throughout the American south to recognize the harms it would inflict on Black students in Louisiana if such a law were in effect. The vestiges and badges of slavery would be apparent. Indeed, any claims by Louisiana that its version of separate but equal was so factually different such that Brown does not apply would be farcical. The distinctions are irrelevant when the very principle violates the constitution. Brown did not apply only in Topeka, Kansas.
In the present case, not surprisingly, both doctors and clinics challenged Louisiana’s law, securing a permanent injunction at the district court level, which the Fifth Circuit vacated in June Medical Services v. Gee. Unconvinced that the facts undergirding Whole Woman’s Health applied in Louisiana, the Fifth Circuit lifted the injunction. In doing so, the court brushed aside that more than half the clinics in Texas closed in light of the Texas admitting privileges law going into effect, because doctors could not obtain such privileges; the closure of clinics meant that in some cases women traveled hundreds of miles in order to terminate a pregnancy or simply lost access altogether; and admitting privileges bore no relation to physician competency or protecting women’s health, because abortions are safe procedures that nearly never require any form of hospitalization. ***
The Supreme Court, in a 5-4 decision voted to stay the Fifth Circuit’s decision, which allows the district court’s injunction to remain in effect until the Court decides whether to grant certiorari this fall. Tellingly, Justice Kavanaugh dissented in the ruling, giving strong indication of not only his vote should the Court grant certiorari, but also his jurisprudence on abortion rights in cases to come.
What June Medical Services teaches is the power of the antiabortion playbook to take root in legislatures across the country, causing the repeat play of legislation already determined unconstitutional by the Supreme Court (Minnesota legislators proposed an ambulatory surgical standards law, which I testified against—also after Whole Woman’s Health). The goal of the playbook is to hobble abortion access and one powerful means of doing so is to surreptitiously drive doctors out of their practices, thereby forcing clinics to close, leaving women with virtually no options for safe termination of unintended, unwanted, or unsafe pregnancies.
Throughout the year, the justices meet periodically to decide if they want to add more cases to the short list of lawsuits that are argued before the Court. Monday is the Court’s “long conference,” the annual meeting where the justices consider the backlog of petitions that were filed while the Court was on its summer break, each of which ask the Court to hear a particular case.
One of those petitions concerns June Medical Services v. Gee, a case involving a Louisiana abortion restriction that will be very familiar to anyone who’s followed the last several years of abortion litigation.
To recap: Three years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court considered a Texas law that imposed burdensome restrictions on abortion clinics that, at least on the surface, appeared to be ordinary health regulations. One provision required any physician performing an abortion in Texas to have admitting privileges at a nearby hospital (a credential that is especially difficult for abortion providers to obtain). Another required abortion clinics to maintain expensive facilities, such as “a full surgical suite with an operating room.”
Whole Woman’s Health was a challenge to what abortion-rights advocates often refer to as “targeted restrictions on abortion providers” or “TRAP” laws — laws that masquerade as efforts to make abortions safer but whose real purpose is to drive up the cost of operating abortion clinics until they shut down.
Many abortion clinics, for example, only offer medication abortions — a non-surgical abortion induced by pills. As Whole Woman’s Health explained, “the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication” because “complications would almost always arise only after the patient has left the facility.” Simply put, it makes no sense to require facilities that perform no surgeries to have a full surgical suite.***
Which brings us back to Gee, the case the Court will discuss next week. The Louisiana law at issue in that case is nearly identical to the admitting privileges law struck down in Whole Woman’s Health. Nevertheless, a panel of the conservative United States Court of Appeals for the Fifth Circuit upheld this extraordinarily similar law, largely resting its decision on a contested factual claim that it may be easier for doctors to obtain admitting privileges in Louisiana than it is in Texas.
That prompted a strongly worded dissent from Judge Patrick Higginbotham, a Reagan appointee. The Fifth Circuit majority, Higginbotham wrote, ignored the Supreme Court’s command that “‘unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden’ on the exercise of that right.”