Friday, November 11, 2022
After Roe and Dobbs: Seeking Reproductive Justice in the Next Fifty Years, Boston University School of Law, January 26, 2023
It is impossible to overstate the importance of exploring the legacy and future of Roe v. Wade in the wake of the Supreme Court’s watershed decision in Dobbs v. Jackson Women’s Health Organization. The constitutional, political, and policy landscape is changing by the day, with major implications for law, medicine, and public health. This symposium marks what would have been the 50th anniversary of Roe and will evaluate various dimensions of reproductive justice as it existed until Dobbs and into the next 50 years. The symposium has a multi-disciplinary approach, which will include attention to law, history, social movements, health equity, and reproductive health and justice, including the critical role of advocates in Boston and the Northeast region. A related issue of the Journal of Law, Medicine & Ethics will be co-edited by Professors Aziza Ahmed, Nicole Huberfeld, and Linda McClain, to be published in the fall of 2023.
This symposium will occur Thursday, January 26, 2023 at BU School of Law and is co-sponsored by BU Law and BU School of Public Health, and is part of BU Law’s commemoration of its 150th anniversary (For those interested in coming to Boston, our timing coincides with “The Age of Roe” conference at Harvard Radcliffe on Friday, January 27th.)
This symposium is an inaugural event for BU Law’s new program in reproductive justice, which will launch officially in fall 2023.
Thursday, November 3, 2022
The Private Veto Nondelegation Doctrine and its Potential for Challenging Abortion Restrictions and Religious Exceptions to Contraception and Health Care
Jessie Hill, Due Process, Delegation, and Private Veto Power, Iowa L. Rev. (forthcoming)
Nondelegation doctrine is enjoying a scholarly revival. Some commentators have read the U.S. Supreme Court’s 2019 decision in Gundy v. United States to portend new limitations on Congress’s ability to give away its authority to the executive branch. A recent decision involving Amtrak’s entitlement to exercise regulatory authority raised similar questions about delegation to private entities. Together, these cases may suggest imminent new constraints on the administrative state, generating urgent reconsideration of the purpose and application of the nondelegation doctrine.
This Article is focused on one particular line of nondelegation cases that has received less attention in the nondelegation debate: those involving private vetoes. The private-veto doctrine holds that the government cannot, consistent with the Due Process Clause, grant standardless control to private individuals or entities over the property or liberty of others. Rather than waxing and waning like other forms of nondelegation, the private-veto doctrine has retained vitality for over a century. In fact, it is woven into a variety of constitutional doctrines, and it helps to explain cases like Larkin v. Grendel’s Den and City of Cleburne v. Cleburne Living Center, which embody the principle that due process is infringed when the government enables private individuals to exercise sovereignty over others based on illicit motives.
Yet, joining the private-veto doctrine with other nondelegation doctrines has resulted in courts and scholars both misunderstanding what is unique and important about this line of cases and failing to analyze legal questions properly. This particular delegation doctrine is primarily concerned not with separation of powers, but with arbitrary uses of power, including those motivated by pecuniary bias and by personal prejudices against unpopular groups. Thus, in addition to urging a more clear-eyed reconsideration of the private-veto doctrine, this Article suggests that the doctrine may be relevant to current constitutional controversies in ways that have not be previously recognized. In particular, it may provide a stronger basis for litigating certain kinds of abortion restrictions, as well as a new route for challenging statutes that empower religious individuals to deprive third parties of access to contraception and other forms of health care.
Thursday, October 27, 2022
Monday, October 24, 2022
During Summer 2022, while I was taking a break from blogging for health reasons, I published this Op. Ed. with NBC News. I cautioned that abortion bans would quickly create a tale of two healthcare systems for pregnant women far beyond abortion access, focusing on my own experiences with breast cancer as I moved employment from Kentucky to Virginia.
The ACLU of Ohio has now submitted affidavits in court documenting this occurrence along with many other harms to pregnant persons. The filing describes a woman with stage III melanoma who was was forced to suspend cancer care until she terminated her pregnancy, which she could not do legally in Ohio.
An Article published by Katherine Van Loom, MD, and Jordyn Silverstein, MD, in JAMA Oncology (August 2022) reports that
Approximately 1 in 1,000 pregnancies are affected by a concurrent cancer diagnosis. The most common cancers include breast cancer, cervical cancer, lymphoma, ovarian cancer, leukemia, colorectal cancer and melanoma. Termination of the pregnancy occurs in 9% to 28% of cases, with many occurring in the first trimester.
The 19th reported on this issue in its article Abortion Bans are Preventing Cancer Patients from Getting Chemotherapy. Shefali Luthra, writing for The 19th on October 7th explained the complexities:
Those are often emotionally fraught conversations . . . particularly for patients who intended to become pregnant and did not know about their cancer. If the disease is still in its early stages, some may attempt to surgically remove it, then wait for the pregnancy to reach its second trimester. If needed, they can begin chemotherapy at that point, hoping that the cancer has not progressed too far in the meanwhile.
But others, particularly those whose cancer is already more advanced, may need to get an abortion, begin chemotherapy and then try to become pregnant after, once they have completed treatment. There are even further complications there since chemotherapy can damage someone’s fertility.
In those cases, telling patients that they cannot receive an abortion in state becomes even more difficult. * * * “And then you have to say, ‘By the way, the state of Tennessee doesn’t think you’re dying enough, so for you to get the care you need now that you’ve made this tough decision, you have to go to an abortion clinic out of state.”
Thursday, October 20, 2022
h Carolina Supreme Court justices grilled lawyers over the extent of the right to privacy in a case Wednesday that could determine the scope of the state's abortion restrictions.
The hearing marked the latest legal challenge to South Carolina's 2021 ban on abortions after cardiac activity is detected, typically around six weeks, with exceptions for pregnancies caused by rape or incest, or those that endanger the patient's life.
The law — previously suspended by federal courts — took effect shortly after the U.S. Supreme Court overturned Roe v. Wade. The state's high court temporarily blocked it in August as the justices considered this case.
Julie Murray, a Planned Parenthood Federation of America staff attorney representing the challengers, argued that the state's right to privacy, ratified in 1971, should be broadly interpreted to encompass abortion.
Justice John Kittredge said privacy is not an “amorphous” right and sought an objective legal framework for determining just how far it should extend.***
Kevin Hall, a lawyer representing the state Legislature, argued that historical context shows the right to privacy applies only to searches and seizures. Justices questioned whether that reading might be too narrow. When asked by Few if the Legislature could therefore also restrict birth control, Hall said no.
Beatty asked if a person has the right to make their own medical decisions. Hall said that yes, that right is protected by due process. But Hall said abortion differs from medical treatments because it involves multiple interests: “the life of the unborn” and the patient.
Monday, October 17, 2022
Maya Manian has posted an abstract on "A Health Justice Approach to Abortion" on SSRN. Here is an excerpt:
The Supreme Court’s watershed decision in Dobbs v. Jackson Women’s Health Organization overturning fifty years of precedent protecting abortion rights has led to chaos in both the legal and public health landscapes. With Roe v. Wade eliminated, new legal frameworks are urgently needed to help regain access to comprehensive reproductive health care in the long term. Recently, a number of legal scholars have argued in favor of “medical civil rights”—that medicalizing rights could be used for advancing civil rights in the realms of anti-discrimination, housing, disability, and poverty rights. Medical civil rights uses the framework of health justice to talk about civil rights issues such as fair housing, race discrimination in policing, and poverty as public health issues. This Article is the first to extend the health justice framework to abortion. The health justice framework offers a new form of medicalization that could advance more equitable access to reproductive health care.
However, medicalization has a complicated history in the legal regulation of abortion. Although scholars do not all agree on a definition of the concept, medicalization is typically defined as the framing of a phenomenon as medical in nature and properly within the jurisdiction of medical experts in terms of decision-making authority. Feminist scholars have often viewed medicalization suspiciously, especially in the context of reproduction, since medicalization has tended to correspond with physician control over women’s bodies. In the last few decades of intense debate over abortion, the focus has been on abortion as a civil right, but the notion of abortion as a medical concern has been lost since Roe in part due to feminist push back against medicalizing abortion rights. As a result, abortion has been siloed from healthcare in the law and segregated from mainstream medicine. This Article challenges feminist legal scholars’ critiques of medicalization of abortion in the Supreme Court’s abortion jurisprudence. It threads together the literatures on medicalization and the burgeoning legal scholarship on medical civil rights and health justice to argue in favor of re-medicalizing abortion rights. Yet, unlike the medicalization of the past, a health justice approach to abortion offers the potential to advance more equitable access to abortion care in a post-Roe world.
Tuesday, October 4, 2022
On Sept. 22, nine days after being sworn in as congressman, Ryan, D-Gardiner, introduced the “Protecting Reproductive Freedom Act.”
The bill would pre-empt state laws that prohibit women from accessing abortion medication through telehealth and would require a report to Congress on additional ways to expand access to reproductive health care.
“A woman’s right to choose is one of this country’s foundational freedoms, and there is no place for government interference in these private medical decisions, yet extremist state lawmakers are restricting access to FDA-approved abortion medication and even threatening to open Americans’ mail to stop the delivery of doctor-prescribed healthcare services,” Ryan said in a press release announcing the measure. “This legislation would ensure that women across the country can access this safe and effective medical treatment.”***
Since January, legislators in at least 20 states have proposed bills that would restrict or ban access to those abortion pills, which were approved more than two decades ago by the U.S. Food and Drug Administration, as well as bills that would require women to obtain those medications from a doctor in person
SCOTUS Case on Animal Welfare Could Implicate State Power to Ban Abortion Pills Under the Dormant Commerce Clause
In October, the Supreme Court will hear oral argument in National Pork Producers Council (NPPC) v. Ross—a challenge by the pork industry to a California law that was adopted by referendum in 2018. Proposition 12 sets minimum welfare standards for the pigs raised for meat sold in California. Nearly all pork products sold in California come from pigs raised in other states. Thus, the plaintiffs—representing pig farmers, butchers, and the pork industry nationwide—argue that California is unconstitutionally regulating the interstate market.
The Constitution assigns to Congress the power to regulate interstate commerce, and the Court has long held that even when Congress does not exercise that power—i.e., when the commerce power remains “dormant”—states may not take certain measures to regulate interstate. However, the lower court held that Prop 12 is not the kind of measure that the dormant Commerce Clause forbids.
The chief evil at which dormant Commerce Clause precedents aim is discrimination. States should not engage in trade wars with one another by erecting protectionist barriers against out-of-state competition.***The plaintiffs do, however, raise two other sorts of dormant Commerce Clause claim. First, they invoke the principle that even a non-discriminatory state law will be held invalid if its out-of-state burdens are clearly excessive relative to its in-state benefits. Second, they contend that Prop 12 is essentially an extraterritorial regulation. Just as Iowa could not forbid the recreational use of marijuana in California, so California may not tell farmers in Iowa and other states how to treat their pigs.***
[A]lthough the dormant Commerce Clause might not forbid states from banning importation of abortion pills from out of state, here the Commerce Clause does not lie dormant. Congress exercised its power to regulate the movement of medications in interstate commerce when it enacted the Food, Drugs, and Cosmetics Act. In so doing, Congress delegated to the Food and Drug Administration (FDA) the power to approve drugs. While states may still regulate the practice of medicine, there is pretty good reason to think that FDA approval of abortion pills pre-empts (that is, displaces and nullifies) state laws restricting their sale or use. By contrast, the plaintiffs in NPPC do not contend that any current federal statute pre-empts Prop 12.
Thursday, September 22, 2022
Ohio Court Grants TRO Blocking Six Week Abortion Ban on Grounds of State's Health Care Freedom Amendment
I've been writing an essay for the Journal of Law, Medicine & Ethics on how state so-called Health Care Freedom Acts and Amendments enacted as symbolic protests to the individual insurance mandate of the federal Affordable Care Act provide an arguable basis for a recognized state right to abortion. The essay was a lot harder to write before last week, when the Ohio court rule on these grounds.
A Hamilton County judge overseeing a lawsuit challenging Ohio’s “heartbeat” abortion ban plans to issue a second order temporarily blocking the law, according to a lawyer involved in the case.
Judge Christian A. Jenkins, a Democrat, last week issued what’s called a temporary restraining order, pausing the law from being enforced for 14 days while he deals with arguments in the case.***
Once the second order comes, Ohio abortion clinics will be able to provide abortions up until 22 weeks from a woman’s last menstrual period at least through Oct. 12. That would extend the pause until after an Oct. 7 hearing Jenkins has scheduled for a more permanent order blocking the law while both sides argue their case.***
Jenkins has indicated he plans to rule in favor of abortion advocates, agreeing with their arguments that equal-protection guarantees contained in Ohio’s constitution covers the right to obtain an abortion. He noted a 1993 decision from a state appellate court that found the Ohio Constitution confers greater abortion rights than the U.S. Constitution, including a broad scope of the meaning of “liberty.”
The full opinion is here: Preterm Cleveland v. Yost (Ohio C.C.P. Sept. 14, 2022) (TRO Decision)
No great stretch is required to find that Ohio law recognizes a fundamental right to privacy, procreation, bodily integrity and freedom of choice in health care decision making. In 2011, the Ohio Constitution was amended by popular referendum to adopt the Health Care Freedom Amendment (Article I, Section 21) (“HCFA”). The plain language of subsections B and C of the HCFA is simple and clear: (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance. (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.
The State Defendants argue that the HCFA was intended by its drafters to provide a legal basis for Ohio and Ohioans to undermine or avoid the federal Affordable Care Act, not to outlaw health care regulation in Ohio. They point to the language in subsection (D) providing in pertinent part that “[t]his section does not . . . affect any laws calculated to deter fraud or punish wrongdoing in the health care industry” to suggest that the Amendment does not render health care regulations unconstitutional. But this misses the point – as a result of the HCFA, the Ohio Constitution contains a direct recognition of the fundamental nature of the right to freedom in health care decisions.
The fact that no one has yet challenged any existing health care regulations under the HCFA does not negate the import of its plain language.10 The HCFA does not define “health care,” but the use of the disjunctive “or” renders the term separate and distinct from the purported target of the amendment – health insurance. Abortion, whether procedural or medication, clearly constitutes health care within the ordinary meaning of that term. Moreover, the drafters could have excluded existing and future regulation of the health care profession, or even abortion specifically, but they did not.
Rather, the exception in subsection D is limited to fraud and the nebulous term, “wrongdoing,” without providing any definitional or interpretive guidance. Wrongdoing is defined as “illegal or improper conduct.” Black’s Law Dictionary 1932 (11th Ed.2019). At the time of the HCFA’s adoption in 2011, abortion had been constitutionally protected as the law of the land for nearly 40 years, and could hardly be considered “wrongdoing.” Finally, S.B. 23 was adopted years after the HCFA such that the General Assembly was presumably aware of its provisions recognizing a fundamental constitutional right to choice in healthcare decisions.
This Court cannot simply ignore part of Ohio’s Constitution because the Ohio Attorney General asserts it is not germane to this case. Nor must the Court defer to the General Assembly on questions of law such as those presented in this case, for “’[i]t is emphatically the province and duty of the judicial department to say what the law is.’ Our function here is to determine whether the act transcends the limits of legislative power.” Adams v. DeWine, __ Ohio St. 3d __, 2022-Ohio-89, ¶ 28 (rejecting Congressional district plan adopted by General Assembly in contravention of Ohio Constitutional amendment enacted by popular referendum); citing Marbury v. Madison, 5 U.S. 137, 177, 2 L. Ed. 60 (1803).
The HCFA represents an express constitutional acknowledgement of the fundamental nature of the right to freedom and privacy in health care decision making. Read together with other applicable sections of the Ohio Constitution, a clear and consistent recognition the fundamental nature of this right under Ohio law emerges. See e.g. Planned Parenthood Southwest Ohio Region v. Ohio Dept. of Health, Hamilton C.P. No. A 2100870, p. 6 (Jan. 31, 2022) (“Deprivation of reproductive autonomy falls squarely within the meaning of an injury done to one’s person under the Ohio Constitution”), citing Stone v. City of Stow, 64 Ohio St. 3d 156, 160-163, 593 N.E.2d 294 (1992). Accordingly, this Court recognizes a fundamental right to abortion under Ohio’s Constitution.
Monday, September 19, 2022
The American Medical Association, in response to a letter from Senator Warren, wrote a formal letter to the United States Senate on state abortion restrictions dated September 9th. Key excerpts emphasized compromised patient care, vague and complicated state laws, and the importance of doctor-patient decision-making.
While AMA policy recognizes that our members’ individual views on abortion are determined by their own values and beliefs, we firmly and unequivocally support patients’ access to the full spectrum of reproductive health care options, including abortion, as a right. Our policies are the result of a democratic process in which physicians representing every state and national specialty medical society come together in our House of Delegates. In alignment with our long-held position that the termination of a pregnancy is a medical matter between the patient and physician, subject only to the physician’s clinical judgment, the patient’s informed consent, and access to appropriate facilities, the AMA opposes any government or any other third-party interference that compromises or criminalizes patient access to safe, evidence-based medical care. Unfortunately, patient care is being compromised now, patients are suffering from lack of access to necessary care, and some are at risk of dying due to delayed care in the context of termination of ectopic pregnancies or patients experiencing intrauterine infections, pre-eclampsia, malignancies, or hemorrhage during pregnancy.
* * *
Physicians have been placed in an impossible situation—trying to meet their ethical duties to place patient health and well-being first, while attempting to comply with vague, restrictive, complex, and conflicting state laws that interfere in the practice of medicine and jeopardize the health of patients.
* * *
The foundation of the patient-physician relationship relies upon honest, open communication and trust, which is undermined by substituting lawmakers’ views for a physician’s expert medical judgment. It is each physician’s ethical responsibility to help his or her patients choose the optimal course of treatment through shared decision-making that is fully informed by evidence-based medical science and definitively shaped by patient autonomy. Anything less puts patients at risk and undermines both the practice of medicine and our nation’s health. The AMA Code of Medical Ethics states that “The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.” The AMA opposes any effort to undermine the basic medical principle that clinical assessments, such as viability of a pregnancy and safety of the pregnant person, are determinations to be made only by health care professionals with their patients.
Thursday, September 8, 2022
Most recent news posted at top of each category.
It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.
This post identifies and summarizes the key areas of action now happening in the post-Roe world.
Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election
New State Laws:
NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)
Guttmacher Inst., An Overview of Abortion Laws
Challenges to State Abortion Bans:
Sistersong Women of Color Reproductive Justice Collective v. Georgia (11th Cir. July 20, 2022)
Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans
Ninth Amendment arguments:22
Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment
First Amendment Religion arguments:
Executive Action- presidents and governors
Liability for Pregnant Women:
FDA Preemption of Abortion Pills:
First Amendment Rights of Speech and Advising
Out of State Travel:
Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online
Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More
Federal Enclaves/Tribal Jurisdiction:
Other Constitutional Liberties: contraception, marriage, LGBTQ
What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)
State Constitutional Amendments: pro-choice and anti-abortion
See Paul Lipford, Abortion Under States Constitutions (3d ed. 2020) (Carolina Press)
See generally Legal Scholarship:
Strict Scrutiny Podcast, Roe is Dead; Now What?
David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground
Voters and Elections:
Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach
Protests and Activism:
Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits
Focus on Abortion Medications: self-managed, FDA preemption, legal delivery
Contraception: double layer contraception, increase in vasectomies
Digital Privacy & Period Tracking Apps:
Doctors and Women's Medical Care:
Disparate Effect Race and Poor Women:
Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution
Companies and cities paying travel expenses:
Information & Assistance:
Abortion Finder Org Site ("The pink book" of where to access providers)
Rebecca Traister, The Necessity of Hope: "It means doing the thing that people have always done on the arduous path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity."”
Tuesday, July 26, 2022
Sophia Ballog, Will Laws Requiring CA Doctors to Report Abuse Put Out-of-State Abortion Patients at Risk? , SF Chronicle
The story of an Ohio 10-year-old who traveled to Indiana for an abortion after she was raped sparked a national media frenzy earlier this month.
It also raised questions about what legal obligations doctors have to report instances of minors receiving abortions and whether that could alert authorities in their home state that they had the procedure.***
Several bills to prohibit California agencies from sharing information about abortions with law enforcement in other states are currently moving through the legislative process. AB1242 would bar police from providing information about abortions to people or agencies from out of state. Another bill, AB2091, would prohibit health providers from releasing a patient’s medical information in response to a subpoena based on another state’s abortion ban.
Earlier this year, California enacted a law shielding people who get abortions or help others obtain abortions, such as doctors who perform the procedure, from civil liability.
Gov. Gavin Newsom also issued an executive order prohibiting state agencies and departments from sharing medical records related to reproductive health care with an agency in another state. Through the order, he also announced he will decline non-fugitive extradition requests for abortion-related charges.
At the same time, some lawmakers in conservative states are trying to pass laws that would restrict their residents from traveling out of state for an abortion. Newsom has said he believes Texas’ abortion ban, which allows private citizens to sue people who help women obtain abortions, could be used to sue people in California who help women from Texas get abortions or people who help them travel to the state.***
Jessica Levinson, a professor at Loyola Law School in Los Angeles, said she doesn’t think laws that aim to regulate travel to other states for an abortion will hold up under legal scrutiny, though she acknowledged there’s some debate among legal scholars about the issue.
Even so, efforts to ban interstate travel for abortions could still be intimidating for people. Levinson argued in a recent MSNBC op-ed that efforts like the attempts to intimidate the doctor who performed the abortion for the Ohio 10-year-old will have a chilling effect.
Mandated-reporting laws are coming under more intense scrutiny since Roe was overturned because they create data that could be used by entities or law enforcement in states that ban abortion to reveal someone traveled out of state to obtain the procedure, said Tracy Thomas, a constitutional law professor at the University of Akron in Ohio.
”That’s the concern we have with a lot of these reporting laws,” she said. “If you require the report, will that trigger further harm to that person?”
Even if the form for a mandated report of abuse doesn’t include any information about the minor’s abortion, just the fact that a mandated reporter was a doctor at a California clinic that provides abortions could be a sign the minor had the procedure, she said. Efforts to ban residents from traveling to other states to obtain abortions are new and untested, so it’s difficult to say whether or how that information might be used against a minor or their family, but it’s a reasonable question in the wake of Roe being overturned, she said.
”Everybody’s worried about data out there, whether it’s your period app, or whether it’s your GPS following where you’ve been,” she said. “Those are all normal ways that criminal law enforcement uses to figure out what happened, so those become areas of concern.”
Monday, July 11, 2022
Nevertheless, researchers recently announced that male birth control trials with mice were wildly successful—99 percent effective at preventing pregnancy.
The new pill, created by a team at the University of Minnesota, blocks proteins from binding to vitamin A, which is crucial to fertility and virility in mammals. In addition to the drug being virtually able to block all pregnancies, the researchers said the pill has no apparent side effects. The findings were shared in March at the annual meeting of the American Chemical Society.***
The sexism behind birth control is blatant. Why do women bear most of the burden of preventing pregnancy? Researchers have traditionally paid much more attention to birth control for women than men, male birth control researchers acknowledge—from pills to patches to intrauterine devices. Seeing men expand birth control options—including taking more responsibility—is essential, especially now.
When male mice were given the drug orally for just four weeks, researchers found they had such a steep drop in sperm count that they became sterile. Yet, when the team stopped dosing the animals, the drug’s effects reversed: The mice bounced back to normal virility in four to six weeks.***
Because this contraceptive is non-hormonal, it’s likely to have fewer side effects, researchers say. Earlier attempts at male birth control pills largely worked by blocking testosterone, which can lead to depression, weight gain and decreased libido. Even when scientists super-dosed the mice with the new drug, the rodents seemed to do just fine, Noman noted.***
As noted, the side effects of weight gain, depression and increased levels of LDL made testosterone not a good choice. “Since men do not have to suffer the consequences of pregnancy, the threshold for side effects from birth control pills is rather low. This is a big barrier to developing a male contraceptive. That’s why we are trying to develop non-hormonal birth control pills to avoid hormonal side effects,” Noman said.
Thursday, June 23, 2022
Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021
This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.
The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.
On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.
However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.
These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials.
Wednesday, June 8, 2022
I enjoyed hearing a little bit about this book at today's Summer Feminist Theory Workshop, and the ways in which it can be incorporated into doctrinal classes like Con Law and others.
Bridget Crawford & Emily Waldman, Menstruation Matters: Challenging the Law's Silence on Periods (NYUP 2022)
Approximately half the population menstruates for a large portion of their lives, but the law is mostly silent about the topic. Until recently, most people would have said that periods are private matters not to be discussed in public. But the last few years have seen a new willingness among advocates and allies of all ages to speak openly about periods. Slowly around the globe, people are recognizing the basic fundamental human right to address menstruation in a safe and affordable way, free of stigma, shame, or barriers to access.
Menstruation Matters explores the role of law in this movement. It asks what the law currently says about menstruation (spoiler alert: not much) and provides a roadmap for legal reform that can move society closer to a world where no one is held back or disadvantaged by menstruation. Bridget J. Crawford and Emily Gold Waldman examine these issues in a wide range of contexts, from schools to workplaces to prisons to tax policies and more. Ultimately, they seek to transform both law and society so that menstruation is no longer an obstacle to full participation in all aspects of public and private life.
Monday, May 16, 2022
Scary Mommy tells a powerful story of how a grieving mother and scientist has identified the cause of Sudden Infant Death Syndrome. The findings were published in the June 2022 publication of The Lancet. The publication provides the following contextual summary of the research:
Evidence before this study
Despite the effectiveness of public health campaigns in reducing the incidence of Sudden Infant Death Syndrome (SIDS), SIDS remains the major cause of infant death in western countries. The “triple risk model” hypothesises that SIDS deaths result from coincident occurrence of a vulnerable infant, a critical developmental period, and an exogenous stressor. Despite intensive research, identification of any specific vulnerability prior to the sudden death has remained elusive. And, while autonomic dysfunction has long been considered a candidate for this vulnerability, studies have been hampered by reliance on post-mortem samples.
Added value of this study
We found that Butyrylcholinesterase Activity, measured in dried blood spots taken 2-3 days after birth, was significantly lower in babies who subsequently died of SIDS compared to living controls and other Non-SIDS infant deaths. This study identifies a biochemical marker that differentiates SIDS infants from control cases and those dying from other causes, prior to their death. We postulate that this decreased activity of Butyrylcholineserase represents an autonomic cholinergic dysfunction and therefore an inherent vulnerability of the SIDS infants.
Implications of all the available evidence
This finding represents the possibility for the identification of infants at risk for SIDS infants prior to death and opens new avenues for future research into specific
These findings have implications for the patchwork of state laws governing SIDS throughout the country.
The infant formula crisis continues in the United States as covered by Reuters and numerous media outlets. Here's a look at the cities in which supplies are the most depleted from Bloomberg. Consumer safety groups and pediatricians are warning consumers not to try to make products at home. Attention is focused on what the government can do to offer support. Reuters previews:
The U.S. Food & Drug Administration (FDA) will announce new steps in the coming days regarding importing certain infant formula products from abroad, the White House said, and Biden has asked the Federal Trade Commission (FTC) to probe reports of predatory conduct such as price gouging.
The House will also hold a hearing on the crisis on May 25.
The Atlantic Monthly does a deep dive on what is behind the shortage and the role of law and policy.
FDA regulation of formula is so stringent that most of the stuff that comes out of Europe is illegal to buy here due to technicalities like labeling requirements. Nevertheless, one study found that many European formulas meet the FDA nutritional guidelines—and, in some ways, might even be better than American formula, because the European Union bans certain sugars, such as corn syrup, and requires formulas to have a higher share of lactose. * * *
U.S. policy also restricts the importation of formula that does meet FDA requirements. At high volumes, the tax on formula imports can exceed 17 percent. And under President Donald Trump, the U.S. entered into a new North American trade agreement that actively discourages formula imports from our largest trading partner, Canada.
America’s formula policy warps the industry in one more way. The Department of Agriculture has a special group called WIC—short for Special Supplemental Nutrition Program for Women, Infants, and Children—that provides a variety of services to pregnant and breastfeeding women and their young children. It is also the largest purchaser of infant formula in the United States, awarding contracts to a small number of approved formula companies. As a result, the U.S. baby formula industry is minuscule, by design. A 2011 analysis by USDA reported that three companies accounted for practically all U.S. formula sales: Abbott, Mead Johnson, and Gerber.
Monday, April 25, 2022
If/When/How has prepared a vital information guide for medical providers in Texas. The guide is titled "What You Need to Know: Mandatory Reporting Requirements, Law Enforcement, and Patient Confidentiality in Texas." It is available on the organization's website. The fact sheet "gives an overview of some of the major mandatory reporting requirements and where they may intersect with patient privacy - with a specific focus on self-managed abortion." If/When/How intends this fact sheet to "help reduce hospital-site criminalization of pregnancy outcomes by helping providers understand what type of reporting the law requires." Stay tuned to the If/When How website for future updates in a rapidly evolving legal environment.
Monday, April 11, 2022
Study on Financial Instability and Delays in Access to Sexual and Reproductive Health Care Due to COVID
Megan Kavanaugh, Zoe H. Pleasure, Emma Pliskin, Mia Zolna, and Katrina MacFarlane have published their study, Financial Instability and Delays in Access to Sexual and Reproductive Health Care Due to Covid-19, in the Journal of Women's Health. They explain the significance of their study as follows:
While data at the national level regarding impacts of the COVID-19 pandemic and its fallout on people's SRH help to provide an overall picture of what is happening in the United States, they may also mask important variation at the state level due to state-specific context regarding the pandemic and response. In addition, data on delays to accessing SRH care from 2020 may overstate the extent to which clinic-level closures or reductions in SRH services in the early months of the pandemic may have led to patient-level delays. Our study builds on previous national-level evidence of delays in access to SRH care experienced early in the COVID-19 pandemic by examining the extent to which individuals experienced delays over the course of a year into the pandemic in three states, each with a different COVID-19 epidemiological context and governmental response.
They conclude that:
Access to contraception and broader SRH care was curtailed during the COVID-19 pandemic, and for residents of Arizona, Iowa, and Wisconsin, who were experiencing concurrent employment and financial instability, these delays were heightened. The majority of Arizonan family planning patients experienced delays in accessing SRH care due to COVID-19, with Iowans and Wisconsinites experiencing similar and less frequent experiences of these delays (about 30%–40%) than Arizonans. These differing levels of impact may reflect the varying levels of COVID-19 community spread and varying government responses for disease mitigation across these state contexts, as well as the different time periods of the pandemic during which respondents from each state participated in the study.
Our findings covering a year of the pandemic indicate that evidence of access barriers early in the pandemic was a harbinger of more sustained contraceptive access issues for patients, especially for those with the fewest resources to navigate these barriers. Particularly for users of long- and short-acting hormonal methods of contraception that commonly require a visit to a health care provider, which represent between 1/4 and 1/3 of all method use in these three states, long-term access delays to obtaining and/or refilling one's method can seriously inhibit individuals' ability to prevent pregnancy over a year.
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In addition, given that the SRH care visit is the primary source of all medical care for over 2/3 of individuals seeking this care at publicly supported health facilities, delays in access to that care can have broader consequences for individuals' overall physical and mental health.
Graham Ferris has published Law Students Wellbeing and Vulnerability in volume 56 of The Law Teacher. Here is the article abstract:
There is compelling evidence that law students in the UK, USA, and Australia are subject to low levels of wellbeing. * * * Low wellbeing is produced by difficulties responding to stressors and life events, or low resilience. Therefore, law students are a subgroup of a larger group of young people with low resilience, however, law students have lower self-reported wellbeing than the overall student group. The trend for student wellbeing is downwards. Vulnerability theory offers a theoretically coherent heuristic that can enable us to think constructively about the problems of law students and students generally and to generate ideas for potentially beneficial courses of action. With such widespread phenomena, for law students across three continents and over many years, it is unrealistic to posit individualistic explanations as causes. Resilience, and consequent wellbeing, is not best understood as a characteristic of individuals but as generated or degraded by life histories, family and community resources, institutional supports or stressors, and social factors. We need to look at institutional and cultural factors if our response is to be coherent and effective. We need to seek a responsive law school in a responsive university in a responsive state.
The article emphasizes the importance of a legal curriculum that recognizes vulnerability.
All of these suggestions share a common characteristic, they are reactions to assumptions in the curriculum about the characteristics of the ideal hyper-rational, masculine, autonomous, competitive, liberal subject. Being autonomous and competitive they neglect collective action. Being hyper-rational and autonomous they have no emotional needs and are happy if left at liberty to pursue their own pre-given ends. Being masculine they are primarily the recipients of care, not care givers. Neo-liberalism reduces all values to money and market choices. The law exists to sustain markets, not to impose collective values upon markets. Vulnerability theory rejects this world view and asserts the importance of social reproduction, of the vulnerable individual, and the need for collective responses to deficiencies in resilience. A legal curriculum that recognizes vulnerability as fundamental to law and justice would provide a counterbalance to the current pervasive drift towards neo-liberal paradigms.