Monday, May 20, 2024

Tobin-Tyler on "Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families"

Elizabeth Tobin-Tyler has published Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families in volume 51 of the Journal of Law, Medicine & Ethics. Here is an excerpt on how to advocate for Black families post-Dobbs:

Abortion rights organizations are now working to support women living in states with bans or restrictions to obtain abortions in states where abortion is still legal and to access self-managed medication abortion. But many women will be unable to obtain an abortion when they want or need one. Given this fact, an advocacy agenda must be built around supporting mothers and children, defending them from unjust CPS intervention, and promoting access to reproductive healthcare. This agenda should be grounded in reproductive justice which accounts for and calls out racism and other forms of oppression that trample human rights and affirms that women not only have the right to decide if and when to have children, but also “to parent the children they have in safe and sustainable communities.” This includes freedom from state removal of their children due to structural racism and poverty.

Now that anti-abortion policymakers have achieved their wish, they must be held accountable for the effects of abortion bans on women, children and communities. Reproductive justice requires an intersectional approach to the myriad ways in which policy choices affect marginalized people. The voices of affected women who can speak to the reality of what abortion bans mean--including the impact of forced birth, parenting an unwanted child in poverty, experiencing CPS involvement and child removal--should be prioritized and promoted by advocates. Building coalitions with those seeking economic justice and child welfare system reform will broaden the constituency base and call attention to the ramifications of failing to enact policies that invest in families. Academic researchers and policy analysts should support community-based advocates by tracking the evidence linking abortion bans to increases in poverty and CPS caseloads.

* * * Ultimately, reform will only be possible through acknowledgement of the structural racism inherent in multiple systems, most profoundly, the child welfare system. * * * Post-Dobbs, the call to action to replace the current child welfare system with one framed by reproductive justice--which encompasses racial justice, gender justice, economic justice, and human rights--is more important than ever.

 

 

May 20, 2024 in Abortion, Family, Healthcare, Poverty, Pregnancy, Race | Permalink | Comments (0)

Hannah Wilson on "The Gendered Face of Climate Change: Exploring the Impact of Climate Change on Gender-Based Violence and the Role of State and Non-State Actors in Effecting Climate Justice"

Hannah Wilson published The Gendered Face of Climate Change: Exploring the Impact of Climate Change on Gender-Based Violence and the Role of State and Non-State Actors in Effecting Climate Justice in Volume 38 of the American University International Law Review. Here is the abstract: 

Climate change affects men and women differently. While some individual women may be less vulnerable to climate change than some men, the global perpetuation of discrimination, inequality, patriarchal structures, and systematic barriers contribute to an overall higher risk of women experiencing harmful effects of climate change. International human rights law prohibits discrimination on the basis of gender. However, in practice, systematic discrimination, harmful stereotypes, and social, economic and political barriers related to gender can lead to varied climate change impacts with respect to health, food security, livelihoods and human mobility, and more, which may significantly limit women’s and girls’ adaptive ability in the face of climate change. Such barriers include limited or inequitable access to financial assets and services, education, land, resources and decision-making processes, among many others. This reality is even starker for women and girls who face multiple and intersecting forms of discrimination; particularly those of lower socio-economic status, rural women and girls, and older women. As such, climate change perpetuates gender inequality. In turn, harmful gender stereotypes and entrenched forms of structural discrimination often significantly hinder women’s ability to meaningfully participate in climate action. Addressing climate change, including its gendered impacts, is therefore essential to the promotion and protection of the rights of women and girls.

May 20, 2024 in Healthcare, International, Science | Permalink | Comments (0)

Wednesday, May 1, 2024

Fourth Circuit Rules that State Health Care Insurance Plans Must Cover Gender-Affirming Care

Washington Post, Court Says State Health-Care Plans Can't Exclude Gender-Affirming Surgery

A federal appellate court in Richmond became the first in the country to rule that state health-care plans must pay for gender-affirming surgeries, a major win for transgender rights amid a nationwide wave of anti-trans activism and legislation.

The decision came from a set of cases out of North Carolina and West Virginia, where state officials argued that their policies were based on cost concerns rather than bias. The U.S. Court of Appeals for the 4th Circuit rejected that argument, saying the plans were discriminating against trans people in need of treatment.

Judge Roger L. Gregory, an appointee of President Bill Clinton, wrote for the majority that the restrictions were “obviously discriminatory” based on both sex and gender.

“In this case, discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex,” Gregory wrote, because “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it.”

The majority ruled that West Virginia’s policy also violated the Affordable Care Act’s anti-discrimination provision, a finding that has broad implications for other states’ Medicaid programs.

It’s the second ruling in favor of trans rights this month from the 4th Circuit, a once-conservative court that has become a trailblazer in the realm of transgender rights. The court was the first to say trans students had a right to use the bathrooms that align with their gender identity and the first to recognize gender dysphoria as a protected disability. Earlier this month, the court said a federally funded middle school could not ban a trans 13-year-old from playing on the girls’ track and field team.

May 1, 2024 in Constitutional, Healthcare, LGBT | Permalink | Comments (0)

Monday, April 29, 2024

HHS Publishes Reproductive Health Care Privacy Rules

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

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

The Final Rule is published here

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

Final Rule Published Implementing the Pregnant Workers Fairness Act

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

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

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

 

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

Monday, April 15, 2024

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

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

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

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

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

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

Thursday, April 11, 2024

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

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

INTRODUCTION AND SUMMARY OF ARGUMENT

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

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

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

Monday, April 8, 2024

Lewis Grossman on "Criminalizing Transgender Care"

Lewis Grossman has posted his forthcoming article, Criminalizing Transgender Care, on SSRN. This article is forthcoming in the Iowa Law Review in Fall 2024. Here is the abstract. 

Since 2021, twenty-one states, in extraordinarily quick succession, have enacted statutes banning physicians from prescribing puberty blockers and cross-sex hormones to minors for treatment of gender dysphoria. Although the Food and Drug Administration has not approved these drugs for this use, off-label prescribing is a common practice, and leading medical organizations all agree that this off-label use of puberty blockers and sex hormones is an essential component of transgender medical care. These state laws thus represent an extreme, and unprecedented, interference with the provision of standard-of-care medicine. This article, after exploring the ongoing litigation challenging these bans, argues that they violate a fundamental right under the Due Process Clause of the Fourteenth Amendment—namely, the right to obtain standard-of-care treatment from a physician. It demonstrates that this right is deeply rooted in America’s history and traditions by presenting the first-ever comprehensive review of state policies regarding off-label prescribing practices and showing that the states have virtually never interfered with physicians’ prescribing decisions in this manner. Finally, in light of relevant judicial precedents, this article shows why courts should strike down these unparalleled, oppressive state laws as unconstitutional.

April 8, 2024 in Gender, Healthcare, Legislation | Permalink | Comments (0)

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

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

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

Wednesday, April 3, 2024

Book, Diagnosis Female: How Medical Bias Endangers Women's Health

This week in my Law & Gender seminar, we have been discussing gender discrimination in medical research and treatment. We came across this book that provided a good basis for discussion.

Emily Dwass, Diagnosis Female: How Medical Bias Endangers Women's Health (2019)

Why do so many women have trouble getting effective and compassionate medical treatment? Diagnosis Female examines this widespread problem, with a focus on misdiagnosis and gender bias. The book zeroes in on specialties where women are more likely to encounter particularly troubling roadblocks: cardiology, neurology, chronic diseases and obstetrics/gynecology. All too often, when doctors can’t figure out what is going on, women receive a diagnosis from the “all in her head” column — this pattern is even worse for women of color, who may face significant challenges in medical settings.

Throughout the work, Emily Dwass profiles women whose stories illustrate how medical practitioners often dismiss their claims or disregard their symptoms. Because women were excluded from important medical research for centuries, doctors don’t always recognize that male symptoms and female symptoms can vary from issue to issue. Even today, most diagnostic tests and treatment plans are based on studies done on men. Throughout the book, women state that their voices do not matter, or worse, their concerns are greeted with skepticism or simply ignored when they seek help. The results can be devastating and long-lasting.

Examining the bias inherent in the system, Dwass offers measures women can take to protect their health and receive better care. She offers advice, too, for the medical community in addressing the problem, so that outcomes can improve all around

 

April 3, 2024 in Books, Healthcare | Permalink | Comments (0)

Monday, April 1, 2024

New Book about Bias and Discrimination in Women's Healthcare Published by Mayo Clinic Press: "Sex Cells"

The Mayo Clinic Press has published "Sex Cells: The Fight to Overcome Bias and Discrimination in Women’s Healthcare" by Phyllis E. Greenberger, M.S.W. with Kalia Doner. Here is a description of the book: 

This book gives readers access to the wide world of sex-specific medical issues as they play out in the research labs and doctor’s offices, and how women pay the price, with a close look at the impact that has on minority populations.

It has been challenging to get individual researchers and practitioners to accept this, as well as research and medical institutions, and manufacturers of medications and devices. The journey towards equal treatment and the understanding of sex and gender differences in prevention, diagnosis and treatment is still unfolding. This book is the story of that journey—why it was, and still is, so important to do research specific to women/females.

The story is told by Phyllis Greenberger—the woman who is recognized as the driving force for change over the past 25 years—and her allies in government, NGOs, academia, medical research, the US government, and public health advocacy. The array of experts who have contributed to the book offer an insiders’ up-close view of the battle to have female cells, lab animals and humans brought into medical research, so that women can receive treatment that is appropriate and effective for a wide range of conditions.

Told with humor, ferocity and passion, Sex Cells appeals to anyone interested in health, women’s rights, and public health policy.

April 1, 2024 in Books, Gender, Healthcare, Science | Permalink | Comments (0)

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

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

Its findings are excerpted here: 

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

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

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

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

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

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

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

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

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

Thursday, March 28, 2024

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

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

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

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

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

Tuesday, March 5, 2024

Gender and Gaslighting in the Public Messaging of Covid

Jane Campbell Moriarty, Hysteria Redux: Gaslighting in the Age of Covid, in Symposium: Gender, Health & the Constitution, 15 ConLawNOW 65 (2024)

This article addresses the relationship among hysteria, gaslighting, and gender during the Covid pandemic in the political and public-health messaging about Covid. It analyzes the U.S. public health messaging in the age of Covid, explaining how individualism, gender, and gaslighting have shaped the public response to the virus and negatively affected public health. In explaining the poor U.S. public health outcomes during Covid, the article evaluates the role of disinformation about vaccines, the “feminization” of masking, and the “vax and relax” public mantra, which suggested that those who did not relax were perhaps a bit hysterical. Finally, the article considers how gaslighting occurs in the context of dismissing the potential long-term dangers of Covid infections and reinfections.

March 5, 2024 in Gender, Healthcare, Manliness, Science | Permalink | Comments (0)

Alabama Passes Legislation to Protect IVF Treatment in Light of State Supreme Court Ruling on Embryos

Wash Post, Alabama Lawmakers Pass Legislation to Protect IVF Treatment

The Alabama legislature voted Thursday to protect providers and patients doing in vitro fertilization from criminal or civil liability if embryos they create are subsequently damaged or destroyed.

The fast action by both the House and Senate on bills to shield IVF came less than two weeks after the state’s Supreme Court ruled that frozen embryos are people and that individuals could be liable for destroying them. The unprecedented decision, which gave fertilized eggs the same protection as babies under the state’s Wrongful Death of a Minor Act, threw IVF treatment in Alabama into turmoil.

Within days, nearly every clinic in the state either suspended IVF or halted embryo disposal. Some women in the middle of treatment fled the state after securing care from out-of-state providers. Many others feared that their significant emotional, physical and financial investment in having a child would be for naught.

March 5, 2024 in Family, Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, March 4, 2024

Kenya Court Affirmed the Right to Respectful Maternal Care

The Center for Reproductive Rights reports on a victory in Kenya's Court of Appeals. The facts of the case are excerpted from the opinion here: 

a. She was admitted to the hospital – and the hospital was overstretched to the extent that she had to share a bed with another patient;

b. She had to purchase her own drugs and cotton wool despite the government policy and Presidential directive that maternity services were free of charge;

c. She gave birth on the floor, in the corridor of the hospital, and without assistance;

d. She underwent physical and verbal abuse at the hands of the two nurses who attended to her when she fell unconscious on the floor;

e. She was forced to carry her un-expelled placenta back to the delivery room in further act of cruelty and humiliation;

f. She was not informed of the process she could use to file any grievance she had. 

The court held: 

28.The inevitable conclusion is that, upon an independent review of the evidence presented to the trial court, Josephine sufficiently proved her factual claims. The question that follows this conclusion is whether the facts, as proved, demonstrated constitutional violations to entitle her to the declarations the court made in her favour and against the appellants.

 

29.It is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution. That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of the right that must be realizable immediately and not progressively. The minimum core of a woman’s right to respectful maternal care during child birth must, as the trial court expounded, include

a. The right to be free from physical violence and verbal abuse during labour and childbirth;

b. The right to be free from discrimination during labour and childbirth;

c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.

March 4, 2024 in Courts, Family, Healthcare, International, Reproductive Rights | Permalink | Comments (0)

#WeCount Public Report Released

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

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

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

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

Monday, February 26, 2024

Colleen Campbell on "Intersectionality Matters in Food and Drug Law"

Colleen Campbell has published Intersectionality Matters in Food and Drug Law in volume 95 of the University of Colorado Law Review.  The abstract provides: 

Feminist scholars critique food and drug law as a site of gender bias and regulatory neglect. The historical exclusion of women from clinical trials by the FDA prioritized male bodies as the object of clinical research and therapies. Likewise, the FDA’s prior restriction on access to contraceptive birth control illustrates how patriarchal and paternalistic attitudes within the Agency can harm women’s reproductive health. However, there is little analysis of how race and gender intersect in this domain.

This Article uses the regulation of skin-lightening cosmetics products to illustrate why and how intersectionality matters in food and drug law. While the inadequate regulation of cosmetics has a disparate impact on women’s health, it is women of color who predominantly use skin-lightening products, similar to some hair care products that are disproportionately marketed to women of color. Additionally, skin-lightening products are often toxic because they contain mercury and other harmful substances. The skin-lightening industry has also historically (and contemporarily) targeted women of color with racist and colorist advertising messages that idealize light skin as the pinnacle of beauty.

The inadequate regulation of cosmetics illustrates why intersectional analysis is essential in food and drug law. An intersectional lens uncovers the various underlying forces that produce a disparate health impact for women of color: systemic racism in health, racially targeted marketing, and hegemonic beauty norms shaped by race and skin color constructs. The increased toxicity of these products also overexposes women of color to more serious health risks from cosmetics. While cosmetics reform has ushered in new regulations that improve the Agency’s authority to regulate cosmetics, the health risks posed to women of color from toxic personal care products in general deserves urgent attention in food and drug discourses. Intersectional analysis uncovers the contours of this urgency and offers an important response to the de-prioritization of women of color within food and drug law discourses.

February 26, 2024 in Healthcare, Race, Science | Permalink | Comments (0)

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

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

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

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

 

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

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

Monday, January 29, 2024

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

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

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

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