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.
The Virginia Senate unanimously passed a bill Tuesday requiring public schools to include free menstrual products in their bathrooms.
Senate Bill 232 applies to schools that educate fifth-to-12th graders. According to the Virginia Department of Education, this encompasses 132 school districts and almost over 630,000 female students.
"I would like to see that the supplies are available, just like other supplies that we keep in the bathroom," said Sen. Jennifer Boysko, D-Fairfax, the legislation's chief patron.
An earlier version of the bill applied the stipulation to the aforementioned schools where at least 40% of students qualified for free or reduced lunch.
Boysko introduced the bill to make it more convenient for students to access menstrual products and help them avoid accidents.
"This is a necessity and girls can't carry out their school day without it," Boysko said. "Some girls are missing school time and end up going home and missing classes because of these kinds of challenges."
According to Boysko, school budgets currently cover menstrual product expenses, but they are often kept in the nurse's office, making it inconvenient for students.
Friday, January 17, 2020
The Supreme Court grant cert today in Trump v. Pennsylvania and the related Little Sisters of the Poor regarding religious exemptions for the federal healthcare mandate that employers provide women employees birth control.
From the Petition for Cert, Questions Presented:
The Patient Protection and Affordable Care Act (ACA), 42 U.S.C. 18001 et seq., requires many group health plans and health-insurance issuers that offer group or individual health coverage to provide coverage for preventive services, including women’s preventive care, without cost-sharing. See 42 U.S.C. 300gg-13(a). Guidelines and regulations implementing that requirement promulgated in 2011 by the Departments of Health and Human Services, Labor, and the Treasury mandated that such entities cover contraceptives approved by the Food and Drug Administration. The mandate exempted churches, and subsequent rulemaking established an accommodation for certain other entities with religious objections to providing contraceptive coverage. In October 2017, the agencies promulgated interim final rules expanding the exemption to a broad range of entities with sincere religious or moral objections to providing contraceptive coverage. In November 2018, after considering comments solicited on the interim rules, the agencies promulgated final rules expanding the exemption. The questions presented are as follows:
1. Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration
Act of 1993, 42 U.S.C. 2000bb et seq., to expand the conscience exemption to the contraceptive-coverage mandate.
2. Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act, 5 U.S.C. 551 et seq., 701 et seq.
3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
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.
Tuesday, September 17, 2019
In First, California Passes Bill Requiring Public Universities to Provide Medication Abortion on Campus
At a time when conservative states are sharply limiting abortion access, California signaled a new frontier in abortion-rights on Friday with the passage of legislation that would require all public universities in the state to provide medication abortion on campus.
The bill, which would use money raised from private donors to equip and train campus health centers, grew out of a student-led movement at the University of California, Berkeley, and it has sparked the introduction of a similar bill in Massachusetts.
Anti-abortion groups say they are likely to challenge the legislation if Gov. Gavin Newsom signs it into law. He has a month to decide. A spokesman declined to say what he will do, but last year during his campaign for governor, Mr. Newsom said he supported a similar effort.
Tuesday, September 10, 2019
Joanna Grossman, The Seeds of Early Childhood, 71 Florida Law Review Forum 117, 131 (2019)
The trajectory of childhood is often shaped before childhood even begins. Pre-birth inequalities are not natural or inevitable. Rather, we create and cement policy choices that reduce access to adult healthcare, restrict accessible contraception, impede access to abortion, and deny prenatal care. Together, these choices mean that, in the United States, we maintain very high rates of unwanted pregnancy and increasingly high rates of maternal mortality and morbidity, burdens that fall disproportionately on women of color and women of lower socioeconomic status. Equality demands that we address these disproportionate burdens.
Tuesday, June 4, 2019
Illinois passed an expansive reproductive rights bill on Friday further protecting the right to an abortion as GOP-controlled state legislatures pass abortion bans throughout the country.
The state Senate passed the bill 34-20 down party lines after the House passed it 64-50 on May 28. The progressive bill is meant to strengthen abortion rights in Illinois and codify the state’s current practices in case the conservative-leaning Supreme Court overturns the landmark 1973 ruling Roe v. Wade, which guarantees a person’s right to a safe and legal abortion.
“The Act sets forth the fundamental rights of individuals to make autonomous decisions about one’s own reproductive health, including the fundamental right to use or refuse reproductive health care,” the bill reads. It also restricts “the ability of the State to deny, interfere with, or discriminate against these fundamental rights.”
The bill’s passage repeals the 1975 Illinois Abortion Law and replaces it with the Reproductive Health Act, removing decades-old measures requiring spousal consent, waiting periods and criminal penalties for doctors who perform abortions, among other restrictions. Courts had already blocked the criminal penalties measure before the new legislation repealed it.
The legislation also has clarifying language that treats abortion as health care.
A bill that establishes a “fundamental right” for women to get an abortion in Illinois cleared the state Senate late Friday night, sending the sweeping measure to Gov. J.B. Pritzker, who already has signaled his support.
As the clock approached midnight Friday, the Senate voted 34-20 in favor of the abortion legislation, which comes amid an increased sense of urgency among advocates looking to protect abortion access as a series of states have passed laws essentially banning the practice.
***Illinois isn’t alone in its approach, as lawmakers in red and blue states alike begin to envision a world without Roe v. Wade, the 1973 Supreme Court decision that a woman has a constitutional right to choose whether to bear a child.
In Vermont, both houses of the state’s General Assembly endorsed a measure earlier this month that recognizes reproductive choice as a “fundamental right.” The state’s Republican governor, Phil Scott, has pledged not to veto the measure. Last week, lawmakers in Maine advanced legislation expanding abortion providers. Meanwhile, the majority-female Nevada Assembly approved a bill doing away with the requirement that doctors inform women of the “emotional implications” of an abortion.
Legislation is pending in additional Democratic-controlled states, such as Massachusetts, where the ROE Act would authorize abortion after 24 weeks in certain situations. Elsewhere, Democratic governors are promising to use their veto power to block Republican-led efforts to limit access to the procedure.
Thursday, May 16, 2019
Valeriya Mechkova & Ruth Carlitz, Gendered Accountability: When and Why Do Women's Policy Priorities Get Implemented?
V-Dem Working Paper 2019:88
The past two decades have seen dramatic increases in women occupying positions of political power. Such developments have been welcomed as a means of achieving better outcomes for women in their everyday lives. We interrogate this proposition, developing a "gendered accountability" framework to the delineate conditions under which female representation should have its desired effects. Our empirical analysis applies this framework to sub-Saharan Africa, home to the largest increase in women's political representation in recent years. We find that having more women in the legislature is robustly associated with reduced infant and child mortality as well as greater spending on health. The effect on infant mortality is magnified when women are more active in civil society, and constrained to countries that have gender quotas and a proportional electoral system. We do not, however, find consistent evidence that maternal mortality and access to clean water respond to female representation.
Thursday, April 25, 2019
Greer Donley, Contraceptive Equity: Curing the Sex Discrimination in the ACA's Mandate. 71 Alabama L. Rev. (forthcoming)
Birth control is typically viewed as a woman’s problem despite the fact that men and women are equally capable of using contraception. The Affordable Care Act’s Contraceptive Mandate, which requires insurers to cover all female methods of birth control without cost, promotes this assumption and reinforces contraceptive inequity between the sexes. By excluding men, the Mandate burdens women in three ways: it incentivizes them to endure the risks and side-effects of birth control when safer options exist for men; it perpetuates harmful sex stereotypes, like that women are to blame for unwanted pregnancy or that men are indifferent as to whether sex leads to pregnancy; and it fails to financially support the quarter to a third of women that rely on male birth control to prevent conception. The Mandate’s facial sex classification constitutes unconstitutional sex discrimination under the Equal Protection Clause and can only be equitably cured by extending the Mandate to cover male forms of birth control. A neutral, universal mandate will remedy the harms discussed above and create incentives for the creation of new, pharmaceutical methods of male birth control, benefiting men and women alike.
Monday, March 11, 2019
The proposed legislation filed Wednesday follows Democratic Gov. J.B. Pritzker’s pledge last month to make Illinois “the most progressive state in the nation when it comes to standing up for women’s reproductive rights.”
One bill, dubbed the Reproductive Health Act, would repeal the state’s so-called partial-birth abortion ban, which placed restrictions on the procedure later in pregnancy. In addition, the act would require private insurance plans in Illinois to cover abortions the same as contraception, fertility and maternity care, as well as allow advanced-practice nurses to perform abortions.
The bill also would abolish abortion legislation adopted in 1975, though most of those provisions already have been blocked by the courts, including criminal penalties for physicians who perform abortions.***
The second bill, which would repeal the state’s parental notice law, was sponsored by Rep. Emanuel “Chris” Welch, D-Hillside. Parental notification requirements were passed in 1995 but blocked by the courts until about five years ago.
Illinois law currently mandates that minors notify a parent, grandparent, a stepparent who lives in the home or a legal guardian before having an abortion. A minor has the legal right to request a waiver of parental notice, a process called judicial bypass, which is granted if a judge deems the minor mature and well-informed, or finds that notification wouldn’t be in her best interest.
Abortion rights supporters say that places an unfair burden on minors with difficult family situations and could prove dangerous if a parent is abusive.
A bill overhauling Illinois’ abortion law and replacing it with a more liberal version has wide Democratic support in the House.
The Reproductive Health Act, proposed by Rep. Kelly Cassidy, repeals the current law dictating abortion policies in the prairie state and replaces it with policies to “protect individual decision-making.”***
This would expand a law signed by former Gov. Bruce Rauner, which allowed tax dollars to be spent on abortion procedures through Illinois’ Medicaid and state employee health insurance programs.
Soon after passage, that legislation was challenged in court by attorneys with the Thomas More Society. It filed documents with the State Supreme Court in December 2018 asking the justices to take up the case.
Cassidy’s measure additionally specifies that “a fertilized egg, embryo or fetus does not have independent rights.” It mandates that the state cannot infringe upon the expanded rights this legislation grants women and creates an avenue for legal action.
Wednesday, January 23, 2019
On the 46th anniversary of Roe V. Wade, New York state passed a law to protect women's access to abortion if the historic case is overturned."Today we are taking a giant step forward in the hard-fought battle to ensure a woman's right to make her own decisions about her own personal health, including the ability to access an abortion. With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body," said Gov. Andrew Cuomo after signing New York's Reproductive Health Act on Tuesday night.Not only will the law preserve access to abortions, it also removes abortion from the state's criminal code. This would protect doctors or medical professionals who perform abortions from criminal prosecution. The law also now allows medical professionals who are not doctors to perform abortions in New York."The old law had criminal penalties. It was written that the doctor or professional could be held criminally liable," Cuomo said during an interview on WNYC Wednesday.
The bill allows women to get abortions after 24 weeks if their life or health is threatened by the pregnancy in addition to permitting women to have an abortion at any time if the fetus is not viable, according to syracuse.com.
The law also regulates abortion under public health law, rather than criminal law, and allows licensed nurse practitioners, physician assistants and licensed midwives to conduct abortions, syracuse.com reported
Tuesday marked the 46th anniversary of Roe v. Wade and a new milestone for New York women. Governor Andrew Cuomo, a Democrat, signed the Reproductive Health Act into law after it passed both chambers of the state legislature earlier in the day. The bill updates New York’s abortion law, which predates Roe and regulates abortion in the state’s criminal code. “It’s bittersweet. There is a bitterness because we shouldn’t be here in the first place,” Cuomo said, according to the Albany Times-Union. “We should not have a federal government that is trying to roll back women’s rights … This administration (of President Donald Trump) defies American evolution.”
The RHA takes abortion out of the criminal code; the state will now regulate it as a matter of public health. It also expands the pool of medical professionals who are authorized to perform abortions and permits abortions after 24 weeks when the fetus is not viable or a woman’s health is at risk. Previously, women who needed later-term abortions to end nonviable pregnancies were forced to travel far outside the state — a financial and psychological burden. Separate from the RHA, Cuomo has pledged to amend the state constitution to include an affirmative recognition of the right to abortion, though that process will be a lengthy one. As Syracuse.com reported earlier this month, the state legislature has to approve the amendment, which would then go to voters for a referendum.
Monday, January 14, 2019
Judge Grants Preliminary Injunction Blocking Trump Administration's Roll Back of Birth Control Mandate
A federal judge on Sunday granted a request by more than a dozen states to temporarily block the Trump administration from putting into effect new rules that would make it easier for employers to deny women health insurance coverage for contraceptives.
Contraception is covered by the Affordable Care Act as a preventive health service, something employers and insurers are generally required to provide at no charge. But the Trump administration developed rules to allow employers to opt out of the mandate if they had religious or moral objections.
A version of those rules was stymied by the courts in 2017, so the administration issued a new set of rules in November, which had been scheduled to take effect on Monday.
However, the judge, Haywood S. Gilliam Jr. of the United States District Court in Oakland, Calif., granted a request by 13 states and the District of Columbia for a preliminary injunction, writing that the new rules “are nearly identical to” the ones that he had previously blocked.
The plaintiffs, he wrote, had done enough to bolster their claim that the religious exemption and the moral exemption sought by the Trump administration were “not in accordance with” the Affordable Care Act.
After Judge Gilliam blocked the initial rules, the Trump administration appealed. Last month the United States Court of Appeals for the Ninth Circuit upheld the District Court’s ruling but limited the injunction’s scope.
With that ruling in mind, Judge Gilliam made clear that the preliminary injunction he granted on Sunday bars enforcement in only the states that sued.
“The Court fully recognizes that limiting the scope of this injunction to the plaintiff states means that women in other states are at risk of losing access to cost-free contraceptives when the final rules take effect,” he wrote in Sunday’s order.
The challengers "have raised serious questions going to the merits, on their claim that the Religious Exemption and the Moral Exemption are inconsistent with the Women's Health Amendment," wrote Judge Haywood Gilliam, Jr., who was nominated by President Barack Obama in 2014. The states had argued that the new policy "cannot be reconciled with the text and purpose of the ACA — which seeks to promote access to women's healthcare, not limit it."
Friday, January 11, 2019
For the first time ever, APA is releasing guidelines to help psychologists work with men and boys.
At first blush, this may seem unnecessary. For decades, psychology focused on men (particularly white men), to the exclusion of all others. And men still dominate professionally and politically: As of 2018, 95.2 percent of chief operating officers at Fortune 500 companies were men. According to a 2017 analysis by Fortune, in 16 of the top companies, 80 percent of all high-ranking executives were male. Meanwhile, the 115th Congress, which began in 2017, was 81 percent male.
But something is amiss for men as well. Men commit 90 percent of homicides in the United States and represent 77 percent of homicide victims. They’re the demographic group most at risk of being victimized by violent crime. They are 3.5 times more likely than women to die by suicide, and their life expectancy is 4.9 years shorter than women’s. Boys are far more likely to be diagnosed with attention-deficit hyperactivity disorder than girls, and they face harsher punishments in school—especially boys of color.
APA’s new Guidelines for Psychological Practice With Boys and Men strive to recognize and address these problems in boys and men while remaining sensitive to the field’s androcentric past. Thirteen years in the making, they draw on more than 40 years of research showing that traditional masculinity is psychologically harmful and that socializing boys to suppress their emotions causes damage that echoes both inwardly and outwardly.
Wednesday, October 24, 2018
An Ionia woman is demanding that Meijer discipline a Petoskey pharmacist and implement a company-wide policy for how pharmacists should handle religious and moral objections to dispensing medication after she was denied a prescription to help complete a miscarriage.
Rachel Peterson, 35, alleges a pharmacist at the Meijer store on Lears Road in Petoskey refused to fill her prescription for a drug called misoprostol (brand name Cytotec) in July because of his personal religious views. She says he also refused to transfer the prescription to another pharmacy.
Misoprostol can be used to prevent stomach ulcers and also can be used to induce labor during pregnancy, to aid in the completion of a miscarriage and in the treatment of postpartum hemorrhage. When combined with another drug, it can be used to induce an abortion.
The American Civil Liberties Union of Michigan sent a letter Tuesday on Peterson's behalf to Meijer, saying what the pharmacist did was discriminatory and violated the state's public accommodation laws.
"Unfortunately in Michigan, we don’t have an explicit state law that goes so far as to protect patients like Rachel," she said. "What we would hope is that Meijer and other pharmacies would agree that they’re allowed to accommodate the personal beliefs of their employees, but that accommodation cannot include permitting discriminatory denials of care that burden patients and customers.
Thursday, October 18, 2018
Over 100 years ago, a woman was detained by a police officer for smoking a cigarette. After being stopped by an officer on a bicycle on Fifth Avenue in New York City, Mrs. William P. Orrblew smoke in his face and flicked cigarette ash toward him. Her rationale: “Yes, I was smoking a cigarette and I don’t see that I was doing any harm. I have done it in many other places… I think the policeman overstepped his authority.”
This incident marked the start of a century-long battle over women’s health, identity and behavior by raising the questions of who could and should smoke. While smoking would eventually become a public health question — cigarette smoking is a leading cause of preventable death — it has continued to generate debates over whether individuals have the right to choose to do something harmful. Throughout history, American women have fought for the right to vote, equal pay and to control their own bodies. But with hard-fought freedom comes choice: must women always choose what others say is right for them?
Controlling smoking in the early 20th century frequently was about controlling women’s behavior. Four years after Orr’s detainment for smoking on Fifth Avenue, the Sullivan Ordinance made it illegal for restaurant and bar owners to permit women to smoke in their establishments. The stated rationale from “Bowery moralist and political chieftain” Tim Sullivanwas that “proper” ladies were offended by women’s smoking, and that it certainly wasn’t any kind of attempt by a man to control women’s behavior. Sure.
Friday, August 24, 2018
Jill Wieber Lens, Tort Law's Devaluation of Stillbirth, Nevada L. J. (forthcoming)
In the United States, more than sixty-five babies die daily due to stillbirth—death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth.
This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts continue to treat, stillbirth as just as a physical manifestation of the woman’s emotional distress. Even when modern courts recognize stillbirth as the death of a child, they still devalue that injury by characterizing the child as a nameless, genderless “fetus.” Also historically, courts were resistant to claims based on relational injuries, another injury stereotypically associated with women. Even though prenatal attachment theory demonstrates a parent-child relationship is lost in stillbirth, some courts are especially reluctant to recognize the relational injury in the context of death before birth. The cognitive bias associating stillbirth with women has also stunted the development of tort recourse for fathers, as it also will for non-biological parents. Fathers, the “forgotten bereaved,” are sometimes denied a claim or given a more limited claim.
The remedy for this devaluation is a wrongful death claim for the death of a child—not just a fetus—available to both parents, including recovery for the relational injury. Tort law must also guard against possible undervaluation of the parents’ injury based on the supposed replaceability of children or the presence of other living children, and against damage caps’ mandatory undervaluation of the parents’ injury. The Article also explains how these reforms are supported by tort law theories, and explains that the wrongful death claim should be available for all stillbirths, not depending on viability. Last, the Article necessarily explains that tort law’s proper recognition of stillbirth poses no threat to the legality of abortion.
Tuesday, August 14, 2018
Elizabeth McCuskey, The Body Politic: Federalism as Feminism in Health Reform, 11 St. Louis J. Health L. & Policy 303 (2018)
This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act’s federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politic. The essay concludes by revisiting — from a feminist perspective — scholars’ arguments that equity in health insurance is essential for human flourishing.
Thursday, September 7, 2017
Nancy Leong & Emily Bartlett, Sex Segregation in Sports as a Public Health Issue
This Article adds a critical yet previously unaddressed dimension to the growing debate about the merits of sex segregation in sports by approaching sex segregation in sports as a public health issue. Participation in sports has consequences for women’s health, ranging from physical fitness to disease prevention to self-esteem to mental wellness to eating disorders. Critically, sex segregation in sports both reduces women’s participation in sports and changes the nature of the sports in which women participate, both of which have implications for the myriad health issues we discuss. The Article argues that analysis under the Equal Protection clause of governmentally-imposed sex-segregation must incorporate these consequences. Even where the government has plausible reasons for segregating sports by sex, those reasons may not be sufficient to survive intermediate scrutiny when the health issues are taken into account. The Article does not argue that sports should never be segregated by sex. Rather, it argues that the correct analysis must take into account all the relevant considerations, including those affecting health.
See also a prior post The Case Against Segregated Women's Sports
Monday, August 21, 2017
Oregon Gov. Kate Brown (D) on Tuesday signed into law what advocates called the nation’s most progressive reproductive health policy, expanding access to abortion and birth control at a time when the Trump administration and other states are trying to restrict them.
Called the Reproductive Health Equity Act, the measure requires health insurers to provide birth control and abortion without charging a co-pay. It also dedicates state funds to provide reproductive health care to noncitizens excluded from Medicaid.