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Gender and the Law Blog

A Member of the Law Professor Blogs Network

Monday, March 20, 2023

Transcript of Abortion Pill Hearing Hearing Released

By Jamie Abrams

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NPR has posted the full transcript of the Texas hearing Judge Matthew Kacsmaryk held last Wednesday in the Alliance for Hippocratic Medicine v. FDA case challenging the agency's 2000 approval of mifepristone. 

Jessica Valenti, the author of "Abortion Every Day" has an excellent explainer of the lawsuit and its implications (authored by researcher Grace Haley). The explainer outlines the anti-abortion strategy, the bio of Judge Kacsmaryk, the groups behind the litigation, and the possible outcomes of the case.  

March 20, 2023 in Abortion, Courts, Healthcare, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

Urgent Appeal and Call to Action Sent to U.N. Explaining how U.S. Anti-Abortion Legislation Violates International Law

By Jamie Abrams

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A coalition of groups, including Human Rights Watch, Pregnancy Justice, the National Birth Equity Collaborative, Physicians for Human Rights, Amnesty International, and the Global Justice Center, have authored a letter to United Nations mandate holders. The letter issues an urgent appeal and call to action: 

By overturning the established constitutional protection for access to abortion and through the passage of state laws, the US is in violation of its obligations under international human rights law, codified in a number of human rights treaties to which it is a party or a signatory. These human rights obligations include, but are not limited to, the rights to: life; health; privacy; liberty and security of person; to be free from torture and other cruel, inhuman, or degrading treatment or punishment; freedom of thought, conscience, and religion or belief; equality and non-discrimination; and to seek, receive, and impart information.

 

The signatories call on the UN mandate holders to take up their calls to action, which include communicating with the US regarding the human rights violations, requesting a visit to the US, convening a virtual stakeholder meeting with US civil society, calls for the US to comply with its obligations under international law, and calls for private companies to take a number of actions to protect reproductive rights.

The full 53-page appeal is available here. It outlines all of the ways that women's health and lives are threatened by the Dobbs decision. The letter is signed by dozens of organizations and individuals. It is a great, comprehensive resource for advocates. 

March 20, 2023 in Abortion, Healthcare, International, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

CDC Report Reveals Stark Rises in Maternal Mortality Rates

By Jamie Abrams

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The CDC has published a report on maternal mortality rates in 2021. Authored by Donna Hoyert of the Division of Vital Statistics and based on data from the National Vital Statistics System, the report concludes: 

In 2021, 1,205 women died of maternal causes in the United States compared with 861 in 2020 and 754 in 2019. The maternal mortality rate for 2021 was 32.9 deaths per 100,000 live births, compared with a rate of 23.8 in 2020 and 20.1 in 2019. In 2021, the maternal mortality rate for non-Hispanic Black (subsequently, Black) women was 69.9 deaths per 100,000 live births, 2.6 times the rate for non-Hispanic White (subsequently, White) women (26.6). Rates for Black women were significantly higher than rates for White and Hispanic women. The increases from 2020 to 2021 for all race and Hispanic-origin groups were significant. Rates increased with maternal age. Rates in 2021 were 20.4 deaths per 100,000 live births for women under age 25, 31.3 for those aged 25–39, and 138.5 for those aged 40 and over. The rate for women aged 40 and over was 6.8 times higher than the rate for women under age 25. Differences in the rates between age groups were statistically significant. The increases in the rates between 2020 and 2021 for each of these age groups were statistically significant.

The full report with tables and figures is here. 

To learn more about proposed and adopted federal legislation benefitting women, children, and families, check out the Maternal & Child Health Bill Tracker managed by the Association of Maternal & Child Health Programs.  

March 20, 2023 in Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, March 13, 2023

Virginia Judge Cites 19th Century Slavery Law in Holding Frozen Embryos are Chattel

By Jamie Abrams

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Judge Richard Gardiner, a Fairfax County Circuit Court Judge, has made national headlines by ruling that frozen embryos are legal chattel. 

The preliminary opinion by a Fairfax county circuit court judge, Richard Gardiner, which he delivered in a long-running dispute between a divorced husband and wife, is being criticized by some for wrongly and unnecessarily delving into a time in Virginia history when it was legal to own human beings.

 

Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African American lawyers, called Gardiner’s ruling troubling.

 

“I would like to think that the bench and the bar would be seeking more modern precedent,” he said.

 

Gardiner did not return a call to his chambers on Wednesday. His decision, issued last month, is not final: he has not yet ruled on other arguments in the case involving Honeyhline and Jason Heidemann, a divorced couple fighting over two frozen embryos that remain in storage.

Here is a link to the full opinion. The ruling file format does not allow for pasting into this blog, however, the reasoning on pages 7-8 is worth a read.

March 13, 2023 in Courts, Family, Gender, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, March 6, 2023

Bernick and Lens on "Original Public Meaning, & the Ambiguities of Pregnancy"

By Jamie Abrams

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Evan D. Bernick and Jill Wieber Lens have posted their article on Abortion, Original Public Meaning, & the Ambiguities of Pregnancy on SSRN.  The abstract states: 

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.


This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion.


Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

March 6, 2023 in Abortion, Constitutional, Pregnancy | Permalink | Comments (0)

Monday, February 27, 2023

New Abortion-Related Legal Defense Services Launched

By Jamie Abrams

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The Center for Reproductive Rights announced that it has collaborated with partners to launch a new nationwide effort to provide abortion-related legal defense services. Its partners include the ACLU, If/When/How, the National Women's Law Center, and Resources for Abortion Delivery. "Designed for both abortion providers and those seeking abortion care or who recently had an abortion, the Abortion Defense Network aims to ensure that people have access to the legal resources they need to navigate the confusing and hostile post-Roe legal landscape." The announcement provides a scope of coverage: 

Users will get answers to questions about legal rights, locating abortion care, and finding funds for legal and other expenses, including:

  • Legal rights pertaining to providing or supporting abortion care.
  • Threats of arrest, prosecution, or other legal action related to abortion.
  • How to access organizations that provide funding to cover attorney’s fees, bail and bond fees, and other legal expenses.

The link is here: https://abortiondefensenetwork.org/. 

February 27, 2023 in Abortion, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, February 13, 2023

Center for Reproductive Rights Publishes 2022 State Legislative Wrap-Up

By Jamie Abrams

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The Center for Reproductive Rights has published its 2022 legislative report providing a comprehensive summary of state legislative efforts both to restrict and support all aspects of reproductive healthcare. Here are a few excerpted highlights. The full report is deeply informative. 

  • "During 2022, the Center for Reproductive Rights tracked almost 700 abortion bills. States introduced more than 430 restrictive bills and more than 230 proactive abortion bills expanding protection for abortion."

  • "In 2022, eight states (Iowa, Louisiana, Missouri, Ohio, Oklahoma, Nebraska, South Carolina, and Wyoming) introduced 12 trigger bans. Three states enacted or amended existing trigger bans including Louisiana, Oklahoma, and Wyoming.

  • "In 2022, 20 states (Alaska, Arkansas, Colorado, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, Mississippi, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia) introduced 42 complete bans in the form of granting fetal personhood or just outright banning all abortions. Three states (West Virginia, Oklahoma, and Indiana) enacted complete bans."  
     
  • "In 2022, 28 states introduced 50 restrictive medication abortion bills, five of which were enacted. The bills included total medication abortion bans, medication abortion “reversal” requirements, medication abortion regulation schemes, telemedicine bans, and other medication abortion bans." 
     
  • "In 2022, 17 states (Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Nebraska, North Carolina, South Dakota, Tennessee, and West Virginia) introduced 25 telemedicine bans. Of those, seven were enacted in Indiana, Kentucky, Louisiana, South Dakota, Tennessee and West Virginia. These bans built upon existing telemedicine bans in these states."
     
  • "Thirty-seven states introduced 109 bills with restrictions on abortion providers. States enacted 13 laws with those restrictions. For example, Tennessee enacted legislation that (1) requires medication abortion to be performed by a “qualified physician,” (2) creates onerous reporting requirements for medication abortion providers, and (3) requires admitting privileges for medication abortion providers."
     
  • "Sixteen states introduced 28 bills to create new crimes in the criminal code or add additional criminal penalties to existing restrictions. These bills aimed to criminalize research on fetal tissue, self-managed abortions and feticide, medication abortion restrictions, and more. Two such bills were enacted." 

  • "In 2022, the Center tracked over 230 proactive abortion bills to expand or protect access to abortion care. Of these, 42 were enacted, including interstate shield protections, insurance coverage, and expanded provider scope of practice. Additional proactive bills included those that repeal restrictive laws, expand minors’ access to abortion, expand medication abortion care, protect self-managed abortions, include crisis pregnancy center consumer protections, and expand clinic access protections and statutory protections for abortions. Whereas 2021 brought bills that repealed abortion restrictions, expanded scope of practice, and expanded insurance coverage for abortion care were popular, this year, legislators focused on protecting abortion providers and individuals seeking access outside their home state in anticipation of a negative Dobbs decision. Proactive trends discussed include: 1) interstate shield bills, 2) scope of practice expansion, 3) statutory fundamental right to abortion, 4) expanded insurance coverage, and 5) other proactive measures."

  • "In 2022, 10 states (California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, New Jersey, New York, and Pennsylvania) and the District of Columbia introduced interstate shield bills. California,  Connecticut, Delaware, Massachusetts, New Jersey, and New York enacted their bills."
     
  • "In 2022, 13 states (California, Colorado, Missouri, Minnesota, Wisconsin, Michigan, Ohio, Kentucky, Florida, Maryland, North Carolina, New Jersey, and Vermont) introduced 19 bills to make abortion a fundamental right through statute. Two of these types of bills were enacted in Colorado and New Jersey."

February 13, 2023 in Abortion, Healthcare, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, February 1, 2023

The Original Public Meaning of Abortion and the Ambiguities of Pregnancy

By Tracy Thomas

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Evan Bernick & Jill Wieber Lens, Abortion, Original Public Meaning, and the Ambiguities of Pregnancy

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion.

Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

I've also done a little bit of work on the public meaning of abortion in the 1860s. See Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYUP 2016), chp. 4, "The Incidental Relation of Motherhood."

February 1, 2023 in Abortion, Constitutional, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Friday, January 20, 2023

Equality Emerges as a Ground for Abortion Rights

By Tracy Thomas

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Cary Franklin & Reva Siegel, Equality Emerges as a Ground for Abortion Rights

This chapter locates debates over abortion in equal protection and in an evolving understanding of women’s citizenship. Sex discrimination law has grown from the time of Roe to Dobbs; and sex equality arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. As we show, evolving understandings of women’s citizenship have implications for how the state protects new life. The labor of lifegiving is no longer to be coerced or extracted by law—as states enforcing the law of gender status historically assumed it could be. Equal protection commitments give rise to an anti-carceral presumption in regulating abortion. As state laws inside and outside the abortion context attest: States that respect women as equal citizens do not turn, as a matter of first resort, to measures that rely on coercion and control when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions strips women of agency, forces them to continue pregnancies and become mothers against their will, and perpetuates the forms of inequality that are the central concern of sex-based equal protection law. To opt for the maximally coercive approach—forced pregnancy and childbirth—when there are alternative means for enabling families to flourish is neither constitutional nor plausibly characterized as promoting life.

h/t Larry Solum, Legal Theory Blog

January 20, 2023 in Abortion, Constitutional, Pregnancy, Reproductive Rights, Theory | Permalink | Comments (0)

Monday, January 16, 2023

Conference on Health, Equity, and Law after Dobbs

By Jamie Abrams

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American University Washington College of Law's Health Law and Policy Program has opened registration for an inter-disciplinary conference on "Health, Equity, and Law after Dobbs" scheduled for February 24th and 25th in Washington, D.C. The event will take a distinctly inter-disciplinary approach bringing together scholars with legal, medical, public health, and sociological perspectives on the aftermath of the Dobbs decision. The conference also brings together four academic programs collaboratively planning the event: American University Washington College of Law, American University Department of Sociology, The George Washington Law School, and The George Washington University Milken Institute School of Public Health. The event is also hosted in partnership with the American Society of Law, Medicine & Ethics. The conference goals are described here:  

By assembling an interdisciplinary group of researchers, practitioners, and advocates, the conference will provide a fuller picture of both the impact of the law on the books and the realities of the law on the ground. The goal of the conference is to help scholars, practitioners, advocates, and students understand current policy and practice related to abortion, as well as the reverberating effects of the Dobbs decision on the delivery of health care and society more broadly. It also aims to develop a research agenda and a broader strategic focus for advancing more equitable access to reproductive health care in the long term.

Register for the free event here. Check out the agenda for the program here. 

January 16, 2023 in Abortion, Conferences, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, January 9, 2023

Donley and Lens on "Abortion, Pregnancy Loss, & Subjective Fetal Personhood"

By Jamie Abrams

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Greer Donley and Jill Wieber Lens have published their article Abortion, Pregnancy Loss, & Subjective Fetal Personhood in volume 75 of the Vanderbilt Law Review. The abstract provides as follows: 

Long-standing dogma dictates that recognizing pregnancy loss threatens abortion rights--acknowledging that miscarriage and stillbirth involve the loss of something valuable, the theory goes, creates a slippery slope to fetal personhood. For decades, antiabortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate fetal personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss and, more recently, remained silent, alienating those who suffer a miscarriage or stillbirth.

 

This Article argues that this perceived tension can be reconciled through the concept of subjective and relational fetal value. The Article derives this concept from pregnancy loss research, which demonstrates that a pregnant person’s attachment to their fetus is based on myriad individualized factors. Attachment in pregnancy is neither fixed nor biological and therefore does not support the antiabortion concept of personhood-at-conception. We suggest that tort law offers a way forward: a model of recognizing subjective, relational fetal value that does not collapse into personhood-at-conception. Thus, abortion rights advocates can recognize and support those experiencing pregnancy loss without ceding ground on abortion rights.

 

Most importantly, this Article proposes that recognition of pregnancy loss within abortion narratives will better position the abortion rights movement for a post-Roe America in which abortion and pregnancy loss are inexorably intertwined. Without legal abortion access, women will turn to self-managed abortion. But because complications from self-managed abortion are indistinguishable from miscarriage, investigation and criminalization of pregnancy loss will increase as a mechanism to enforce abortion laws. Further, restrictions on abortion will limit medical treatments for pregnancy loss. Looking forward, we argue that an abortion rights narrative that can join forces with the pregnancy loss community by acknowledging subjective fetal value will be less alienating to many Americans and reflect nuanced views on the meaning of pregnancy. Last, appreciating the blurriness between abortion and pregnancy loss will help normalize and destigmatize all pregnancy endings that do not result in a live birth--abortion, stillbirth, and miscarriage-- benefitting all pregnant people.

January 9, 2023 in Abortion, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Friday, January 6, 2023

Members of the Military will Now Get 12 Weeks of Parental Leave

By Tracy Thomas

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Military Members Will Now Get 12 Weeks of Parental Leave

Members of the military will now get 12 weeks of parental leave, doubling the previous amount, after a memorandum from the Department of Defense went into effect Wednesday.

The 12 weeks are for both birthing and non-birthing parents, which includes parents of recently adopted children and members who use surrogates, and applies to parents of children born or adopted after Dec. 27, 2022.

Eligible members must be in active or reserve duty for at least 12 months.

Parents giving birth will also receive a period of convalescence to recover from labor "if such leave is specifically recommended, in writing, by the health care provider of the birth parent to address a diagnosed medical condition and is approved by the unit commander," the memo states.

January 6, 2023 in Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, January 4, 2023

Senate Passes Protections for Pregnant Workers and New Mothers

By Tracy Thomas

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Senate Passes Protections for Pregnant Workers and New Mothers

The Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act passed the Senate with bipartisan support on Thursday as amendments to the omnibus spending package.

Why it matters: It's a major milestone for women's workplace civil rights. Advocates have pushed for protections for pregnant workers for over a decade, arguing that thousands of women lose their jobs each year — either fired or placed on unpaid leave — because employers are under no obligation to offer pregnant workers reasonable accommodations.

  • Those would include things like extra bathroom breaks, the ability to sit while working a cash register or restrictions on how much weight they can lift.

January 4, 2023 in Equal Employment, Family, Legislation, Pregnancy, Work/life | Permalink | Comments (0)

Tuesday, January 3, 2023

Ohio Six Week Abortion Ban Remains Block After Appellate Declines Review of Preliminary Injunction Invalidating the Law

By Tracy Thomas

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Been getting lots of questions about this status in Ohio:

Ohio's Abortion Law Will Remain Blocked for Now After Appeals Court Decision

The First District Court of Appeals in Cincinnati has denied the state's request on taking up its appeal of a preliminary injunction blocking enforcement of a state law banning abortions after six weeks of pregnancy.

A Hamilton County Court Judge issued the preliminary injunction Oct. 7.

The court says it can only rule on the issue if the Hamilton County judge issues a final ruling on whether the state law on abortion is constitutional.

The American Civil Liberties Union, ACLU of Ohio, Planned Parenthood Federation of America, and the law firm WilmerHale will now proceed with litigation to get a permanent injunction on behalf of Ohio abortion providers.

With the preliminary injunction still in place for now, abortions that happen at up to 22 weeks of pregnancy will remain legal in Ohio

January 3, 2023 in Abortion, Constitutional, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, December 19, 2022

New State Litigation Tracker Released by Brennan Center for Justice and the Center for Reproductive Rights

By Jamie Abrams

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The Brennan Center for Justice (NYU Law) and the Center for Reproductive Rights have built a state litigation tracker for the public to monitor ongoing litigation in states courts following the Dobbs Supreme Court decision.  This online tool "will include pending and completed state court litigation against abortion bans that were, or would have been, unconstitutional under Roe."  The site states that "[a]s of December 5, 2022, a total of 34 cases have been filed challenging abortion bans in 19 states, of which 31 remain pending at either the trial or appellate levels." These partners will update the tracker with key filings and court orders.

Check out the tracker here:  https://www.brennancenter.org/our-work/research-reports/state-court-abortion-litigation-tracker 

 

December 19, 2022 in Abortion, Courts, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Expansions in California's Abundant Birth Project

By Jamie Abrams

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The United States' first program giving cash to pregnant Black women in San Francisco has expanded to four additional counties. California's Abundant Birth Project is described as: 

The Abundant Birth Project is a simple, yet novel, approach to achieving better maternal health and birthing outcomes: provide pregnant Black and Pacific Islander women a monthly income supplement for the duration of their pregnancy and during the postpartum period as an economic and reproductive health intervention. Prematurity is a leading cause of infant mortality and has been linked to lifelong conditions, such as behavioral development issues, learning difficulties, and chronic disease. In San Francisco, Black infants are almost twice as likely to be born prematurely compared with White infants (13.8% versus 7.3%, from 2012-2016) and Pacific Islander infants have the second-highest preterm birth rate (10.4%). Furthermore, Black families account for half of the maternal deaths and over 15% of infant deaths, despite representing only 4% of all births. Pacific Islander families face similar disparities.

San Francisco Mayor, London N. Breed, celebrated the launch of the program stating:  

“Providing guaranteed income support to mothers during pregnancy is an innovative and equitable approach that will ease some of the financial stress that all too often keeps women from being able to put their health first. The Abundant Birth Project is rooted in racial justice and recognizes that Black and Pacific Islander mothers suffer disparate health impacts, in part because of the persistent wealth and income gap. Thanks to the work of the many partners involved, we are taking real action to end these disparities and are empowering mothers with the resources they need to have healthy pregnancies and births.”

Daisy Nguyen, reporter with KQED.org, reported on the expansion of the program.  

Since June 2021, the Abundant Birth Project has given $1,000 per month to nearly 150 Black residents during a portion of their pregnancies and the first six months of their children’s lives. With the extra funding from the California Department of Social Services and another $1.5 million in city funds, the program aims to reach another 525 people in San Francisco, Alameda, Contra Costa, Los Angeles and Riverside counties.

Learn more about the Abundant Birth Project here.  

December 19, 2022 in Healthcare, Poverty, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Wednesday, December 14, 2022

Abortion News Roundup Week of 12/14

By Tracy Thomas

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Judge Grants RFRA-Based Preliminary Injunction Against Abortion Ban in IN

“Many Hoosiers have sincere religious beliefs that they must be able to obtain an abortion,” the American Civil Liberties Union of Indiana, which filed the suit, said in a statement. “… Today’s preliminary injunction is a second layer of protection.”

Under Indiana’s Religious Freedom Restoration Act, government can only “substantially burden” exercise of religion if it advances a “compelling” government interest in the least restrictive way possible.

The class action lawsuit argues that the new abortion law violates RFRA. The plaintiffs include practitioners of Judaism, Islam, Unitarian Universalism, Episcopalianism and paganism — all belief systems that allow abortions under circumstances outside the ban’s narrow exceptions.

IA Judge Blocks Effort to Ban Most Abortions in the State

NPR, Judge Denies IA Governor's Request to Revive Fetal Heartbeat Act

Ms, Anti-Abortion Groups Ask Trump-Appointed Judge to Ban Mailing Abortion Pills

Campaign Launches to Put Abortion Access on Ohio Ballot in 2023

Jessica Quinter & Caroline Markowitz, Judicial Bypass and Parental Rights After Dobbs, Yale L.J. (forthcoming)

Wash Post, Antiabortion Movement Sets Sights on Putting People in Jail

Conf 12/16, NACDL National Summit on the Criminalization of Reproductive Rights

December 14, 2022 in Abortion, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, December 12, 2022

Artist Michelle Browder Honoring the "Mothers of Gynecology" with a New Museum and Clinic

By Jamie Abrams

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Daja E. Henry with the 19th News has written about how A new museum and clinic will honor the enslaved "Mothers of Gynecology." This site is expected to break ground on Mother's Day 2023. It sits less than a mile away from Alabama's state capitol. The project will convert James Marion Sims' makeshift hospital into a $5.5MM museum that will include a clinic and training facilities for midwives, doulas, and medical students. The site will honor the enslaved women and girls who "shed blood for the creation of American gynecology, despite their inability to consent." The artist is Michelle Browder. Author, Daja Henry, writes the following about the project: 

Browder plans to expand a two-story building that has stood there since the late 1800s and add a third floor, which will house the Mothers of Gynecology Health and Wellness Clinic. The clinic will be a primary care unit that helps women who cannot afford those services, while also providing a space for doulas, midwives and OB-GYNs to collaborate to offer solutions to end the maternal health crisis.

* * *  

Sims, a well-respected figure in American medicine, is known for inventing the speculum and the Sims position, which are both used during gynecological examinations. To arrive at those advances, he purchased and leased enslaved women, whom he operated on without anesthesia, to perfect treatments for White women. For five years, they labored at Sims’ side and under his torturous hand. They were the subjects of dozens of procedures with no anesthesia. They were also tasked with holding each other down and assisting with the procedures, along with the typical work of an enslaved woman. Anarcha [one of the girls honored in a prior art work of Bowder's] underwent at least 30 surgeries during Sims’ experimentation. She was 17 years old at the time of her first surgery. 

* * * 

Today’s maternal health care crisis that is killing Black women and babies is a natural continuation of the science birthed from violence, experts said. The mistreatment of Black people and their bodies has been there every step of the way. 

December 12, 2022 in Healthcare, Pregnancy, Race, Science | Permalink | Comments (0)

Monday, December 5, 2022

Washington Post on "Pregnant and desperate in post-Roe America"

By Jamie Abrams

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The Washington Post reports on how three patients are navigating unexpected pregnancies in Pregnant and desperate in post-Roe America.

Over the next decade, if recent trends hold, more than a million people with unwanted pregnancies are likely to run up against an abortion ban. Some will find a way, traveling hundreds of miles or securing illegal pills through the mail. Others will resign themselves to parenthood.

The Washington Post made contact with three pregnant women who were seeking abortions while living in states with strict abortion bans. These women, reached early in their pregnancies, communicated regularly with The Post, sharing their experiences through calls, text messages and other documentation that supported their accounts. They participated on the condition that only their first names be used to protect their privacy.

It features the stories of women in Oklahoma, Georgia, and Ohio. It is a powerful narrative of how the real lives of pregnant people are impacted in the current legal landscape.

December 5, 2022 in Abortion, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, November 8, 2022

State Abortion Bans and Pregnancy as a New Form of Coverture

By Tracy Thomas

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Caren Myers Morrison, State Abortion Bans: Pregnancy as a New Form of Coverture,  
Virginia Law Review Online, Forthcoming December 2022

Since Dobbs, some conservative states have made abortion a felony from the moment of conception, threatening doctors with life sentences, all in the name of protecting fetal life. This Essay argues that these bans, rather than protecting life, work to suspend women’s legal existence while they are pregnant. In this way, what these restrictions resemble most is the common law doctrine of coverture.

At common law, coverture meant that a married woman’s legal identity would be “covered” by that of her husband, with the two being deemed one in the eyes of the law—the one being the husband. What is happening now is a new kind of coverture—fetal coverture. But unlike marital coverture, which at least provided some material and legal benefits, fetal coverture just opens up a whole new world of health risks and legal peril. This account explains the absolutism of the new laws, which subsume the legal identity of the woman into that of her fetus.

November 8, 2022 in Abortion, Pregnancy, Reproductive Rights | Permalink | Comments (0)

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Tracy A. Thomas
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Seiberling Chair of Constitutional Law
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