Tuesday, November 8, 2022

State Abortion Bans and Pregnancy as a New Form of Coverture

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)

Thursday, October 27, 2022

New Arguments Against Transgender Equality Based on SCOTUS 1974 Case Geduldig Are Inconsistent with Equal Protection Doctrine

Katie Eyer, Transgender Equality and Geduldig 2.0 

In 1974, Geduldig v. Aiello held that pregnancy discrimination is not facially sex discrimination. Now, close to five decades later, opponents of transgender equality are trying to give the decision new life. Faced with the prospect of defending government laws and policies targeting “sex changes,” “gender dysphoria,” and more, such opponents have relied on Geduldig to argue that such policies are not facially discriminatory on the basis of sex or transgender status.

These new Geduldig arguments are inconsistent with the Supreme Court’s broader Equal Protection doctrine, and with Geduldig itself. Nevertheless, at least one court has credited them, and they are being made with increasing frequency in transgender rights cases. This Essay takes up the Geduldig arguments being made in contemporary transgender rights cases, and explains why such arguments must be rejected by the courts.

October 27, 2022 in Constitutional, LGBT, Pregnancy | Permalink | Comments (0)

Tuesday, October 18, 2022

Digital Privacy for Reproductive Choice in the Post-Roe Era

Aziz Huq & Rebecca Wexler, Digital Privacy for Reproductive Choice in the Post-Roe Era, 97 NYU L Rev. (forthcoming) 

The overruling of Roe v. Wade unleashed a torrent of regulatory and punitive activity restricting lawful reproductive options. The turn to the expansive criminal law and new schemes of civil liability creates new, and quite different, concerns from the pre-Roe landscape a half-century, ago. Reproductive choice, and its nemesis, rests on information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion begin with clinic closings, but quickly will extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely digital. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the mere act of doing so places them in legal peril.

This Article offers the first comprehensive accounting of abortion-related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal and economic terrain upon which firms, individuals, and states will make privacy related decisions. Building on this political economy, we develop a moral and economic argument to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law, and should actively resist restrictionist states’ efforts to instrumentalize them into their war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance, explaining in particular a range of powerful yet legal options for firms to refuse cooperation with restrictionist criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from restrictionist warrants, subpoenas, court orders, and judicial proceedings.

 

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October 18, 2022 in Abortion, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

Friday, October 14, 2022

The Under-Enforcement of Crimes Against Black Women

Lisa Avalos, The Under-Enforcement of Crimes Against Black Women, Case Western Reserve Law Review (forthcoming 2023) 

It is well known that over-policing has a severe adverse impact on communities of color. What is less well known is that over-policing is accompanied by a corollary—a pervasive and systemic under-policing of violence against women of color. The refusal to see women of color as victims of crime who are worthy recipients of justice, and to minimize the severity of violence committed against them, are habits that are deeply embedded in the American system of [in]justice. From an 1855 Supreme Court decision refusing to recognize a female slave’s right to sexual autonomy to a prosecutor’s 2021 decision to prosecute a Black rape victim for alleged false reporting, this article explores the systemic neglect of crimes against Black women while it simultaneously criminalizes them. Along the way, the article considers why Oklahoma City police officer Daniel Holtzclaw targeted African American women during his campaign of sexual violence, how Cleveland resident Anthony Sowell got away with murdering eleven Black women without being detected, and what motivated D.C. police officers to charge an eleven-year-old African American rape victim with false reporting.

The article argues that race-conscious police reform requires an intersectional approach. We must consider remedies for the under-policing of crimes against women of color alongside remedies for police brutality, excessive use of force, and other forms of over-policing. It argues that achieving police accountability for investigating and prosecuting violence against women of color requires (1) robust protocols designed to reduce implicit bias by sharply curtailing officer discretion and (2) accountability and oversight mechanisms designed to ensure that each and every complaint of such violence is thoroughly investigated.

The article then draws attention to global proposals capable of catalyzing the needed systemic change. It first considers a statutory approach—the Illinois Sexual Assault Incident Procedure Act, arguing for other states follow Illinois’ lead. This law requires police to follow certain procedures in relation to every sexual assault report, eliminating the opportunity to ignore crimes based on the race or gender of the victim. It next considers a constitutional approach—the new Equality Amendment proposed by Kimberlé Crenshaw & Catharine MacKinnon, analyzing the impact this Amendment would have on crimes against women of color. The article concludes that both of these approaches could be powerful tools for placing under-policing of violence against women of color on the radar and creating the needed change.

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October 14, 2022 in Pregnancy, Violence Against Women | Permalink | Comments (0)

Tuesday, October 4, 2022

SCOTUS Case on Animal Welfare Could Implicate State Power to Ban Abortion Pills Under the Dormant Commerce Clause

Michael Dorf, SCOTUS Animal Welfare Case Could Implicate State Power to Ban Abortion Pills

In October, the Supreme Court will hear oral argument in National Pork Producers Council (NPPC) v. Ross—a challenge by the pork industry to a California law that was adopted by referendum in 2018. Proposition 12 sets minimum welfare standards for the pigs raised for meat sold in California. Nearly all pork products sold in California come from pigs raised in other states. Thus, the plaintiffs—representing pig farmers, butchers, and the pork industry nationwide—argue that California is unconstitutionally regulating the interstate market.

The Constitution assigns to Congress the power to regulate interstate commerce, and the Court has long held that even when Congress does not exercise that power—i.e., when the commerce power remains “dormant”—states may not take certain measures to regulate interstate. However, the lower court held that Prop 12 is not the kind of measure that the dormant Commerce Clause forbids.

The chief evil at which dormant Commerce Clause precedents aim is discrimination. States should not engage in trade wars with one another by erecting protectionist barriers against out-of-state competition.***The plaintiffs do, however, raise two other sorts of dormant Commerce Clause claim. First, they invoke the principle that even a non-discriminatory state law will be held invalid if its out-of-state burdens are clearly excessive relative to its in-state benefits. Second, they contend that Prop 12 is essentially an extraterritorial regulation. Just as Iowa could not forbid the recreational use of marijuana in California, so California may not tell farmers in Iowa and other states how to treat their pigs.***

[A]lthough the dormant Commerce Clause might not forbid states from banning importation of abortion pills from out of state, here the Commerce Clause does not lie dormant. Congress exercised its power to regulate the movement of medications in interstate commerce when it enacted the Food, Drugs, and Cosmetics Act. In so doing, Congress delegated to the Food and Drug Administration (FDA) the power to approve drugs. While states may still regulate the practice of medicine, there is pretty good reason to think that FDA approval of abortion pills pre-empts (that is, displaces and nullifies) state laws restricting their sale or use. By contrast, the plaintiffs in NPPC do not contend that any current federal statute pre-empts Prop 12.

October 4, 2022 in Abortion, Business, Constitutional, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

The Common Law History of Unwed Motherhood and the Right to Procreation

Lauren Gilbert, To Procreate or not to Procreate: A Right to Self-Determination, Human Flourishing: The End of Law, Forthcoming

Real stories of pregnant women, past and present, shed light on how our laws have evolved to ensure greater recognition of a woman’s fundamental right to reproductive and family autonomy. Today, these rights are in jeopardy. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Center overturning the abortion right frames the issue in terms of the states’ interest in protecting human life; yet the implications for women’s health and human dignity are ignored. I look at several case studies implicating reproductive rights from 1924 to now. I then address Dobbs, concluding that the decision, by focusing on 1868 when women were excluded from the political process, disregards developments in women’s rights in the 20th century, defines fundamental rights too narrowly and ignores evidence of animus towards women seeking to control their reproductive destinies.

In Part I, I briefly review the common law history and treatment of unwed motherhood. In Part II, I recount some less well-known but illuminating details of the family history of Carrie Buck, who was forcibly sterilized in Virginia after the Supreme Court’s 1927 decision in Buck v. Bell. In Part III, I discuss the case of Anna Buck, who, to preserve her place in her community, hid her pregnancy and gave her baby, the bastard daughter of my great-grandfather, up for adoption. In Part IV, I tell my own story of single motherhood and the choices I made, including my own decision to have an abortion while I was living in Costa Rica, where abortions were illegal. In Part V, I discuss the Dobbs decision, and how its formalistic due process and equal protection analyses are compartmentalized so as to read out of existence any potential violations of a pregnant woman’s rights. I conclude that Dobbs is fundamentally flawed because, by focusing on 1868, a time when women were excluded from the political process, it disregards developments in women’s rights in the 20th century, defines the fundamental rights at stake too narrowly and, in finding no equal protection violation, ignores the evidence of animus towards women who seek to control their reproductive destinies.

October 4, 2022 in Abortion, Constitutional, Family, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, October 3, 2022

Elizabeth Kukura on "Punishing Maternal Ambivalence"

Elizabeth Kukura has posted her essay, Punishing Maternal Ambivalence, on SSRN. The work is published in 90 Fordham Law Review 2909 (2022). The abstract previews:   

There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into parents. These rituals and experiences are culturally salient, confirming that the participants are conforming to societal expectations about preparation and fitness for parenthood.But the transition from not being a parent to being a parent can take many different forms and embody different types of social meaning for the people involved. For some women, becoming a parent is much more fraught than the cultural narrative outlined here because they feel ambivalent about being a parent or about adding an additional child to their families. Maternal ambivalence has important, usually negative, social meaning and, increasingly, also legal significance for the mothers, children, and families involved. But the experience of ambivalence is usually invisible— something individual women feel privately and will perhaps share with trusted friends or a therapist, but which is not considered appropriate to discuss more publicly. The cloak of silence shielding these feelings from public awareness reflects the social stigma that attaches to maternal ambivalence, leading to emotional and psychological harm for some women who feel ambivalent about their pregnancies. The strength of this stigma enables feelings of ambivalence to be weaponized against pregnant and parenting women, sanctioning them for their deviance from social stereotypes regarding who is a “good” mother. This Essay explores the punishment of maternal ambivalence, drawing on three case studies to illustrate the strength of the stigma that attaches to such feelings. In these cases, the stigma of ambivalence turns such feelings into a weapon for disciplining women who fall short of societal expectations for mothers. These women (and others like them) are marked by social disadvantage, either because they are women of color in a racist society or because they are economically marginal, relying on low-wage jobs or an abusive husband in order to survive. Their race and class status may contribute to their ambivalence, making them reluctant to have a child whose basic needs they may not be able to satisfy. Such statuses also mark them for scrutiny and criminal sanction in a way that reflects not only gendered stereotypes but also racialized and class-based stereotypes about parental fitness and about who is deserving of society’s compassion and empathy.

October 3, 2022 in Family, Gender, Pregnancy | Permalink | Comments (0)

Wednesday, September 28, 2022

Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence

Benjamin C. Carpenter, Sperm is Still Cheap: Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence, Yale Journal of Law & Feminism, forthcoming 2022

Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their ex-wives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground—one party’s interests must yield to the other. To date, appellate courts in one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in nineteen cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 125 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.

September 28, 2022 in Constitutional, Family, Masculinities, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, September 22, 2022

Ohio Court Grants TRO Blocking Six Week Abortion Ban on Grounds of State's Health Care Freedom Amendment

I've been writing an essay for the Journal of Law, Medicine & Ethics on how state so-called Health Care Freedom Acts and Amendments enacted as symbolic protests to the individual insurance mandate of the federal Affordable Care Act provide an arguable basis for a recognized state right to abortion.  The essay was a lot harder to write before last week, when the Ohio court rule on these grounds.

Judge to Extend Pause of Ohio's "Heartbeat" Abortion Law for Another Two Weeks

 A Hamilton County judge overseeing a lawsuit challenging Ohio’s “heartbeat” abortion ban plans to issue a second order temporarily blocking the law, according to a lawyer involved in the case.

Judge Christian A. Jenkins, a Democrat, last week issued what’s called a temporary restraining order, pausing the law from being enforced for 14 days while he deals with arguments in the case.***

Once the second order comes, Ohio abortion clinics will be able to provide abortions up until 22 weeks from a woman’s last menstrual period at least through Oct. 12. That would extend the pause until after an Oct. 7 hearing Jenkins has scheduled for a more permanent order blocking the law while both sides argue their case.***

Jenkins has indicated he plans to rule in favor of abortion advocates, agreeing with their arguments that equal-protection guarantees contained in Ohio’s constitution covers the right to obtain an abortion. He noted a 1993 decision from a state appellate court that found the Ohio Constitution confers greater abortion rights than the U.S. Constitution, including a broad scope of the meaning of “liberty.”

The full opinion is here: Preterm Cleveland v. Yost (Ohio C.C.P. Sept. 14, 2022) (TRO Decision)

No great stretch is required to find that Ohio law recognizes a fundamental right to privacy, procreation, bodily integrity and freedom of choice in health care decision making. In 2011, the Ohio Constitution was amended by popular referendum to adopt the Health Care Freedom Amendment (Article I, Section 21) (“HCFA”). The plain language of subsections B and C of the HCFA is simple and clear:  (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health  insurance.  (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or  health insurance.

The State Defendants argue that the HCFA was intended by its drafters to provide a legal basis for Ohio and Ohioans to undermine or avoid the federal Affordable Care Act, not to outlaw health care regulation in Ohio. They point to the language in subsection (D) providing in pertinent part that “[t]his section does not . . . affect any laws calculated to deter fraud or punish wrongdoing in the health care industry” to suggest that the Amendment does not render health care regulations unconstitutional. But this misses the point – as a result of the HCFA, the Ohio Constitution contains a direct recognition of the fundamental nature of the right to freedom in health care decisions.

The fact that no one has yet challenged any existing health care regulations under the HCFA does not negate the import of its plain language.10 The HCFA does not define “health care,” but the use of the disjunctive “or” renders the term separate and distinct from the purported target of the amendment – health insurance. Abortion, whether procedural or medication, clearly constitutes health care within the ordinary meaning of that term. Moreover, the drafters could have excluded existing and future regulation of the health care profession, or even abortion specifically, but they did not.

Rather, the exception in subsection D is limited to fraud and the nebulous term, “wrongdoing,” without providing any definitional or interpretive guidance. Wrongdoing is defined as “illegal or improper conduct.” Black’s Law Dictionary 1932 (11th Ed.2019). At the time of the HCFA’s adoption in 2011, abortion had been constitutionally protected as the law of the land for nearly 40 years, and could hardly be considered “wrongdoing.” Finally, S.B. 23 was adopted years after the HCFA such that the General Assembly was presumably aware of its provisions recognizing a fundamental constitutional right to choice in healthcare decisions.

This Court cannot simply ignore part of Ohio’s Constitution because the Ohio Attorney General asserts it is not germane to this case. Nor must the Court defer to the General Assembly on questions of law such as those presented in this case, for “’[i]t is emphatically the province and duty of the judicial department to say what the law is.’ Our function here is to determine whether the act transcends the limits of legislative power.” Adams v. DeWine, __ Ohio St. 3d __, 2022-Ohio-89, ¶ 28 (rejecting Congressional district plan adopted by General Assembly in contravention of Ohio Constitutional amendment enacted by popular referendum); citing Marbury v. Madison, 5 U.S. 137, 177, 2 L. Ed. 60 (1803).

The HCFA represents an express constitutional acknowledgement of the fundamental nature of the right to freedom and privacy in health care decision making. Read together with other applicable sections of the Ohio Constitution, a clear and consistent recognition the fundamental nature of this right under Ohio law emerges. See e.g. Planned Parenthood Southwest Ohio Region v. Ohio Dept. of Health, Hamilton C.P. No. A 2100870, p. 6 (Jan. 31, 2022) (“Deprivation of reproductive autonomy falls squarely within the meaning of an injury done to one’s person under the Ohio Constitution”), citing Stone v. City of Stow, 64 Ohio St. 3d 156, 160-163, 593 N.E.2d 294 (1992). Accordingly, this Court recognizes a fundamental right to abortion under Ohio’s Constitution.

September 22, 2022 in Abortion, Constitutional, Healthcare, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, September 8, 2022

A RESOURCE LIST of the NEW LEGAL, POLITICAL, and PRACTICAL ISSUES of ABORTION POST-ROE

Updated 9/28/22

Most recent news posted at top of each category.

 

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            New State Laws:

WV Lawmakers Pass Bill That Restricts Abortion With Narrow Exceptions (9/13/22)  

The First Abortion Ban Passed After Roe Takes Effect This Thursday in Indiana (9/20/22)

Joanna Grossman, The Trigger Has Been Pulled. Texas Law Takes Effect (8/25/22)

1 in 3 American Women Have Already Lost Abortion Access. More Restrictive Laws are Coming (8/23/22)

IN Becomes First State to Pass an Abortion Ban (8/10/22)

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

           Mary Ziegler, Why Exceptions for the Life of the Mother have Disappeared (8/2/22)    

           Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to State Abortion Bans:

IN Judge Blocks Enforcement of Abortion Ban (9/23/22)

OH Judge Blocks Six-Week Abortion Ban for 14 Days (9/20/22)

A MI Law Criminalizing Abortion is Struck Down (9/8/22)

Judge Blocks Part of ID Abortion Law from Taking Effect (9/8/22)

Judge: Prosecutors Cannot Enforce MI's Abortion Ban (8/23/22)

ID Lawmakers Walk Back Abortion Crackdown to Assuage Judge (8/23/22)

Justice Dept Sues ID Over Abortion Ban (8/10/22)

MT Abortion Laws Remain Blocked During Legal Challenge (8/10/22)

Courts Deliver Mixed Rulings on Pro-Life Laws After Roe (8/2/22)

Sistersong Women of Color Reproductive Justice Collective v. Georgia (11th Cir. July 20, 2022)

State Judge Strikes Down Many of MN's Abortion Restrictions (7/11/22) 

LA Judge Allows Abortion Ban to Take Effect (7/8/22)

TX, OH Top Courts Allow Abortion Bans to Take Effect (7/6/22)

FLA Judge will Temporarily Block 15 Week Abortion Ban (7/3/22)

TX SCt Lifts Freeze on Abortion Ban (7/2/22)

OH SCt Rejects Request to Suspend State's 6 Week Abortion Ban (7/1/22)

Judge Grants Restraining Order to Restore Abortion Access in Kentucky (6/30/22)

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:22

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Clergy Sue to Halt Fla Abortion Law, Cite Religious Freedom (9/7/22)

Clergy Members Contend FLA Abortion Law Violates Their Religious Freedom (8/10/22)

KY Court Holds that Abortion Ban May Violate State Establishment Clause (7/25/22)

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

A Federal Abortion Ban May Violate 5th A Due Process (9/23/22)

Graham Proposes 15 Week Abortion Ban, Seeking to Unite Republicans (9/13/22)

House Passes Bill to Codify Abortion Rights and Ensure Access (7/15/22)

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

The VA Says it Will Provide Abortions in Some States Even in States Where Banned (9/7/22)

TX Fed District Court Invalidates Federal Guidance on Emergency Treatment of Abortion (8/24/22)

Biden Issues [Second] Executive Order on Abortion (8/10/22)

Biden Signs Executive Order to Support Abortion Rights (7/11/22)

Under Pressure, Biden Signs Executive Order on Abortion

NM Governor to Sign Executive Order on Abortion Access (6/30/22) 

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

           Prosecutors:

Warren: DeSantis [FLA] Sacked me for Doing my Job as a Prosecutor (8/23/22)

Local Prosecutors Who Refuse to Prosecute Ohio's Abortion May be in the Clear (7/11/22)

Cuyahoga Cty Prosecutor Says He Won't Enforce 6 Week Abortion Ban (6/30/22) 

Liability for Pregnant Women:

NB Teen and Mother Facing Charges in Abortion Related Case (8/10/22)

Abortion Abolitionists Want to Punish Women (7/1/22)

FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            First Amendment Rights of Speech and Advising

First Amendment Confrontation May Loom in Post-Roe Rights (6/30/22)

            Out of State Travel: 

Dobbs and the Civil Dimension of Extraterritorial Abortion Regulation (9/23/22)

The Risk of Mandatory Reporting Laws to Out-of-State Abortion (8/2/22)

The Right to Travel in a Post-Roe World (7/15/22)

MT Clinics Preemptively Restrict Out of State Patients Access to Abortion Pills (7/11/22)

WP, Anti-Abortion Lawmakers Want to Block Patients From Crossing State Lines (6/30/22)

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Tribal Nations and Abortion Access: A Path Forward (8/23/22)

The Indian Country Abortion Safe Haven Fallacy

            Municipal Regulation    

Abortion Localism and Preemption in a Post-Roe Era (9/23/22)

            Other Constitutional Liberties: contraception, marriage, LGBTQ

Marc Spindelman, Dobbs' Other Dangers: Dobbs & Women's Constitutional Sex Equality Rights (8/2/22)

Thirteenth Amendment:

The Amendment Ending Slavery Could be the Key to Securing Abortion Rights (7/7/22)

State Legislation:

Most Voters Want a Chance to Support Abortion on a Ballot (8/10/22)

Where Abortion is on the Ballot (8/2/22)

Voters in as Many as Eight States Will Vote on Abortion This Year (7/7/22)

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

Michiganders Will Vote on Abortion Rights in November (9/13/22)

Reproductive Freedom for All v. Board of Canvassers (Mich. Ballot Case) 

Richardson, The Originalist Case for Why the FLA Constitution's Right to Privacy Protects the Right to Abortion 

Kansans Resoundingly Reject Amendment Aimed at Restricting Abortion Rights (8/10/22)

Want to Protect Abortion? Look to KS (8/2/22)

NY Moves to Enshrine Abortion Rights in State Constitution (7/6/22)

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

See Paul Lipford, Abortion Under States Constitutions (3d ed. 2020) (Carolina Press)

Cities

How One Progressive City is Fighting to Decriminalize Abortion (8/23/22)

  See generally Legal Scholarship:

New Legal Frontiers on the Constitutional Right to Abortion (8/25/22) (Cohen, Murray, Gostin)

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

           Voters and Elections:

The Erroneous Claim that SCOTUS has Returned the Question of Abortion Access to the People (9/8/22)

After Roe's End, Women Surged in Signing Up to Vote in Some States (9/28/22)

Op ed, Women are So Fired Up to Vote! I've Never Seen Anything Like It (9/7/22)

Ohio Sees Surge in Women Registering to Vote After Abortion Access Denied (9/7/22)

Rethinking Strategy Post-Roe (7/25/22)

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

Abortion Defenders in MI and OH Get It: Take it to the Voters (6/30/22)

            Fetal Personhood:

GA Abortion Restrictions Spark New Debate Over Claims to Fetal Personhood (9/8/22)

GA Abortion Law Says a Fetus is Tax Deductible (8/10/22)

New OH Personhood Bill Would Declare All Individuals are Human from Moment of Conception (7/15/22)

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

The Green Wave in Latin America

How Green Bandanas Became the International Color of Abortion Rights

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

Abortion Pill Providers Experiment with Ways to Broaden Access (9/7/22)

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            Contraception: double layer contraception, increase in vasectomies

Is Male Birth Control Finally Here?

Missouri AG Says State Abortion Ban Does not Prohibit Plan B or Contraception (6/30/22)

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

           Minors

FLA Court Rules 16-Year-Old not Sufficiently Mature for Abortion (8/23/22)

Digital Privacy & Period Tracking Apps:

Facebook Gave NB Cops a Teen's DMs. They Used Them to Prosecute an Abortion. (8/10.22)

SC Bill Would Ban Internet Information on Abortion; Tech Companies May Face Competing Laws (8/2/22)

HHS Issued Guidance to Protect Private Medical Info (inc Period Tracking Apps) (7/6/22)

Scholars Explain How Femtech Products Poised to Fill Gap as States Try & Limit Birth Control and Abortion 

Google Will Delete User Location History for Abortion Clinic Visits (7/6/22)

Period Tracker App Flo Develops Anonymous Mode (6/30/22)

Why Deleting Your Period Tracking App Won't Protect You (6/30/22) 

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Doctors and Women's Medical Care:

Republican Abortion Bans Restrict Access to Other Essential Medications

Telemedicine Just Got More Complicated (9/28/22)

What Will Happen if Doctors Defy the Law to Provide Medical Care? (9/12/22) 

Dr Proposes Floating Abortion Clinic in Gulf of Mexico to Avoid Bans (7/15/22)

Can Pharmacists Refuse to Fill Prescriptions for Drugs Used in Abortion? (7/15/22)

Physicians Face Confusion and Fear in Post-Roe World

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

Overturning Roe will Exacerbate the Black Maternal Mortality Crisis (8/25/22)

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies and cities paying travel expenses:

St Louis Will Help Women Get Out of State Abortions; Cleveland, Cincinnati Also Take Measures (7/25/22)

How St Louis Tapped Federal Funds to Help People Travel Who Need Abortion (7/25/22)

TX Lawmakers Target Law Firms Aiding Abortion Access (7/11/22)

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Information & Assistance:  

Google Maps Will Now Label Clinics that Provide Abortions

ID University Says It Can Give Birth Control, "Promote" Abortion (9/28/22)

Abortion Finder Org Site ("The pink book" of where to access providers)

ABJ, Experts Say Helping OH Patients Get Abortions Isn't Illegal (6/30/22)

            Rebecca Traister, The Necessity of Hope: "It means doing the thing that people have always done on the arduous                             path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity."

September 8, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, July 26, 2022

The Risk of Mandatory Reporting Laws to Out-of-State Abortion Patients

Sophia Ballog, Will Laws Requiring CA Doctors to Report Abuse Put Out-of-State Abortion Patients at Risk? , SF Chronicle

The story of an Ohio 10-year-old who traveled to Indiana for an abortion after she was raped sparked a national media frenzy earlier this month.

It also raised questions about what legal obligations doctors have to report instances of minors receiving abortions and whether that could alert authorities in their home state that they had the procedure.***

Several bills to prohibit California agencies from sharing information about abortions with law enforcement in other states are currently moving through the legislative process. AB1242 would bar police from providing information about abortions to people or agencies from out of state. Another bill, AB2091, would prohibit health providers from releasing a patient’s medical information in response to a subpoena based on another state’s abortion ban.

Earlier this year, California enacted a law shielding people who get abortions or help others obtain abortions, such as doctors who perform the procedure, from civil liability.

Gov. Gavin Newsom also issued an executive order prohibiting state agencies and departments from sharing medical records related to reproductive health care with an agency in another state. Through the order, he also announced he will decline non-fugitive extradition requests for abortion-related charges.

At the same time, some lawmakers in conservative states are trying to pass laws that would restrict their residents from traveling out of state for an abortion. Newsom has said he believes Texas’ abortion ban, which allows private citizens to sue people who help women obtain abortions, could be used to sue people in California who help women from Texas get abortions or people who help them travel to the state.***

Jessica Levinson, a professor at Loyola Law School in Los Angeles, said she doesn’t think laws that aim to regulate travel to other states for an abortion will hold up under legal scrutiny, though she acknowledged there’s some debate among legal scholars about the issue.

Even so, efforts to ban interstate travel for abortions could still be intimidating for people. Levinson argued in a recent MSNBC op-ed that efforts like the attempts to intimidate the doctor who performed the abortion for the Ohio 10-year-old will have a chilling effect.

Mandated-reporting laws are coming under more intense scrutiny since Roe was overturned because they create data that could be used by entities or law enforcement in states that ban abortion to reveal someone traveled out of state to obtain the procedure, said Tracy Thomas, a constitutional law professor at the University of Akron in Ohio.

”That’s the concern we have with a lot of these reporting laws,” she said. “If you require the report, will that trigger further harm to that person?”

Even if the form for a mandated report of abuse doesn’t include any information about the minor’s abortion, just the fact that a mandated reporter was a doctor at a California clinic that provides abortions could be a sign the minor had the procedure, she said. Efforts to ban residents from traveling to other states to obtain abortions are new and untested, so it’s difficult to say whether or how that information might be used against a minor or their family, but it’s a reasonable question in the wake of Roe being overturned, she said.

”Everybody’s worried about data out there, whether it’s your period app, or whether it’s your GPS following where you’ve been,” she said. “Those are all normal ways that criminal law enforcement uses to figure out what happened, so those become areas of concern.”

July 26, 2022 in Abortion, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, July 18, 2022

The Pre-Civil War History of Fugitive Slave Laws and its Parallel to the Battle Over State Abortion Rights

Kate Masur, What Pre-Civil War History Tells Us About the Coming Abortion Battles, Wash. Post

The Supreme Court’s decision in Dobbs v. Jackson Womens Health Organization, which overturned Roe v. Wade and eliminated the constitutional right to an abortion, is prompting allusions to slavery and the antebellum United States. There’s talk of a new “Underground Railroad” that conjures clandestine networks helping people to flee their home states in search of the freedom to end a pregnancy. And some predict Dobbs will result in conflicts among the states of a magnitude not seen since before the Civil War.

 

Any historical comparison requires considerable care, with attention to differences as well as similarities.***

 
The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back.
 

This history doesn’t provide a blueprint for action in our own time, but it does remind us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights.***

 

The history of the 19th century reminds us that arguments for states’ rights, or for federal power, have no intrinsic political or moral valence. Northerners adopted personal liberty laws to mitigate oppressive aspects of the Constitution and federal law, while enslavers insisted on extending their jurisdiction beyond state lines and put unprecedented federal power in the service of human bondage.

 

But that doesn’t mean the best option for the country is to leave questions of fundamental rights in the hands of the states. To the contrary, history also shows that the United States has been at its best when, as in the Reconstruction amendments and federal civil rights laws, it offered federal guarantees of freedom, dignity and equality to all people. Federal guarantees not only strengthen democracy, they also tamp down conflicts among the states. Now the Supreme Court has withdrawn the 14th Amendment’s protection of reproductive freedom. No wonder we find ourselves looking for parallels to a period before the amendment existed.

July 18, 2022 in Abortion, Constitutional, Legal History, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Monday, July 11, 2022

Promising Male Birth Control Pill is Highly Effective with Few Side Effects

Is Male Birth Control Finally Here?

 Nevertheless, researchers recently announced that male birth control trials with mice were wildly successful—99 percent effective at preventing pregnancy.

The new pill, created by a team at the University of Minnesota, blocks proteins from binding to vitamin A, which is crucial to fertility and virility in mammals. In addition to the drug being virtually able to block all pregnancies, the researchers said the pill has no apparent side effects. The findings were shared in March at the annual meeting of the American Chemical Society.***

The sexism behind birth control is blatant. Why do women bear most of the burden of preventing pregnancy? Researchers have traditionally paid much more attention to birth control for women than men, male birth control researchers acknowledge—from pills to patches to intrauterine devices. Seeing men expand birth control options—including taking more responsibility—is essential, especially now.

When male mice were given the drug orally for just four weeks, researchers found they had such a steep drop in sperm count that they became sterile. Yet, when the team stopped dosing the animals, the drug’s effects reversed: The mice bounced back to normal virility in four to six weeks.***

Because this contraceptive is non-hormonal, it’s likely to have fewer side effects, researchers say. Earlier attempts at male birth control pills largely worked by blocking testosterone, which can lead to depression, weight gain and decreased libido. Even when scientists super-dosed the mice with the new drug, the rodents seemed to do just fine, Noman noted.***

As noted, the side effects of weight gain, depression and increased levels of LDL made testosterone not a good choice. “Since men do not have to suffer the consequences of pregnancy, the threshold for side effects from birth control pills is rather low. This is a big barrier to developing a male contraceptive. That’s why we are trying to develop non-hormonal birth control pills to avoid hormonal side effects,” Noman said.

July 11, 2022 in Healthcare, Masculinities, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, July 7, 2022

Legal Scholars Argue that Femtech Products Poised to Fill Gaps as States Try to Limit Birth Control and Abortion Access

Leah Fowler & Michael Ulrich, Femtechnodystopia 

Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral changes that support the health of the fetus. However, more nefarious actors also have interests in these technologies and the intimate information they contain. In the wrong hands, these tools can effectuate increased reproductive control and criminalization. What happens next will depend on whether we can improve efficacy, limit foreseeable privacy risks, and raise consumer awareness. But the current legal and regulatory landscape makes achieving these goals far from a straightforward proposition, further complicated by political influence and a conservative Supreme Court. Thus, this Article concludes with multiple solutions involving diverse stakeholders, offering that a multifaceted approach is needed to keep femtech’s dystopian future from becoming a reality.

July 7, 2022 in Abortion, Pregnancy, Reproductive Rights, Science, Technology | Permalink | Comments (0)

Wednesday, June 29, 2022

Ohio Lawsuit Filed to Enjoin 6 Week Abortion Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care

Lawsuit Filed Against Ohio Abortion Ban After Roe v. Wade Ruling

Just days after the United States Supreme Court overturned Roe v. Wade in a historic decision, multiple groups have come together to file a lawsuit in the Ohio Supreme Court “seeking to block the state’s six-week ban on abortion and to restore and further protect Ohioans’ reproductive rights secured by the Ohio Constitution.”

Their lawsuit comes after a federal judge in Ohio granted the state’s request to allow the previously blocked six-week abortion ban – also known as the “heartbeat bill” – to take effect. The suit argues the bill “radically restricts access to abortion in Ohio by lowering the gestational age limit from 22 weeks to approximately six weeks, with very limited exceptions.”

The Complaint is here: Download Complaint, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

See also: Download Memo in Support of Writ, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

To add some additional information:

1.  There is original jurisdiction in the Ohio Supreme Court for "extraordinary writs" like mandamus when there is no adequate remedy at law.  It is an unusual option, but that is the argument the provider plaintiffs are making here. saying there is a need for a definitive, state-wide ruling on this emergency motion.

2.  Ohio may be different in interpretation of its state due process ("due course of law") clause because it also now has a "Freedom to Choose Health Care" constitutional provision.  Ohio Const. Art. I.21.  This freedom of health care provision was passed by initiative in 2011 in response to the federal Affordable Healthcare Act as an "anti-Obamacare" action.

 

 

June 29, 2022 in Abortion, Constitutional, Courts, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 28, 2022

Ohio Statutory Framework of Abortion Laws After Dobbs

Download Summary: Ohio Statutory Framework for Abortion Laws After Dobbs (as of 6-27-2022)

 

OHIO ABORTION STATUTORY FRAMEWORK POST-DOBBS

I.  Ohio Laws on the Books That Have Been Enjoined or Not Enforced Under Roe

Telemedicine & Medical Abortions:  Only a physician can provide abortion-inducing drugs, physician must be physically present at administration of initial dose, exceptions for self-managed by woman and legal delivery. O.R.C. §§ 2919.123, 2919.124(B).  New 2021 version preliminarily enjoined by Planned Parenthood Sw. Ohio v. Ohio Dep’t of Health, No. A 2101148 (Hamilton Cty, Ohio, C.C.P. Apr. 20, 2021).  Earlier version enjoined for 12 years, limited to as-applied injunction, mooted on motion by Federal Drug Agency.  See Planned Parenthood of Sw. Ohio v. Dewine, 931 F.3d 530 (6th Cir. 2019), cert. denied, 141 S.Ct. 189 (2020).

Limitation of Backup Physician: Prohibits physicians affiliated with state institutions from being backup providers. Preliminarily enjoined, Women’s Med Dayton v. Vanderhoff, No. A2200704  (Ohio C.C.P. Apr. 15, 2022), second preliminary injunction granted (June 17, 2022).

“Dismemberment Feticide”: Prohibits D&E and D&X procedures, except to preserve life or physical health of mother. O.R.C. § 2919.15 (2019). Partially enjoined to permit D&E procedures before 18 weeks.  Planned Parenthood Sw. Ohio Region v. Yost, 375 F.Supp.3d 848 (S.D. Ohio 2019), reconsideration denied, 2020 WL 40143 (2020). 

Fetal Burial Law: Requires cremation or internment of fetal remains. O.R.C. § 3726.02 (2021), preliminarily enjoined by Planned Parenthood Sw. Ohio Region v. Ohio Dep't of Health, No. A2100870 (Ohio C.C.P. Jan. 31, 2022). 

Municipal Ban: A municipal ordinance in the City of Lebanon bans all abortions and those who “aid or abet,” but city stipulated it would not enforce after being sued by ACLU.  Ohio's Only Sanctuary City Chooses Not to Enforce Abortion Ban, Fox19News (May 26, 2022); Nat'l Assoc. Social Workers v. City of Lebanon, No. 1:22-cv-258 (S.D. Ohio May 11, 2022).

II. Ohio Abortion Regulations Currently In Effect That Have Criminal Penalties

Fetal “Heartbeat Protection Act”: O.R.C. § 2919.195(A), enjoined by Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796 (S.D. Ohio July 3, 2019), injunction dissolved (S.D. Ohio June 24, 2022).  The law had not been structured as a trigger law, but operated as one when the district court dissolved the injunction upon emergency motion of the state immediately following the Dobbs decision and the law went into effect. Litigation continues in the case. The law prohibits abortion when a “fetal heartbeat has been detected” (5-6 weeks) except to prevent death or “serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.”

*6/29/22: Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care (includes complaint and memorandum)

20 Week Ban:  O.R.C. § 2919.201(A) prohibits abortion after twenty weeks post-fertilization (22 weeks), except to prevent death or serious physical impairment. An earlier law prohibits abortion after “viability” and requires viability testing at 20 weeks. O.R.C. §§ 2919.17, 2919.18.

“Abortion Manslaughter”:  First degree felony if purposely takes life or “fails to take measures” to “preserve the health or life” of “child born by attempted abortion who is alive when removed from the uterus.” O.R.C. § 2919.13 (eff. Mar. 23, 2022).

Minor Parental Notification or Judicial Bypass: O.R.C. §§ 2919.121, 2151.85, upheld in large part by Cincinnati Women’s Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006) (overturning limit on one judicial petition per pregnancy).

Down Syndrome Ban:  Ohio prohibits abortions if provider has knowledge of woman’s reasons related to Down syndrome of the fetus. O.R.C. § 2919.10(B) (2018).  The U.S. Court of Appeals for the Sixth Circuit (en banc), reversed a preliminary injunction enjoining the Ohio Down syndrome law, finding that there was no likelihood of success on the merits that this was an unconstitutional undue burden.  Preterm-Cleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021).  However, in a subsequent decision, the Sixth Circuit declared a similar Tennessee Down syndrome law unconstitutional on grounds of void for vagueness and expressly noted that the Ohio decision had not address the vagueness issue. Memphis Center for Reproductive Health v. Slatery, 114 F.4th 409, 428-34 (6th Cir. 2021).

“Partial Birth Feticide”: O.R.C. § 2919.151(B) prohibits “partial birth procedure” of late term abortion when fetus is viable unless necessary to safe life or health of woman.

Woman’s Immunity: “Abortion” defined to include “purposeful termination” by “the pregnant woman herself.”  O.R.C. § 2919.11.  Exemption for Down syndrome prosecution.  O.R.C. § 2919.10(F).  Immunity for women for all bans passed, O.R.C. § 2919.198, enjoined in Yost, but injunction dissolved (S.D. Ohio June 24, 2022).

III.       Ohio’s Current Civil Framework Regulating Abortion

Many criminal prohibitions also carry civil liabilities for compensatory damages, exemplary damages, and attorney’s fees. E.g., O.R.C. §§ 2919.201; 2919.10; 2307.54.  Several permit the father to bring a civil action. E.g., O.R.C. § 2307.54 (20-week ban).

Other provider requirements are: (1) physician reporting, O.R.C. §§ 2919.171, 2919.101, 2919.202, 3701.79; (2) mandatory twenty-four-hour waiting period, O.R.C. § 2317.56; (3) counseling, O.R.C. § 2317.56; (4) determine fetal heartbeat. O.R.C. § 2919.191 (eff. 6/24/22).

IV.  Ohio’s Fetal Personhood Laws

“Intentionally aborted fetuses” are not considered “persons.” O.R.C. § 2901.01(B).

Fetal personhood law proposed in the Human Life Protection Act to define “unborn child” from the date of fertilization.  OH HB 598 (proposed Rev. O.R.C. § 2904.02(E)). The Act would also impose a total ban on all surgical and medical abortions, except as necessary to “prevent death” or “a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant individual.” OH SB 123 (introduced 3/2021); OH HB 598 (introduced 3/2022); see generally Ohio Policy Evaluation Network (tracking Ohio abortion laws and legislation).

 

See also Ohio Democratic Lawmakers Propose a Constitutional Amendment to Protect Abortion Rights (Joint Resolution requiring 3/5 vote of legislators to place on ballot for vote) (May 17, 2022)

 

June 28, 2022 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Texas District and County Attorneys' Explanation of Current State Abortion Law After Dobbs

Texas District & County Attorneys Association, Interim Summary: Abortion-Related Crimes After Dobbs

New criminal offense under HB 1280

The gist of new Chapter 170A is §170A.002 (Prohibited Abortion; Exceptions), which prohibits knowingly performing, inducing, or attempting an abortion at any time after fertilization. A violation of that section is a second-degree felony under §170A.004 (Criminal Offense) unless the unborn child dies, in which case it is a first-degree felony.

 

Other things to know about this new crime:

  • “Abortion” includes surgical and non-surgical means, such as drugs/medicine (which now account for more than half of all elective abortions). The term would appear to include “selective reductions” performed as a part of some IVF treatments, but it does not include contraception, ectopic pregnancy removals, and other surgical acts listed in the definition of that term (§170A.001(1)).
  • Nothing in Chapter 170A can be used to impose criminal, civil, or administrative liability upon a pregnant woman upon whom an abortion is performed (§170A.003).
  • Doctors have defenses for performing an abortion to save the expectant mother from death or severe injury and for any medical treatment that results in an accidental fetal death (§170A.002).

 

This new criminal offense will apply to conduct occurring on or after the 30th day after Dobbs finally overrules Roe. Note that this is *not* 30 days from today; the Court’s opinion was released today, but not it’s final judgment or mandate. The Attorney General’s Office issued a legal advisory today noting this remaining contingency, along with a (speculative) comment that some abortion-related crimes may be prosecutable immediately. (More on that below.) Regardless of an such opinion, though, any criminal, civil, or administrative action brought under the new law is likely to involve litigation over the effective date of §170A.002 due to its unusual (unprecedented?) trigger mechanism.

 

New civil fines (and complications)

Chapter 170A also includes new §170A.005 (Civil Penalty) creating a civil penalty of not less than $100,000 for each violation of §170A.002. If this sends up a double jeopardy red flag for you, congratulations—you are probably recalling the admonition from Dep’t of Revenue of Montana v. Ranch, 511 U.S. 767 (1994), in which SCOTUS held that a defendant already convicted and punished for a criminal offense cannot have a non-remedial civil penalty imposed against him for the same offense in a separate proceeding due to the Fifth Amendment’s Double Jeopardy Clause. And the reverse is also true: If a defendant fully pays a civil fine, then any subsequent criminal prosecution is barred by double jeopardy. See, Ex parte Ward, 964 S.W.2d 617, 627 (Tex. Crim. App. 1998).

 

While the Double Jeopardy Clause does not prohibit the initial filing of concurrent criminal and civil actions, a conviction in the former or a full payment in the latter will foreclose the other option. Interestingly, the civil enforcement provision of §170A.005 requires the attorney general (OAG) to file a civil action to recover this civil fine. By requiring OAG to pursue a minimum six-figure civil penalty for the same conduct that potentially incurs a felony sentence of imprisonment and a criminal fine, the legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion “trigger law” crime if any of those civil fines are collected by OAG.

June 28, 2022 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, June 23, 2022

Unequal Representation of Women in Clinical Research

Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021

Abstract:

This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.

Introduction:

The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.

On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.


However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.

These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials. 

June 23, 2022 in Healthcare, Legal History, Pregnancy, Race, Science | Permalink | Comments (0)

Wednesday, June 15, 2022

Elizabeth Cady Stanton Trust Files Lawsuits to Activate ERA and Protect Right to Abortion

The Elizabeth Cady Stanton Trust Files Three Lawsuits to Establish the ERA and to Protect Roe v Wade from Being Overturned

Three lawsuits were filed today in New York, Michigan and Rhode Island to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment (“ERA”) in the United States Constitution.

 

The plaintiff, The Elizabeth Cady Stanton Trust, filed the lawsuits to affirm that women are fully equal citizens under the U.S. Constitution, and are entitled to full and Equal Protection of all laws. Stanton was a leading women’s rights activist in the 1800s, whose leadership led to women winning the right to vote in 1920. The Trust’s president, Coline Jenkins, is the great, great granddaughter of Elizabeth Cady Stanton. Jenkins explained that the lawsuits were filed because “only with full Equal Protection of all laws can women’s right to choose be protected."

 

The lawsuits were filed in response to the recently leaked opinion of U.S. Supreme Court Justice Samuel Alito, who proposes to overturn Roe v Wade. The lawsuits were filed in states where Attorneys General have expressed their support for Roe, and have stated publicly that the ERA is valid. These lawsuits ask the courts to declare the ERA valid and ensure that all laws are fully compliant with the ERA.

 

The lawsuits assert claims under the ERA as the Twenty-Eighth Amendment to the Constitution and state that because three-fourths of the states have ratified the ERA it is now part of the Constitution and must be enforced. Article V of the Constitution states that an amendment becomes valid the moment the last of 3/4ths of the states ratifies it, which was Virginia in January 2020. But federal officials have refused to acknowledge the ERA’s validity because a purported ratification deadline expired before Virginia ratified. The lawsuits assert that the ERA is valid because the deadline is not valid.

Last-Minute Bid to Save Right to Abortion Comes Via ERA Lawsuits

The threat of a Supreme Court ruling overturning Roe v. Wade has spurred a trio of new lawsuits seeking state court recognition of the Equal Rights Amendment—a last-minute effort to preempt that anti-Roe ruling by forcing the high court to factor new constitutional language into its decision.

 

The women’s rights group Elizabeth Cady Stanton Trust filed lawsuits in state courts in Michigan, Rhode Island, and New York, asking courts there to declare the ERA a fully ratified and enforceable part of the Constitution. The group sued each state’s attorney general, seeking to force the officials “to identify and repair all sex discriminatory laws, policies and programs” in their respective states.

 

The lawsuits open a new front in the wide-ranging battles over abortion rights and the Equal Rights Amendment. The recently leaked draft of a Supreme Court opinion in the pending case Dobbs v. Jackson Women’s Health Organization would end the court’s 50-year precedent of recognizing a constitutional right to abortion, if the court’s final majority opinion aligns with Justice Samuel Alito’s draft when it is published, likely next month.

 

“By declaring the ERA’s validity, this Court will prevent the Supreme Court from overruling Roe and protect women’s basic human right to control their own lives,” attorneys wrote in each of the three complaints, filed May 18 in Michigan and Rhode Island and May 19 in New York.

 

The Equal Rights Amendment doesn’t explicitly address abortion, but the plaintiffs said the amendment’s guarantee of equal protection under the law on the basis of sex would cover the right for women to make reproductive choices free from government interference.

June 15, 2022 in Abortion, Constitutional, Pregnancy, Reproductive Rights | Permalink | Comments (0)

False Claims Continue Claiming Elizabeth Cady Stanton and Susan B Anthony as Anti-Abortion Advocates

False claims continue to abound about pioneering 19th century feminists Elizabeth Cady Stanton and Susan B. Anthony as to their views on abortion, including this week in the Wall Street Journal.

As a scholar of Stanton's work for the last twenty years studying her focus on legal and social reform of the family and marriage, I have written extensively against these false claims and tried to set the record straight by delving into the historical details (incorrectly) asserted for these claims.  I post here to refresh the recollection of that work as relevant to ongoing debates: 

First, here's the current, incorrect report, written by anti-abortion activists:

WSJ, Yes, Susan B Anthony Was Pro-Life

Early feminist icons Elizabeth Cady Stanton and Susan B. Anthony changed forever the role of women in American society. In the 19th century they tirelessly promoted public education on behalf of women’s equality and demanded that women be given the right to vote. But contrary to recent claims by advocacy groups, they were not in favor of abortion.

 

After a leaked Supreme Court draft decision appearing to overturn Roe v. Wade circulated in May, the nonprofit National Susan B. Anthony Museum and House in Rochester, N.Y., accused the Susan B. Anthony List, a pro-life political action committee, of misappropriating the famous suffragist’s name. “To suggest that Susan B. Anthony would support government intervention in a woman’s decision about a pregnancy is abhorrent,” museum president Deborah L. Hughes wrote in a post on the organization’s website.

 

The Elizabeth Cady Stanton Trust similarly claims that its namesake would have supported abortion-rights advocacy in the 21st century. The group has filed lawsuits in Michigan, New York and Rhode Island, asking courts, according to a press release, “to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment . . . in the United States Constitution.”

 

In fact, it’s the pro-choice groups that have it wrong. During their lifetimes, both women vociferously condemned abortion.

Here are links to my work challenging and disproving the historical basis on which these incorrect assumptions continue to rely:

Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012) (discussing both Stanton & Anthony)

Tracy Thomas, ECS Book Elizabeth Cady Stanton and the Feminist Foundations of Family Lawm chp. 4, The "Incidental Relation" of Mother (NYUP 2016)

Tracy Thomas, Gender & the Law Prof Blog, Elizabeth Cady Stanton was Not Against Reproductive Rights

Tracy Thomas, Gender & the Law Prof Blog, Voluntary Motherhood: What Did 19th Century Feminists Think About Abortion and Birth Control

The Atlantic, The Abortion Debate and the Legacy of Women's Suffrage (June 2019)

Tracy Thomas, National Constitution Center "We the People" Podcast, The Constitutional Legacy of Seneca Falls

Tracy Thomas, Gender & the Law Prof Blog, Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life

Tracy Thomas, Gender & the Law Prof Blog, The "Incidental Relation of Mother" and 19th Century Demands for Women's Reproductive Control

 

Elizabeth Cady Stanton and the Feminist Foundations of Family Law by [Tracy A. Thomas]

June 15, 2022 in Abortion, Books, Constitutional, Family, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)