Wednesday, August 30, 2023
Meghan Boone & Benjamin McMichael, Reproductive Objectification, Minnesota L. Rev. (forthcoming)
The American system of rights is individualized – premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate and autonomous.
This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person conceptually precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object – a reproductive vessel, merely the container for another individual rights’ holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the “maternal-fetal conflict” and undermine pregnant people’s rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome – undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety.
Monday, August 21, 2023
The National Organization for Women is suing the United States Department of Veteran's Affairs over its policy limiting access to in vitro fertilization to only opposite-sex and married couples. For news coverage of the lawsuit, check out 19th News here. The complaint alleges that the existing policy requires as follows:
6. Veterans and service members seeking coverage of IVF treatments must, together with a spouse, be able to provide their own sperm and eggs and are prohibited from using gametes from third parties (“Member Gamete Requirements”). Defendants’ policy also limits the benefit to service members and veterans who are lawfully married (“Marriage Requirements”).
7. Additionally, no matter how much an active-duty service member struggles with fertility, only active-duty service members with a “serious or severe” illness or injury from service can access IVF. Similarly, only veterans with infertility diagnosed as “service-connected” can receive IVF from VHA (“Service-Connection Requirements”).
8. The IVF policies facially exclude service members who are a) single or in an unmarried couple; b) unable to use their own eggs or sperm because of illness or injury; c) in a same-sex couple or couple with the same reproductive organs; or d) lacking a service-connected disability or Category II or III illness causing infertility.
The complaint alleges that this policy is discriminatory and it seeks injunctive and declaratory relief:
9. By excluding service members and veterans from IVF coverage on the basis of sex, sexual orientation, marital status, and/or the cause of their infertility, Defendants’ discriminatory policies violate Section 1557 of the Affordable Care Act, the due process and equal protection guarantees of the Fifth Amendment of the Constitution, and the Administrative Procedure Act.
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11. NOW-NYC seeks injunctive and declaratory relief on behalf of itself and its members enjoining Defendants from enforcing the discriminatory eligibility provisions of their IVF policies and declaring those provisions unlawful, so that no service member or veteran is denied the care they need to start a family solely because of who they love, their choice whether or not to marry, or the precise source of their fertility challenges. Specifically, NOW-NYC asks that this court declare unlawful and permanently enjoin Defendants from enforcing the Marriage Requirements, the Member Gamete Requirements, and the Service-Connection Requirements (collectively, the “Discriminatory Provisions”).
The full complaint is available here.
Bridget J. Crawford has published new work titled Pink Taxes and Other Tropes in volume 34 of the Yale Journal of Law & Feminism (2023). Here is an excerpt from the article's abstract:
The “pink tax” is an overarching description of related manifestations of gender inequality: the gender wage gap, gender-based pricing differences in consumer goods or services, disproportionate expenses incurred by a large portion of the population for safe travel or to maintain stereotypically “feminine” appearances, and unequal time burdens experienced by those responsible for households or caregiving. Note at the outset that the majority of existing research in the field deploys a binary understanding of gender as cis male and cis female. In relying on that research, this Article builds a more nuanced account of the complex operation of discrimination on the basis of gender. Such discrimination limits all people, regardless of whether and how they do (or do not) fit within narrow categories. This Article builds to the argument that only one manifestation of the “pink tax,” as a description for the state sales tax on menstrual products, has been well-served by a tax shorthand phrase. “Tampon tax” talk has fueled litigation and advocacy efforts; it has led to law reform in at least eleven jurisdictions, with more states expected to follow. Indeed, generalized “pink tax” rhetoric describing figurative taxes likely will not, on its own, lead directly to legal change. For that reason, at least when arguing for law reform, gender equality advocates should not over-rely on “pink tax” talk or figurative tax tropes.
Wednesday, August 2, 2023
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.
Monday, June 26, 2023
President Joe Biden announced that he was issuing an "Executive Order on Strengthening Access to Contraception" on the one-year anniversary of the Dobbs decision. The Executive Order acknowledges that "[m]illions of people continue to face barriers to obtaining the contraception they need even as access has become more critical in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), to overturn Roe v. Wade, 410 U.S. 113 (1973)." It explains that "[i]n States with laws that restrict access to abortion, health clinics that provide contraception and other essential health services have shuttered, eliminating critical points of care. Some State officials have adopted policies interfering with access to emergency contraception, including for vulnerable populations." The Order emphasizes the work that the Administration states it has already begun and vows to continue. It further asks relevant agencies to take several steps, including to "promote increased access to affordable over-the-counter contraception, including emergency contraception."
The Illinois legislature has passed a bill that amends its Consumer Fraud and Deception Act to limit pregnancy centers in the state from "interfer[ing] with or prevent[ing] an individual from seeking to gain entry or access to a provider of abortion or emergency contraception" or "induc[ing] an individual to enter or access to limited services pregnancy center."
The full text of the legislation is here: https://legiscan.com/IL/text/SB1909/id/2806523.
For more on this legislative strategy, check out this coverage in NBC News.
Friday, June 23, 2023
Wyoming Court Blocks Abortion Pill Ban in Part Because it Violates State Constitutional Right to Freedom of Choice in Health Care
In the recent decision by a Wyoming Court blocking an abortion regulation banning abortion pills, one issue debated was whether abortion is "health care." I've been writing about this issue for an upcoming article in the Journal of Law, Medicine & Ethics (Fall 2023), Protecting Abortion with Health Care Freedom of Choice about how some states have "health care freedom acts" or amendments that guarantee the right to choose health care. States in Ohio, Montana, and Wyoming have used this health freedom to declare abortion regulations unconstitutional on state grounds. The Wyoming case is Johnson v. Wyoming, No. 18732 (Wy. Dist. Ct. Aug. 10, 2022).
A Wyoming judge on Thursday temporarily blocked the first state law specifically banning the use of pills for abortion, the most common method in the country.
Just over a week before the ban was scheduled to take effect, Judge Melissa Owens of Teton County District Court granted a temporary restraining order, putting the law on hold pending further court proceedings.
Ruling from the bench after a hearing that lasted about two hours, Judge Owens said that the plaintiffs, who include four health care providers, “have clearly shown probable success on the merits and that at least some of the plaintiffs will suffer possible irreparable injury” if the ban were to take effect.***
The issue of whether abortion is health care was also a significant aspect of Thursday’s hearing on the medication abortion ban. Jay Jerde, a special assistant attorney general for Wyoming, argued that even though doctors and other health providers must be involved in abortions, there are many instances when “getting the abortion doesn’t implicate health care because it’s not restoring the woman’s body from pain, physical disease or sickness.”
Judge Owens questioned Mr. Jerde’s argument. “Essentially the government under this law is making the decision for a woman,” she said, “rather than the woman making her own health care choice, which is what the overwhelming majority in Wyoming decided that we should get to do.”
Thursday, June 22, 2023
Michelle Onello, Ohio Court Overturns Conviction of Pregnant Woman for Drug Use
An Ohio court of appeals unanimously overturned a pregnant woman’s conviction under the state’s “Corrupting Another with Drugs” law earlier this month, in a rare post-Dobbs win for the rights of pregnant people.
Extensive evidence shows criminalizing pregnant women for substance abuse endangers them and jeopardizes their babies’ well-being. Even still, prosecutors in Ohio—and elsewhere—have increasingly sought to “protect” fetuses by prosecuting pregnant women for their actions, manipulating state laws initially passed to protect pregnant people themselves from harm.
The Ohio case involved Tara Hollingshead, who voluntarily admitted to using fentanyl while in labor at an Ohio hospital. Prosecutors took the aggressive step of charging Hollingshead under an Ohio law that dictates no person shall “by any means, furnish or administer a controlled substance to a pregnant woman or induce or cause a pregnant woman to use a controlled substance, when the offender knows that the woman is pregnant or is reckless in that regard.”
The move marks the first time that Ohio prosecutors used this law to prosecute a pregnant person for the personal use of controlled substances. Prosecutors made the novel argument that, even though the law is entitled “Corrupting Another with Drugs,” the law was applicable to pregnant people who administered the drugs to themselves. A jury had previously convicted Hollingshead of a first-degree felony in April 2022, sentencing her to a mandatory eight to 12 years in prison.
Hollingshead appealed her conviction, arguing that the law was misapplied to criminalize pregnant people who were never intended to be covered under the law. The three-judge panel agreed, holding that personal drug use was outside the scope of the law and that the prosecutor’s interpretation of the statute was unreasonable, as it requires “use of the terms administer, furnish, induce and cause in ways that are inconsistent with common usage.” Further, the prosecutor’s interpretation would make Hollingshead both an offender and simultaneously a victim, thus entitled to restitution from herself, which the court acknowledged would be an “absurd result.”
Prosecutor Ron Welch vowed to appeal the ruling: “We were hoping that by use of this law we could be able to limit some of the mothers that continually have drug-addicted babies.” He also called on lawmakers to “untie” law enforcement’s hands, since the “laws that we have in place right now just are not good enough.”
Monday, June 5, 2023
The Center for Reproductive Rights published a report documenting poor quality care after Dobbs.
The Care Post-Roe Study seeks to learn about how clinical care has changed by documenting cases of care that was different from the usual standard due to abortion laws that went into effect since the Dobbs ruling. This study allows health care providers to share these narratives anonymously and confidentially, at a time when they are being forbidden by their employers or hospital leadership from speaking with the press about these cases.
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Cases in the narratives fell into several categories: 1. Obstetric complications in the second trimester prior to fetal viability, including preterm prelabor rupture of membranes, hemorrhage, cervical dilation, and hypertension; 2. Ectopic pregnancy, including cesarean scar ectopic; 3. Underlying medical conditions that made continuing a pregnancy dangerous; 4. Severe fetal anomalies; 5. Early miscarriage; 6. Extreme delays in obtaining abortion care; and 7. Delays obtaining medical care unrelated to abortion.
The post-Dobbs laws and their interpretations altered the standard of care across these scenarios in ways that contributed to delays, worsened health outcomes, and increased the cost and logistic complexity of care. In several cases, patients experienced preventable complications, such as severe infection or having the placenta grow deep into the uterine wall and surrounding structures, because clinicians reported their “hands were tied,” making it impossible for them to provide treatment sooner.
Access the full report here.
Thursday, June 1, 2023
Deborah A. Widiss, Privatizing Family Leave Policy: Assessing the New Opt-in Insurance Model, Seton Hall L. Review (forthcoming)
Federal law fails to guarantee new parents or family caregivers paid time off from work. A growing number of blue-leaning states have addressed this gap by enacting comprehensive, paid family and medical leave laws, typically funded by a small payroll tax. A new—and quite different—approach is expanding rapidly in red-leaning states: authorization of commercial “Family Leave Insurance” to be marketed to employers. In other words, this is an opt-in privatized approach to family leave policy.
This Article, written for a symposium held by the Seton Hall Law Review, offers the first analysis in the legal literature of opt-in Family Leave Insurance laws. These laws anticipate that insurance companies will likely add “family leave” to group short-term disability policies (an existing insurance product that provides partial salary reimbursement to employees who take time off work for medical needs). However, only about 40% of American workers, and just 22% of low-wage workers, receive short-term disability benefits from their employers—and most policies replace only 50-60% of regular wages. Providing paid leave at the low reimbursement rate typical of short-term disability policies can actually exacerbate inequality by making it easier for relatively affluent workers to take extended time off but still failing to provide sufficient support for low-wage workers to do so. By contrast, states that have enacted comprehensive paid leave laws, funded by a payroll tax, typically cover virtually all workers, and most replace 80-95% of regular wages, up to a cap set around the median wage.
This Article analyzes the new privatized Family Leave Insurance model, then suggests provisions that would help opt-in policies actually meet the needs of new parents and family caregivers. These include specifying a reasonably ample period of benefits and level of wage replacement, and ensuring that definitions of “family” reflect the diversity of contemporary families. The Article also explores potential adverse selection challenges—both within workplaces and across workplaces—that may arise under an opt-in approach. Because the risk pool will almost certainly be less varied than under a public program, private Family Leave Insurance may well provide less generous benefits at a higher per-person cost than fully-public policies. Authorization of opt-in insurance is better than nothing, but, as this Article demonstrates, it is likely that both workers and businesses are better served by comprehensive paid leave laws.
Thursday, May 25, 2023
A Comprehensive Proposal for Transitional Justice for Healing Sexual Violence Against Women of Color
Miyoko Pettit-Toledo, Collective Memory and Intersectional Identities: Healing Unique Sexual Violence Harms Against Women of Color Past, Present and Future, 45 Univ. Hawaii L. Rev. (2023)
For at least the last decade, at the urging of gender scholars and advocates, reconciliation initiatives started to recognize specialized harms of sexual violence against women and began to tailor redress to address these harms. Yet, although a step in the right direction, even those forward-looking redress initiatives did not specifically and forthrightly recognize unique sexual violence harms to women of color. This Article builds on this developing intersectional race-gender redress analysis with its focus on sexual violence by illuminating an important next step: recognition, through storytelling and collective memory, of sexual violence injustices against women of color. The collective memory of injustice is an important prelude to reconciliation initiatives. In the context of sexual violence against women of color, the shaping of an individual’s and group’s narrative and public image of the harms are vital to moving forward, especially as related to truth commission investigations and hearings. Where women of color who suffered sexual violence (and other forms of gender-based harms) are often silenced or largely rendered invisible in the redress process, voicing both individual and collective experiences of such harms may be an important step forward in healing such unique harms.
Yet in many transitional justice initiatives, those willing to come forward are frequently narrowly cast or categorized as “victims,” often in the context as witnesses in criminal prosecutions or for the purpose of determining legal eligibility for monetary reparations. However, recent studies reveal that women of color who have suffered sexual violence harms experience multiple, intersectional identities—as victims, survivors, political activists, fighters and much more. And many of them have expressed that they wish to be remembered that way—as more than just “victims”—in reparative justice initiatives and beyond. Through a mini case study of the experiences of Toufah Jallow, the Gambian woman who is credited with inspiring the #MeToo movement in Africa, this Article begins to illuminate what more is needed for comprehensive and enduring social healing through justice for both individual women of color and the polity itself. The time is now to listen to these women of color with empathy and understanding. The time is now to strive for more genuine and comprehensive social healing through justice.
Wednesday, May 17, 2023
Elizabeth Kukura, Rethinking the Infrastructure of Childbirth, 91 UMKC L. Rev. 497 (2023)
This Article applies the concept of infrastructure to analyze gaps in the maternity care system that shape where and how people give birth in the United States. It argues that we must understand how structural factors, including law and regulation, shape modern childbirth in order to advance perinatal health equity and improve health outcomes.
Specifically, the Article unpacks the concept of maternity care deserts as an infrastructure problem in three distinct but related ways. First, it describes the OB/GYN workforce shortage, including how the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is likely to compound this shortage in certain areas of the country.
Next, the Article describes the limited access to midwifery care in the United States and the current regulatory barriers to increasing the midwifery workforce and making midwifery care more available. It argues that greater midwife involvement in United States perinatal care will be essential in order to address the deepening gaps in access to care, and that the medical profession should abandon its opposition to liberalized midwifery licensure and regulation in favor of both midwifery promotion and greater interprofessional collaboration to meet the needs of pregnant people. Experimentation during the COVID-19 crisis with relaxed interstate licensure rules and interprofessional collaboration among physicians, midwives, nurses, and doulas to ensure safe childbirth provide examples for reimagining the relationships among birth professionals in ways that promote positive health outcomes.
Finally, the Article addresses existing barriers to community birth—meaning birth at home and in freestanding birth centers—and how lack of access to community birth, which is typically attended by midwives, both contributes to maternity care deserts and forces some people to birth in hospitals where their needs are not adequately met. Drawing on experiences during the pandemic, when record numbers of pregnant people sought community birth options in order to avoid delivering in hospitals overwhelmed by COVID-19, the Article argues that investing in more freestanding birth centers and reducing barriers to home birth are sensible, necessary strategies for closing gaps in access to maternity care and ensuring that pregnant people who do not feel safe or cannot have their needs addressed in hospitals have options for delivering in a community setting.
Evan D. Bernick, Dobbs, Plessy, and the Constitution of the New Jane Crow, Northern Illinois U. Law Rev. (2023)
Women and girls enter U.S. jails and prisons every year. Nearly a million are on probation, parole, or pretrial release. This carceral control is unevenly distributed, being primarily exercised over poor women of color. And it is growing. These realities are part of what has been conceptualized as “the New Jane Crow.”
This Essay contends that Dobbs v. Jackson Women’s Health Org. gives the New Jane Crow the U.S. Supreme Court’s constitutional blessing. In justifying its decision to overrule Roe v. Wade and hold that the Fourteenth Amendment does not protect the right to terminate a pregnancy, Dobbs invokes Plessy v. Ferguson and its overruling by Brown v. Board of Education. The profound evil of Plessy’s constitutional endorsement of “separate but equal” railcars and its legitimation of Jim Crow segregation is said to illustrate the importance of overruling egregiously wrong precedents. But Justice Samuel Alito’s opinion for the Court in Dobbs has more in common with Plessy than its author recognizes.
Part I provides an overview of the New Jane Crow, tracing the genealogy of the phrase and describing the phenomenon that it names. Though provocative, I argue that the phrase fits the phenomenon, given substantive and functional continuities between state control of female reproduction past and present. Part II describes how Dobbs constitutionally legitimates key components of the New Jane Crow and encourages its expansion.
Part III analogizes Dobbs to Plessy in three respects. First, in its disregard of relevant history. Second, in its lack of attention to present socioeconomic realities. Third, in its capacity to provide constitutional legitimation to an entire political-economic order that perpetuates racialized and gendered subordination.
Monday, May 8, 2023
A recent report was published on "Accessing Emergency Obstetrics Information as a Prospective Prenatal Patient in Post-Roe Oklahoma." The report was jointly authored by Physicians for Human Rights (PHR), the Oklahoma Call for Reproductive Justice (OCRJ), and the Center for Reproductive Rights (CRR). The Executive Summary provides:
In the wake of the 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, Oklahoma residents are currently living under three overlapping and inconsistent state abortion bans that, if violated, impose severe civil and criminal penalties on health care providers. * * * Because the exceptions drafted by legislators are often conflicting and use non-medical terminology, they sow confusion around what kinds of care and procedures health care providers can legally offer when a pregnancy threatens a person’s health or life. These challenges, combined with the significant penalties under these bans, constitute a situation of “dual loyalty”: health professionals are forced to balance their obligation to provide ethical, high-quality medical care against the threat of legal and professional sanctions. The decision to provide emergency medical care risks becoming a legal question – determined by lawyers – rather than a question of clinical judgment and the duty of care to the patient – determined by health care professionals.
In light of the extensive anti-abortion legal framework newly in place in the state, Oklahoma offers an important insight into the potential effects of near-total abortion bans on pregnant patients and the clinicians who care for them.
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The results of this research are alarming. Not a single hospital in Oklahoma appeared to be able to articulate clear, consistent policies for emergency obstetric care that supported their clinicians’ ability to make decisions based solely on their clinical judgement and pregnant patients’ stated preferences and needs. Of the 34 out of 37 hospitals offering obstetric care across the state of Oklahoma that were reached, 65 percent (22 hospitals) were unable to provide information about procedures, policies, or support provided to doctors when the clinical decision is that it is necessary to terminate a pregnancy to save the life of a pregnant patient; only two hospitals described providing legal support for clinicians in such situations. In 14 cases (41 percent), hospital representatives provided unclear and/or incomplete answers about whether doctors require approval to perform a medically necessary abortion. Three hospitals indicated that they have policies for these situations but refused to share any information about them; four stated they have approval processes that clinicians must go through if they deem it necessary to terminate a pregnancy; and three stated that their hospitals do not provide abortions at all.
Thursday, May 4, 2023
The panel will be held during the AALS Annual Meeting in early January 2024 in Washington, DC. The goal of the session is to discuss and share our ideas about teaching reproductive justice, both in regards to the Dobbs decision and related developments as well as how to create a separate course on reproductive justice. The panel will show how family and juvenile law professors are integrating these teaching methods into their courses and the overall family and juvenile law curriculum. Presenters will be asked to share relevant materials in advance of the Annual Meeting.
If you are interested in participating, please send a 400-600 word description of what you'd like to discuss. Submissions should be sent to Naomi Cahn, [email protected] and Jeffrey Dodge, [email protected]. The due date for submissions is June 23, 2023. We will notify the selected presenters by July 1, 2023.
Jennifer Hendricks, Jennifer Hendricks, Essentially a Mother (University of California Press May 2023)
Jennifer Hendricks, Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood (chapter summaries), SSRN.
This excerpt from Essentially a Mother includes chapter-by-chapter summaries and the full text of the introduction and conclusion.
Essentially a Mother argues that the law of pregnancy and motherhood has been overrun by sexist ideology. Courts have held that a pregnant woman’s nine months of gestation hardly count in her claim to parent the child she bears and that a man’s brief moment of ejaculation matters more than a woman’s labor. Armed with such dubious arguments, courts have stripped women of the right to abortion, treated surrogate mothers as mere vessels, and handed biological fathers—even those who became fathers through rape—automatic rights over women and their children. In this incisive and groundbreaking book, Jennifer Hendricks argues that feminists must overthrow the skewed value system that subordinates women, devalues caregiving, and denies too many the right to parent.
The questions raised in Essentially a Mother about sex differences, reproduction, and sex equality are ideal entry points for young people starting to think about feminism in a rigorous way. The book argues for a functional, rather than essentialist or identity-based, use of the insights of relational feminism.
Monday, April 24, 2023
While the Supreme Court's decision in the abortion medication litigation is by no means a victory for women’s health, it allows Mifepristone to remain legally accessible to the degree it was before one judge in the Northern District of Texas unilaterally overrode the long-established federal drug approval process. This opinion shifts the focus back to the Fifth Circuit. The opinion is here: https://www.supremecourt.gov/opinions/22pdf/22a901_3d9g.pdf.
Justice Alito dissented, stating:
The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review. (citation omitted).
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I would deny the stay applications. Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone. Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue.
Monday, April 10, 2023
A publication by Women's Health Policy of the Kaiser Family Foundation provides a useful primer on the implications of the two conflicting federal court rulings regarding the legal accessibility of medication abortion published on Friday in Washington and Texas. The full Washington opinion is here. The full Texas opinion is here. The Women's Health Policy Q&A summarizes the plaintiffs in the lawsuits, the conflicting outcomes, and the likely next steps:
Hours after Judge Kacsmaryk’s ruling, the FDA filed a notice of appeal to the US Court of Appeals for the 5th Circuit and Attorney General Merrick Garland said the government would request a stay to block this ruling while the appeal is considered. If the 5th Circuit does not grant this request, the FDA is likely to appeal immediately to the Supreme Court of the United States to block the ruling during the appeal process. If the case is appealed but the courts do not provide a stay, then the distribution of mifepristone could be halted across the nation pending the final outcome of the case.
The FDA may not appeal Judge Rice’s decision as it directs the FDA to keep the status quo. The Attorneys General who brought the case may appeal the decision to the 9th Circuit to seek an injunction to block the enforcement of the REMS approved in January 2023.
As both of these cases involve the FDA approval and provision of mifepristone, it is likely that if they reach the Supreme Court, it will review the cases together.
For a discussion of how the ruling threatens the FDA and federal regulatory authority, see this Washington Post article.
For a discussion of how the Texas opinion is "lawless," check out Leah Litman's commentary in Slate closing with this powerful excerpt:
Overturning Roe has, in fact, had the opposite effect that Justice Alito and his crew—allegedly— intended. In the opinion overruling Roe, Justice Alito quoted Justice Scalia’s dissent in Casey, which maintained that “Roe … has inflamed our national politics.” And Justice Kavanaugh wrote that Roe and Casey’s “well-intentioned effort did not resolve the abortion debate. The national division has not ended.” . . . He continued, “After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans.” Apparently, it will all be up to one guy named Matt.
Tuesday, April 4, 2023
The New Colombian Law on Abortion Allowing Interruption Until Week 24 Based on the Right to Health, Substantive Equality, and Freedom of Conscience
Isabel Cristina Jaramillo Sierra, The New Colombian Law on Abortion, International Journal of Gynecology and Obstetrics 159.3 (Jan. 2023): 345-350
On February 21, 2022, the Colombian Constitutional Court decided that the existing regulation of abortion was unconstitutional and repealed it (Sentencia C-055/2022). The new abortion law, as per the Court’s decision, considers the voluntary interruption of a pregnancy a crime only when it happens after week twenty-four and does not fall under the health, rape or malformation indications developed through precedent from 2006 to 2022. The decision is generally binding and of immediate application. The decision’s rationale builds on the right to health, substantive equality, and freedom of conscience. It acknowledges severe restrictions in access to abortion faced by Colombian women and the costs these restrictions have on their lives. It also recognizes that the indications model forces women to obtain permission from medical doctors to access abortion, and thus fails to recognize women’s freedom of conscience.
Monday, April 3, 2023
The International Conference on Family Planning was held in Thailand in November 2022. Conference tracks included content related to universal health care coverage, gender equality, reproductive rights, quality of care, contraceptive technology, reproductive health among youth, reproductive health in humanitarian settings, and the impact of COVID-19 on reproductive health.
Use this spreadsheet to search for sessions presenting research and advocacy that supports your work!