Monday, September 25, 2023

Milan Markovic on "Charging Abortion"

Milan Markovic has posted Charging Abortion on SSRN. The article is forthcoming in the Fordham Law Review. The abstract is excerpted here. 

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in anti-abortion states have pledged to not enforce anti-abortion laws whereas others are targeting even out-of-state providers. This post-Dobbs reality wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, but prevailing ethical rules and standards do not allow them to disregard laws that they regard as unjust. Nevertheless, since prosecutors do not have unlimited resources, and abortion cases are complex and sensitive, they should use their discretion to focus only on cases where abortion care endangers women and in instances of coercion, as they did pre-Roe. Extraterritorial applications of anti-abortion law are constitutionally suspect and are unlikely to further the public interest.

Abortion is one of the most contentious issues in American life. In a morally pluralistic society, prosecutors must strive for neutrality in the abortion wars by relying on professional standards to guide their charging discretion rather than following public opinion and the dictates of individual conscience.

September 25, 2023 in Abortion, Courts, Pregnancy | Permalink | Comments (0)

California Attorney General Sues "Crisis Pregnancy Centers"

California has sued "crisis pregnancy centers" alleging violations of consumer protection laws. The complaint is available here. The core claims are excerpted here: 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in acts or practices that constitute violations of Business and Professions Code section 17500 et seq., by making or causing to be made untrue or misleading statements with the intent to induce members of the public to undergo [Abortion Pill Reversal] APR. Defendants’ untrue and misleading representations include, but are not limited to, the following:

 

a. that APR can “reverse” a medication abortion, as well as an “effective” process that “has been shown to increase the chances of allowing the pregnancy to continue,” and that APR has a 64-68% success rate, even though no credible scientific evidence supports these claims;

 

b. that APR may be effective after a 72-hour window following administration of mifepristone by encouraging pregnant people to contact them “even if more than 72 hours have passed,” even though no credible scientific evidence supports this claim;

 

c. that the rate of birth defects following APR “is less or equal to the rate in the general population,” even though no credible scientific evidence supports these claims;

 

d. that “thousands of lives” have been saved via APR, even though no credible evidence supports this claim;

 

e. that APR may be effective following administration of misoprostol and methotrexate, even though no credible scientific evidence supports this claim; and

 

f. that APR can cause only non-life-threatening side effects, when in fact APR can cause severe, life-threatening bleeding. 

 

Defendants knew or should have known that these statements were misleading.

 

* * * 

 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in unlawful, unfair, and/or fraudulent acts or practices, which constitute unfair competition within the meaning of section 17200 of the Business and Professions Code.

 

September 25, 2023 in Abortion, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Widiss on "The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America"

Deborah A. Widiss has published The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America on SSRN. The article is forthcoming in the Employee Rights and Employment Policy Journal in 2023. The abstract is excerpted here: 

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

September 25, 2023 in Healthcare, Pregnancy, Work/life, Workplace | Permalink | Comments (0)

Monday, September 18, 2023

Abortion Law as Protection Narrative

Lolita Buckner Inniss has published Abortion Law as Protection Narrative in volume 101 of the Oregon Law Review (2023). Here is the abstract: 

Is there value in exploring centuries-old legal historical accounts in the assessment of contemporary legal matters? If the decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization is any example, the answer is decidedly yes. In Dobbs, the Court relied upon understandings about abortion and fundamental rights that dated back to the early United States. That reliance, however, fails to address the ways that abortion law narratives have consistently been structured: most such narratives center on the idea of protection, in one form or another. Dobbs also fails to acknowledge that the notion of protection is contingent and contested. This Article centers on a key protection narrative in the history of United States abortion law: the case of the Reverend Ammi Rogers, a popular but unconventional Yale-educated Episcopalian minister. In 1820 Rogers was accused of engaging in nonmarital sex with Asenath Smith, impregnating her, and providing her with an abortion. In telling the story of Rogers’ sensational case, this Article urges analyzing the case as a protection narrative: a story whose goal is to promote the erection of defenses against attack, invasion, or injury or other loss. This Article concludes by asserting that contemporary protection narratives surrounding abortion, such as those seen in the opinion of Dobbs v. Jackson Women’s Health Organization, are still as much a part of the modern legal (and political) landscape as those protection narratives that helped to give birth to the earliest codified abortion law in the United States.

 

September 18, 2023 in Abortion, Courts, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Center for Reproductive Rights Files Three Suits on Behalf of Pregnant Women Denied Abortion Care

The Center for Reproductive Rights filed three more suits last week on behalf of patients denied abortions while facing grave medical conditions. Here are the CRR's summaries of the cases and links to the complaints:  

IdahoBrought on behalf of four women denied abortion care, two physicians and the Idaho Academy of Family Physicians (IAFP), Adkins v. State of Idaho challenges the limited scope of the medical exceptions to Idaho’s two abortion bans. The medical exception to Idaho’s near-total ban permits abortion only to prevent death, and its six-week ban—with “vigilante”-style civil liability provisions—similarly has a narrow medical exception. Clarifying the laws’ exceptions would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify and expand the exceptions under the two bans to ensure physicians can provide abortion care to preserve a pregnant person’s health and for cases of fatal fetal diagnoses. The case was filed in Idaho state court.

TennesseeBrought on behalf of three women denied abortion care and two physicians, Blackmon v. State of Tennessee challenges the limited scope of the “emergent medical condition” exception to Tennessee’s total abortion ban. Such clarification would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify that the law’s exception permits abortion for cases of fatal fetal diagnoses. The case was filed in Tennessee state court.

OklahomaIn this action, the Center filed a complaint against Oklahoma Children’s Hospital, alleging it violated the Emergency Medical Treatment and Active Labor Act (EMTALA) when it denied medically indicated abortion care to a woman suffering a life-threatening pregnancy complication. The complaint under EMTALA—a federal law requiring hospital emergency departments to provide “stabilizing treatment,” which can include abortion care—was filed with the U.S. Department of Health and Human Services (HHS).

September 18, 2023 in Abortion, Courts, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, September 12, 2023

Analyzing the New Federal Pregnant Workers Fairness Act

Deborah Widiss, The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America, Employee Rgts & Employment Policy J (2023)  

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

September 12, 2023 in Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, September 11, 2023

The Biden Administration Asks the Supreme Court to Intervene in Mifepristone Litigation

The Department of Justice petitioned the U.S. Supreme Court to intervene in the Fifth Circuit's decision in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine. Here are key excerpts: 

The Fifth Circuit’s decision warrants this Court’s review because it would impose an unprecedented and profoundly disruptive result: Neither respondents nor the courts below identified any prior decision abrogating FDA’s approval of a drug or limiting a drug’s availability based on a disagreement with the agency’s judgment about safety or effectiveness much less doing so at the behest of plaintiffs with such an attenuated claim of standing and imminent harm.
In taking that step here, the Fifth Circuit countermanded a scientific judgment FDA has maintained across multiple administrations; imposed unnecessary restrictions on the distribution of a drug that has been safely used by millions of Americans over more than two decades; and upset reliance interests in a healthcare system that depends on the availability of mifepristone as an alternative to surgical abortion for women who choose to lawfully terminate their early pregnancies. At earlier stages of this case, hundreds of amici filed briefs underscoring the harmful consequences of the lower
courts’ decisions.
 
Beyond those destabilizing practical consequences, the Fifth Circuit’s decision also warrants this Court’s review because of its serious legal errors.  
For a full summary of the case, check out this coverage at SCOTUS.blog.

September 11, 2023 in Abortion, Courts, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Australian Inquiry Into Accounts of Birth Trauma

CNN covered a recent proceeding hearing personal accounts of birth trauma in Australia in its article, "MeToo" for Mothers: Australian Inquiry Hears Troubling Accounts of Birth Trauma.

The inquiry was called after dozens of women complained about their care in one part of the state, but the deluge of submissions suggests the problem goes far wider.

 

More than 4,000 submissions were received in just six weeks, mostly from mothers who say they were ignored, belittled, and denied the opportunity to give informed consent.

 

Some lost their babies, others carried their infants home along with mental and physical trauma – for which many blame themselves.

The proceeding opened with comments like these: 

“No means no, except apparently in childbirth, and it’s time to change that,” Hannah Dahlen, a professor of midwifery at Western Sydney University, told the inquiry when it opened on Monday. “This is the MeToo movement of birth.”

The committee member who convened the proceeding told CNN: 

Committee Chair Emma Hurst says the point of the inquiry isn’t to lay blame on individuals. “It’s about finding out where the system is failing and making sure we can work towards changing those systems so it doesn’t continue to happen to other women.”  

September 11, 2023 in International, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, August 30, 2023

The Fetal Personhood Movement as Eradicating the Legal Personhood of Women

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.

August 30, 2023 in Abortion, Pregnancy, Theory | Permalink | Comments (0)

Monday, August 21, 2023

Lawsuit Challenges U.S. Dept. of Veteran's Affairs' Policy Limiting Access to IVF

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.

 

* * *  

 

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. 

 

August 21, 2023 in Courts, Equal Employment, Healthcare, Pregnancy, Reproductive Rights, Same-sex marriage, Science | Permalink | Comments (0)

Bridget Crawford on "Pink Taxes and Other Tropes"

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.

August 21, 2023 in Gender, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, August 2, 2023

To Procreate or Not to Procreate--The Real Stories of Unwed Mothers

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.

August 2, 2023 in Abortion, Constitutional, Law schools, Pregnancy, Reproductive Rights, Women lawyers | Permalink | Comments (0)

Monday, June 26, 2023

Biden Issues Executive Order on Contraception Access on Anniversary of Dobbs Decision

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."

June 26, 2023 in Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Illinois Legislature Limits Deceptive Practices of Pregnancy Centers

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

June 26, 2023 in Abortion, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

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).

Wyoming Judge Temporarily Blocks State's Ban on Abortion Pills

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.”

 

June 23, 2023 in Abortion, Constitutional, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, June 22, 2023

OH Court Overturns Conviction of Pregnant Woman for Drug Use

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.”

 

June 22, 2023 in Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, June 5, 2023

Center for Reproductive Rights Report Documents Poor-Quality Care After Dobbs

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.

* * *     
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

 

 

June 5, 2023 in Abortion, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, June 1, 2023

Analyzing the Privatization of Family Leave Through Insurance

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.

June 1, 2023 in Business, Equal Employment, Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

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.

May 25, 2023 in Courts, Pregnancy, Theory, Violence Against Women | Permalink | Comments (0)

Wednesday, May 17, 2023

Rethinking the Infrastructure of Childbirth and Perinatal Health Inequity

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.

May 17, 2023 in Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)