Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, April 13, 2021

New Law in Utah Requires Biological Fathers to Pay Half Out-of-pocket Costs During Pregnancy

New Law in Utah Requires Biological Fathers to Pay Half of Out-of-pocket Costs During Pregnancy

A new law in Utah makes biological fathers responsible for half of the out-of-pocket costs a woman incurs during pregnancy and childbirth, a policy that some experts say falls short in addressing the burden of such expenses.

 

Experts and women’s health advocates say the new law highlights the high cost of prenatal care, but may leave the burden on women to seek financial support. They point to broader resources such as expanded health coverage they say would better help pregnant women. The bill has also been praised by antiabortion groups who argue that it could reduce the number of women seeking the procedure.

 

“It’s really important to acknowledge that pregnancy related costs are significant and that the burden of those costs should be shared,” said Alina Salganicoff, senior vice president and director of women’s health policy at the Kaiser Family Foundation. “But I think there are other ways that legislators can develop policies that protect women from out of pocket costs.”...

 

The bill would require a biological father to pay 50 percent of a woman’s out-of-pocket medical costs during pregnancy, including insurance premiums and other pregnancy-related costs such as a hospital birth. The bill notes that if the paternity of a child is disputed, a biological father would only be responsible for a share of the costs after paternity is confirmed. The bill also adds that the biological father would not be responsible for sharing the financial cost if the woman receives an abortion, unless the abortion is necessary to avoid death, or if the pregnancy was a result of rape or of incest.

April 13, 2021 in Abortion, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Sixth Circuit En Banc Uphold's Ohio's Ban on Abortions After Down Syndrome Diagnosis

  Ohio Can Enforce Ban on Abortions After Downs Syndrome Diagnosis

Ohio's ban on abortions after a fetal diagnosis of Down syndrome doesn't violate a woman's ability to obtain an abortion, a divided Sixth Circuit Court of Appeals ruled Tuesday.

 

The law, passed by Ohio's Republican-controlled Legislature and signed by GOP Gov. John Kasich in 2017, imposes criminal penalties on doctors who perform abortions if they're aware that a Down syndrome diagnosis, or the possibility of a diagnosis, is the reason for seeking the abortion. The penalty is a fourth-degree felony.

 

Four abortion providers filed suit: Preterm-Cleveland, Planned Parenthood of Southwest Ohio, Women's Med, Planned Parenthood of Greater Ohio and a doctor. The law was blocked by a federal judge in March 2018, and the case has been tied up in federal court ever since. 

 

On Tuesday, the full Sixth Circuit Court of Appeals ruled 9-7 that Ohio's law did not "create a substantial obstacle to a woman’s ability to choose or obtain an abortion." The appeals court reversed the injunction blocking the law from taking effect.  

 

The court ruled that a woman's right to an abortion is not absolute. Ohio's law, which prevents a doctor from performing an abortion because of a Down syndrome diagnosis, is not an undue burden on the woman, wrote Judge Alice Batchelder, who was nominated by former President George H. W. Bush.

 

By preventing the doctor from joining the woman as a knowing accomplice to her Down syndrome-selective decision making, House Bill 214 prevents this woman from making the doctor a knowing participant (accomplice) in her decision to abort her pregnancy because her fetus has Down syndrome," Batchelder wrote. "As limitations or prohibitions go, this is specific and narrow."

 

Batchelder said the law only prevented doctors from knowingly performing an abortion because of Down syndrome, but if the woman doesn't provide a reason, the abortion could still proceed.

***

The decision is here: Pre-Term Cleveland v. McCloud (6th Cir. en banc Apr. 13, 2021)

April 13, 2021 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Monday, April 12, 2021

Challenging the Logic of Pro-Life Constitutionalism in June Medical

Reva Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 SUP . CT. REV. (forthcoming 2021)

As the Supreme Court prepares to roll back protections for the abortion right, this Article analyzes the logic of pro-life constitutionalism in June Medical Services L.L.C. v. Russo.

I expand the frame on the admitting privileges law in June Medical to examine the logic of woman-protective health-justified restrictions on abortion. Do these laws protect women or the unborn—and how? By considering the history of the admitting privileges law at issue in June Medical and locating it in broader policy context, we can see how Louisiana legislators who restricted abortion to protect women’s health equated women’s health with motherhood; they supported laws that pushed women into motherhood while declining to enact laws that provided for the health of pregnant women and the children they might bear. Expanding the frame on Louisiana’s pro-woman pro-life law shows us sex-role stereotyping in action, and demonstrates the intersectional injuries it can inflict.

From this vantage point, we can see that judges who refuse to scrutinize pro-life law making—on the grounds that it would involve judges in politics—help legitimate the claims about protecting women’s health that supposedly justify the abortion restrictions, while revising the meaning of the Constitution’s liberty and equality guarantees. Reading the doctrinal debate in June Medical in this context identifies open and hidden efforts to roll back protections for the abortion right—and suggests how the Supreme Court that President Donald Trump helped fashion values women, health, life, truth, and democracy.

April 12, 2021 in Abortion, Reproductive Rights, SCOTUS, Theory | Permalink | Comments (0)

Friday, April 2, 2021

Proposed TN Abortion Bill Would Give Fathers Veto

Tennessee Abortion Bill: Fathers Would Get Veto, No Rape Exception

 In an effort to further restrict abortion in Tennessee, two state  lawmakers have introduced legislation that would allow a father to deny an abortion without the pregnant woman's consent.

The bill, sponsored by state Republicans Sen. Mark Pody and Rep. Jerry Sexton, would give a man who gets a woman pregnant the veto power to an abortion by petitioning a court for an injunction against the procedure.

Tennessee lawmakers already passed one of the nation's most restrictive abortion laws last year, although much of it is held up with legal challenges from abortion rights advocates. The ongoing court battle could stretch for months if not years.

Despite the outlook for potential lawsuits, state lawmakers appear adamant in pushing for stricter abortion laws this legislative session. Including Pody and Sexton's legislation, six bills to further restrict abortion have been filed this year

Pody said Wednesday that he introduced his bill after a Tennessee resident expressed concerns that fathers do not have a say over abortion under the current law. He said his bill would assure fathers' right to make a decision about an unborn child.

"I believe a father should have a right to say what's gonna be happening to that child," Pody said

The US Supreme Court declared a spousal veto to be unconstitutional in Planned Parenthood of Missouri v. Danforth (1976), and spousal notification to be unconstitutional in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

April 2, 2021 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Friday, March 19, 2021

Surrogacy and the Politics of Pregnancy

Courtney Joslin, Surrogacy and the Politics of Pregnancy,  14 Harvard L. & Policy Rev. 365 (2020)

This Essay examines the regulation of pregnancy through a less commonly explored lens — surrogacy legislation. Initially, the dominant position of feminist advocates was to understand the practice of surrogacy as antithetical to women’s equality and reproductive autonomy. Due in part to their active and persuasive involvement, the early legislative trends tracked this position; most of the legislation enacted in the 1980s and early 1990s banned surrogacy. By the mid-1990s, however, the legislative tide turned. All of the comprehensive surrogacy statutes enacted since that time permit and regulate surrogacy. This shift was due in part to a growing sense among some feminists and others that permitting surrogacy can promote the goals of liberty and equality.

At times, however, too little attention was paid to the details of these permissive surrogacy schemes. As a result, permissive surrogacy statutes in some states may undermine these aims. This Essay focuses on one such type of statute: surrogacy provisions that authorize potentially sweeping control over the lives, bodily integrity, and decision making of people acting as surrogates. For example, a number of permissive surrogacy schemes expressly authorize contract clauses that require people acting as surrogates to undergo risky and invasive medical procedures over their clearly stated, contemporaneous objection. But such schemes are not inevitable. This Essay concludes by highlighting recent examples that illustrate how permissive surrogacy legislation can foster, rather than impede, the ability of people to control decisions about their own bodies

March 19, 2021 in Family, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, February 22, 2021

Surrogacy, Autonomy, and Equality

Douglas NeJaime, Reva Siegel, & D. Barak-Erez, Surrogacy, Autonomy, and Equality, 2020 Global Constitutionalism Seminar Volume, Yale Law School

This Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School.

As surrogacy becomes widespread, it may call for new forms of judicial response. This Chapter surveys the different ways that surrogacy is practiced across borders, and the different ways the practice has been criticized and valued. After considering some of these debates (does surrogacy exploit and commodify women or empower them to pursue their own autonomous life ends?), the Chapter then turns to critical issues surrounding surrogacy legislation. It examines the ability of individuals, including unmarried and LGBTQ individuals, to access surrogacy for family formation. And it addresses the interests of individuals serving as surrogates, including questions of compensation and decision-making during pregnancy. Finally, the Chapter examines questions of parental recognition, implicating the constitutional interests of the intended parents, the person serving as the surrogate, and the child. By exploring how courts, legislatures, and human rights tribunals have addressed surrogacy transnationally, the Chapter shows that the meanings and implications of surrogacy vary across contexts and depend on how the practice is structured and regulated.

February 22, 2021 in Family, Reproductive Rights | Permalink | Comments (0)

Friday, February 19, 2021

12th Feminist Legal Theory Conference: Applied Feminism and Privacy

Conference 12th Feminist Legal Theory Conference: Applied Feminism & Privacy

We hope you will join the Center on Applied Feminism at the University of Baltimore School of Law for this exciting conference on April 22-23, 2021. The theme is Applied Feminism and Privacy. As always, the conference focuses on the intersection of gender and race, class, gender identity, ability, and other personal identities. We are excited that Fatima Goss Graves , president and CEO of the National Women’s Law Center, has agreed to serve as our keynote speaker.

We are at a critical time for a broad range of privacy issues. State-level abortion bans have put a spotlight on the importance of decisional privacy to women’s equality. Across America, advocates are fighting for reproductive justice and strategizing to preserve long-settled rights.

At the same time, our informational privacy is increasingly precarious. Data brokers, app designers, and social media platforms are gathering and selling personal data in highly gendered ways. As a result, women have been targeted with predatory marketing, intentionally excluded from job opportunities, and subject to menstrual tracking by marketers and employers. In online spaces, women have been objectified, cyber-stalked, and subject to revenge porn.

With regard to physical privacy, the structural intersectionality of over-policing and mass incarceration impacts women of color and other women. And while a man’s home may be his castle, low-income women are expected to allow government agents into their homes – and to turn over reams of other personal information -- as a condition of receiving state support. In addition, families of all forms are navigating the space of constitutionally protected family privacy in relation to legal parentage, marriage and cohabitation, and child welfare systems.

In this conference, we will explore such questions as: Is privacy dead, as often claimed? If so, what does this mean for women? How can privacy reinforce or challenge existing inequalities? How has feminist legal theory wrestled with privacy and what lessons can we draw from past debates? What advocacy will best advance privacy protections that benefit women? How do emerging forms of surveillance impact women? Can intersectional perspectives on privacy lead to greater justice? Who defines the “right to privacy,” and what do those understandings mean for women? How is privacy related to other values, such as autonomy, anti-subordination, vulnerability, justice and equality?

Register for Thursday's sessions here.
Register for Friday's sessions here.

12th Annual Feminist Legal Theory Conference
Applied Feminism and Privacy
April 22 & 23, 2021 
via Zoom

Thursday, April 22, 2021

4:00-6:30 Achieving Menstrual Justice: Law and Activism
 

Panel One: Menstrual Justice and Activism Across Employment, Homelessness, Education, and Data Privacy

  • Margaret E. Johnson, Associate Dean for Experiential Education, Professor of Law, and Co-Director, Center on Applied Feminism, University of Baltimore School of Law, Menstrual Justice
  • Marcy Karin, Jack and Lovell Olender Professor of Law and Director of the Legislation Clinic, David A. Clarke School of Law, University of the District of Columbia, Menstruation at Work
  • Marni Sommer, Associate Professor, Sociomedical Sciences, Mailman School of Public Health, Columbia University, Menstruation and Homelessness
  • Michele Gilman, Venable Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore School of Law, Menstrual Apps and Privacy

Panel Two: Focus on Menstrual Justice in Schools

  • Laura Strausfeld, Co-Founder, Period Equity, Menstrual Equity, Comprehensive Sex Education, and Title IX
  • Diana Philip, Executive Director, NARALProChoice Maryland, Menstrual Equity as Reproductive Justice
  • Alana Glover, Symposium Editor, University of Baltimore Law Review, Menstrual Equity & UB Law
  • Christopher A. Cotropia, Dennis I. Belcher Professor of Law, Director, Intellectual Property Institute, University of Richmond School of Law, Period Poverty & School Attendance/Performance
Friday, April 23, 2021
9:00-9:15 Welcome and Opening Remarks
 
  • Ronald Weich, Dean, University of Baltimore School of Law
  • Margaret E. Johnson, Professor of Law, Associate Dean for Experiential Education, and Co-Director, Center on Applied Feminism, University of Baltimore School of Law
  • J.J. Lucido, Editor-in-Chief, and Christian Coward Symposium Editor, University of Baltimore Law Review
9:15-10:15 Panel One: Controlling Personal Data in The Digital Age
 
  • Kendra Albert, Clinical Instructor, Harvard Law School, The Double Binds of Transgender Privacy
  • Cynthia Conti Cook, Civil Rights Lawyer and Law & Technology Resarcher, and Brook Kelly-Green, Program Officer, Gender, Racial and Ethnic Justice, Ford Foundation, Data for Reproductive Autonomy or Surveillance? The Role of New Technology in Criminalizing Pregnant People
  • Lynn Daggett, Smithmoore P. Myers Chair and Professor of Law, Gonzaga University School of Law, Gender and Student Medical Privacy
  • Nicole McConlogue, Associate Professor of Law and Clinic Director, West Virginia University College of Law (moderator)
10:15-10:45 Break Rooms Open for Coffee and Discussion
 
  • Room 1:    Data Privacy as Social Justice
  • Room 2:    Academic & Activist Social Mingle
10:45-12:00 Panel Two: Resisting Intrusions into Physical Privacy
 
  • Jenny Brooke Condon, Professor of Law, Director, Equal Justice Clinic, Seton Hall Law School, Uncaging Privacy:  What "Me Too" Means for the Fight Against Sexual Violence and Coercion in U.S. Prisons and Jails
  • Michelle Ewert, Associate Professor of Law, Washburn University School of Law, Their Home Is Not Their Castle: Subsidized Housing’s Intrusion into Family Privacy and Decisional Autonomy
  • Susan Hazeldean, Associate Professor of Law, Brooklyn Law School, Privacy as Pretext
  • Sapna Khatri, Attorney, Advocacy and Policy Counsel at the ACLU of Illinois, From Rosary to Camera: The Shift in Protesting Tactics Jeopardizing the Privacy of Patients
  • Shanta Trivedi, Clinical Teaching Fellow, Georgetown University Law Center (moderator)
12:00-12:30 Break Rooms Open for Lunch and Discussion
 
  • Room 1:  Pitching and Writing Op-eds on Privacy Topics
  • Room 2:  Reproductive Justice Agenda:  What’s Now/Next?
12:30-1:30   Keynote
   Fatima Goss Graves, CEO and President, National Women’s Law Center
1:30-1:45 Break
1:45-3:00 Panel Three: Protecting Decisional Autonomy To Shape Identity And Families
 
  • Deborah Brake, John E. Murray Faculty Scholar and Professor of Law, University of Pittsburgh School of Law, andJoanna Grossman, Ellen K. Solender Endowed Chair in Women and the Law and Professor of Law, SMU Dedman School of Law, Beyond Pregnancy: Title IX and Reproductive Rights
  • Laura Kessler, Professor of Law, University of Utah, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Discrimination Law
  • Anibal Rosario Lebrón, Assistant Professor of Lawyering Skills, Howard University School of Law, Weaponizing Civil Liberties: A Crisis Lens Analysis to Sex, Gender, and Sexuality Equality
  • Lynn Lu, Associate Professor of Law and Co-Director, Economic Justice Project, CUNY School of Law, Anti-Poverty or Anti-Privacy? Reimagining Welfare through Restorative Justice and “Radical Help”
  • Emily Poor, Clinical Teaching Fellow, University of Baltimore School of Law (moderator)
3:00 Closing Remarks
 
  • Michele Gilman, Venable Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore School of Law

 

 

 

February 19, 2021 in Conferences, Family, Reproductive Rights, Theory | Permalink | Comments (0)

Thursday, February 18, 2021

Program: The Past and Future of Reproductive Choice

Forum: The Past and Future of Reproductive Choice

February 24, 2021 (Wednesday) / 5:00 pm

LIVE ONLINE EVENT
 
The Past and Future of Reproductive Choice
 
Linda Greenhouse, Senior Research Scholar, Yale Law School
Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School
Serena Mayeri, Professor of Law and History, University of Pennsylvania
 
As the future of Roe v. Wade, the landmark 1973 US Supreme Court case legalizing women’s right to choose an abortion, hangs in the balance, legal scholars Linda Greenhouse and Reva Siegel talk with Serena Mayeri about the long history of the struggle for reproductive justice in the US.  Among the topics they will consider are the past and present of what has been known since the 70s as the “pro-choice” position and how they see it faring both in the courts and in public opinion going forward. 

Cosponsored by the Department of History

February 18, 2021 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, February 9, 2021

Feminist Efforts to Disentangle Disputed Conceptions of Motherhood

Jennifer Hendricks, Disputed Conceptions of Motherhood, forthcoming, Oxford Handbook of Feminism and Law in the U.S. (Deborah Brake, Martha Chamallas & Verna Williams, eds.)

This chapter, which will appear in the Oxford Handbook of Feminism and Law in the U.S. (Deborah Brake, Martha Chamallas & Verna Williams, eds.), examines feminist efforts to disentangle womanhood, biological motherhood, and social motherhood in order to promote equality in the law. It argues that this approach has produced important feminist influence and results in some areas of law but has led to a lack of feminist influence in areas where biological and social motherhood overlap, such as parental rights, reproductive technology, and surrogacy. Just as the law needed a theoretical boost that went beyond gender neutrality to see the gendered harm of sexual harassment at work, it needs a feminist account of pregnancy and birth that recognizes that these biological processes have social, relational dimensions.

February 9, 2021 in Family, Gender, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, February 1, 2021

Refuting the Claims that Pioneering Nineteenth-Century Feminists Were Anti-Abortion Advocates

Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)

In this article, historian Faye Dudden carefully and persuasively refutes the claims of modern pro-life activists that pioneering feminists Elizabeth Cady Stanton and Susan B. Anthony originated the "feminist" demand for anti-abortion laws and thus serve as appropriate figureheads for the modern movement.  (For example, in the appropriation of Anthony's name for the "Susan B. Anthony List," a pro-life fundraising and political action organization).  Dudden agrees with my own conclusions that 1) the historical evidence attributed to Stanton and Anthony is not theirs, but the work and beliefs of their male co-editor, former minister and abolitionist Parker Pillsbury, and that 2) other early feminists' personal dislike of abortion did not support legal regulation of women's autonomy. See Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 176-85, 232-36 (NYU Press 2016); Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1, 2-68 (2012).

Ever since Roe v. Wade, opponents of legal abortion have invoked women’s history to justify themselves. A group called Feminists for Life (FFL) first came up with the idea that the founders of the women’s rights movement, including Susan B. Anthony and Elizabeth Cady Stanton, had opposed abortion and “worked to outlaw” it. FFL saw their historical vision widely adopted in the Right-to-Life movement in the early 1990s as it tried to appeal to younger women with pro-woman and “women-protective” arguments. When a political action committee was formed in 1993 to support anti-choice candidates, it doubled down on this historical claim by calling itself the Susan B. Anthony List. But FFL and kindred groups have played fast and loose with the evidence, as the historian Ann D. Gordon and others have already pointed out.

In fact, a number of early feminists expressed decided skepticism about outlawing abortion. They disliked abortion but thought anti-abortion laws did not apply “the proper remedies,” according to one nineteenth-century women’s rights pioneer. Such laws “do not touch the case,” declared another. FFL assumed that it was enough to show that “the original feminists condemned abortion in the strongest terms” to infer that they favored legal sanctions.  The sources show, however, that this assumption was wrong; feminists could condemn abortion but remain quite skeptical of its criminalization. This article revisits the sources and context to better understand how early women’s rights advocates thought about both abortion and abortion laws. While discussing disputed evidence in some detail, it goes beyond a verdict of “not proven” on Right-to-Life claims to argue that the early feminists’ insights about the law have lasting power.

h/t Kimberly Hamlin

February 1, 2021 in Abortion, Family, Legal History, Reproductive Rights | Permalink | Comments (0)

Tuesday, January 26, 2021

Normalizing Menopause and Finding the Appropriate Legal Frameworks

Naomi Cahn, Justice for the Menopause: A Research Agenda,  Columbia Journal of Gender and Law, vol. 41 (forthcoming 2021)

This short essay, prepared for a symposium on menstruation, is an initial effort to catalogue various legal approaches to menopause and to set out areas for further analysis. It argues for consideration of menopause in the movement for menstrual and gender justice. It briefly explores cultural images of menopause and post-menopausal women, including the ubiquitous hot flashes and a sexuality, analyzes potential legal claims based on age, sex, and disability for menopausal justice, and suggests the interrelationship between such approaches and social attitudes towards menopause, menstruation, and gender. It suggests that “normalizing” menopause, acknowledging its realities, is one means for removing the associated stigma and disabilities and might result in reinterpreting existing laws and future legal reforms.

January 26, 2021 in Equal Employment, Family, Gender, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, January 13, 2021

In Another Shadow Docket Order, SCOTUS Stays Abortion In-Person Medication Requirement During COVID Found Unconstitutional by District Court

In another shadow docket ruling, the Supreme Court stayed a district court's preliminary injunction enjoining the unconstitutional application of a Covid abortion requirement that women seeking medicated abortions appear in person.

The order is here,  FDA v. American College of OB/GYNS (Jan. 12, 2021), with concurrence by Justice Roberts and dissent by Justice Sotomayor.

NYT, Supreme Court Revives Abortion Pill Restriction

In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

January 13, 2021 in Abortion, Constitutional, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, January 12, 2021

COVID, Abortion Restrictions, and Public Health in the Culture Wars

Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, 47 Mitchell Hamline L.Rev. (2020)  

At the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled.

The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy.

Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion.

January 12, 2021 in Abortion, Courts, Healthcare, Reproductive Rights | Permalink | Comments (0)

Wednesday, November 4, 2020

Abortion Rights on the Ballot: LA Passes Anti-Abortion Constitutional Amendment, CO Rejects 22 Week Ban on Abortion

Louisiana Just Passed an Amendment

Louisiana voters have just passed an amendment to the state constitution to clarify that nothing in it protects the right to abortion in the state. Given the current makeup of the courts, and, notably, a new anti-choice justice on the Supreme Court, it is a clear step toward preparing for Roe v. Wade to be overturned, which would make abortion access a state issue rather than a federal one. If that happens, Louisiana, it seems, wants to waste no time in banning it. 

As such, the following language will be added into Louisiana’s constitution: “To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Three states—Tennessee, Alabama, and West Virginia--have similar constitutional language.

NY Times Election Results: LA Ban (62% to 37%)

 

Colorado Proposition 115 Results: 22 Week Abortion Ban Rejected

The state remains one of seven with no gestational limits on abortion.

Colorado voters just rejected a measure that would have banned abortion in the state after 22 weeks’ gestation, according to the New York Times and the Associated Press.

The measure, Proposition 115, was backed by the anti-abortion group Due Date Too Late, which argued that abortions after 22 weeks were inhumane. But supporters of abortion rights were concerned about the impact of the measure on pregnant people, not just in Colorado, but around the country.

Abortions in the third trimester of pregnancy are rare, with nearly 99 percent of abortions happening before 22 weeks’ gestation. But a small percentage of patients seek abortion later in pregnancy, sometimes because of severe fetal abnormalities that can only be diagnosed at that time. Proposition 115 did not have an exception for such abnormalities, or for rape, incest, or the health of the pregnant person, allowing abortion only if it was “immediately required to save the life of a pregnant woman.”

Abortion-rights advocates nationwide were especially concerned about the measure because Colorado is one of just seven states in the country with no gestational limit on abortion. That means patients seeking later abortions in states with such limits often come to Colorado for care, sometimes traveling thousands of miles to do so.

NYT, NYT Election Results: Ban Late Term Abortions (59% to 40%)

 

See also Wash Post, Abortion is on the Ballot in Two States, Providing a Glimpse at a Post-Roe World

November 4, 2020 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Wednesday, October 21, 2020

The Geography of "Modest-Looking" Abortion Restrictions

Jessie Hill, The Geography of Abortion Rights, Georgetown L.J. (forthcoming 2021)  

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion services within the geographical borders of a particular state and to require people to travel out of state in order to terminate a pregnancy. Other abortion controversies, too, have foregrounded the significance of state and even national borders, as in the cases of unaccompanied immigrant minors who sought abortions while in the custody of the U.S. Government. Thus, an entire subset of abortion restrictions intentionally targets the geography of abortion provision, inevitably impacts the geographical distribution of abortion services, or both. Yet, the geographical dimension of abortion restrictions has gone largely unappreciated in the legal literature. This Article thus aims to provide an overview of the geography of abortion regulation. It first considers the unique impact and attractiveness of spatial regulations, demonstrating that spatial regulations differ from other forms of abortion regulation in their tendency to exploit and aggravate preexisting social inequality in ways that make it appear natural or unavoidable. Second, this Article considers the jurisprudential implications of this “spatial turn” in three specific areas: the right to travel, private non-delegation doctrine, and the concept of viability in abortion doctrine

October 21, 2020 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Wednesday, October 7, 2020

Book Review Reproductive Rights and Justice Stories

Leah Litman, Redefining Reproductive Rights and Justice, reviewing Reproductive Rights and Justice Stories (Melissa Murray, Katherine Shaw, & Reva Siegel, eds. 2019),  118 Mich. L. Rev. 1095 (2020).

Against this backdrop comes Melissa Murray, Katherine Shaw, and Reva Siegel’s edited collection of essays, Reproductive Rights and Justice Stories. The collection could not be timelier. Their volume contains a series of essays that “bring[] together important cases involving the state regulation of sex, childbearing, and parenting.” 

The two goals of the collection are to expand the contours of the field of reproductive rights and justice and to decenter the role of courts in that field. The editors’ pathbreaking volume cements a definition of reproductive rights and justice that is both more coherent and more nuanced than many earlier definitions, which often limited discussions of reproductive rights
and justice to contraception and abortion. The volume makes significant headway in illustrating the many different ways that law affects reproductive rights and justice.

Broadening readers’ understandings about what constitutes reproductive rights and justice has several benefits. It illuminates the many different ways that law and society construct and constrain what parenthood—and particularly motherhood—entails. Unpacking how law and society have made motherhood carry certain roles and expectations clarifies the stakes of
traditional reproductive rights and justice issues. For example, if becoming a parent, and in particular becoming a mother, entails assuming a particular identity, then the autonomy and liberty interests at stake in parentage decisions are much greater than just bodily autonomy.

The collection of essays also offers a lens through which to understand myriad legal issues. The volume makes clear that many different topics— ranging from workplace protections, to labor law, to disability law, to criminal procedure, to insurance law—implicate reproductive rights and justice in addition to decisions about whether to criminalize abortion or contraception. That has the salutary benefit of unearthing the complex web of laws and social conventions that influence parentage decisions. Understanding all of the influences on parentage decisions would also make it easier to construct a system that is supportive of families.

By broadening the definition of reproductive rights and justice to include the many different ways that law and society shape individuals’ decisions about whether to have children, the volume also pushes its readers to think about additional ways in which law and society influence decisions about sex and parentage.

 

October 7, 2020 in Abortion, Books, Family, Reproductive Rights | Permalink | Comments (0)

Friday, October 2, 2020

Making the Case for Accepting Judicial Defeat on Roe v. Wade

Joan Williams, The Case for Accepting Defeat on Roe

The argument that the left has already lost the abortion fight reflects the fact that there’s no abortion clinic in 90 percent of American counties. This is the result of the highly successful death-by-a-thousand-cuts anti-abortion strategy, which has piled on restriction after restriction to make abortion inaccessible to as many American women as possible.

Chief Justice John Roberts’s concurring opinion this summer in June Medical Services v. Russo — the one that mattered — was hailed as a surprise victory for abortion rights, but not by me. Justice Roberts refused to uphold Louisiana restrictions virtually identical to those the court struck down as unconstitutional just four years earlier, but clearly stated that his reluctance was because of his respect for precedent. Anyone with their eyes open could see the justice signaling to abortion opponents to continue the process of eroding Roe v. Wade’s nigh-absolute protection of access to abortion during the first trimester by inventing new types of restrictions, which they have been remarkably creative in doing.

If Judge Amy Coney Barrett becomes the next Supreme Court justice, Justice Roberts’s vote will be irrelevant, anyway. And if things already looked pretty grim, now they look much worse: Up to 21 states have passed laws banning or limiting abortions in ways that are currently unconstitutional. Many will go into effect immediately if Roe is fully overturned.

So what should we do now? Often forgotten is that R.B.G. herself had decided that Roe was a mistake. In 1992, she gave a lecture musing that the country might be better off if the Supreme Court had written a narrower decision and opened up a “dialogue” with state legislatures, which were trending “toward liberalization of abortion statutes” (to quote the Roe court). Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue,” Justice Ginsburg argued. In the process, “a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

What Ginsburg called Roe’s “divisiveness” was instrumental in the rise of the American right, which was flailing until Phyllis Schlafly discovered the galvanizing force of opposition to abortion and the Equal Rights Amendment. Schlafly wrote the culture wars playbook that created the odd coupling of the country-club business elite with evangelicals and blue-collar whites. In exchange for business-friendly policies like tax cuts and deregulation, Republicans now allow these groups to control their agenda on religion and abortion. It’s hard to remember now but this was not inevitable: abortion was not always seen as the partisan issue it is todaynor did evangelicals uniformly oppose abortion.

Whether or not R.B.G.’s assessment of Roe was correct, the best tribute we can pay to her is to do what she suggests: open up the kind of dialogue that occurred in Ireland, where young people knocked on grannies’ doors and persuaded them to vote to legalize abortion, which — much to the distress of the Catholic Church — they did. (At the same time, activists galvanized to ensure that, in the absence of a referendum, women throughout the country would have access to and knowledge about medication abortions.)

I don’t want Roe to be overturned, but if that happens, it could bring political opportunity. The emotional heat that surrounds abortion as an issue manages to obscure that the attitudes driving opposition to abortion actually reveal some surprising common ground with progressives on economic issues.

October 2, 2020 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

New Book Podcast: Michele Goodwin's Policing the Womb: Invisible Women and the Criminalization of Motherhood

Michelle Goodwin, Podcast, New Books in Law: Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge Press 2020)

Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020) a brilliant but shocking account of the criminalization of all aspects of reproduction, pregnancy, abortion, birth, and motherhood in the United States. In her extensively researched monograph, Michele Goodwin recounts the horrific contemporary situation, which includes, for example, mothers giving birth shackled in leg irons, in solitary confinement, even in prison toilets, and in some states, women being coerced by the State into sterilization, in exchange for reduced sentences. She contextualises the modern day situation in America’s history of slavery and oppression, and also in relation to its place in the world. Goodwin shows how prosecutors abuse laws, and medical professionals are complicit in a system that disproportionally impacts the poor and women of color. However, Goodwin warns that these women are just the canaries in the coalmine. In the context of both the Black Lives Matter movement, and in the lead up to the 2020 Presidential election, her book could not be more timely; Not only is the United States the deadliest country in the developed world for pregnant women, but the severe lack of protections for reproductive rights and motherhood is compounding racial and indigent disparities.

October 2, 2020 in Books, Healthcare, Poverty, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Tuesday, September 29, 2020

Exploring the Legal Divide Between Pregnancy Discrimination and Reproductive Rights under Title IX

Deborah Brake & Joanna Grossman, Reproducing Inequality Under Title IX, 43 Harvard J. Law & Gender 171 (2020)

This article elaborates on and critiques the law’s separation of pregnancy, with rights grounded in sex equality under Title IX, from reproductive control, which the law treats as a matter of privacy, a species of liberty under the due process clause. While pregnancy is the subject of Title IX protection, reproductive control is parceled off into a separate legal framework grounded in privacy, rather than recognized as a matter that directly implicates educational equality. The law’s division between educational equality and liberty in two non-intersecting sets of legal rights has done no favors to the reproductive rights movement either. By giving a formal “right” to stay in school and the right to equal treatment with temporarily disabled students, Title IX may be strategically deployed by proponents of restricting abortion rights to minimize the educational consequences of involuntary motherhood. The hard realities of how pregnancy and parenting impact schooling are obscured.

The article explores the legal divide between pregnancy discrimination and reproductive rights in relation to education in three parts. Part I discusses the rights included in, and omitted from, Title IX relating to pregnancy and reproduction. Part II surveys the liberty-based reproductive rights framework for pregnancy prevention and termination and discusses its limits in protecting young women from the educational effects of unwanted pregnancy and motherhood. Part III concludes by discussing the implications of separating out pregnancy discrimination from the broader set of reproductive rights and elaborating on the harms that flow from the law’s failure to recognize the educational equality dimensions of the denial of reproductive rights.

September 29, 2020 in Education, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, August 4, 2020

Congress Introduces Legislation to Repeal Helms Amendment Prohibiting US Foreign Aid for Abortions

First-Ever Legislation to Repeal Helms Amendment: Abortion is Healthcare Everywhere Act

Today, Congress introduced the Abortion is Health Care Everywhere Act of 2020—the first-ever legislation to repeal the Helms Amendment. The bill was introduced by Rep. Jan Schakowksy (D-Ill.) and co-sponsored by Reps. Nita Lowey (D-N.Y.), Barbara Lee (D-Calif.), Jackie Speier (D-Calif.), Ayanna Pressley (D-Mass.), Diana DeGette (D-Colo.) and Norma Torres (D-Calif.).

 

Established in 1973 (notably the same year as the Roe decision), the Helms Amendment—introduced by former Sen. Jesse Helms (R-N.C.), an ultraconservative senator marked by blatant racism and other odious behavior—dictates U.S. foreign aid cannot be used for abortions.

 

Though there are exceptions for rape, incest and threat to the pregnant person’s life, in practice, the Helms Amendment has created a complete ban on abortion funding abroad—even in countries where abortion is legal.

 

Since its enactment, the Helms Amendment has been criticized as an imperialist, ideological, racist and classist policy.

 

“The Helms Amendment is a policy deeply rooted in racism,” said Rep. Schakowsky. “It imposes our arbitrary and medically unnecessary abortion restrictions on international communities, allowing the United States to control the health care and bodily autonomy of billions of Black and brown people around the world.”

 

Moreover, many argue abortion restrictions like Helms have led to the avoidable deaths of thousands of women by coercing them to seek unsafe alternatives.

 

According to the Guttmacher Institute, 35 million women per year have abortions in potentially lethal conditions. What’s more, unsafe abortions are one of the leading causes of maternal mortality worldwide. 

The bill is here: Abortion is Healthcare Everywhere Act: "To amend the Foreign Assistance Act of 1961 to authorize
the use of funds for comprehensive reproductive health care services, and for other purposes."

August 4, 2020 in Abortion, International, Legislation, Reproductive Rights | Permalink | Comments (0)