Gender and the Law Blog

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

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

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

International Safe Abortion Day on September 28th

Wednesday is International Safe Abortion Day. The Center for Reproductive Rights has an updated map on the world's abortion laws: 

The World Abortion Laws Map is the definitive record of the legal status of abortion in countries across the globe. Since 1998, the Center for Reproductive Rights has produced this map as a resource for advocates, government officials, and civil society organizations working to advance abortion rights as human rights for women and girls* around the globe. The map categorizes the legal status of abortion on a continuum from severe restrictiveness to relative liberality. It is updated in real time, reflecting changes in national laws so human rights advocates can monitor how countries are protecting—or denying—reproductive rights around the world.

The site includes a very useful infographic visually depicting 25 years of progress with nearly 50 countries liberalizing their abortion laws over time.  It also includes a summary of recent developments in abortion law and policy. 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SisterSong's Conference on Reproductive Justice focuses on "Our Blueprint for a Body Revolution"

SisterSong hosted its annual conference, "Let's Talk About Sex." Tina Vasquez, writing for Prism, authored an article Reproductive Justice has the blueprint for post-Roe America, but are we ready for it? describing the conference proceedings from her first-hand accounts. The writing in this summary is impactful in describing both the content, the spirit, and the energy of the conference. 

The conference theme was “Our Blueprint for a Body Revolution,” and when SisterSong executive director Monica Simpson greeted the crowd during the kick-off plenary to Beyoncé’s “Break My Soul,” the message was clear. Any attendees who came to Texas looking to dissect the fall of Roe would quickly learn they were at the wrong conference. 

During one morning plenary, Oriaku Njoku, the National Network of Abortion Funds’ new executive director, shared what was essentially a love letter to abortion funds, describing them as a series of autonomous organizations that provide mutual aid. In other words, they simply provide what communities need. 

“Roe was the floor,” Njoku said. “And when the floor is rooted in heteropatriarchy and white supremacy, you have to tear the whole damn house down and build again on land fortified by the reproductive justice framework.” 

* * * 

One of the most moving things at LTAS was one of its most quiet offerings: a conference room transformed into the home of a person who self-managed their abortion. Created by Abortion On Our Own Terms, the “Stigma Free Zone” was an exhibit that guided attendees through what a self-managed abortion can really be like in a safe, supported, and private space. Children’s items littered the entry point to remind us that most people who have abortions are already parents. Strewn about the cozy and welcoming apartment were comfortable clothes, a teapot, a heating pad, and snacks, illustrating all of the things a person would need to feel nourished. 

* * *    

Even a few minutes at LTAS makes one thing abundantly clear: Young women of color—and young Black women specifically—fuel the reproductive justice movement. Young people from across the country flocked to the conference, excited to learn strategies for talking to their families about sexual and reproductive health and for organizing their communities and college campuses. West Texas’ abortion fund, the West Fund, traveled to Dallas with a group of teenagers. One of them told me it was her first time leaving El Paso and that the conference opened up her world. * * * In other words, young people are the experts, and we have a lot to learn from them about demanding more and better. 

American Medical Association Letter to the Senate on State Abortion Restrictions

The American Medical Association, in response to a letter from Senator Warren, wrote a formal letter to the United States Senate on state abortion restrictions dated September 9th. Key excerpts emphasized compromised patient care, vague and complicated state laws, and the importance of doctor-patient decision-making. 

While AMA policy recognizes that our members’ individual views on abortion are determined by their own values and beliefs, we firmly and unequivocally support patients’ access to the full spectrum of reproductive health care options, including abortion, as a right. Our policies are the result of a democratic process in which physicians representing every state and national specialty medical society come together in our House of Delegates. In alignment with our long-held position that the termination of a pregnancy is a medical matter between the patient and physician, subject only to the physician’s clinical judgment, the patient’s informed consent, and access to appropriate facilities, the AMA opposes any government or any other third-party interference that compromises or criminalizes patient access to safe, evidence-based medical care. Unfortunately, patient care is being compromised now, patients are suffering from lack of access to necessary care, and some are at risk of dying due to delayed care in the context of termination of ectopic pregnancies or patients experiencing intrauterine infections, pre-eclampsia, malignancies, or hemorrhage during pregnancy.

* * * 

Physicians have been placed in an impossible situation—trying to meet their ethical duties to place patient health and well-being first, while attempting to comply with vague, restrictive, complex, and conflicting state laws that interfere in the practice of medicine and jeopardize the health of patients.

* * * 

The foundation of the patient-physician relationship relies upon honest, open communication and trust, which is undermined by substituting lawmakers’ views for a physician’s expert medical judgment. It is each physician’s ethical responsibility to help his or her patients choose the optimal course of treatment through shared decision-making that is fully informed by evidence-based medical science and definitively shaped by patient autonomy. Anything less puts patients at risk and undermines both the practice of medicine and our nation’s health. The AMA Code of Medical Ethics states that “The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.” The AMA opposes any effort to undermine the basic medical principle that clinical assessments, such as viability of a pregnancy and safety of the pregnant person, are determinations to be made only by health care professionals with their patients.

The Indian Child Welfare Act as Reproductive Justice

Neoshia Roemer, The Indian Child Welfare Act as Reproductive Justice. 203 Boston U. L. Rev. (2023)  

After decades of abuse through family regulation, Congress enacted the Indian Child Welfare Act of 1978 (“ICWA”) to prevent the breakup of Indian families and promote tribal sovereignty. While ICWA seems like an outlier that addresses one category of children, it is not an outlier. Rather, I argue that ICWA is a tool of reproductive justice. By formulating a legal rights framework for reproductive justice in American jurisprudence, I discuss how the reproductive justice movement is grounded in U.S. law beyond the right to terminate a pregnancy that the Supreme Court abrogated in Dobbs v. Jackson Women’s Health Organization. By looking at the history of reproductive rights in American Indian communities, I discuss how family regulation challenges reproductive rights and tribal sovereignty considering Dobbs and Oklahoma v. Castro-Huerta. Indian child removals exist in the same history, context, and policy that disrupted the reproductive rights of American Indian families and tribal sovereignty in other areas. Before concluding that ICWA is still good law and good policy to disrupt family regulation and protect the reproductive rights of American Indian peoples, I consider where challenges to ICWA in Haaland v. Brackeen fit into this paradigm and the ongoing need for the protection of tribal sovereignty and reproductive rights for American Indian peoples. For nearly 400 years, the disruption of reproductive rights, including family regulation, has been at the heart of federal Indian policy. The current frame of family regulation as “saving” children means that it is often divorced from the notion of reproductive rights. As the history behind and contemporary challenges to ICWA demonstrate, it should not, and cannot, be separated from the other reproductive justice issues facing American Indian communities. To strengthen legal protections for American Indian people that disrupt these government interventions, like ICWA, is to realize reproductive rights more fully in the United States.

If/When/How Publishes "Self-Care, Criminalized: August 2022 Preliminary Findings"

If/When/How has published an important and helpful research brief releasing preliminary findings on the criminalization of self-managed abortions: 

This research brief provides preliminary findings from a multi-year research project to understand who has been targeted by criminalization for self-managing their abortion and how these cases make their way into and through the criminal system. From 2000 to 2020, we identified 61 cases of people who were criminally investigated or arrested for allegedly ending their own pregnancy or helping someone else do so. Cases occurred across 26 states, most of which emerged in Texas, followed by Ohio, Arkansas, South Carolina, and Virginia. Understanding self-managed abortion criminalization over the last twenty years, lends insight into what the criminalization of abortion is likely to look like in a post-Roe America.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11th Circuit Upholds Georgia's Abortion Ban and Fetal Personhood Law

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

WILLIAM PRYOR, Chief Judge:

This appeal concerns whether Georgia can prohibit some abortions and whether its redefinition of “natural person” to include unborn children is unconstitutionally vague on its face. The district court entered a summary judgment for the abortionists challenging the Georgia law and permanently enjoined state officials from enforcing it. But intervening Supreme Court precedent, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), makes clear that no right to abortion exists under the Constitution, so Georgia may prohibit them. And the expanded definition of natural person is not vague on its face. We vacate the injunction, reverse the judgment in favor of the abortionists [!!], and remand with instructions to enter judgment in favor of the state officials.***

Georgia enacted the Living Infants Fairness and Equality (LIFE) Act in 2019. 2019 Ga. Laws Act 234 (H.B. 481). Section 3 of the Act amends the definition of “[n]atural person” in the Georgia Code to mean “any human being including an unborn child.” Id. § 3(b) (internal quotation marks omitted). And it defines “[u]nborn child” as “a member of the species of Homo sapiens at any stage of development who is carried in the womb.” Id. § 3(e)(2) (internal quotation marks omitted). Section 4 prohibits abortions after a fetal heartbeat is detected with enumerated exceptions. Id. § 4(b). The Act also clarifies that removal of an “ectopic pregnancy” or “a dead unborn child caused by spontaneous abortion” is not an “abortion.” Id. § 4(a)(1) (internal quotation marks omitted). Sections 5 through 12 amend other provisions of the Georgia Code involving child support, tort recovery for fetal homicide, informed consent for women seeking abortions, tax benefits, and related issues. Id. §§ 5–12.

Bills to Protect Rights to Contraception and Marriage Equality Pass US House

Bills to Defend Marriage Equality and Contraception Pass US House, Head to Senate

The U.S. House of Representatives this week passed two landmark pieces of legislation: the Respect for Marriage Act, which would grant federal recognition of both same-sex and interracial marriages, and the Right To Contraception Act, which would establish a right in federal law to obtain and use contraceptives.

Democratic leaders say both bills are a direct response to Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson which called on the Court to “reconsider” past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage.

The bills now both head to the Senate, where Democrats need 10 Republican senators to consider and ultimately pass either bill.

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

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

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

 

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

 

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

 

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

 

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

 

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

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

Is Male Birth Control Finally Here?

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

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

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

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

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

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

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

Leah Fowler & Michael Ulrich, Femtechnodystopia 

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

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

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

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

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

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

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

To add some additional information:

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

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

 

 

Historians Weigh in on All That is Wrong with the Legal History of the SCT's Abortion Decision

Patricia, The Dobbs Decision Looks to History to Rescind Roe

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Reva Siegel, The Trump Court Limited Women’s Rights Using 19th-century Standards

But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.***

Justice Alito claims that tying the meaning of the Fourteenth Amendment’s liberty guarantee to America’s “history and traditions” prevents the justices from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to 'liberty,’” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Here he echoes the late Justice Antonin Scalia, who wrote, in “Originalism: The Lesser Evil,” that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But Dobbs shows why both of these claims are wrong. A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty largely with reference to laws enacted in mid-19th-century America. During that period — conveniently enough — there was a campaign to ban abortion across the nation. (Alito includes an appendix enumerating many of these state statutes.) But consider what else was part of this period’s “history and traditions”: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tether the meaning of the Fourteenth Amendment’s liberty guarantee to laws enacted by men with such a cramped view of women’s rights? The move is unprecedented.

Jill Hasday, On Roe, Alito Cites a Judge who Treated Women as Witches and Property

There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.

Alito reports that [Judge] Hale “described abortion of a quick child who died in the womb as a ‘great crime’ ” while glossing over the key part of that passage. Hale wrote that abortion was a crime “if a woman be quick or great with child.” Note the “if.”

Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.

Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.

Ohio Statutory Framework of Abortion Laws After Dobbs

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

 

OHIO ABORTION STATUTORY FRAMEWORK POST-DOBBS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.       Ohio’s Current Civil Framework Regulating Abortion

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

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

IV.  Ohio’s Fetal Personhood Laws

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

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

 

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

 

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

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

New criminal offense under HB 1280

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

 

Other things to know about this new crime:

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

 

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

 

New civil fines (and complications)

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

 

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

The SCOTUS Joint Dissent in Abortion Case Calls Out Women's Loss of Citizenship

A joint dissent by Justices Breyer, Sotomayor and Kagan in Dobbs v. Jackson Women's Health Organization is expressive in its attack on the philosophical and physical harms to women from the Court's reversal of the fifty-year right of women to choose whether or not to bear a child in choosing an abortion. 

For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.***

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reason able limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.***

We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.

***

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

The dissent finds it clear that other constitutional rights of liberty interests are now threatened:

And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. ***

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” position, as JUSTICE KAVANAUGH tries to argue.

US Supreme Court Overrules Constitutional Right to Choose an Abortion

The US Supreme Court expressly overruled the 50-year old constitutional right for women to choose an abortion. Dobbs v. Jackson Women's Health Organization.

The vote is 5-4 to overturn Roe/Casey, with the majority opinion by J. Alito, joined by Thomas, Gorsuch, Kavanaugh and Barrett.  Roberts concurs only in the judgment of upholding the 15-week ban, but not in overruling Roe.  The dissent is Breyer, Sotomayer, and Kagan.

In my first quick look, the majority opinion is not much different from the leaked draft opinion.

Thomas in his concurrence of one calls for revisiting Griswold, Lawrence, and Obergefell, meaning to challenge the constitutional rights to marital privacy, contraception, sexual intimacy and conduct, and same-sex marriage.

Kavanaugh in concurrence says the Constitution calls for neutrality, and not taking sides between the pregnant woman's interest and the fetal life, which he says Roe did.  He footnotes a Rehnquist dissent that says exceptions to protect the life of the woman are constitutionally required.  He emphasizes that the decision doesn't prohibit abortion, but allows for legislative action.  He responds to Thomas and says nothing in the opinion calls into question the constitutional rights to contraception or LGBTQ rights because abortion is different.  And, in veiled reference to harmonize the Court's recent decision in Bruen on the Second Amendment, he says in a footnote that the relevant historical evidence for the abortion decision is at the time the 14th Amendment was enacted in 1868 when two-thirds of the states criminalized abortion.

Roberts concurs only to uphold the judgment.  He overturns the viability standard from Roe, but does not overrule the right to abortion completely.

A joint dissent by Justices Breyer, Sotomayor, and Kagan is explicit in noting the philosophical and physical harms to women from the decision:

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. 

See Gender & the Law Prof Blog, The Joint Dissent in SCOTUS Abortion Case Calls Out Women's Loss of Citizenship

Jewish Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms

Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms 

But a lawsuit filed last week by a South Florida synagogue challenges new legislation in the state banning most abortions after 15 weeks, saying it violates the State Constitution’s right to privacy and freedom of religion. In Jewish law, the suit argues, “abortion is required if necessary to protect the health, mental or physical well-being of the woman.”

 

The lawsuit, filed by Congregation L’Dor Va-Dor, a progressive synagogue in Palm Beach County not affiliated with a broader denomination, may face an uphill climb in court. But it is a reminder that abortion poses religious issues beyond those of the Christian right. And it suggests potential legal issues that could surface at a time when Roe seems likely to be overturned, and the Supreme Court has been aggressively open to a wider role for religion in public and political life.

 

Florida’s state law limiting abortions, signed by Gov. Ron DeSantis in April, goes into effect July 1. In banning abortions after 15 weeks, it does not make exceptions for cases of incest, rape or human trafficking. It does, however, allow for abortions if the mother’s life is endangered or if two doctors determine that the fetus has a fatal abnormality. The law was challenged earlier this month by the American Civil Liberties Union of Florida on behalf of a group of abortion providers and abortion rights organizations.***

See also South Florida Synagogue Sues Over Florida's New 15-Week Abortion Ban

 

Deeply-rooted Jewish teachings indicate that abortion is permissible — and even required — if a mother’s life is in danger, said Jewish leaders from across the ideological spectrum. In Jewish thought, it is also widely accepted that as long as a fetus is in the womb, it has “potential,” but not full, personhood, said Michal Raucher, an assistant professor of Jewish Studies at Rutgers University.