Monday, May 11, 2020
Conservatives have been trying to unwind the birth control benefit in the Affordable Care Act (ACA) for nearly a decade now, and the women justices on the U.S Supreme Court are over it.
That much was apparent during oral arguments Wednesday in Trump v. Pennsylvania and its companion case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.
It’s the third time the Court has heard a challenge to the birth control benefit, which guarantees access to FDA-approved contraception methods at no additional cost or co-pay in most employer-sponsored health plans. But this case is the most absurd and dangerous challenge yet
Justice Ruth Bader Ginsburg drove that point home from the hospital, where she was recovering from a gallbladder procedure while defending the rights of hundreds of thousands of employees the Trump administration is trying to “toss to the winds entirely,” to use her words. Justice Sonia Sotomayor reminded Solicitor General Noel Francisco that should the Court side with the Trump administration, the benefits of around a hundred thousand employees (by even the most conservative estimate) would be in jeopardy. And Justice Elena Kagan appeared to be searching for a compromise she could get the chief justice to sign onto.
At its core is the same central question: Can your boss deny you health insurance coverage for contraception based on a religious objection? But these cases take that question and, like everything in the Trump years, extend it to absurd lengths by asking if your boss can deny you those same benefits based on a moral objection as well.
The moral exemption to the birth control benefit is a toxic addition inserted by the Trump administration three years ago after conservative efforts to upend the benefit in court fell flat. Trump announced the exemption in a Rose Garden ceremony flanked by the Little Sisters of the Poor, the nuns who would continue on as the face of the administration’s efforts to undermine the benefit. It was the kind of reality-TV spectacle that has come to define this administration—full of pomp, empty on substance, but with the potential to unleash an unfathomable amount of chaos in its wake.
And that’s precisely why the administration brought the nuns along. Someone has to sell this pile of garbage to the Roberts Court, and the nuns have proven more than willing to play along.
There is no world in which the nuns would have to provide contraception coverage for their employees. None. Not a single one. They are covered by exemptions, court orders, and a provision of employee benefits law that guarantees the federal government mostly stay out of their business. So when Paul Clement, the attorney representing the Little Sisters, suggested that the nuns would stop providing care to the elderly and poor should they have to simply fill out a form noting their objection to the benefit, I was glad to be covering the arguments from home. Had I been at the Court, I definitely would have been ejected for the spontaneous, “OH COME THE FUCK ON, PAUL” that response requires.
Turns out, I’m as fed up with these cases as the women justices of the Court.
Thursday, April 30, 2020
Mary Crossley, Reproducing Dignity: Race, Disability, and Reproductive Controls, UC Davis L. Rev. (forthcoming)
Human rights treaties and American constitutional law recognize decisions about reproduction as central to human dignity. Historically and today, Black women and women with disabilities have endured numerous impairments of their freedom to form and maintain families. Other scholars have examined these barriers to motherhood. Unexplored, however, are parallels among the experiences of women in these two groups or the women for whom Blackness and disability are overlapping identities. This Article fills that void. The disturbing legacy of the Eugenics movement is manifest in many settings. Black and disabled women undergo sterilizations at disproportionately high rates. Public benefit programs discourage their childbearing. Their ability to pursue motherhood is diminished by disproportionately high rates of institutionalization (either treatment-related or carceral) and low rates of access to assisted reproduction. Becoming pregnant is riskier, with risks flowing from medical ignorance regarding maternity care (for disabled women) or high rates of maternal mortality and criminal prosecutions (for Black women). Finally, if they become mothers, Black and disabled women are more likely to lose custody of their children to the state.
This Article argues that barriers to bearing children and forming families debase the dignity of Black and disabled women in meaningfully similar ways. In so doing, it points to an opportunity. Recognizing similarities (while appreciating differences) may equip participants in social movements – whether racial justice advocates, disability justice proponents, or reproductive justice activists – to build stronger coalitions to advance the dignity of reproductive choices for all women.
Tuesday, March 31, 2020
5th Circuit Upholds Texas Ban on Abortions During Coronavirus Pandemic, Staying Contrary Ruling of District Court
A federal appeals court on Tuesday ruled that Texas can temporarily enforce a ban on abortions as part of its coronavirus response.
The 5th Circuit Court of Appeals issued a temporary stay on a ruling from a lower court that had blocked Texas from enforcing the ban. State officials argue the ban is intended to conserve medical supplies for health workers on the front lines of the coronavirus response. But abortion rights advocates say states are using the pandemic as an excuse to block access.
In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered. The two judges who ruled in favor of a stay were nominated to their posts by President Trump and former President George W. Bush.
"The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need," Texas Attorney General Ken Paxton said in a statement Tuesday.
Circuit Court Judge James Dennis, a Clinton appointee, dissented, writing “a federal judge has already concluded that irreparable harm would flow from allowing the executive order to prohibit abortions during this critical time.”
Texas Gov. Greg Abbott (R) issued a directive earlier this month suspending nonessential medical procedures in an effort to conserve masks and gloves for health workers on the front lines of the pandemic.
Several states have issued similar orders, but a divide has emerged between red and blue states about whether abortion is an essential procedure.
Federal Courts Enjoin States' Attempts to Prohibit Exercise of Abortion Rights During Coronavirus Pandemic
Federal judges on Monday blocked officials in Texas, Ohio and Alabama from banning most abortions in those states as part of their orders to postpone surgeries and other procedures deemed not medically necessary during the coronavirus crisis.
U.S. District Judge Lee Yeakel in Austin ruled that Paxton’s action “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”
The Texas lawsuit was filed last Wednesday after clinics said they were forced to cancel hundreds of appointments for abortions across the state.
“Abortion is essential healthcare, and it’s a time-sensitive service, especially during a public health crisis,” said Amy Hagstrom Miller, president of Whole Woman’s Health, an abortion provider with three clinics in Texas and a plaintiff in the case.
Dahlia Lithwick, Federal Judges Block Texas and Ohio Coronavirus Abortion Bans
There was bad news on Monday for states trying to use the coronavirus pandemic to halt abortions: Two federal judges ruled that pretextual pretexts are just pretexts. Clinics in Ohio and Texas will remain open, at least for the time being. As my colleague Christina Cauterucci reported last week, Republican governors in both Ohio and Texas tried opportunistically to halt abortions in their states by claiming that the procedures are not-essential and that states should redirect personal protective equipment, including masks and gloves, away from clinics so they can better serve coronavirus patients. Of course, women actually need abortion services even more during such crises, clinics don’t use most of the essential medical equipment necessary to fight the virus, and most abortions are time-sensitive procedures that can’t be delayed indefinitely.Texas and Ohio weren’t alone, though. Iowa, Mississippi, Alabama, and Oklahoma had all recently moved to suspend abortion access using the same excuses. The Texas guidance, which was particularly draconian, would have applied to “any type of abortion that is not medically necessary to preserve the life of the mother,” and violations would include a $1,000 fine or up to 180 days in jail. Meanwhile, Ohio’s deputy attorney general, Jonathan Fulkerson, had sent letters to a handful of abortion clinics accusing them of violating the Ohio order, but the clinics had replied that they were in compliance and continued to perform procedures.Two of these suits have already paid dividends. On Monday, U.S. District Judge Lee Yeakel lifted Texas’ restriction on abortion just a few hours before Senior U.S. District Judge Michael Barrett enjoined Ohio officials from implementing their ban. In his opinion judge Yeakel, a George W. Bush appointee, found that Texas’ attempt to shut down abortions would cause “irreparable harm” to abortion clinics and their patients, and rested his decision in the constitutional right to terminate a pregnancy: “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.”
Federal judges for now blocked Texas, Ohio and Alabama from curbing most abortions amid the new coronavirus pandemic, after the states recently cited the need to preserve medical equipment and public health as reasons to halt the procedure.
U.S. District Court Judge Michael Barrett ruled that Ohio's abortion clinics could perform surgical abortions if they could not be delayed because of a medical condition or the delay would prevent the abortion under Ohio law.
The Ohio Department of Health had threatened to apply the ban on all elective surgeries to surgical abortions, effectively banning all abortions after 10 weeks gestation, according to a motion filed by Ohio's surgical abortion clinics, including Planned Parenthood of Southwest Ohio, on Monday.
Barrett, who granted the temporary restraining order later for 14 days, said the state had not proven that performing surgical abortions would "result in any beneficial amount of net saving of PPE (personal protective equipment) in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion," Barrett wrote.
State officials in Iowa and Ohio were hit with lawsuits on Monday over their decisions to ban abortion during the coronavirus outbreak.
Both states recently deemed abortion a nonessential surgical procedure that must be deferred or canceled in order to preserve medical supplies for the pandemic.
Planned Parenthood Federation of America and the American Civil Liberties Union of Iowa and Ohio are asking district courts to immediately restore abortion access, arguing that it’s an essential, time-sensitive procedure that has been improperly categorized as elective.
A growing number of states largely governed by Republicans are using the coronavirus outbreak to crack down on abortion. In addition to Ohio and Iowa, Texas and Mississippi have ordered health care facilities to stop providing abortions.***
Leading medical experts, such as the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology have urged state leaders to classify abortion as a time-sensitive, essential medical procedure that cannot be delayed.
Friday, March 27, 2020
This is my local rep, supporting the constitutional rights of women.
Last weekend, Ohio Attorney General Dave Yost ordered Ohio reproductive health clinics to cease providing abortions—claiming that abortion services are not “essential” medical care during the COVID-19 pandemic.
When Ohio state House Representative Tavia Galonski—chair of the Ohio Women’s Democratic Legislative Caucus—first heard the news, she felt rage.
“Now is not the time to overturn the U.S. Constitution in the middle of a pandemic,” she said.
After his announcement, Attorney General Yost faced immediate pushback from abortion rights advocates and pro-choice state legislators.
Following a round of intense negotiations, Ohio clinics remain open.
The coronavirus pandemic is deepening the divide on abortion access between blue and red states by sparking a debate over whether the procedure is medically essential.
Anti-abortion forces led by Republican governors in Ohio, Texas and Mississippi are citing the critical shortage of medical supplies in trying to close abortion clinics, in some instances threatening jail time if they don't shut down and donate protective gear and other necessities to local hospitals. Meanwhile, in blue states like New York, Washington and New Jersey, governors are deeming abortion and family planning clinics an essential service that can continue during the pandemic.***
Progressive states that have implemented broad orders shutting down businesses during the pandemic, such as Washington, have clarified that they consider abortion and family planning clinics an essential service that can continue during the pandemic. New Jersey Gov. Phil Murphy was one of a handful of Democratic leaders to explicitly carve out an exception for “the full range of family planning services and procedures, including terminations of pregnancies” from his executive order that suspends elective surgeries.
Meanwhile in New York, clinics are working to expand access to medication abortion. Planned Parenthood is conducting more assessments over its telehealth platform so eligible patients only have to come to centers to pick up medication, as is required by law.
Tuesday, March 24, 2020
Texas and Ohio have included abortions among the nonessential surgeries and medical procedures that they are requiring to be delayed, setting off a new front in the fight over abortion rights in the middle of the coronavirus pandemic in the United States.
Both states said they were trying to preserve extremely precious protective equipment for health care workers and to make space for a potential flood of coronavirus patients.
But abortion rights activists said that abortions should be counted as essential and that people could not wait for the procedure until the pandemic was over.
Pro-choice groups such as the American Civil Liberties Union and Planned Parenthood say the order is an excuse from the state to restrict access to abortion.
Ohio's legislators have sought to curb people's access to abortion prior to the pandemic.
“Planned Parenthood’s top priority is ensuring every person can continue accessing essential healthcare, including abortion,” Planned Parenthood of Ohio said in a statement, adding that they are still being compliant with the state order.
“Under that order, Planned Parenthood can still continue providing essential procedures, including surgical abortion, and our health centers continue to provide services that our patients depend on,” they added.
Despite a state health order banning non-essential procedures during the coronavirus health emergency, Ohio abortion clinics remained open last week.
But after receiving complaints, Ohio Attorney General Dave Yost ordered two of them to follow Ohio Department of Health Director Amy Acton’s orders.
“You and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient,” Yost said.
“If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the [health director’s] order, the Department of Health will take all appropriate measures.”
On Wednesday, Acton issued an order saying “all non-essential or elective surgeries and procedures that utilized [personal protective equipment] should not be conducted.” The state is attempting to preserve supplies of equipment needed in combating the vir
Republicans in states around the country are doing their best to use the growing coronavirus epidemic in order to push through their rightwing, anti-abortion agendas. The latest—on Sunday night, Texas Governor Greg Abbott issued an executive order to “postpone all surgeries and procedures that are not immediately medically necessary” until April 21. In response, the state’s Attorney General Ken Paxton ordered all abortion clinics to stop providing “any type of abortion that is not medically necessary to preserve the life or health of the mother,” or face penalties of up to $1,000 or 180 days of jail time.
The move by Republican officials in Texas comes on the heels of Ohio’s attorney general’s office ordering abortion clinics in Dayton, Cleveland, and Cincinnati to “immediately stop performing non-essential and elective surgical abortions.”
Framing these moves as a way to ensure that health care professionals have the resources they need, which is what officials in both Texas and Ohio have done, is an incredibly manipulative and underhanded way to sneak in anti-abortion measures under the guide of public health. In a statement to Jezebel, NARAL Pro-Choice Texas executive Aimee Arrambide wrote, “Abortion is essential healthcare, but especially in the wake of the public health crisis we are facing now.... Abortion is a procedure where time is of the essence and cannot be delayed without profound consequences.”
Over the weekend, two states made moves to ban certain abortions under the guise of preparing for the expected surge in coronavirus cases. In Ohio, Attorney General Dave Yost sent letters to three abortion clinics ordering them to stop performing “nonessential” surgical abortions that “can be delayed without undue risk to the current or future health of a patient.” In Texas, Gov. Greg Abbott ordered a halt to all procedures performed on patients not facing an immediate risk of “serious adverse medical consequences or death.” The Texas attorney general confirmed on Monday that most abortions would fall under the order.
Both officials have said the bans are necessary to reduce coronavirus-induced strain on health care systems and reserve personal protective equipment, including masks and gloves, for more urgent uses during a time of nationwide medical supply shortages. Their misclassification of abortion as nonessential health care betrays a deep-seated indifference for the health and welfare of pregnant women. Abortion care isn’t a delayable luxury, even during a pandemic. It’s essential preventive care—and if anything, it might be more essential than usual.
Abortion providers in Texas and Ohio have said they consider themselves exempt from the orders and will continue seeing patients, since the care they provide is necessary and time-sensitive. Though abortion care is extremely safe, it gets riskier, more expensive, and more difficult—or impossible—to access as a pregnancy progresses.
Thursday, March 19, 2020
Professor Anita Bernstein opens her book, The Common Law Inside the Female Body, with a startling “strange bedfellows” argument: William Blackstone and modern American feminists want the same thing. “The common law,” she argues “contains precepts and doctrines that strengthen the freedom of individuals; the feminist struggle against the subjugation of women pursues liberty.” Can this be the same Blackstone who articulated the doctrine of coverture and the severe impediments it imposed on the liberty of married women? His pronouncement that “the husband and wife are one person in law” — and that one is the husband — is the centerpiece of a doctrine that deprived married women of a panoply of civil rights like buying property, entering into contracts, and owning their own wages. These disabilities were lifted by statutes known as the “Married Women’s Property Acts,” but some impediments persisted into the twentieth century. But by the end of the book, Bernstein has made a compelling argument that common law principles, despite an inauspicious start, can “liberate women.” Indeed, there is little if anything in those principles that deprives women of the same rights as men. The common law may have “proceeded as if only men could enjoy its opportunities,” but that, she argues, is due to a “historical condition now supplanted.”
Once women became equal participants in civil society as well as in the justice system, there ceased to exist any basis for restricting the benefit of common-law principles to men. And, oh boy, the common law contains some juicy stuff that really could be deployed to advance the cause of gender equality. This Essay will consider and evaluate Bernstein’s argument that the common law supports a virtually unfettered right to terminate a pregnancy. It will situate her argument against the backdrop of the constitutional right of abortion, which has been the primary lens through which women’s reproductive rights have been viewed. The Essay will then consider the newly composed Supreme Court and the threat it portends to reproductive rights. It concludes by suggesting that the common law, as Bernstein understands it, could come to the rescue of women and their full humanity.
Friday, February 28, 2020
Abortion restrictions that were enacted when Republicans controlled Virginia’s General Assembly are being undone in legislation approved by the Democrats who are now in charge.
The House on Thursday gave final passage to a bill that would roll back provisions including a 24-hour waiting period before an abortion and a requirement that women seeking an abortion undergo an ultrasound and counseling. The measure would also undo the requirement that abortions be provided by a physician, allowing nurse practitioners to perform them, and do away with strict building code requirements on facilities where abortions are performed.
The Senate companion measure passed earlier in the week. The legislation now goes to Democratic Gov. Ralph Northam, who supports it.
“When this legislation goes into effect, Virginians will no longer have to navigate an obstacle course of delays and barriers in order to access a safe and legal abortion,” said Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia.
The measures passed largely along party lines, with staunch opposition from Republicans and religious advocacy groups that testified against it in committee hearings.
Republican Del. Kathy Byron said in a floor speech Thursday that the changes would lead to women being less informed about “maybe one of the most important decisions that they ever make.”
“What we're doing today is we're voting to deny women complete information on what an abortion means, its consequences, its implications, its alternatives," she said.
The law, passed Thursday in the House of Delegates, will repeal Virginia’s mandatory waiting period, which requires patients to wait 24 hours after a consultation to receive an abortion. It will allow certified nurse midwives and nurse practitioners to perform first-trimester abortion services and remove the requirement that providers give counseling to patients seeking abortions. It will also eliminate the requirement for an ultrasound before an abortion, a practice that can be traumatizing for patients. The American Medical Association says mandatory ultrasounds provide no “additional medically necessary information.” ***
“Those restrictions in the code were politically charged,” says Herring, “and it had nothing do with the provision of good care.”
Democratic state lawmakers across the country have passed similar abortion protections in the past year, as attacks on abortion access have ramped up in conservative states. In 2019, nine states—Illinois, New York, Rhode Island, Vermont, Maine, California, Nevada, New Jersey, and Hawaii—passed legislation protecting or expanding the right to an abortion. Maine also voted to allow certified nurse midwives and nurse practitioners to provide non-surgical abortions. Four states codified Roe v. Wade by enshrining the right to an abortion in their state law.
Herring says she hopes Virginia will be the next state to codify the right to an abortion. She notes that there are a record number of women from both parties in the legislature. “When women are elected and in power,” she says, “there will be a tendency that we make sure that we are protecting our interests.”
Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge Univ. Press 2020)
With the Supreme Court likely to reverse Roe v. Wade, the landmark abortion decision, American debate appears fixated on clashing rights. The first comprehensive legal history of a vital period, Abortion and the Law in America illuminates an entirely different and unexpected shift in the terms of debate. Rather than simply championing rights, those on opposing sides battled about the policy costs and benefits of abortion and laws restricting it. This mostly unknown turn deepened polarization in ways many have missed. Never abandoning their constitutional demands, pro-choice and pro-life advocates increasingly disagreed about the basic facts. Drawing on unexplored records and interviews with key participants, Ziegler complicates the view that the Supreme Court is responsible for the escalation of the conflict. A gripping account of social-movement divides and crucial legal strategies, this book delivers a definitive recent history of an issue that transforms American law and politics to this day.
Wednesday, January 29, 2020
Medication abortion is incredibly common in the United States; it’s also incredibly safe. And it’s because of this relative ease and safety, in fact, that conservative states are now targeting it in the same ways they have targeted providers and clinics in recent decades: In 18 states, a provider must be physically present to prescribe abortion medication, a barrier compounded by the fact that nearly 40 percent of women in the U.S. aged 15–44 live in a county without an abortion clinic. A number of states also have laws on the books that criminalize people who terminate their own pregnancies, and “there have been at least half a dozen U.S. cases where women have been arrested and charged after attempting to self-induce an abortion using illicitly obtained abortifacients,” according to the Guttmacher Institute.
It is now 47 years after Roe v. Wade, and we are still someplace we’ve already been. But that sense of familiarity goes back even further than the landmark abortion case: 200 years ago, as medicines and tonics meant to cause abortion were made more accessible through advertising, laws targeted their use as well.
Abortion has gone from being legal to illegal in this country before, and with Roe in jeopardy, advocates for reproductive freedom have forecast a future that looks much like our past, when pills were a major part of abortion access—and an obsessive target for abortion opponents.
The story of abortion regulation and criminalization in the U.S. begins, in some ways, with the sale of abortion pills. Such open business was part of the reason states pushed to pass the first laws governing abortion in the 1820s and 1830s, according to Lauren MacIvor Thompson, historian at Georgia State University and author of the forthcoming Battle for Birth Control: Mary Dennett, Margaret Sanger, and the Rivalry That Shaped a Movement. “But they were mostly only governing the advertising and sale of abortifacient drugs.” The laws were meant to regulate, not to outlaw, abortion, she told me in an email.
This didn’t quell the demand for abortion—which was not really the point. Neither did criminalization drive abortion fully underground. Into the 1860s and 1870s, New York readers could still learn, however euphemistically, of the alleged effects and availability of “Dr. Vlcaoli’s Italian Female Monthly Pills” or “Chichester’s English Pennyroyal Pills,” in big city and local papers alike, from the New York Evening Telegram to the Syracuse Daily Standard. People using titles like “Professor of Midwifery” or “Professor of Diseases of Women” offered “A Certain Cure,” “safe and healthy,” for “immediate removal of all special irregularities in females, with or without medicine, at one interview.”
H/T Kimberly Hamlin
Friday, January 17, 2020
The Supreme Court grant cert today in Trump v. Pennsylvania and the related Little Sisters of the Poor regarding religious exemptions for the federal healthcare mandate that employers provide women employees birth control.
From the Petition for Cert, Questions Presented:
The Patient Protection and Affordable Care Act (ACA), 42 U.S.C. 18001 et seq., requires many group health plans and health-insurance issuers that offer group or individual health coverage to provide coverage for preventive services, including women’s preventive care, without cost-sharing. See 42 U.S.C. 300gg-13(a). Guidelines and regulations implementing that requirement promulgated in 2011 by the Departments of Health and Human Services, Labor, and the Treasury mandated that such entities cover contraceptives approved by the Food and Drug Administration. The mandate exempted churches, and subsequent rulemaking established an accommodation for certain other entities with religious objections to providing contraceptive coverage. In October 2017, the agencies promulgated interim final rules expanding the exemption to a broad range of entities with sincere religious or moral objections to providing contraceptive coverage. In November 2018, after considering comments solicited on the interim rules, the agencies promulgated final rules expanding the exemption. The questions presented are as follows:
1. Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration
Act of 1993, 42 U.S.C. 2000bb et seq., to expand the conscience exemption to the contraceptive-coverage mandate.
2. Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act, 5 U.S.C. 551 et seq., 701 et seq.
3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
Tuesday, November 5, 2019
Since at least the 1960s, public debate over abortion rights has frequently turned to issues of disability. Those who argue for liberalization of abortion laws have often been successful by raising the specter of fetal disability — whether caused by Thalidomide, or rubella, or otherwise. Those who agitate for restricting or banning abortion, by contrast, have often argued that pro-choice advocates devalue the lives of people with disabilities.
In the spring of 2019, disability and abortion rights collided at the Supreme Court. Indiana had adopted a law “barring the knowing provision of sex-, race-, or disability-selective abortions by abortion providers.” The Seventh Circuit invalidated that law. In Box v. Planned Parenthood of Indiana & Kentucky, the Supreme Court denied certiorari (though it summarily reversed the Seventh Circuit’s invalidation of a separate Indiana law regulating the disposal of fetal remains). Justice Thomas concurred in the denial of certiorari, but he filed a lengthy separate opinion arguing that the ban on selective abortions was constitutional. He argued that “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written in a case in which individuals with developmental disabilities challenged a District of Columbia policy that denied them the right to make decisions about their medical care. The case was Doe ex rel. Tarlow v. District of Columbia. The D.C. Circuit reversed a district court decision enjoining that policy. Judge Kavanaugh’s opinion did not say anything specifically about reproductive rights. He treated the case entirely as one about the (lack of a) right of incompetent persons to consent to medical treatment. But the case itself was very much a reproductive rights case. Two of the three plaintiffs had been forced to have abortions without their consent; they sued precisely to challenge the policy that had taken away their power to choose. Although Kavanaugh had a reputation as a strong “pro-life” judge, here he voted to uphold government decisions to require individuals with intellectual disabilities to have abortions. Debate over disability and reproductive rights has typically focused on the issues raised by Justice Thomas’s opinion in Box — whether fetal disability is an acceptable reason for terminating a pregnancy, and what the law should do about it. Those are important questions. But any full assessment of the intersection between disability and reproductive rights must also address the issues raised by then-Judge Kavanaugh’s opinion in Doe. Disabled people are frequently denied their own rights to conceive, bear, and parent children, whether through forced sterilization or abortion, the denial of assisted reproduction, or the denial of parental rights once their children are born. Some of these practices — notably forced sterilization — are emblematic of the Eugenics Era. But they are not at all confined to the past. Indeed, the practices that prevent people with disabilities from having and raising children — practices like the law Kavanaugh upheld in Doe — are in many ways the disability analogues of the race-based eugenic practices that Justice Thomas himself decried in his Box opinion.
This essay offers a fuller consideration of the intersection of disability and reproductive rights. It does so by considering the legal and societal treatment of fetuses and children with disabilities alongside the legal and societal treatment of parents with disabilities. And it does so by bringing to bear insights drawn from two distinct social movements: the disability rights movement, and the reproductive justice movement. The piece argues that, taken together, the disability rights and reproductive justice perspectives offer substantial purchase on the questions raised by Justice Thomas in his Box concurrence. Those perspectives suggest that the questions are serious indeed but that Thomas gave the wrong answer to them. They also suggest that any effort to address the intersection of disability and reproductive rights needs to address the questions raised by then-Judge Kavanaugh’s Doe opinion — and that Kavanaugh, too, gave the wrong answer.
Monday, July 29, 2019
July 19 was the anniversary of the Seneca Falls Convention, the nation’s first women’s rights convention held in Seneca Falls, New York in 1848. This episode explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade. Women and law scholars Erika Bachiochi of the Ethics & Public Policy Center and Tracy A. Thomas of the University of Akron School of Law join host Jeffrey Rosen.
My discussion draws on my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016) tracing pioneering women's rights leader Elizabeth Cady Stanton's work in organizing the Seneca Falls Convention and leading the first women's rights movement for over fifty years.
Here is the Declaration of Sentiments waterfall outside the Women's Rights National Park in Seneca Falls, reflecting Stanton's words.
Tuesday, June 4, 2019
The Supreme Court decided Box v. Planned Parenthood without full briefing or oral argument and issuing a per curiam opinion. It upheld Indiana's fetal remains law, but denied cert on the second question regarding the law prohibiting abortion for fetal diagnosis or disability. Justice Sotomayor would have denied cert on both questions. Justice Ginsburg dissented, and would have applied a higher standard of scrutiny because the case implicated “the right of [a] woman to choose to have an abortion before viability and to obtain it without undue interference from the State." Justice Thomas dissented from the denial of cert on the second question. Ginsburg criticized Thomas' opinion, saying it "displays more heat than light."
The Supreme Court on Tuesday agreed to a compromise on Indiana’s contested abortion law, an outcome that revealed its openness to state restrictions on the procedure but also apparently favored a cautious and incremental path in confronting one of the nation’s enduring controversies.
On one hand, the court upheld a part of Indiana’s 2016 law that places new restrictions on the disposal of fetal remains after an abortion. It reversed a decision by a lower court without the customary briefing and oral arguments.
But the court said it would not revive another part of the law, which would have prohibited abortions if the woman chose the procedure because of a diagnosis or “potential diagnosis” of Down syndrome or “any other disability,” or because of the fetus’s gender or race.
The Indiana case was closely watched because it was the first time the conservative court, reinforced by the addition of President Trump’s two nominees, had the opportunity to take a case with consequences for the constitutional protections found in Roe v. Wade and Planned Parenthood v. Casey.
Tuesday’s decision in Box v. Planned Parenthood of Indiana and Kentuckyheld no consequences for either Roe or Casey. But it appeared to be a commencement of the new court’s consideration of abortion rights, and many cases are waiting in the wings.***
The unsigned opinion of the court, just three pages long, was matter-of-fact and devoid of broad holdings. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have let the lower court’s rejections stay in place; fellow liberals Stephen G. Breyer and Elena Kagan were silent.
But there were signs of tension. Justice Clarence Thomas wrote a 20-page statement linking abortion to the eugenics policies popular in the 19th and early 20th centuries. He added in a footnote that Ginsburg’s objection to the fetal-remains portion of the law “makes little sense.”
She responded by correcting his use of the word “mother” throughout his opinion. “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,’ ” she wrote.
The portion of the Indiana law the court allowed to go into effect mandates that the “remains” of an abortion or miscarriage be buried or cremated, as required of other human remains.
See Mary Ziegler, What Clarence Thomas Gets Wrong About Abortion and Eugenics
This is a dark history, but it is not the tidy, simple one that Thomas describes. Many population controllers actually opposed legal abortion or viewed it as irrelevant. They shared the worries of their eugenicist forbears that giving women a choice would not do enough to reduce demographic growth.
More important, many in the population control movement had no interest in eugenics. Cold warriors hoped that curbing demographic growth would prevent developing countries from turning to communism. Environmentalists believed that population control could conserve scarce environmental resources. And feminists believed that population control could facilitate the liberation of women.
The converse was also true: Unlike the synergy of belief conveyed by Thomas, some abortion rights supporters had no use for population rhetoric, viewing it as unethical and counterproductive, regardless of the political benefits. Contrary to what Thomas suggests, these voices grew louder after Roe, when feminists took on more influential roles in major abortion rights organizations. These groups understood that population arguments could smack of coercion — antithetical to their beliefs about choice and freedom — and alienate people of color both in the United States and in developing countries. And feminists increasingly argued that women had a right to abortion regardless of its policy consequences.
Wednesday, May 22, 2019
Jessica Clarke, Pregnant People?, 119 Colum. L. Rev. Online (Forthcoming)
In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have benefits in terms of equality for expectant LGBT parents. To further this project, this Response asks what unsexing pregnancy might look like for different types of pregnant people: (1) pregnant individuals who do not identify as women, (2) expectant couples in which one partner is pregnant, (3) expectant parents engaging a surrogate or pursuing adoption, and (4) pregnant people who rely on networks of family and friends for support and caregiving. It argues that, in each of these contexts, the extension of pregnancy benefits raises a unique set of questions. But across all of these contexts, it will take more than simply making existing pregnancy rules gender neutral to achieve equality.
Friday, May 17, 2019
Study Examining Whether Women Judges are More Likely than Men Judges to Affirm Reproductive Health Rights
Michele Goodwin & Mariah Lindsay, American Courts and the Sex Blind Spot: Legitimacy and Representation, 87 Fordham L. Rev. (2019)
We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (vis-à-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, but unnecessary, and even harmful and sabotaging, to a participatory democracy.
Building from two years of empirical research and examining each federal appeals court’s record on abortion and each judge’s vote on a particular case, this project studies whether women are more likely than their male counterparts to affirm reproductive health rights. We examined 302 cases across each federal appellate circuit, including the District of Columbia and the Federal Circuit. Our findings have both normative and sociological implications. This project tells an important story about the composition of the federal appellate judiciary and the slow climb for women, including women of color, within the elite branches of the courts. This is a story expressed in numbers and it reflects the historical marginalization of women within the law and the problem of homogeneity in the courts.
Thursday, May 16, 2019
Marcia Coyle, The Justices Had 5 Votes to Overturn Roe in 1992. Why That Didn't Happen, Natl L. J.
In 1992, anti-abortion groups thought they had a winning case in defense of a restrictive Pennsylvania state law. There appeared to be five votes on the U.S. Supreme Court to overrule the landmark decision Roe v. Wade, but that did not happen. As Alabama and Missouri lawmakers adopt strict anti-abortion laws, and predict successful outcomes at the high court, history provides some lessons: Never bet on what occurs behind the high court’s closed conference doors.
After oral arguments in Planned Parenthood of S.E. Pennsylvania v. Casey, Justices Harry Blackmun and John Paul Stevens believed the 1973 ruling in Roe was doomed.
Stevens, writing in his newly published book, “The Making of a Justice,” said the justices, except for him and Blackmun, agreed the U.S. Court of Appeals for the Third Circuit correctly upheld all of the challenged abortion restrictions—save for one, which required a married woman to certify she had notified her husband of her intent to have an abortion.
The Casey case, which affirmed Roe’s central holding, is getting renewed attention today for the standard the decision set for determining whether a state law posed an “undue burden” on a woman’s right to get an abortion. The justices are weighing several abortion-related challenges, and separately, new laws passed by Alabama and other Republican-led states could tee up direct challenges to Roe in the coming months.
Several new books, including the one from Stevens, offer a glimpse behind the scenes at how the Pennsylvania case was resolved and why caution is warranted in predicting the outcome in the most contentious cases.
“Harry and I both assumed that the result [in Casey] would be explained in an opinion overruling Roe v. Wade,” Stevens wrote in his autobiography, published this week.
In fact, at the justices’ private conference, Chief Justice William Rehnquist counted five votes to reverse Roe, and he assigned the court’s opinion to himself, according to journalist Evan Thomas in his new book, “First,” a biography of Sandra Day O’Connor.
Friday, May 3, 2019
Deborah Widiss, Young v. United Parcel Services, Inc., Rewritten, in Feminist Judgments: Employment Discrimination Opinions Rewritten (Ann C. McGinley & Nicole B. Porter, eds., Cambridge Univ. Press, 2019, forthcoming).
Young v. United Parcel Services, 135 S. Ct. 1338 (2015), is appropriately considered a win for women because it expanded opportunities for pregnant employees to receive workplace accommodations. However, the case could have been far more transformative, both in how it interpreted the law and in how it explained why it matters for working women. This “rewritten” version, forthcoming in an edited volume, imagines what Young might have said if it were written from a feminist perspective.
The Supreme Court’s actual decision instructs lower courts to assess whether an employer’s refusal to provide an accommodation is infected by discriminatory bias. The rewritten decision, by contrast, argues the plain language of the Pregnancy Discrimination Act makes intent irrelevant, so long as a pregnant employee can show that other workers with similar limitations receive more favorable treatment. This interpretation is better supported by the text of the statute, as well as its history and purpose. The Equal Employment Opportunity Commission also endorsed this interpretation, and the rewritten opinion shows why deference was warranted.
Finally, the rewritten opinion rejects the contention, articulated by the Court in the actual Young decision, that this interpretation affords pregnant women a “most favored nation” status. This allegation suggests accommodating male workers is an ordinary cost of business, but costs relating to pregnancy are special costs that employers should not have to bear. The PDA’s comparative structure was intended to counteract such assumptions and the still-pervasive belief that pregnant women are less capable or less committed than other employees.
Readers may also be interested in my more traditional academic scholarship on this subject: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans With Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013) (https://ssrn.com/abstract=2221332) and The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act After Young v. UPS, 50 U.C. Davis L. Rev. 1423 (2017) (https://ssrn.com/abstract=2948666).
The six-week abortion ban known as the "heartbeat bill" is now law in Ohio. That makes Ohio the sixth state in the nation to attempt to outlaw abortions at the point a fetal heartbeat can be detected.
Gov. Mike DeWine signed the bill Thursday afternoon, just one day after it passed the Republican-led General Assembly. The law is slated to take effect in 90 days, unless blocked by a federal judge.
Now known as the "Human Rights Protection Act," SB 23 outlaws abortions as early as five or six weeks into a pregnancy, before many women know they're pregnant. It is one of the most restrictive abortion laws in the country.
The bill does include an exception to save the life of the woman, but no exceptions for cases of rape or incest.***
DeWine's signature will set off a lengthy legal fight. The ACLU of Ohio announced it will sue to stop the law, which the group says "virtually bans all abortion care."
With the stroke of a pen by Gov. Mike DeWine, Ohio became the third state this year to pass a "heartbeat" bill banning abortion as early as six weeks into a pregnancy.
The ban takes effect after the detection of a fetal heartbeat at a point before many women are even aware they are pregnant.
Kentucky and Mississippi have adopted similar laws, while a Georgia bill awaits only the expected signature by Gov. Brian Kemp by May 12. The Mississippi law takes effect in July.
Meanwhile, "heartbeat" bills have passed one chamber of the legislature in Missouri, Ohio and Tennessee and have been introduced in Florida, Illinois, Louisiana, Maryland, Minnesota, New York, South Carolina and West Virginia.
The bills hit at the nexus of the abortion debate, and frame the act in stark,emotional terms, with proponents arguing that preserving life outweighs arguments against government interference in personal, medical decisions.
For prior scholarship on this bill, see Marc Spindelman, On the Constitutionality of Ohio's Proposed "Heartbeat Bill", 74 Ohio State L.J. 149 (2012)