Sunday, December 3, 2023

Event 12/7: UDHR Anniversary Celebration with Center for Reproductive Rights

On December 7, 2023, from 9-10 A.M. EST, join the Center for Reproductive Rights and other leading human rights organizations for a celebration of the 75th anniversary of the Universal Declaration of Human Rights (UDHR). They will be highlighting the critical role of sexual and reproductive rights and gender equality in realizing the promise of the UDHR for all.

The distinguished speakers will be Cataline Devandas, Sibongile Ndashe, Macarena Saez, Monica Simpson, and H.E. Roberto Armando de Leon Huerta. The event will be moderated by Rachana Desai Martin.

There have been both historic advancements and unprecedented assaults on sexual and reproductive health and rights in the past few years. This event will provide a space for participants from key leaders working to advance these rights, particularly the most marginalized, and what still needs to be done to advance and protect human rights for all.

This event is virtual. Find the Zoom link to the webinar here.

December 3, 2023 in Reproductive Rights, Universal Declaration of Human Rights | Permalink | Comments (0)

Wednesday, November 15, 2023

New Article: A Global View of U.S. Backsliding on Democracy and Reproductive Rights

Martha F. Davis and Risa Kaufman, A Global View of U.S. Backsliding on Democracy and Reproductive Rights, ACS Blogs, Expert Forum (Nov. 13, 2023). Excerpt below.

This month, the United Nations Human Rights Committee concluded its review of the United States’ human rights record. Nine years had passed since the Committee’s last review of the U.S. With many urgent issues to address – including gun violence, excessive use of force by law enforcement, climate change, and Guantanamo – the Committee trained particular focus on the state of reproductive rights and democracy in the United States. The Committee’s alarm over the flood of restrictions on reproductive and bodily autonomy, alongside its deep concern over attacks on the right to vote, points to the deep connections between reproductive rights and democracy. Americans have a front row view of these connections in the wake of the Supreme Court majority’s decision in Dobbs to eliminate federal constitutional protections for abortion and leave the issue up to the political branches and the states. The global perspective offered by the UN review is a reminder, however, that regression on reproductive rights reinforces and supports erosion of democracy. These are mutually reinforcing trends. And the UN review underscores the urgency of safeguarding both.

November 15, 2023 in Advocacy, ICCPR, Martha F. Davis, Reproductive Rights, Risa Kaufman, United Nations, Women's Rights | Permalink | Comments (0)

Tuesday, October 31, 2023

UN Human Rights Committee Grills U.S. on Abortion, Maternal Mortality, and Separation of Families

This blog post is crossposted with permission from the Reproductive Rights Law Profs Blog.

By Hannah Filippino and Benita von Lilienfeld-Berry, Law Students in CUNY Law School's Human Rights & Gender Justice Clinic

Earlier this month, the United Nations Human Rights Committee (“HRC”) reviewed the U.S.’ performance under one of the only three international human rights treaties that the U.S. has ratified: the International Covenant on Civil & Political Rights (“ICCPR”). As expected during the two-day review, the HRC members grilled the U.S. on the impact that the Supreme Court case Dobbs v. Jackson has had on access to abortion, but they also asked tough questions about other reproductive justice issues, including the U.S.’s failure to address maternal mortality and the improper separation of families by Child Protective Services.

To ensure that HRC members were fully informed of ICCPR violations in the U.S., civil society members submitted over 70 reports and sent 150 human rights lawyers and activists to attend the review. Through CUNY Law School’s Human Rights & Gender Justice Clinic, we attended the review as part of civil society and submitted a shadow report with If/When/How, Pregnancy Justice, the Center for Reproductive Rights, Birthmark Doula Collective, Changing Woman Initiative, and We Testify. The report highlights the ways in which abortion, miscarriage, and pregnancy outcomes are criminalized in the U.S. in violation of multiple rights protected under the ICCPR, including the rights to life, non-discrimination, equal protection before the law, freedom from cruel, inhuman, and degrading treatment or torture, as well as health care privacy (Art. 6, 7, 17, 2, 3, 26). Several other organizations also submitted separate reports focusing on abortion access and maternal mortality.

During the review, Serbian Committee Member (“CM”) Tijana Šurlan made maternal mortality and reproductive rights one of her primary concerns. She emphasized that the U.S. must adopt positive measures to both reduce maternal mortality and ensure abortion access to protect pregnant people’s rights to health and life. Noting the disproportionately high rates of maternal mortality in Black, Indigenous, and Native Hawaiians and other Pacific Islander communities, she asked what measures the U.S. is undertaking to improve health care for these vulnerable groups. She also framed decriminalizing religious and cultural midwifery as a pivotal piece of reducing the U.S.’ maternal mortality rate, which is the highest among wealthy countries.

CM Šurlan described the Dobbs cases as a serious retrogression after five decades of protection for sexual and reproductive health rights established since Roe v. Wade. French CM Hélène Tigroudja also focused on the criminalization of abortion and asked President Biden’s delegation to describe tangible, precise measures that the U.S. has taken to reduce the criminalization of abortion providers, seekers, and their helpers in light of the World Health Organization’s (“WHO”) 2022 Abortion Care Guidelines. In doing so, she emphasized that the right to choose pregnancy requires safe and legal abortions under the ICCPR rights to life, non-discrimination, and freedom from cruel, inhuman, and degrading treatment or torture. CM Tigroudja also expressed concern about State data surveillance being weaponized to criminalize abortion. She further highlighted that since Dobbs, pregnant people that either receive abortive care or are forced to carry their pregnancies to term have been discriminated against and are suffering physically and psychologically as a result.

CM Šurlan asked the U.S. to clarify what remedies are in place for people who are forced to carry their pregnancies to term, as well as for those who suffer from severe health problems from unsafe abortions. She also asked about the possible creation of a federal statutory right to abortion through legislation like the Women’s Health Protection Act. Chilean CM Hernán Quezada Cabrera expressed concern about how Child Protective Services uses behavior during pregnancy as a basis to separate families and even arrest parents instead of undertaking measures to help families and alleviate poverty. He alluded to the ways that this criminalization of pregnancy relates to racist family separations by Child Protective Services, which were also criticized when the U.S. was reviewed for its compliance with the Convention on the Elimination of All Forms of Racial Discrimination in 2022.

While the government delegates agreed that the Dobbs decision has caused serious human rights violations, they failed to directly address state laws banning or severely restricting abortion access in response to the HRC’s questions. Instead, the government representatives discussed enforcing federal laws that safeguard private health care information, require health care treatment in emergencies, and prohibit threats and violence at clinics. The Special Assistant to the President for Democracy and Civic Participation at the White House, Justin Vail, emphasized that the right to choose is fundamental, but, other than noting the executive orders enforcing federal laws, he only stated that the federal government is trying to pass laws to restore Roe protections.

The sole state-level delegation member, Attorney General Aaron Ford of Nevada, described efforts to protect abortion rights in his state. However, Nevada is only one of fifty states, and it is also the only state that explicitly criminalizes self-managed abortion.

Ultimately, the Biden delegation relied on federalism to avoid accountability for our nation’s violations of the ICCPR. In doing so, the Biden delegation continued the U.S.’ longstanding history of ignoring its obligations to adhere to international treaties like the ICCPR as “The Supreme Law of the Land” under the Constitution.

The HRC is expected to release its formal concluding observations on November 3.

October 31, 2023 in Cindy Soohoo, Gender, ICCPR, Reproductive Rights | Permalink | Comments (0)

Thursday, August 4, 2022

Hooray for Kansas!

By Prof. Margaret Drew, UMass Law School

 

In a vote for pro-choice advocates to celebrate, Kansans affirmed the right to abortion in their state.  Surrounded by states that are largely expanding anti-abortion statutes, Kansas will remain a haven for those seeking abortion services.  This result is a blow to those looking to ban abortion in every state.  Historically a deeply religious and conservative state, the outcome of the vote is a surprise to many.   One of the lessons hopefully recognized by anti-choice promoters is that the 70% of the population that identifies as pro-choice, even those that support reasonable restrictions, are unhappy with the recent Supreme Court decision.  Women and other voters support women's right to control their healthcare.  

One of the most frightening impacts of the Dobbs decision was the court's prioritization of religion over women's autonomy.  Religious freedom must be redefined freedom to prioritize freedom from religion.  The separation of church and state was the norm for many decades and was a founding principle.  The current Supreme Court term upended the separation principle that was under attack at least since the Hobby Lobby decision.   Consistently, those celebrating Dobbs cited a religious basis.  The Catholic Church purportedly spent $3 million in Kansas promoting an anti-abortion vote.  

Thank you, Kansas, for giving hope to women nationwide.

August 4, 2022 in Margaret Drew, Reproductive Rights | Permalink | Comments (1)

Sunday, July 31, 2022

Let's Not Erase Women From The Abortion Discussion

By Prof. Margaret Drew, UMass Law School

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This is the time that women need allyship.  

Advocates for women cannot afford to be apologists.  In the world of intimate partner violence, advocates found themselves speaking in gender-neutral terms.  This is appropriate when including the high abuse rate suffered by gay men.  Lesbian and trans women are included in the victim population when advocates discuss violence against women.   But when advocates discuss violence against women in heterosexual relationships, they typically begin with this caveat or its equivalency: "While most victims of IPV are women, we acknowledge that men can be victims also."  True enough but the percentage is small. This form of gender "neutrality" is a  significant tool of female gender erasure.  When discussing cisgender male-female relationships, the insistence on using gender-neutral language in IPV discussions is part of the trend to erase women as the primary focus of intimate partner violence in heterosexual violence.  

I am concerned that an even more significant erasure of women is happening as part of the abortion discussion.  The Dobbs decision was an exercise in misogyny.  The majority opinion makes this clear.  The celebration of those with strong religious ties stems from the misogyny of many organized Christian religious sects and their doctrine. When advocates argue that Dobbs was an anti-female decision, trans women are included, as the decision further reduces the status of all women.

The insistence on including references to trans men and others distracts the audience by limiting the discussion to those with uteruses.  This deflects from the focus on the deep hatred of women by oppressive jurists and others who are unwilling to recognize misogyny as the driving issue. Male control of women is the underlying social and cultural problem driving the abortion ruling and restrictive statutes.   

While some trans, non-binary, and other gender-expansive individuals may and do need abortions, the number is a small minority of those needing abortion services in any given year.  While recognizing the numbers may reflect under-reporting, one study reports, "The best approximation, from all known abortion-providing facilities in the United States, estimated that there were between 462 and 530 transgender and nonbinary abortion patients nationwide in 2017."  By contrast, another study by the same organization (Guttmacher) reported that in 2017, "862,320 abortions were provided in clinical settings..."   

The numbers evidence the problem.  If Dobbs discussions were about the procedures of abortion only, then gender language would be inclusive of all with uteruses.  But this discussion is much bigger than that.  This is about the efforts of men, the male state, and religions, to control women beginning when white Europeans arrived in the US.  

Women need the support of trans men and other gender expansive individuals and their organizations to support all women in their anti-discrimination struggles.   Our trans brothers, please stand with women.

July 31, 2022 in Margaret Drew, Reproductive Rights | Permalink | Comments (0)

Monday, July 25, 2022

Event 7/26: Privacy After Dobbs Overruled Roe

On Tuesday July 26, 2022, starting at 12:00 pm EDT, the American Bar Association will host a webinar on the major privacy implications of Dobbs overruling Roe. A distinguished panel will address what's next for other precedents and privacy rights, how state and federal legislators may respond or have responded, the implications for enforcement of privacy protections or of abortion restrictions or bans, and the implications for consumer use of apps and the information apps collect.

Moderator:

  • David Turetsky – University of Albany

Speakers:

  • Michael Gerhardt – University of North Carolina, Chapel Hill
  • Jessica Rich – Kelley Drye
  • Emma Roth – National Advocates for Pregnant Women

Click here to register and for more information. The ABA will charge for this webinar, but provides a discounted rate for ABA members.

July 25, 2022 in Reproductive Rights | Permalink | Comments (0)

Thursday, June 30, 2022

African American Policy Forum's Statement on Dobbs v Jackson Women's Whole Health

Editor's Note:  The African American Policy Forum published an important statement on the Dobbs decision.  The links included are worth viewing.  The Support local abortion funds link includes a list of abortion facilities nationwide in need of support.  The statement is legally important but equally critical because it calls on us to untie rather than despair.

The statement reads:

Today, an illegitimate Supreme Court—stacked with radical conservative justices who lied to Congress about their adherence to the precedents confirming our civil and reproductive rights—advanced their plan to undermine the right to equal protection under the law and the right to bodily autonomy.

To say we are outraged by the immoral and constitutionally questionable opinions from the Supreme Court in Dobbs v. Jackson Women’s Health Services is an understatement. Make no mistake: to rip vital abortion care out of the hands of millions of Americans who may need it is a devastating act of political violence. It will also be disproportionately lethal to Black and poor women who now will lose their already-limited access to abortions.

“We have barely emerged from a week of commemoration of emancipation in which the legacy of coerced pregnancy that was the foundation of enslavement and the source of the profits in the slave trade has yet to be addressed. The consequence of our society’s failure to see coerced pregnancy as a legacy of enslavement has descended once again upon Black women and all pregnant people with lethal force. Had the project of liberation from enslavement been rooted in this recognition, then coerced childbirth would have been prohibited as a foundational principle of freedom. The incompleteness of our conceptions of liberty thus harken back to the unspeakable past and stretch forward into this painful moment, proving once again that the intersections of patriarchy, racism, and heteronormativity will continue to undermine the freedoms that we all take for granted unless we learn how to address them simultaneously. Our response must not be siloed to a problem that is historically and continuously interconnected."

– Kimberlé Crenshaw, AAPF Executive Director.

In his concurrence, Justice Clarence Thomas telegraphed what those in the movement already knew: the Supreme Court will not just stop at overturning Roe v. Wade. They are going to come after every legally settled right and precedent previously set by the Supreme Court that protects marginalized Americans. They will take away the right to access contraception. They will take away the right to protections from workplace harassment for LGBTQ+ Americans and the right to gay marriage.

To fight back we must avoid the mountains of recrimination in the days that will seek to blame one constituency, condition, or individual for this moment. To see the scale of this threat clearly—and to meet it with a single unified movement for intersectional justice and equity—we must understand that this is the outcome of a sustained ideological initiative on the right to unravel core democratic freedoms—racial equity, gender justice, and individual liberty—all in one intellectual, judicial, and political revolution.

Every time we have collectively failed to see how the fabric of our collective existence is tied to the protections of our freedoms has been a moment that has contributed to this profound loss. The reality is that this attack on our body politic has metastasized over a generation, leading to the current state of minority tyranny of the will of the majority of voters. The upshot is that this undemocratic, unelected body has aligned itself with a radical right agenda that is driving us to the brink of autocracy.

No unelected body should have the power to strip people of their human right to autonomy, especially an institution as plagued by controversy, illegitimacy, and naked partisanship as the United States Supreme Court. When we demand bodily autonomy, we do not just mean over our reproductive organs—we mean autonomy from the violence of the state and extrajudicial killings by the police; we mean autonomy over our gender and our sexual experiences; we mean autonomy over our families and the right to raise our children in safe and supported communities.

We at AAPF strongly believe that the post-slavery amendments to our Constitution gave us the guiding principles to achieve our aspirations for a multiracial society, free from the illiberties, coercion, and violence that characterized our first founding. It is the vision of these, the second founders—the men and women who fought for freedom and who loosened the grip of enslavement and tyranny—that must guide us in the coming years.

The struggle ahead of us will be one of the most difficult we have faced as a nation. We are committed to this fight, and we hope you will be there with us.

Support Black women in the South

Support local abortion funds

Join AAPF's fight

June 30, 2022 in Reproductive Rights | Permalink | Comments (0)

Wednesday, June 29, 2022

After Dobbs, Are Rights for Zygotes, Embryos, and Fetuses Next?

By Cynthia Soohoo, Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law

This article was originally published at the CUNY Law Review Blog and has been republished here with permission.

After Dobbs, Are Rights for Zygotes, Embryos and Fetuses Next? by Cynthia Soohoo (June 29, 2022)

Justice Alito’s decision overturning Roe v. Wade and Planned Parenthood v. Casey marks a watershed shift in the way that the country treats people who are pregnant versus an “unborn life.” By stripping constitutional protection from the decision to have an abortion, Dobbs v. Jackson Women’s Health Organization equates pregnant people’s right to control their bodies and the state’s interest in protecting prenatal life.

Without a recognized constitutional right to abortion as a backstop, Dobbs specifically paves the way for states to impose their theory of when a human life begins and push for recognition of personhood for fetuses, embryos, and zygotes. Not only will this result in some states banning abortion from conception and treating abortion as homicide, it also threatens some forms of contraception and in vitro fertilization (IVF).

One recurring theme in Alito’s majority opinion and Justice Kavanaugh’s concurrence is that there are “two sides” with strong views on abortion. The argument goes that because there are strong opposing opinions on abortion, the issue should be left “to the people and their elected representatives” with individual states (or Congress) determining how to value prenatal life verses the rights of pregnant people. While there is superficial appeal to the “two sides” argument, it improperly equates one group’s beliefs about when human life begins with the concrete harms imposed on pregnant people.

It also obscures the real issue. We don’t all get a vote on what happens to someone else’s body. As Justices Breyer, Kagan, and Sotomayor write in the joint dissent, “when it comes to rights, the Court does not act ‘neutrally’ when it leaves everything up to the States. Rather the Court acts neutrally when it protects the right against all comers.”

Cleverly cloaked in originalist arguments and claims about democracy and judicial neutrality, at bottom, the Dobbs decision is about the expansion of state power and control. Alito admits as much when he criticizes Roe and Casey for allowing “States less freedom to regulate abortion” than in other countries. (emphasis added). Alito’s opinion gives states enormous power to use a belief about when human life begins to take dominion over a person’s body, forcing them to endure a pregnancy, give birth, and become a parent.

The Disappearing Rights and Shrinking Personhood of Pregnant People

Recognizing the fundamental liberty at stake in the abortion decision, the Supreme Court explicitly rejected the “two sides” argument 30 years ago in Planned Parenthood v. Casey. In doing sothe Court carefully considered how to balance the state’s interest in protecting prenatal life and the individual liberty and autonomy rights at risk. While the Court eliminated the trimester framework established in Roe, giving states more power to regulate abortion to protect fetal life, Casey emphasized that a pregnant person must retain the ultimate decision of whether or not to continue a pregnancy. Until the Dobbs decision, this meant a state could not ban abortion outright or impose regulations that impose an undue burden prior to fetal viability.

To justify scrapping Casey’s careful balancing of individual rights with government interests, Alito’s opinion scrupulously avoids any serious discussion of the rights of pregnant people or the implications of allowing the government to impose forced pregnancy. Instead of recognizing that allowing states to ban abortion imposes a real and substantial harm, Justice Alito downgrades the fact of a state’s invasion of a pregnant person’s liberty and autonomy to a “feeling” that “regulation of abortion invades a woman’s right to control her own body, and prevents women from achieving full equality.” He then suggests that this “feeling” is on par with the fervent belief “that a human person comes into being at conception and that abortion ends an innocent life.”

Alito also refuses to acknowledge that reproductive autonomy is a basic and fundamental liberty for people with the capacity to become pregnant. Rather than engaging in an honest discussion of what personal liberty requires for a body with a uterus, Alito hides behind a historic reading of the Fourteenth Amendment based on state laws that were passed in the 1860s when women could not vote and were not viewed as persons fully protected by the Constitution.

Paving the Way for Personhood for Zygotes, Embryos, and Fetuses

Even as Dobbs demotes people who can become pregnant from the status of full rights holders, it paves the way for states to promote the rights of zygotes, embryos, and fetuses at the expense of people who will be forced to carry them. (A zygote is a fertilized egg. It becomes an embryo10-12 days after fertilization and a fetus eight weeks after fertilization.) In 1973, Roe explicitly rejected Texas’ argument that the Constitution recognizes the unborn as a “person” with rights protected under the Fourteenth Amendment.

However, as argued in many of the amicus briefs submitted to the Court in Dobbs, constitutionally prohibiting abortion through the recognition of personhood for zygotes, embryos, and fetuses remains a long-term goal for the anti-abortion movement. Alito’s decision will likely encourage these arguments in courts and legislatures.

While the Dobbs decision declines to directly take on the personhood issue, religious and moral views about the status of zygotes, embryos and fetuses creep into the decision’s language and reasoning. Rather than discussing the state’s interest in potential life like past Supreme Court decisions, Justice Alito explicitly imports Mississippi’s belief that a fetus is a human being into the decision’s reasoning. He argues that abortion is different from other constitutionally protected decisions around intimate sexual relations, contraception and marriage, because abortion is a “critical moral question” that involves destroying what the statute describes as “an unborn human being.”

Alito even chides the dissent for imposing their “theory about when the rights of personhood begin” for adhering to the Roe and Casey standard. Alito’s criticism reveals his own assumptions about fetal life as he bemoans that under the Roe/Casey standard, states were prohibited from recognizing a fetus’ “most basic human right – to live” prior to viability. (emphasis added).

For now, Alito claims that the Dobbs decision “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” But even absent the Court’s explicit recognition of rights for prenatal life, Dobbs opens the door for states to do so without constitutional restraints. Roe recognized that there are widely divergent views on when life begins and held that the state cannot “adopt[] one theory of life [and] override the rights of the pregnant woman.” In order to prevent this outcome, Roe and Casey explicitly declined to adopt a theory of when life begins, but recognized fetal viability as the point at which the state’s interest in fetal life rose to the compelling level necessary to justify banning abortions.

This meant that while states could pass laws protecting prenatal life prior to viability,the constitutional rights of pregnant people to liberty and bodily autonomy limited how far the state could go. Now that Dobbs has stripped away this constitutional protectiona state need only show that a law passed to protect prenatal life bears a rational relation to a legitimate state interest to withstand judicial scrutiny. Further, without the viability line, states can bestow heightened protection and rights to prenatal life at any stage without any consideration about the impact on the bodies and lives of the people who carry them.

What Does Personhood for Zygotes, Embryos, and Fetuses Look Like?

The idea that states may seek to promote legal personhood for zygotes, embryos, and fetuses may seem farfetched. But for decades, states have passed laws to protect and, in some cases, bestow rights onto the “unborn” by recognizing them as human beings or even legal persons. These laws are often referred to as fetal personhood provisions, but the term is a misnomer because the provisions go beyond protecting fetuses and typically protect the “unborn” from conception or fertilization. Personhood provisions vary and include legislative findings, policy statements, and definitions for specific statutes, including criminal homicide laws, and general personhood provisions that purport to apply to all laws in the state.    

The idea that the zygotes, embryos, and fetuses are independent human beings is often included as a finding or definition in legislation to justify extreme abortion bans. For instance, in 2019, Georgia passed an act that included both a general personhood provision recognizing unborn children defined as “a member of the species Homo sapiens at any stage of development who is carried in the womb” as “natural persons” under Georgia law and a separate provision banning abortion at six weeks. In 2021, Arkansas passed the “Arkansas Unborn Child Protection Act” and in 2019, Alabama passed the “Human Life Protection Act,” both banning abortion from conception.

The laws cited provisions in their state constitutions adopting policies protecting the life (Arkansas) and rights (Alabama) of unborn children and made legislative findings or defined embryos and fetuses as human beings. Because these laws clearly violated the constitution, they were quickly blocked by the courts and never went into effect. Immediately after the Dobbs decision, a federal court granted an emergency motion dissolving the injunction stalling the Alabama law. Similar motions will likely follow in Arkansas and Georgia.

If we want to understand what laws might look like now that legislatures no longer have to comply with Roe, the abortion bans passed by Alabama and Arkansas, as well as similar bans recently passed by Oklahoma and Louisiana, provide good examples. These laws ban abortion at conception and do not include any exceptions for pregnancies that result from rape or incest.

These measures reflect an absolutist view that embryos and fetuses are human beings that must be protected irrespective of the impact on the people who carry them. International human rights bodies have recognized that forcing a person to continue a pregnancy in such circumstances constitutes cruel, inhuman and degrading treatment. Perhaps reflecting the view that zygotes, embryos, and fetuses are human beings, the laws also impose severe criminal penalties for performing abortions, including sentences ranging from 10 to 99 years and criminal fines ranging from $100,000-200,000.

In addition to explicit criminal abortion bans that will either be triggered, passed, or no longer enjoined now that Roe has been overturned, personhood provisions that already exist in the laws of many states will no longer be limited by constitutional protections for abortion. Many state criminal statutes already define homicide victims to include zygotes, embryos, and fetuses. Dobbs potentially authorizes the use of these criminal homicide statutes to prosecute people who perform abortions.

It is not just abortion that is under threat. As pointed out by the joint dissent, Alito’s cramped, backward-looking reading of liberty places constitutional protection for contraception and same-sex marriage squarely at risk. Justice Thomas explicitly invites reconsideration of Griswold, Lawrence and Obergefell in his concurrence. But even absent further unravelling of constitutional precedents, the Dobbs decision opens the door for attempts to ban forms of contraception that may prevent implantation of a fertilized egg based on embryonic personhood claims. Laws banning or limiting IVF to prevent the creation of embryos that are not implanted will also become more prevalent.

Since 1973, Roe v. Wade prevented the state from imposing its views about the value of prenatal life and the role of women in society on individuals. While Casey expanded states’ ability to regulate abortion, it recognized that prior to fetal viability the state’s interest in prenatal life cannot override “the urgent claims of the woman to retain the ultimate control over her destiny and her body.”

Together, Roe and Casey placed important limits on state power. By stripping away constitutional protection for abortion and erasing the viability line, Dobbs v. Jackson resets the constitutional balance between pregnant people and the claims that the state can make on their bodies on behalf of prenatal life. In doing so, it opens the door for zygotes, embryos, and fetuses to gain rights even as pregnant people lose them.

June 29, 2022 in Cindy Soohoo, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 28, 2022

What Else is “Egregiously Wrong”?

By Martha F. Davis, University Distinguished Professor, Northeastern University School of Law, co-director, Program on Human Rights and the Global Economy

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Reading Justice Alito’s opinion in Dobbs v. JWHO, I was struck by the reference to Geduldig v. Aiello (1974).  In dismissing the possibility of an equal protection challenge to abortion restrictions, the Dobbs majority opined that no heightened equal protection review would be available to scrutinize abortion policies because Aiello and its progeny made clear that pregnancy discrimination was not a type of sex discrimination.  Aiello concerned California’s failure to include pregnancy as a compensable disability in its unemployment insurance program.  In contrast, the law compensated men for disabilities caused by ailments and procedures that affected men alone: for example, vasectomies, circumcision, and prostatectomies.  Here is a key passage from that case:

"While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, and Frontiero. . . . Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition."

We now recognize a broader range of people who may experience pregnancy, but Aiello’s ruling still stands for the proposition that the disparate impact of abortion restrictions on women does not matter, absent proof of invidious discriminatory intent.

Just how difficult it is to prove the requisite intent was made clear in the case of Bray v. Alexandria Women’s Health Clinic (1993).  There, the claim made was that the anti-abortion group Operation Rescue, which engaged in massive and often violent clinic blockades, acted with invidious discriminatory intent in violation of the Ku Klux Klan Act, 42 U.S.C. s. 1985(3).  John Roberts (yes, that John Roberts) appeared on behalf of the U.S. government to argue in support of Operation Rescue.  Justice Scalia’s opinion for the Court rejected the idea that the violent protests directed against people seeking abortions could be connected to sex discrimination.  Wrote Scalia:

"Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women."

The Bray case dealt with a private conspiracy that aimed to, but realistically could not, shut off all possibility of obtaining an abortion.  But a law like that recently enacted in Oklahoma, that completely bans the choice to have an abortion, goes beyond mere opposition.  Isn’t it tantamount to a ban on yarmulkes?  Isn’t it impossible to disentangle any “good faith” motive – credited by Justice Scalia -- from the means employed in Oklahoma and other states, which deny women decision making authority over their own bodies?  Isn’t this the very definition of paternalism?

In 2012, Justice Ginsberg raised the alarm over the Aiello decision in her dissent in Coleman v. Maryland Court of Appeals.  The case involved the Family and Medical Leave Act, specifically whether in enacting the law, Congress was addressing a pattern of state constitutional violations that would support Congress’s abrogation of state sovereign immunity with respect to the FMLA’s self-care provision.  The majority said no, that because both men and women took medical leave, Congress was not responding to evidence of sex discrimination by the states.

 Justice Ginsburg, however, recognized the unique risks of discrimination faced by pregnant employees.  According to Justice Ginsburg, "‘childbearing is not only a biological function unique to women. It is also inextricably intertwined with employers’ stereotypical views about women’s commitment to work and their value as employees.’ Because pregnancy discrimination is inevitably sex discrimination, and because discrimination against women is tightly interwoven with society’s beliefs about pregnancy and motherhood, I would hold that Aiello was egregiously wrong to declare that discrimination on the basis of pregnancy is not discrimination on the basis of sex."

In recent years, we have seen other Supreme Court dissents gradually transform into majority opinions.  Importantly, Aiello has been almost uniformly rejected by state courts when they consider whether the disparate impact of pregnancy discrimination on women constituted sex discrimination.  The Aiello opinion has been repeatedly criticized by scholars.  The approach has been rejected internationally.  It has been substantively cited by the U.S. Supreme Court only a few times.  It is, to invoke Justice Alito’s Dobbs language, “exceedingly weak.”  As long as precedents are on the chopping block, perhaps Aiello should be the next to fall.

June 28, 2022 in Martha F. Davis, Reproductive Rights | Permalink | Comments (0)

Monday, June 27, 2022

UN Commissioner for Human Rights Comments on US Supreme Court Decision in Dobbs v. Jackson Women’s Health

In light of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health, the UN Commissioner for Human Rights Michelle Bachelet made the following comment on June 24, 2022:

The US Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization delivered today represents a major setback after five decades of protection for sexual and reproductive health and rights in the US through Roe v Wade.

It is a huge blow to women’s human rights and gender equality.

Access to safe, legal and effective abortion is firmly rooted in international human right law and is at the core of women and girls’ autonomy and ability to make their own choices about their bodies and lives, free of discrimination, violence and coercion.

This decision strips such autonomy from millions of women in the US, in particular those with low incomes and those belonging to racial and ethnic minorities, to the detriment of their fundamental rights.

More than 50 countries with previously restrictive laws have liberalized their abortion legislation over the past 25 years.

With today’s ruling, the US is regrettably moving away from this progressive trend.

The High Commissioner's full comments can be found here.

June 27, 2022 in Reproductive Rights, United Nations | Permalink | Comments (0)

Sunday, June 26, 2022

Justice Thomas Reveals the Agenda

By Margaret Drew

Image1

"When someone shows you who they are, believe them the first time."

Maya Angelou

 

The devasting Dobbs decision released last Friday revealed a new depth of anti-female activism in our country.  The ultra-conservative justices disregarded women’s autonomy and human rights. Justice Roberts would have imposed limits short of Roe reversal, but the result would have been the same in denying choice to women. The decision imposes the religious and moral views of the justices, disregarding the mental and physical health of women and the difficult circumstances that lead them to consider abortion.  The decision forebodes further restrictions on human and civil rights. Don’t believe the majority opinion when Justice Alito assures that other rights are not in danger.   Unless he has not read Justice Thomas’ separate opinion, Justice Alito knows better of the challenges ahead for vulnerable populations.

Justice Thomas’ concurrence revealed what pro-choice advocates feared.  The agenda to further gut the civil and human rights of women and sexual minorities is imminent.  Thomas confirms that many of the vexing issues for ultra-conservatives involve sex and sexual identity.  He notes Griswold, Lawrence, and Obergefell.   All these cases address sexual and/or reproductive freedom.  The result of the reversal of the cited cases will be to further disempower women, particularly women of color and poor women, and all members of the LGBTQ+ community. For reasons to be explored later, Obergefell is particularly vulnerable.

With Roe reversed, and the right of privacy seriously injured, the Court will seek to reverse cases that are based on the right to privacy.   Certain cases, that is. All dealing with “non-straight male” sexuality.  Justice Thomas invited the litigation.

His agenda is revealed.

June 26, 2022 in Margaret Drew, Reproductive Rights | Permalink | Comments (0)

Friday, June 24, 2022

DOBBS SYMPOSIUM

A reminder to our readers and contributors, that we are accepting law professor posts on the DOBBS decision.

We hope to hear from you on this critical human rights concern. Please send to [email protected] and write “Symposium” in the subject line.

Thank you,

Lauren

 

 

 

June 24, 2022 in Reproductive Rights | Permalink | Comments (0)

Thursday, May 12, 2022

Abortion and Human Rights Resources

The Northeastern University School of Law Program on Human Rights and the Global Economy (PHRGE) has put together the following resources in light of the recently leaked SCOTUS draft opinion:

May 12, 2022 in Reproductive Rights | Permalink | Comments (0)

Tuesday, January 25, 2022

Event: 1/31 Dialogue on Global Impact of US Regression in Access to Abortion

On Monday January 31, 2022, the Center for Reproductive Rights' President and CEO Nancy Northrup is hosting a webinar to provide first-hand information on the cases and context for attacks on reproductive rights in the US, and a global human rights dialogue on how we can work across borders to protect and advance reproductive rights.

The Center’s Enid Muthoni Ngida will moderate a panel featuring:
- UN Special Rapporteur on Health, Dr. Tlaleng Mofokeng
- Chancellor’s Professor, UC Irvine and elected member The American Law Institute, Michele Bratcher Goodwin
- CEO Fòs Feminista, Gisel Carino

RSVP here: https://bit.ly/3qJyWIU

January 25, 2022 in Reproductive Rights, Risa Kaufman | Permalink | Comments (0)

Wednesday, December 22, 2021

Blog Symposium on Dobbs v. Jackson Women's Health Organization Decision

The Human Rights at Home LawProfs Blog and the Reproductive Rights Law Profs Blog are planning a symposium on the U.S. Supreme Court Dobbs v. Jackson Women's Health Organization decision which is anticipated by Summer 2022.  The symposium will  The Reproductive Rights and Human Rights at Home Blogs will cross-post essays featuring reactions and takes on the Jackson decision with a view towards international and comparative law.  If you are interested in writing a blog post as part of this symposium, please email HRAH Blog Editor Lauren Bartlett before March 1, 2022. 

December 22, 2021 in Reproductive Rights, Women's Rights | Permalink | Comments (0)

Monday, October 18, 2021

New Article: Do Reason-Based Abortion Bans Prevent Eugenics?

Sital Kalantry, Do Reason-Based Bans Prevent Eugenics?, Cornell Law Review Online (Oct. 13, 2021). Abstract below.

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.

October 18, 2021 in Books and articles, Reproductive Rights, Sital Kalantry | Permalink | Comments (0)

Thursday, May 27, 2021

Forced sterilizations and other non-consensual gynecological procedures performed on migrant women detained at Georgia’s Irwin County Detention Center

By Hugh Fitzgibbon, Som-Mai Nguyen, and Catalina Ramirez Palau, Law Student Representatives, Transnational Legal Clinic, University of Pennsylvania Carey Law School

On May 20, 2021, Secretary of Homeland Security Alejandro Mayorkas directed ICE to sever its contract with the Irwin County Detention Center (ICDC). This announcement followed a public whistleblower complaint filed September 14, 2020 against U.S. immigration authorities and ICDC detailing human rights violations committed against immigrant women held at ICDC, including nonconsensual hysterectomies performed by a government-contracted doctor. The complaint sent shockwaves through the media. 42 U.S. senators immediately called on the DHS Inspector General to investigate, and in January 2021, the UN Special Rapporteur on Migrants, together with 8 other human rights bodies, responded with a communication to the U.S. outlining their grave concerns. As of May 2021, all women at ICDC had been deported, released, or transferred, However, the government’s systemic failure to prevent abuse in its detention centers does not end with the closing of ICDC. While a hard-won victory resulting from years of organizing and advocacy, the post hoc termination of individual facilities cannot undo the harms inflicted upon these women — nor, as we know from history, will it stop the same from happening again. Nothing short of ending immigration detention will.

Based on the detailed account of a nurse employed at the center and the testimonies of several victims, the September 2020 complaint included credible and substantiated allegations of nonconsensual sterilizations and other invasive unnecessary gynecological procedures performed on women detained at ICDC, as well as general abuse and medical neglect.. At least 57 women treated by the same doctor between 2018 and 2020 underwent or were pressured to undergo unnecessary treatments without  informed consent. The nurses allegedly communicated with non-English speaking patients by Googling translations, flagrantly undermining the women’s ability to give informed consent.  “Everybody he sees has a hysterectomy – just about everybody,” the whistleblower claimed. A 29-year-old victim reported that she agreed to a dilation and curettage procedure to remove an ovarian cyst, but when she woke up from surgery, she discovered that one of her fallopian tubes had been removed — a procedure for which she never gave consent. Another woman reported undergoing a hysterectomy without being given the opportunity to decline or to consult with her family beforehand. One woman reported hearing from other detainees: “He just empties you all out.” These accounts are only several of many harrowing allegations from women held at ICDC.

These forced hysterectomies are not an aberration in the United States’ cruel history of sterilization abuse, both in detention settings and otherwise, and particularly as a means of racist, ableist, and socioeconomic oppression. In Buck v. Bell (1927), the Supreme Court upheld a Virginia law allowing the compulsory, eugenic sterilization of institutionalized people if the state determined it would benefit the “health of the patient and the welfare of society.” Infamy notwithstanding, Buck has not been overturned. Roe v. Wade (1973) cites it as an example of how the Court has not recognized an “unlimited right to do with one's body as one pleases.” In 2001, the Eighth Circuit cited Buck to argue that “involuntary sterilization is not always unconstitutional.” Legitimized, sterilization without consent continued and continues to be used to regulate reproductive freedom. Throughout the 1960s and 1970s, federally funded programs were used to coercively sterilize thousands of Black women by threatening termination of welfare benefits or denial of medical care; Indian Health Services sterilized at least 25% of Indigenous women between the ages of 15 and 44 without consent; and Los Angeles County U.S.C. Medical Center systematically performed tubal ligations on Spanish-speaking women without consent. The trial judge in Madrigal v. Qulligan (1978) wrote: “One can sympathize with [the women] for their inability to communicate clearly, but one can hardly blame the doctors for relying on these indicia of consent which appeared to be unequivocal on their face.”

Reproductive justice concerns not only barriers to abortion, but all aspects of economic, social, and political power relating to decisions about conceiving, delivering, and rearing children. Such justice is fundamentally incompatible with carcerality. As another example, many prison officials have used restraints on pregnant people. In Villegas v. Metropolitan Govt of Nashville (2013), Juana Villegas was arrested during a traffic stop when she was 9 months pregnant and held in custody for ICE after she was determined to be undocumented. When her water broke, she was taken in handcuffs and leg restraints to a hospital, where she delivered her baby while shackled to the birthing bed. The Sixth Circuit found “the right to be free from shackling during labor . . . not unqualified” because a woman in labor could nevertheless be a flight risk. Despite attempted changes in federal policy, as well as Georgia’s 2019 Dignity Act, which prohibits the shackling of pregnant people for six weeks after giving birth, the Southern Center for Human Rights reported in April 2021 that women at Lee Arrendale State Prison were shackled and/or placed in solitary confinement during their immediate postpartum period.

The reproductive injustice of non-consensual sterilizations and other unnecessary gynecological procedures performed on migrant women in ICE custody at ICDC is part of a much broader and deeper story of migrant dehumanization in the U.S. In immigration detention, people face medical mistreatment, poor sanitation, overcrowding, physical and psychological abuse, poor nutrition, and sexual violence – all laid bare by the COVID-19 pandemic. The system is designed to be punitive and to deter immigration, which is fundamentally antithetical to the protection of migrants’ health. Detention is part of the overly securitized response to immigration which facilitates the erosion of human rights, as are ICE’s co-optively named “Alternatives to Detention,” which expand surveillance but have not decreased the number of people in detention (unlike true, community-based alternatives to detention). This violative environment is compounded by the increased privatization of migrant detention in recent years: 81 percent of people detained in ICE custody are in private facilities. Privatization invariably compromises care due to profit-making motives, and the necessary desecuritization and deprivatization of the immigration system should be our takeaway from this case. The experiences of migrant women in ICDC further demonstrate why immigration detention must end. As a first step, the Biden administration’s plan to phase out the use of private prisons must extend to the immigration detention system.

Editors' Note:  This post is cross-posted on the Reproductive Rights Prof Blog

May 27, 2021 in Immigration, Migrants, Reproductive Rights | Permalink | Comments (0)

Thursday, July 2, 2020

SCOTUS Holds Louisiana Abortion Restriction is Unconstitutional. But Did Chief Justice Roberts Re-Write the Undue Burden Standard Along the Way?

By Prof. Cindy Soohoo

Image1The pro-choice community breathed a collective sigh of relief following the Supreme Court’s decision in June Medical v. Russo, striking down a Louisiana statute requiring that doctors who provide abortions have admitting privileges at hospitals within 30 miles of the procedure.  The good news is that the Court did not overrule Roe v. Wade, the three remaining abortion clinics in Louisiana can remain open, and the people in the state can continue to access care.

However, although June Medical retains the undue burden standard, when read together, the six separate opinions authored by the justices once again muddy the waters about how courts should apply the undue burden standard and cast doubt on the “balancing test” the Court articulated just four years ago. 

June Medical should not have been a difficult case.  The Court struck down a virtually identical Texas admitting privilege law in Whole Woman’s Health v. Hellerstedt in 2016.  The district court conducted lengthy proceedings and found that the law did not advance a state interest in protecting women’s health and would “result in drastic reduction in the number and geographic distribution of abortion providers.” Writing for a four justice plurality, Justice Breyer, who penned Whole Woman’s Health, applied the WWH’s standard in a workmanlike fashion and reaffirmed key aspects of the decision, including that the undue burden standard requires a court to weigh an abortion restriction’s asserted benefits against its burdens and that courts have an obligation to “independently review the legislative findings upon which an abortion-related statute rests.”

These two points resolved a disagreement among the lower courts about how to apply the undue burden standard to admitting privilege laws and other targeted regulations of abortion providers (TRAP laws).  This was important because in recent years, churning out TRAP laws has become a cottage industry for anti-choice legislators who seek to regulate abortion clinics out of business through TRAP laws that make it difficult or impossible for clinics to stay open by imposing onerous and expensive requirements without actually making abortion provision safer.

In order to strike down the Louisiana law, Justice Breyer’s plurality decision needed a 5th vote that was supplied by Justice Roberts, but at a cost. Recognizing that June Medical was basically a re-do of Whole Woman’s Health and perhaps feeling pressure to maintain the Court’s legitimacy, Justice Roberts voted to strike down the law after engaging in a lengthy discussion about why stare decisis is important.

But in reaching his decision, Justice Roberts took pains to critique WWH’s balancing test and purported to apply a substantial obstacle test that does not balance a restriction’s benefits against its burdens instead.  Specifically, his concurrence held that the admitting privilege law imposed a substantial obstacle “independent of its discussion of benefits,” but he went further characterizing the Whole Woman’s Health decision as making a similar finding, willfully ignoring that Whole Woman’s Health explicitly adopted a balancing test. Justice Roberts’ attempt to re-write the undue burden standard, led Justice Kavanaugh to declare that “five Members of the Court” – Justice Roberts and the 4 dissenting justices -  “reject the Whole Woman’s Health cost benefit standard.”  And, in a less politic and more direct manner, Justice Gorsuch’s dissent described the Chief Justice’s decision as a vote “to overrule Whole Woman’s Health insofar as it changed the Casey test.”

Given the strong factual record, the deference shown to trial court factual determinations, and the similarities between the Louisiana law and the law struck down in Whole Woman’s Health, Justice Roberts cast the 5th vote to strike down the Louisiana admitting privilege law.  His vote preserves abortion access in Louisiana and the undue burden standard, but it does so in a manner that casts substantial doubt on the balancing test the Court adopted just 4 years ago, which may it more difficult to challenge other types of abortion restrictions in the future. 

Editors' Note:  This post originally appeared on the Reproductive Rights Prof Blog

July 2, 2020 in Cindy Soohoo, Reproductive Rights | Permalink | Comments (0)

Monday, June 29, 2020

STARE DECISIS ANYONE?

The holding in Whole Women's Health survived.   Today's release of the US Supreme Court's opinion in June Medical Services v Russo relied on differing legal interpretations.   In striking down Louisiana's restrictive abortion law, Justice Breyer noted that the Louisiana law was practically the same as the Texas law struck down by the Supreme Court in Whole Women's Health.  Both Texas and Louisiana sought to require doctors performing abortions to have privileges at local hospitals, an impossible process for the doctors named as Plaintiffs in the June Medical Services cases, as they proved during the pendency of the case. 

Justice Breyer focuses on the standard of review for Appellate Courts in reviewing a District Court order.  He emphasized the limited availability for courts to reinterpret the lower court's findings.  Those findings were, as noted, were more extensive than the findings made in the Texas case.  He also noted that when the 5th Circuit Court of Appeals reversed the Louisiana District Court's holding that the law was unduly burdensome on women seeking abortions they did so by criticizing the lower court findings.  Justice Breyer observed that the Appeals Court cannot reinterpret the lower court's findings and the Appeals Court should not have done so.  "In light of the record, the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support and are not clearly erroneous. Thus, the court’s related factual and legal determinations and its ultimate conclusion that Act 620 is unconstitutional are proper."

Justice Roberts took a different approach.  The Chief Justice, who dissented in Whole Women's Health, wrote in his concurring opinion "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents."

The anti-choice legal strategists did not anticipate this result.  They rushed to move June Medical Services through the system in order to reach the Supreme Court.  One concession they made in the lower court was to stipulate that the Plaintiff doctors had standing to bring the case.  The strategy focused on speed, getting the case before the Supreme Court as soon as possible after securing what the strategists perceived as a majority "anti-abortion" justices. The strategists presumed that the decision would come down to the justices' personal preferences.  What the anti-choice lawyers failed to properly assess was Justice Robert's commitment to the rule of law and his dedication to maintaining the integrity of the Court. What they thought was an opportunity for Chief Justice Roberts to turn his Women's Whole Health dissent into a majority opinion resulted in his commitment to preserving one of the court's fundamental legal concepts. 

The anti-choice strategists will return.  June Medical Services is a stumbling block but not an insurmountable one. In future anti-choice laws will be crafted without mimicking other laws that have failed. Then stare decisis may not be invoked. 

June 29, 2020 in Margaret Drew, Reproductive Rights | Permalink | Comments (0)

Thursday, June 4, 2020

New York State Modernizes its Surrogacy Laws

by Sital Kalantry,  Clinical Professor of Law, Cornell Law School and Darrell White, 2020 J.D., Cornell Law School

Until recently, New York state’s anti-surrogacy statute passed in 1992 was one of the most restrictive surrogacy laws in the United States. Over the last two decades, states have moved to modernize their surrogacy laws, but New York continued to hold out. Radical feminists and religious groups came together to resist efforts by LGBTQI+ and fertility organizations to legalize surrogacy. After the bill to legalize surrogacy, known as the Child-Parent Security Act (CPSA), failed in the state legislature last year, Governor Cuomo used his executive power to include the CPSA in the state budget. The budget was passed in April 2020.

New York initially prohibited compensated surrogacy after the nationally televised Baby M case from its neighboring state, New Jersey.  A traditional surrogate sued the intended father to nullify the surrogacy contract and the New Jersey Supreme Court ruled that surrogacy contracts were against public policy.  In 1988, the New York Task Force on Life and the Law, argued that New York should ban surrogacy, because it could disrupt traditional relationships and because the long-term effects of the fertility technology was unknown. Thereafter, the New York state legislature passed a statute that imposed fines and criminal sanctions on those who facilitated any type of compensated surrogacy arrangement.

The battle to legalize surrogacy in New York started almost a decade ago. The CPSA was first introduced in the New York State Assembly in 2012 and in the New York State Senate in 2017. While the CPSA was being considered in 2017, the Cornell International Human Rights Clinic published a report pointing out that the stringent anti-surrogacy law in New York had become an outlier in the United States and that many of the societal and technological concerns that prompted the law were no longer valid.

The CPSA remained stalled in the judiciary committee of the legislature for many years. During the 2019 session of the state legislature, the CPSA made it farther than ever before; it passed the New York State Senate. However, it was not introduced in the Assembly for vote in large part because radical feminists and Catholic groups objected. They argued that if New York were to legalize surrogacy, poor and immigrant women would be trafficked to and exploited in New York. Other concerns raised related to the safety of in-vitro fertilization and health of surrogates during pregnancy and birth.

In a literature review published in March 2020 by researchers at Cornell Law School and Weill Cornell Medical School, the authors concluded that in the United States, surrogacy “[i]s a safe process with improving outcomes” because (among other things) of medical norms that already include “[m]eticulous psychosocial and medical screening . . . . ” In regard to the psychological health of surrogates, the report concluded that the published studies in “Western medical systems overwhelmingly show[] that surrogate[s] . . . and their families have good psychological outcomes . . . and feel positively about the experience.”

Eager to ensure passage of the CPSA, Governor Cuomo included the law in the state budget for the fiscal year 2021.  Although it may seem that the inclusion of a surrogacy bill in a budget would be beyond the outer limits of executive power, that is not the case in New York. New York’s constitution and case law permit the governor to include substantive non-fiscal items in the budget.  During this legislative session, there was little resistance to the budget and CPSA as the COVID-19 crisis loomed over the country.

Twenty-two states in the United States currently have no statute that addresses surrogacy. The trend among the states in the U.S. that have adopted surrogacy laws is to legalize surrogacy, not prohibit it. Since 2000, sixteen states (including New York) and the District of Columbia have enacted statutes that explicitly permit compensated gestational surrogacy. Only four states have taken a prohibitive approach since 2000 and two of those states permit uncompensated gestational surrogacy. New York’s change leaves Michigan as the only state that criminalizes compensated gestational surrogacy in the United States.

New York’s new pro-surrogacy law is one of the most protective in the United States in terms of the rights it gives to surrogate. A section of the law, known as the “surrogate’s bill of rights” specifically enumerates the rights of surrogates in regards to: health and welfare decisions, legal counsel, health insurance and medical costs, counseling, life insurance, and termination of the surrogacy contract. The new law also resolves how courts should handle a judgment of parentage and adoption, the status of a child of assisted reproduction, the necessary features of a surrogacy agreement, and how the state plans to regulate surrogacy programs. This change in New York law, which becomes effective in February 2021, is in line with the growing trend towards recognizing surrogacy in the United States.

June 4, 2020 in Reproductive Rights, Sital Kalantry | Permalink | Comments (0)