Monday, October 18, 2021
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.
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
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?
The 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
Monday, June 29, 2020
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.
Thursday, June 4, 2020
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.
Monday, April 20, 2020
A recent post discussed how states have used the COVID 19 emergency to restrict abortion accessibility claiming that abortions are "non-essential" medical services. Now the 5th Circuit has upheld the abortion restrictions issued by Texas that limit medical procedures to essential services only. While abortion was not directly mentioned, the state's attorney general interpreted the order to include abortions. While federal district courts twice stayed the order as applied to abortions but today the Court of Appeals overruled the District Court and reinstated the ban in its entirety.
The Court reached far back into legal history in order to rationalize its decision. The Court cited 1905 Supreme Court decision Jacobson v Massachusetts which upheld a mandatory vaccination law during a smallpox outbreak. The case offered little in the way of analogy. The orders are vastly different and the Texas ban does not rationalize how the abortion restrictions will assist in containing the COVID-19 threat. While medication abortions are permitted along with those that would be time-barred during the duration of the ban, the orders discount not only women's autonomy but the psychological and physical harm that women will suffer by delayed procedures.
Friday, April 17, 2020
Good strategists know when to seize an opportunity. Texas began the trend by declaring abortion elective surgery permissible only if the mother's physical health is at risk. Seizing hospitals' cancellations of elective surgery opened a pathway for anti-choice politicians to create circumstances that all but eliminate the possibility for most women to obtain an abortion.
Other states followed. Arkansas and Tennessee among them. Appellate Courts have met challenges to the restrictions in various ways and Planned Parenthood has requested a hearing with the US Supreme Court. No response has been heard from the court.
Alaska has joined the ban-abortion contingent by declaring abortions non essential unless the life or health of the mother is endangered. Women in Alaska exemplify the hardship that bans create, particularly in states comprised mostly of a rural population. Abuse survivors, particularly, Alaskan Natives often experience their abuse without help. Adverse weather conditions, remote locations, poverty and few local resources leave survivors in desperate conditions at the hands of their abusers. The same conditions already inhibit rural Alaskan women from obtaining abortions. Imposing additional burdens on Alaskan women effectively eliminates their choice. Travel to another state for the procedure is unaffordable and risky for women in abusive relationships. Even those in non-abusive circumstances will be restricted by distance and expense.
The imposed restrictions already have removed choice. To argue otherwise is a fallacy. COVID19 related unemployment adds an additional stressor that influences women to choose termination of a pregnancy. The related loss of healthcare and other benefits makes looming or worsening poverty a real possibility for many women. Imposing the ban at a time when women and families are facing the most serious loss of income and the highest unemployment that the country has experienced is particularly cruel. Ideology and empathy are not compatible.
Sunday, March 15, 2020
Did Senator Chuck Schumer think he was speaking for women when he threatened two Supreme Court Justices? At a rally organized by the Center for Reproductive Rights and held on the Courthouse steps, Senator Schumer remarked "I want to tell you, Gorsuch, I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price! You won't know what hit you if you go forward with these awful decisions." All while the abortion case of June Medical Services LLC. v. Russo was being argued to the Court. Did Mr. Schumer think that he represented women's sentiments? Male righteousness and bravado are exactly what is not needed in the fight to save reproductive rights.
Why are men speaking for women anyway? If men want to help women, they need to show up without speaking up. What would help is a million silent men marching behind women supporting their demands to save abortion rights and protesting gender violence. Let women lead.
Sunday, March 8, 2020
Despite calls from conservative lawmakers to overturn Roe v. Wade, last week's Supreme Court argument in June Medical Services v. Russo focused narrowly on how the Court should apply its 2016 holding in Whole Woman’s Health v. Hellerstedt rather than on whether the Court should overrule or overhaul the undue burden standard. And despite Louisiana’s last-minute assertion that the physician plaintiffs lacked standing to bring the case, only Justice Alito seemed interested in taking on the third-party standing. All eyes were on Chief Justice Roberts and Justices Gorsuch and Kavanaugh, the two newest members of the Court. Gorsuch did not ask a single question. Both Roberts and Kavanaugh focused on how the Court should apply Whole Woman’s Health to future cases.
A few minutes into the argument, Justice Alito asked Julie Rikelman, counsel for June Medical, several questions on third-party standing. Louisiana’s Solicitor General Elizabeth Murrill also led off with third party standing, but the other justices did not substantively engage with the issue. Alito vehemently disagreed with Rikelman’s position that Louisiana waived the standing argument, but through questioning Justice Ginsburg underscored that if the Court were to consider standing at this point it would prejudice plaintiffs who might have added a non-doctor plaintiff if Louisiana had raised the issue sooner. Justice Breyer also expressed some frustration that the Court was being asked to consider standing, noting there have been at least 8 cases in which the Court has recognized third party standing going back over 40 years. He questioned when it was appropriate to reconsider established precedent, asking are we to “go back to Marbury v. Madison.”
The bulk of the argument focused on how Whole Woman’s Health’s holding (that a Texas law requiring doctors providing abortions to have admitting privileges at a hospital within 30 miles of the procedure constituted an undue burden on abortion) applied to other admitting privilege cases. In June Medical, the 5th Circuit reversed a district court decision holding that a virtually identical law imposed an undue burden. Justice Roberts asked counsel whether courts reviewing admitting privileges still needed to conduct a state by state factual inquiry into whether the laws constitute an undue burden after Whole Woman’s Health.
Rikelman maintained that when courts review an admitting privilege law, they should apply Whole Woman’s Health’s finding that such laws do not provide any health benefit. Then, turning to the other part of the undue burden test, courts should consider the burdens placed on abortion access on a case by case basis. She emphasized that in June Medical, the district court found that the law imposed significant burdens. Justice Kavanaugh seemed interested in how the benefits and the burdens should be weighed, posing a hypothetical about whether an admitting privilege law would be unconstitutional even if it did not impose any burdens on abortion provision.
Rikelman expressed some skepticism that an admitting privilege requirement would not impose any burden on abortion provision and noted that such a law was not before the Court. She emphasized that admitting privilege laws are always likely to pose an undue burden because they create barriers without any benefits.
In response to similar questions, Murrill argued that Whole Woman’s Health's reasoning would not be controlling on the benefit side of the undue burden test where the state can show a greater benefit based on its regulatory structure.
The rest of the argument focused on whether Louisiana could establish that its law imposed greater benefits or lesser burdens than the Texas law. Louisiana’s main argument on the benefit side was that the admitting privilege law serves a credentialing function. During this line of questioning, like the 2016 Whole Woman’s Health argument, the female justices asked several questions reflecting a familiarity with abortion and reproductive health procedures that made it difficult for Murrill to make unsupported assertions about a health benefit. Ginsburg and Justice Sotomayor repeatedly noted that the law’s 30-mile requirement made no sense if Louisiana’s purpose was to improve care for the treatment of complications from medical abortions. Ginsburg emphasized the low complication rate for abortion procedures and Louisiana’s failure to impose a similar requirement on doctors who perform DNCs to manage miscarriages. Justice Kagan stated that in Whole Woman’s Health, the Court held that an admitting privilege requirement could not serve a credentialing function if privileges are denied for reasons other than quality of care. She, Ginsburg and Sotomayor noted that admitting privileges are often denied based on factors, such as the number of admissions a doctor makes to a hospital, which reflect hospitals’ commercial interests rather than doctors’ competency.
On the burden side, Murrill and Principal Deputy Solicitor General Jeffrey Wall argued that the admitting privilege law did not cause the burden on abortion care because the doctors could have tried harder to get admitting privileges. Wall asserted that it was not in the plaintiff doctors’ interest to try hard to get privileges, and Murrill went further, suggesting that the doctors “sabotaged” their own applications. There was substantial back and forth between counsel and justices about what individual “John Doe” doctors could have done. Rikelman emphasized that many of the hospitals bylaws had provisions that disqualified the doctors because of insufficient hospital admissions, the doctors had applied to the hospitals where they had the best chance of being admitted, and the district court found that all but one of the doctors were unable to get privileges for reasons that had nothing to do with competency. Despite the disqualifying provisions and the district court’s findings, Wall took the position that the doctors should have applied to the full range of hospitals.
While Gorsuch’s silence makes it difficult to assess his views, questioning from the other justices (besides Alito) suggested that a majority of justices wished to focus on the very narrow question of how lower courts should apply Whole Woman’s Health to admitting privilege laws rather than to revisit the Court's abortion jurisprudence. Given the consistent onslaught of new and different types of laws restricting abortion each year, such a narrow focus may be unsatisfying for those looking to the Court for more guidance, but it may be the most the Court is willing to do at this point.
(reprinted courtesy of Reproductive Rights Law Profs Blog)
Wednesday, December 11, 2019
The Columbia Human Rights Law Review On-Line continues with its publication of articles addressing the Commission on Unalienable Rights. Continuing our discussion of reproductive rights, this time in the framework of the Commission, we address a recent publication appearing in Columbia's On-Line Law Review. The article is Canary In The Coal Mine: Abortion Rights and The Commission on Unalienable Rights by Akila Radhakrishnan and Elena Sarver both of the Global Justice Center. The abstract follows:
This past July, the Trump administration announced the creation of a new body with a curious name—the “Commission on Unalienable Rights.” Secretary of State Mike Pompeo described the effort as an attempt to “ground our discussion of human rights in America’s founding principles.” However, universal human rights norms exist to hold states accountable: they cannot be defined, redefined, or limited based on the demands or viewpoints of a single government. While Secretary Pompeo claims that he wants to depoliticize human rights, this commission does the exact opposite.
The establishment of this panel is yet another offense on the international system as part of the Trump administration’s regressive agenda. This action follows a clear pattern of ideological attacks on US engagement with the human rights system and the norms they uphold. Such recent examples, as this submission will discuss in greater detail, include withdrawing from the Human Rights Council, erasing reproductive rights from human rights reports, and cutting funding to the Organization of American States in an attempt to censor abortion-related speech. Additionally, the denial of abortion care to women held in detention at the US border, the problematic nomination of Andrew Bremberg as US Ambassador to the Office of the United Nations and Other International Organizations in Geneva, and the removal of language referencing sexual and reproductive health care in UN Security Council Resolution 2467 also fall into the administration’s pattern of undermining the importance of women’s health and bodily autonomy.
The full article may be downloaded here.
Tuesday, December 10, 2019
SCOTUS has declined to hear a challenge to a Kentucky law that requires details of ultrasounds be given to women seeking abortions. Among other details, the ultrasound law requires that the "fetal heartbeat" be played for the pregnant woman.
Could there be any clearer message that SCOTUS supports abortion restrictions that are unrelated to health law? The requirement reinforces the distrust of women's decisions and efforts to control those choices. Playing sounds of a "heartbeat" has no relevance to medical safety, leaving the rationale for the requirement to dissuade women from completing abortions. Emotional manipulation should find no cover in the law. But it has.
Sunday, September 29, 2019
September 28th was the International Day of Safe Abortion. As part of bringing awareness to this serious global issue organizations, activists and scholars from around the world signed on to a letter submitted to the 42nd Session of the UN Human Rights Council. The letter was delivered on behalf of 37 organizations and 506 individuals. The letter follows:
In the Vienna Declaration and Programme of Action, States explicitly agreed to prioritize the realization of women’s human rights and recognized that all human rights are universal, indivisible, interdependent and interrelated. Yet, 26 years later, women and girls’ human rights and bodily autonomy continue to be routinely violated, including through the denial, criminalization and stigmatization of access to safe and legal abortion - all of which is rooted in the discrimination, oppression, violence and coercion affecting the material conditions that shape people’s lives and ability to exercise their bodily autonomy and human rights.
In 1994, Black feminists came together as the Women of African Descent for Reproductive Justice, in reaction to the white supremacy, colonialism and capitalism they observed shaping reproductive politics and inherent in the broader population control narratives. Reproductive justice is centered on the rights to bodily autonomy and self-determination, and to parent and not to parent in safe and healthy environments.iii It is rooted in an intersectional analysis and moving beyond an individualistic conception of “choice” to instead place emphasis on the material conditions necessary to exercise reproductive rights. Reproductive justice also addresses the legacy of population control informed by white supremacy and replacement theory, which has resurfaced in current populist politics.
Reproductive justice is achieved when all people are able to enjoy their right to bodily autonomy and sexual and reproductive self-determination. It requires people to enjoy economic, social, and cultural rights and freedoms, and the ability to make and exercise choices not limited by oppression, discrimination, stigma, coercion, violence, lack of opportunities or possible consequences. Treaty bodies and special procedures have echoed this need and recognized that the realization of women’s reproductive rights depends on the material conditions in which they are born, grow, live, work and age, and on power structures and resource distribution at all levels - in other words, the social and other determinants of health.v These include access to housing, safe drinking water, effective sanitation systems, access to justice, and freedom from violence, among other factors, and impact the agency that individuals can exercise with respect to their sexual and reproductive health.vi Our discussions on abortion and sexual and reproductive rights cannot continue ignoring these factors.
The realization of reproductive justice, the right to bodily autonomy and substantive equality also requires freedom from control and interference by State and non-State actors, including private companies, donors and multinational corporations, including criminalization of sexual and reproductive behaviors and decisions, restrictive abortion laws, punitive sanctions, and legal restrictions to regulate women’s control over their own bodies.
These laws, policies and practices typically target and disproportionately impact women of color, women from the Global South, women with disabilities, women living in poverty, migrant
women, ethnic minorities and indigenous women, women living with HIV, young women and adolescents, sex workers and gender-non-conforming persons based on racial, class, disability and gender stereotypes.viii
Today, on 28 September, International Safe Abortion Day, we urge States to respect, protect and fulfill women and girls’ human rights and realize reproductive justice for all. We call on states to:
● Ensure access to available, accessible, acceptable and quality sexual and reproductive health services as part of universal health coverage and public health systems, including modern contraceptive options, comprehensive abortion and post-abortion care, financed adequately through taxation and free from control from other governments, multilateral agreements and transnational corporations.
● Remove all legal and social barriers to safe abortion, including its criminalization, which is broader and including sanctions and no sanction regimes, and commit to providing safe abortion services on request.
● Address social and other determinants of health in law and practice from an intersectional perspective to ensure that they enable all individuals to effectively enjoy their sexual and reproductive rights.ix
● Hold private companies and multinational corporations accountable for unethical research practices, violations and abuses of women and girls’ reproductive rights and bodily autonomy.
● Prioritize the meaningful participation of local movements, women human rights defenders and feminists demanding accountability for sexual and reproductive health and rights violations, and center their demands and recommendations for the realization of reproductive justice.
You may listen to a concise version of the letter being read at the UN Council meeting here.
Thursday, September 26, 2019
Following up on last week's post on an article advocating for free menstrual products in schools, we report that the issue has taken on some national publicity.
CBS News reported recently that actress Sophia Bush has taken up the cause against "period poverty". As reported "Bush is partnering with Always which makes period products, to raise awareness about just how widespread the issues is. She plans to help them surpass last year's donation of 20 million products to girls across the country."
The numbers of girls who have missed school due to inability to afford products is astounding. CBS reports the following numbers: 143,000 girls in New York City; 88,000 in Los Angeles; 65,000 in Chicago; 57,000 in Atlanta; and 38,000 in Houston.
The movement is gathering support. The Pacific Standard reported on a group of activists demanding the elimination of taxes on menstrual products and free products in school, prison and shelter restrooms as well as those in public spaces. Boston established a pilot program to devote $100,000 to stock products with school nurses.
This is the time for advocacy to accelerate. With more school systems acknowledging the need, this is the time to bring the same demands to institutions of higher learning and all government buildings.
Monday, June 10, 2019
Editors' Note: This piece was originally published in the NY Daily News
The New York State Legislature banned surrogacy in 1992. The only other state that similarly criminalizes and holds all surrogacy contracts unenforceable is Michigan. New York prohibited surrogacy on the heels of a nationwide debate that ensued after a surrogate in New Jersey, Mary Beth Whitehead, sought to keep custody of her biological child.
Almost exactly a year ago today, the New Jersey legislature legalized gestational surrogacy, which is to say cases in which the pregnant woman is not also the genetic mother. Yet New York still lags behind in recognizing modern families.
Last week, I testified in Albany before the New York State Senate Judiciary Committee in favor of a bill that would legalize and regulate compensated surrogacy in New York State. In speaking to state legislative representatives, I learned that one reason some worry about allowing surrogacy is because they think women (particularly poor and minority women) will be exploited.
This is exactly the argument made by some women’s rights advocates. Catholic groups argue that because surrogates face abusive conditions in Thailand, Cambodia, and other developing countries, they will also be exploited in the United States.
The problem with these arguments is that they conflate an ideological objection to surrogacy with a prediction that surrogates in New York will be abused. Those who shroud their objections to surrogacy by pointing to the abusive conditions in other countries object to surrogacy on religious grounds or because they think women’s gestational care should never be bought and sold.
This top-down feminism appears in debates about surrogacy in India as well. Marxists oppose surrogacy in India because they oppose the buying and purchasing of labor more generally. These viewpoints are married to create the exact same arguments being made today in New York: that women will be exploited by surrogacy.
But like the anti-surrogacy lobby in New York, many opponents of legal surrogacy in India would still oppose it even if every surrogate was paid her a million dollars and put up in the Ritz-Carlton by intended parents.
Even in the numerous other states in the U.S. where there is no legislation, industry actors have adopted many surrogate-protective guidelines. Surrogates in the United States additionally have the ability to seek damages from doctors, lawyers or the intended parents if they have been harmed, unlike the women who are surrogates in India.
Wednesday, May 29, 2019
The Supreme Court Can’t Avoid Sex-Selective, Race-Selective, and Disability-selective Abortion Bans Forever
After considering the case in fifteen consecutive conferences, the Court in Box v. Planned Parenthood of Indiana and Kentucky gave us a rare window into its politics. In a carefully negotiated compromise, the Court denied certification on the U.S. Court of Appeals for the Seventh Circuit’s finding that laws that banned sex-selective, race-selective, and disability-selective abortion are unconstitutional. In addition, the Court summarily (without further briefing or oral argument) reversed the Seventh Circuit’s finding that Indiana’s law that fetal remains must be disposed of like human remains is unconstitutional.
On the question of disposal of fetal remains, Justice Ginsburg points out that the litigants used the weaker “rational basis” test rather than the “undue burden” standard articulated in Planned Parenthood v. Casey for “strategic” reasons. It is also for strategic reasons that pro-choice advocates have tried to keep what pro-life advocates call “anti-discrimination” provisions as far away from the Court as possible. While there were numerous amicus briefs from pro-life groups urging the Court to take certification in the case, no pro-choice group wrote an amicus brief. Sex-selective abortion bans were adopted by Pennsylvania along with a host of other abortion restrictions in 1989. Planned Parenthood challenged a number of restrictions but didn’t challenge the one on sex-selection.
In the last decade, states started to ban sex-selective abortion on the false empirical premise that women, particularly Asian American women, abort fetuses when they learn of its sex. Proponents of those bans make reference to laws and practices in other countries to justify bans in the United States. Similarly, Justice Thomas also refers to countries where sex-selective abortions are widespread in his opinion. For example, he cites to an article I wrote about sex-selective abortion in India. Vice President Pence who signed the Indiana laws when he was governor of Indiana released a statement urging the United States to follow the lead of other countries around the world and ban sex-selective abortion.
Pointing to the disproportionate abortion rate among African-American and Hispanic women, Justice Thomas suggests that race-selective abortion bans are necessary to prevent eugenics. Race-selective abortion bans prevent a woman from aborting her own fetus on the basis of its race. The text of the race-selective abortion ban was crafted to mirror the language of sex-selective abortion ban. However, the analogy becomes absurd when the actors with the purported racist and sexist intent are brought into the picture. It makes little sense to say that minority women obtain abortions because they object to the race of their own fetuses. The concept of “race” itself is socially constructed so it is not even possible to know the “race” of a fetus before it is born.
The reality is that among the so-called “anti-discrimination” bans, the only type of abortions that are known to occur in the United States are disability-selective abortions. Some women who may not want to raise a child with a severe disability might choose to abort a fetus in that situation. This issue deeply divides liberal communities with some advocates arguing that aborting fetuses with disabilities such as down syndrome devalues people with down syndrome.
For the moment, Justice Thomas agreed with his liberal colleagues to punt this complicated question to a different day, but he is right to say that the Court can’t avoid it forever. Rarely does the Supreme Court explain why it refuses to hear cases on appeal, but in Box v. Indiana, they stated that they refused to hear a challenge to the Indiana bans because the Seventh Circuit was the only appeals court that had ruled on the issue. Recently, a Federal judge granted a temporary injunction against Kentucky’s bans. That case will likely be appealed to the Federal Court of Appeals for the Sixth Circuit and their opinion might diverge from the judgment of the Federal Court for the Seventh Circuit. If that happens, it would create the circuit-split that would make granting certification more compelling. Bans on specific reasons for abortion could appeal to members of the Court that do not want to drive a truck through Roe v. Wade, but are willing to kill it with a thousand cuts.
Tuesday, May 28, 2019
The Supreme Court upheld the lower court's a portion of the lower courts decision that an Indiana law that requires doctors who perform abortions to see that fetal remains are either buried or cremated. The Indiana provision requires those who perform abortions to either bury the fetal remains or cremate them. According to the court, when Planned Parenthood of Indiana and Kentucky brought this case to challenge the disposal requirement, they did not argue that the requirement placed an undue burden on women seeking abortions. That left the court to decide the constitutionality of the law using a lower, rational basis standard.
But the regulations do burden women albeit indirectly. Every time a new condition is imposed upon doctors who perform abortions their costs are increased and they are under additional scrutiny. Higher costs, increasing professional and personal pressures will likely push an increasing number of doctors to abandon the practice.
So this is how reproductive rights will be de facto abolished. Burden the doctors to such an extent that the real costs of providing abortions become untenable. As the majority of the Roberts court may seek to undo abortion rights incrementally, a successful legal challenge to the burdening laws will likely be cumulative. Eventually, details on the increased costs will be available, along with evidence of the cumulative personal costs to the doctors. At some point, the case might be made as to undue burdens, but in the meantime, the weightiest burden lies on those women in need of abortions.
Thursday, May 23, 2019
Ultimately women's health decisions, including reproductive rights, are about women's autonomy. The abortion "debate" is about some men's efforts to limit women's control over their bodies and their futures. Some men make decisions whose consequences fall only on women. Whether or not to reproduce is a decision that should be private and without state interference. But male supremacists cannot permit women to have a voice in choices that will impact them for the rest of their lives. Reproductive rights are perhaps the last arena for men to control women. The laws, at least in theory, have assured that women have equal access to employment and education. While in practice women often struggle to achieve equity and respect, under the law equal treatment has been supported through state and federal statutes and supporting case law.
But legislation on reproductive rights is not an area where equality and autonomy are respected. Legislation to limit women's autonomy on reproductive health is perhaps the last aspect of women's autonomy that can be effectively curbed by the (primarily) white, male legislators. Force a woman to have children and you succeed in assuring that obtaining education and professional status for women is less likely. Conflating religious beliefs with legislative goals is improper under the separation of church and state. The pretext of religious and moral commitment easily reveals itself to be a sham. "Pro-life" legislation such as that in Alabama actually extends to unborn fetuses only. Birthed children lose protection as soon as they leave the womb.
The exceptions in the Alabama legislation that permit abortion in the face of serious health threats to the mother are shams within a sham. The only straightforward exception is where there is a medical emergency where continuation of the pregnancy would result in the death of the mother or impairment such that the mother would result in loss of a serious bodily function. This is by far a minority of reasons why abortion is elected. The act carefully delineates that second exception, serious medical risk, but serious medical risk does not include mental or emotional distress. For an abortion to be approved under those conditions the treating physician's opinion is insufficient. In addition, a psychiatrist must examine the patient and find that the woman's condition would result in her death or the death of the child, if born. And should the woman meet these prerequisites, despite a shortage of psychiatrists in rural Alabama, the abortion must be performed by a physician licensed by Alabama and in an Alabama Hospital in which the physician has privileges. Guess how many Alabama Hospitals permit abortions to performed on premises? Denying privileges to doctors who perform abortions is an impossibly slow process by design. Then there are consequences for the mother who has a termination under these conditions. Will the state be prepared to take any child the woman might give birth to later? Will the state determine that danger to the child will not be problematic because they will take the child at its birth?
Oh- and that exception for the health of the mother? Well - post-abortion and within 180 days of the procedure, a second physician must certify in writing that the abortion was medically necessary. That physician shall not be subject to liability for the certification. If the performing physician is unable to find a certifying physician, prosecution will result. If one is found, the certification will be "prima facie evidence for a permitted abortion", The language of prosecution.
But returning to the premise that Alabama is not pro-life:
Alabama provides limited education for children K-12. The state ranks 49th in children who graduate high school and are prepared for college. Alabama refuses to expand Medicaid, which would vastly enhance the ability of mothers and children to receive proper medical care. Child abuse rates reduce when women have access to abortion. Abortion rates reduce when women have access to contraceptives. The United States leads the developed countries in maternal death rates. Hardly pro-life or pro-children! Childcare largely remains the burden of mothers, with little in the way of government subsidies. Alabama executes the convicted at high rates, even when there are solid legal doubts as to whether the individual received a fair trial.
Alabama legislators and those of other states that have enacted severe anti-abortion laws are not pro-life. They are anti-women.
Tuesday, April 30, 2019
Thank you Kansas! A state with a history of passing some of the most restrictive anti-abortion laws in the country has revealed itself to be a defender of a woman's right to choose. The Kansas Supreme Court upheld women's reproductive rights with only one dissenter and declared that any legal issue involving personal autonomy is determined under the highest standard of strict scrutiny. The court gave hope to pro-choice advocates early in the opinion stating: "Kansas Courts have the authority to interpret Kansas constitutional provisions independently of the manner in which federal courts interpret similar or corresponding provisions of the United States Constitution. This can result in the Kansas Constitution protecting the rights of Kansans more robustly than would the United States Constitution."
The court based its decision soley on the provisions of the Kansas constitution, setting a roadmap for possible future strategies for challenges to state anit-abortion laws.
"Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy."
Tuesday, April 2, 2019
Anticipating federal restrictions on reproductive choice, states and cities have been looking to implement legislation that will protect reproductive rights. New York City recently enacted a bill that prevents employment discrimination based upon sexual health choices.
The bill summary notes:
"The bill would prohibit discrimination in employment, and discriminatory harassment or violence, based on an individual’s sexual and reproductive health decisions. Sexual and reproductive health decisions would be defined to include any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Such services include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing, and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion."
The law will go into effect on May 20, 2019. To read further commentary, click here.
Tuesday, March 12, 2019
Recently we wrote on the administration's consideration of de-funding the Inter-American Commission on Human Rights. As reported, nine senators requested the defunding. Eight white men and one white woman comprised the group seeking to erase funding from the budget because they are unhappy with the Commission's positions on abortion. They claim that the Commission's efforts amount to "lobbying" for reproductive rights that is prohibited for those receiving US funds.
While we have focused on the Inter-American Commission on Human Rights, the Inter-American Commission of Women is impacted, as well, and identified in the letter. (Both are under the umbrella of the Organization of American States.) The Commission on Women has a rich history of investigating and obtaining resolutions that clarify and enhance laws that impair women's rights. When the Commission was first formed in 1928, it took on the task of addressing laws that interfered with women's statehood. Some countries removed original citizenship from women when they married a native of another country. Sometimes the country of the husband's citizenship would not grant citizenship to the foreign-born wife, leaving those married women stateless. The Commission took on universal suffrage for women and other issues impacting women's liberty. When the organization became permanent in the 1930s, it was the first international organization devoted to studying the needs of women in the Americas. In 1994, the Commission presented the first resolution on violence against women, which was passed as the Convention of Belém do Pará. Violence against women remains one of the Commission's priorities. The Commission's visibility has been more limited during the past year, experiencing the financial stressors of the IACHR.
Two of the Commission's goals are to
- Contribute to the development of international and inter-American jurisprudence on women’s human rights and gender equity and equality
- Foster the formulation and adoption of inter-American instruments for the recognition of women as rights holders and agents of democracy
Since the beginning of the Trump Administration, women's rights and agency have been eroding. We need the Inter-American Commission on Women more than ever. As women in the US fight to maintain fundamental freedoms, we turn to international women's organizations for assistance. The international community of women may be one of the few effective voices in reminding that world that indeed, women's rights are human rights.