Friday, July 1, 2022
By Martha F. Davis, University Distinguished Professor, Northeastern University School of Law, co-director, Program on Human Rights and the Global Economy (June 28, 2022)
This blog was originally published at by the Human Rights at Home Blog as part of a Symposium on Dobbs v. Jackson and has been republished here with permission.
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.
Thursday, June 30, 2022
By Margaret Drew (June 26, 2022)
"When someone shows you who they are, believe them the first time."
This blog was originally published at by the Human Rights at Home Blog as part of a Symposium on Dobbs v. Jackson and has been republished here with permission.
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.
Wednesday, June 29, 2022
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 so, the 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 protection, a 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.
Cynthia Soohoo is a Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law
Monday, May 16, 2022
May 16, 2022, by Cynthia Soohoo and Dana Sussman (originally published by Jurist Commentary, May 14, 2022 ):
Last week, Louisiana made headlines by proposing a bill that would make abortion a homicide and explicitly allow pregnant people to be charged with murder. While the bill ultimately failed to advance in the Louisiana House of Representatives, it’s important to know that many states already have laws on the books that could result in charging healthcare workers with murder if Roe v. Wade is overturned and states make abortion illegal in all or most cases. That’s because several states have provisions in their criminal codes that define victims of homicide to include unborn children. For instance, Arkansas’ criminal code defines a person for purposes of its homicide statutes to include “an unborn child in utero at any stage of development.” But statutory language like Louisiana’s explicitly creating a new category of criminal–the pregnant person–is relatively new.
Research done by National Advocates for Pregnant Women and the Human Rights and Gender Justice Clinic at CUNY Law School shows that over 20 states allow murder charges to be brought for causing the death of an unborn child. Most of these states have explicit exceptions for acts committed by pregnant people, and many shield abortions that are performed with the consent of the pregnant person. However, laws in Arkansas, Indiana, Oklahoma, Tennessee and Texas only provide exceptions for lawful abortions or medical procedures. That means if those states make abortions illegal, anyone who performs an abortion could be charged not only with performing an illegal abortion but also murder.
In addition to the states that treat causing the death of an unborn child as murder, approximately 18 states create the distinct crimes of feticide or “murder of an unborn child.” Some of those laws also only provide exceptions for healthcare providers who perform lawful abortions or medical procedures.
When these laws were passed redefining homicide victims, many were championed as a way to protect pregnant people from violence by another person that results in pregnancy loss, but defining homicide victims to include the unborn must be understood as an insidious attempt at normalizing the concept of “fetal personhood.” So perhaps it is not surprising that overzealous prosecutors have brought murder and feticide charges for abortions even in cases where the prosecution is not authorized by the statute. Most homicide and feticide laws explicitly preclude charging pregnant people for actions that lead to pregnancy loss. Yet, recently, in Texas, a prosecutor got a grand jury to indict Lizelle Herrera for murder allegedly based on a self-managed abortion, even though Texas’ penal code specifically prohibits murder charges for conduct committed by a pregnant person. While that charge was dropped after local activists sparked a national outcry, these types of prosecutions are not unusual. In 2015, an Indiana judge sentenced Purvi Patel to 20 years in prison under a feticide law, which does not apply to the pregnant person. After years of appeals while Ms. Patel remained incarcerated, Ms. Patel’s feticide conviction was overturned by Indiana’s highest court in 2016.
The broad scope of protection for the unborn also creates risks for the provision of other healthcare. Many of these criminal laws define the unborn who can be victims of homicide or feticide starting at fertilization. This could impact IVF treatment and forms of contraception that prevent a fertilized egg from implanting in the womb. While several states limit victims of homicide and feticide crimes to unborn children “in utero” or in the womb, not all do. Because of this, Arkansas, Texas, West Virginia, and Kentucky have created explicit exceptions in their homicide and feticide laws for medical procedures involved in assisted reproduction. Some states like Kansas have exceptions for lawful dispensation or administration of a prescribed medicine, which could provide protection for providing contraception. But not all states have these exceptions.
As we see states like Louisiana introduce legislation that would explicitly authorize prosecuting people who have abortions for murder, from our work and research, we know two things to be true. One: there are already laws on the books that would authorize murder prosecutions for health care providers if abortion is made illegal. Two: based on experience, prosecutors will not feel limited by the plain language of statutes, particularly with respect to carve-outs or exemptions that limit their power to prosecute pregnant people. However, Louisiana’s law signals a new overt, full-throated hostility towards people who chose to end their pregnancies. In a post-Roe world, legislatures will not be afraid to rewrite their laws so that they explicitly criminalize pregnant people. The implications of this are vast and terrifying.
Cynthia Soohoo is a Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law.
Dana Sussman is the Deputy Executive Director at National Advocates for Pregnant Women.
Wednesday, May 11, 2022
By Nancy C. Marcus*
On May 2, 2022, a draft Supreme Court opinion by Justice Alito was leaked to the public, signaling that the Court is at the precipice of stripping away longstanding constitutional protections for privacy and reproductive autonomy. Widely decried for the devastating harms it would render in peoples’ lives, the opinion should also be condemned for its dangerous rewriting of constitutional law. The opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, emphasizing that prior to Roe, some states had criminalized abortion, the opinion indicates that acts once deemed criminal cannot be subsequently recognized as constitutionally protected. Second, the opinion describes the Fourteenth Amendment as protecting only those specific acts explicitly recognized as rights “deeply rooted” in tradition. However, the opinion then focuses on (its version of) pre-1973 history to conclude that tradition demands defying nearly fifty years’ of precedent and reliance on Roe.
Under the first premise, laws struck down for criminalizing constitutionally protected conduct could be reinstated and deemed constitutional after all. Even Supreme Court decisions striking down unconstitutional interracial marriage bans, birth control bans, and bans on private intimate conduct between adults could be overruled, and those bans reinstated. Conduct once criminalized would be virtually exempt from subsequent constitutional protection. It could become nearly impossible to successfully challenge unconstitutional criminal laws in court.
As to the second premise, while the opinion decries unenumerated privacy rights as unprotected, constitutions are by their nature intended to be broad frameworks, not comprehensive lists explicitly detailing every protected right. The tradition of honoring unenumerated rights is traceable to early declarations of inherent, inalienable rights: Alexander Hamilton even felt a Bill of Rights unnecessary because unenumerated rights were understood to be reserved to the people. That said, the Ninth Amendment itself explicitly recognizes the existence of unenumerated rights reserved to the people.
Regarding privacy rights specifically, Samuel Warren and Louis Brandeis co-authored an 1890 “Right to Privacy” Harvard Law Review article documenting the evolution of privacy rights from early property protections to personal autonomy. Justice Brandeis later wrote that the Constitution’s drafters “conferred, as against the government, the right to be let alone—the most comprehensive of rights.” More recently, the Court in Griswold v. Connecticut described the right to privacy as “older than the Bill of Rights,” citing numerous cases back to 1886. However, with Griswold describing contraceptive rights in terms of Ninth Amendment unenumerated rights, the Bill of Rights’ penumbras, and Fourteenth Amendment due process, if Alito’s draft Dobbs opinion, rejecting that same language in Roe, stands, the right to birth control would be hanging by a thread.
Those Justices joining Alito’s opinion would limit substantive due process protections to only “deeply rooted” fundamental rights. However, requiring that abortion itself, as opposed to broader principles of autonomy, be a right explicitly “deeply rooted” in tradition before being protected conflicts with precedent protecting marital and reproductive rights in terms of broader liberty and autonomy principles. Those cases acknowledge a right as fundamental if grounded in “a principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental.” Alito’s opinion repeats the mistake of Bowers v Hardwick, later overruled by the Court, for improperly framing the right at stake in that case in absurdly narrow “right to homosexual sodomy” terms rather than in the broader principles of autonomy and privacy. As the Court explained in overruling Bowers, “[t]o say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward” and fails to appreciate the full nature of the liberty at stake.
Alito’s narrow formulation of liberty is constrained by prejudices of the past. Under his approach, interracial marriage and contraception would be unprotected if those specific forms of conduct had not previously been explicitly named as fundamental rights rooted in tradition. That approach fails to honor Justice Frankfurter’s admonition in 1949 that “[g]reat concepts like . . . ‘liberty’ were purposely left to gather meaning from experience,” because those “who founded this Nation knew too well that only a stagnant society remains unchanged.” As Thomas Jefferson warned, “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
Alito’s opinion must not become the law of the land, a foundation for stripping away fundamental liberties and rights upon which Americans in myriad contexts have come to rely.
*A law professor at California Western School of Law, Nancy Marcus teaches a course on law and sexuality and is the former state public policy director for the National Abortion Federation.
Wednesday, May 4, 2022
By Richard Storrow (May 4, 2022)
In a widely anticipated move, the United States Supreme Court has voted to overrule Roe v. Wade. A draft of the decision in Dobbs v. Jackson Women's Health was leaked to the press earlier this week, months before its predicted announcement. The draft decision devolves abortion rights to the states, many of which had already been busy rolling back abortion liberty to the vanishing point. Kentucky's new abortion law, for example, would end all abortion care in the state. Texas's draconian ban extends to a ban on abortifacient medications. If the draft decision remains unchanged before the Court releases it officially, from that moment the manner in which pregnant persons will seek abortion care will drastically change. We can expect an uptick of patients traveling from states that prohibit abortion to states that allow it and an increase in self-managed abortion with the aid of telemedicine. Those without the option to travel and without practical or legal access to telemedicine in essence will be trapped. The return of the back-alley abortions that proliferated in the decades before Roe was decided in 1973 is a realistic fear.
The politics of the decision could not be more extreme. The lopsidedness of the Court made the outcome in Dobbs more or less a foregone conclusion, but assigning the decision to Alito, a caustic critic of the work of justices of great intellect and humility was a reckless and perplexing choice of Chief Justice Roberts. Sections of the decision read like a list of conservative talking points. Others are vehement and taunting, heaped up with arrogant, devil-may-care swagger about "abuses of judicial authority" and Roe's being "egregiously wrong." Whatever one may believe about the analytical strength of Roe and Casey, the decision that re-affirmed Roe in 1992, there is no room for doubt that Alito's draft is devoid of the empathy for the pregnant poor exhibited by those decisions.
Alito's draft decision, if released officially, will further undermine the Court's already battered reputation. We know that most people oppose overturning Roe. What we do not know is what the public backlash to the leaked decision will mean for the political complexion of the federal government or whether the leak was intended to gain some sort of advantage for one political group or another. The political ramifications of this event could be wide-ranging or slight. Other issues yet to emerge before the midterm elections may have more of an influence than Dobbs on what votes are ultimately cast at the ballot box this fall, but few will forget the manner in which Roe was overruled and how we all knew about it long before we were supposed to.
Wednesday, November 24, 2021
Tuesday December 7, 2021 at 3-4:15pm ET (UTC-5).
Register here for the zoom link and reading.
Across the country, states run hospitals that enforce religious doctrine. Sepper and Nelson trace these hospitals to the intersection between dramatic changes in the political economy of health care and in Religious Clause doctrine. They develop a “Religion Law and Political Economy (RLPE)” perspective to point the way toward a set of concrete reform measures, from state "insourcing" of social services to embracing competition policy to transacting for church-state separation.
Presented by APPEAL’s Constituting and Constitutionalizing Political Economy group, www.politicaleconomylaw.org. All are welcome.
Monday, October 11, 2021
October 11, 2021
CALL FOR PAPERS: REPRODUCTIVE JUSTICE DISCUSSION GROUP (SEALS 2022)
We are seeking participants for a proposed discussion group for next year's Southeastern Association of Law School’s (SEALS) conference, to be held at the Sandestin Resort in Florida from July 27-August 3, 2022.
As the scope of constitutional protection for abortion rapidly shifts, assisted reproductive technologies continue to evolve and expand, and renewed energy is invigorating conversations about longstanding disparities in reproductive healthcare and access, the time for creative and meaningful engagement in reproductive justice scholarship has never been more urgent. This discussion group will provide an opportunity for participants to discuss early stage drafts and works-in-progress around a broad range of reproductive justice topics.
Questions may be directed to Meghan Boone or Seema Mohapatra. Interested participants should send a one-page abstract or proposal to Meghan Boone at firstname.lastname@example.org or Seema Mohapatra email@example.com by October 25, 2021. Consistent with the values of SEALS, the organizers will endeavor to make the group a diverse one and to welcome new and junior scholars.
Tuesday, August 10, 2021
By Kelly Folkers (Aug. 10, 2021)
As the COVID-19 pandemic continues, increasing numbers of patients are seeking care through telemedicine, allowing them to communicate with their doctors and be prescribed medicines without leaving home. Access to abortion medication is a part of this trend, with more pregnant people seeking to terminate early pregnancies by requesting access to medication they can self-administer at home. Despite the FDA’s decision earlier this year not to enforce a previous requirement that abortion medications be administered in person, access to medication-induced abortion remains vastly inequitable as conservative state legislatures target the practice.
Current Food and Drug Administration (FDA) regulations on abortion medication officially require that the first dose be administered in a healthcare setting or under the supervision of a provider specifically certified to prescribe the medication. In 2020, the ACLU filed a lawsuit on behalf of the American College of Obstetricians and Gynecologists (ACOG) challenging the in-person dispensing requirement, which resulted in a nationwide injunction preventing the FDA from enforcing the rule. But the Supreme Court lifted the injunction in January 2021 and held, in a 6-3 decision, that the district court should have deferred to the FDA’s expertise, avoiding the question of whether the rule imposed an undue burden on the constitutional right to abortion. After President Biden took office, the FDA announced in April 2021 that it would not enforce the in-person dispensing requirement for the duration of the COVID-19 pandemic.
The agency is now considering permanently removing the in-person dispensing requirement. But as access to abortion hangs in a precarious balance as the Supreme Court prepares to hear a direct challenge to Roe v. Wade later this year, have passed laws in 2021 targeting medication-induced abortions.
There are two types of abortion: surgical and medication. While a surgical abortion is a medical procedure that must be performed in a clinic or medical office, the procedure for most medication-induced abortions requires that patients take two medicines, mifepristone and misoprostol, at least 24 hours apart, respectively. ACOG has stated in its most recent guidance on medication-induced abortions, that patients can safely and effectively take abortion medications at home. But the FDA issued a Risk Evaluation and Mitigation Strategy (REMS) for mifepristone when it was approved in 2000, requiring that the medication be ordered, prescribed, and dispensed under the supervision of a health care provider who is specifically certified to administer it. The agency issues REMS to “reinforce medication use behaviors and actions that support safe use of that medication.” While there have been some reported adverse events, including a handful of deaths, associated with use of mifepristone, the medication is widely considered to be safe and effective, with over 3.7 million patients having been prescribed the drug since its approval.
Though the FDA announced that it would not be enforcing the REMS on mifepristone during the pandemic, even before the pandemic, the restriction had long frustrated abortion rights advocates, who believe it is too restrictive and politically motivated. In 2019, former FDA Commissioner Dr. Jane Henney argued in the New England Journal of Medicine that the restrictions on distribution of mifepristone made at its approval in 2000, before the drug was widely used and in the United States and additional safety and efficacy data collected, may no longer be appropriate.
Despite ACOG’s assertion that the in-person dispensing requirement has no medical benefit for patients, conservative state legislatures have used the Supreme Court’s decision to target medication-induced abortions. Montana has effectively banned telehealth for abortion. Ohio has a similar law in effect, which is being challenged by Planned Parenthood and other advocacy groups in court. Indiana not only required that the first dose of medication be administered in the presence of a healthcare professional, patients must be advised that their abortions can be reversed with progesterone, which is not scientifically supported. The law has since been blocked by a federal judge. At least 20 states prevent telemedicine appointments for abortion pill prescriptions, and more than 30 require that physicians must write the prescriptions, rather than nurse practitioners or physician assistants who are otherwise able to prescribe medication.
Though laws limiting access to medication-induced abortion continue to threaten reproductive rights, there is hope that under the new Democratic Administration, the FDA will end the restrictive in-person dispensing requirement.
Tuesday, August 3, 2021
By Fallon Parker (Aug. 3, 2021)
Last week marked the 31st anniversary of the Americans with Disabilities Act (ADA), which seeks to affirm and protect the rights of people with disabilities. Among other provisions, the act guarantees equal opportunity to person with disabilities in employment, transportation, services, accommodations, and other areas. While the ADA has resulted in significant changes for the disabled community, persons with disabilities who use reproductive healthcare still struggle to gain access to services.
Disability rights and reproductive justice have always been closely linked. Buck v. Bell, which has not been overturned, allowed for sterilization of institutionalized persons in order to benefit the “welfare of society.” Eugenics, which was espoused as a way to “improve society” and specifically targeted disabled persons, among other marginalized groups, motivated some early supporters of birth control.
Today, it is recognized that persons with disabilities have the same reproductive and sexual health needs as persons without disabilities, and yet studies show that persons with disabilities do not access reproductive care at the same rates as their peers. According to the National Council on Disability, disabled persons reported avoiding regular gynecological visits because they were difficult to obtain, and that healthcare workers often refrained from discussing contraceptives or STD screening with disabled persons and expressed surprise to learn disabled persons were sexually active. Persons with disabilities are also likely to have fewer pap tests and mammograms than persons without disabilities. Additionally, disabled persons are poorer on average than non-disabled persons, and income is directly related to ability to access reproductive services. And some disabled persons who rely on Medicaid do not have access to insurance coverage for abortion services.
Recently there has been an influx of attention to the intersection of disability rights and the reproductive justice movement. Britney Spears, the singer who has been under a conservatorship for 13 years, finally had her day in court and revealed, among other things, that her conservatorship forces her to wear an IUD. While the exact terms and genesis of the conservatorship are not public, it reportedly followed an involuntary temporary psychiatric hold filed on her 13 years ago based on an assessment that she was a possible danger to herself or others.
This year, Spears expressed to a court her desire to have more children and her frustration with not having any control over that decision. In response to Spears’s testimony, several websites have published accounts from disabled persons noting the similarities between Spears’s lack of bodily autonomy and the restrictions that disabled persons face daily. Sara Luterman, a journalist who is disabled, was interviewed for Slate and broke down how difficult it is for people to remove themselves from a conservatorship or guardianship. Luterman mentioned Ryan King, a man with an intellectual disability who could not remove his conservatorship, even though his conservators, who were his parents, asked the court to remove it. Like it is for King, Luterman fears it will be difficult for Spears to remove herself from her conservatorship.
Spears’s conservatorship and her fight for bodily autonomy highlight a common reality for many disabled persons, especially those with reproductive needs. While the ADA was a significant moment in the fight for disability rights, it has fallen short in providing reproductive justice for disabled persons. Within the mainstream reproductive justice movement, disabled persons are often left out of the conversation. The anniversary of this landmark legislation is an opportunity to reaffirm commitment to the importance of disability rights in the fight for reproductive justice and consider how the next 30 years can be used to ensure equitable access to reproductive healthcare for all.
Tuesday, July 20, 2021
By K.A. Dilday (July 20, 2021)
On July 12, California governor Gavin Newsom, signed into law AB-1764, a bill to pay reparations to people who were forcibly sterilized in California during the years 1909 and 1979 when the state’s eugenic sanctions law (enacted in 1909 and honed throughout the years) was in place, and to people who were sterilized in the state's prison system after that time. California is the third state, following North Carolina and Virginia, that will compensate victims of forced sterilization.
The bill signed by Gov. Newsom is particularly noteworthy as both the issue of reparations and of forced sterilization figure prominently in national dialogue. Just last year, a nurse at a privately owned immigration jail in Georgia joined in a whistleblower complaint alleging that a doctor at the facility performed a high rate of hysterectomies on migrating women without “proper informed consent,” and bills proposing reparations for the descendants of enslaved Black Americans are regularly debated in the U.S. Congress.
According to the final text of California’s AB-1764, the forced eugenics law targeted people deemed afflicted with “mental disease,” “feeblemindedness,” and, “those suffering from perversion or marked departures from normal mentality or from disease of a syphilitic nature.”
During the 70 years that the law was in place, the reparations bill states, “more than 20,000 people were sterilized, making California the nation’s leader by far in sterilizations, a number that was more than one-third of the 60,000 persons sterilized nationwide in 32 states … between 1919 and 1952, women and girls were 14 percent more likely to be sterilized than men and boys. Male Latino patients were 23 percent more likely to be sterilized than non-Latino male patients, and female Latina patients were 59 percent more likely to be sterilized than non-Latina female patients.”
That law was finally overturned in 1979 after 10 Los Angeles women of Mexican origin brought a lawsuit in federal court against the Los Angeles County-USC Medical Center for involuntary or forced sterilization in Madrigal v. Quilligan (1978). While the judge ruled in favor of the defendants, ascribing the unwanted sterilizations to miscommunication and language barriers, the women of Madrigal v. Quilligan nonetheless reshaped history. The next year, the state legislature overturned the law. They did not win for themselves but they won for future Californians.
Or so it seemed, since, notably, while the formal eugenics law ended in 1979, a program of sterilization as birth control and for dubious medical reasons led to the sterilization of approximately 150 mostly Latina and Black women in California prisons between 2006 and 2010.
In 2014, the bill SB 1135 made sterilization for birth control in California prisons unlawful, and put in place safeguards to ensure that any sterilization deemed medically necessary for an imprisoned person actually is. However, no reparations for past sterilizations were mandated at that time.
Eugenics-driven sterilization in the United States has always been directed at those deemed mentally infirm or undesirable, a characteristic that is often assigned to people of color and to imprisoned people. This practice was sanctioned federally by the notorious 1927 Buck v. Bell U.S. Supreme Court decision. While Buck v. Bell was discredited by the Supreme Court decision in Skinner v. Oklahoma (1942) that established procreation as a fundamental right protected by the U.S. Constitution, and has been chipped away by other protective laws, Buck v. Bell has never been overturned.
In addition to the eugenics programs in California, throughout the 19th century and through the mid-20th century there was mass forced sterilization of poor people (many black and Latino) in the South, Indigenous people in Western and middle-America, and of Puertoriquenos in Puerto Rico through the 1970s. But forced sterilizations were also performed on people who were deemed either mentally or morally unworthy, regardless of race.
California convened a "Task Force to Study and Develop Reparation Proposals for African Americans" this year, and while some may see AB-1764 as another step toward direct reparations, the bill only authorizes payment to individuals who were sterilized, thus avoiding the complex issue of generational injury. And, unless they adopted or had biological children before the procedure, many people who were sterilized likely do not have offspring, reducing the number of descendants who might protest the bill’s limits on eligibility to bring a claim.
The status of potential claimants who are undocumented is unclear.
The state has allocated $7.5 million to pay the victims. According to The New York Times, the limited number of living potential claimants means that each successful applicant is likely to receive approximately $25,000.
Tuesday, July 13, 2021
By Fallon Parker (July 13, 2021)
In April 2021, in the midst of the global COVID-19 pandemic, the United Nations Working Group on discrimination against women and girls released a report on “women’s and girl’s sexual and reproductive health rights in crisis.” The report encourages a “radical shift” in how States manage and address crises of sexual and reproductive health and recognizes "reproductive and birth justice" as a promising advocacy framework to ensure that laws and policies comply with international human rights standards.
The Working Group is composed of five independent experts appointed by the UN Human Rights Council who are charged with reporting on discrimination against women and girls throughout the world and identifying and promoting best practices to end discrimination and promote human rights. The report summarizes international standards recognizing that sexual and reproductive health rights are “an integral part of a number of civil and political rights that underpin the physical and mental integrity of individuals and their autonomy.” These rights include “the rights to life, liberty and security of person, freedom from torture and other cruel, inhuman or degrading treatment, privacy and respect for family life, as well as economic, social and cultural rights, such as the rights to health, education and work and the right to enjoy benefits of scientific progress, and the cross-cutting rights of non-discrimination and equality.” As a result, States have an immediate obligation ensure that sexual and reproductive health rights are realized and cannot refuse to legally provide reproductive health services for women or girls.
State obligations to ensure sexual and reproductive health rights become more critical during times of crisis. However, the report notes that the focus on “crisis” as a singular event or series of events fails to address the sexual and reproductive health crises that women and girls face every day as a result of gender inequality and gender based violence.
The report emphasizes that the sexual and reproductive health is systematically neglected because of a disregard for the dignity and autonomy of women and girls. Sexual and reproductive health is necessary in order to achieve equality in other areas of life, and States have an obligation to be better prepared for both sudden and long-term crises that jeopardize this human right.
The report describes several factors that exacerbate risks and threats to sexual and reproductive health. Discriminatory laws, policies, and practices, such as denial of access to forms of reproductive care and structural discrimination that results in violations of sexual and reproductive health rights, put the health and well-being of women and girls at risk. States’ failure to prioritize and fund sexual and reproductive health, before, during, and after times of crisis, leads to inadequate services and discrimination against women and girls as second class citizens. The report also emphasizes the importance of including women and girls in decision making around sexual and reproductive health and holding people, particularly men, accountable for violations to a person’s sexual and reproductive autonomy.
Furthermore, the report includes analysis of other identities women and girls face that put them at increased risk of violation of their sexual and reproductive health rights. These identities include young and adolescent girls, rural women and girls, women and girls with disabilities, migrant, refugee, and internally displaced women and girls, indigenous women and girls, Roma women and girls, and women and girls of African descent.
The report provides international human rights analysis which could be useful to integrate into legal and political reproductive justice advocacy within the United States. The report specifically denounces the criminalization and prosecution of individuals for abortions, miscarriages and stillbirths and “condemns reporting requirements that contribute to a ‘hospital to prison pipeline” for women who have had or who are suspected of having abortions.” It also criticizes the mistreatment of pregnant women of African descent in health care settings and notes that “[r]acism within the health system can be intensified by widespread State policing and surveillance and mandatory reporting requirements in relation to suspicions of drug use and child abuse or neglect, which often deters pregnant women from seeking reproductive health care and undermines their trust in health service providers.” The report’s recommendations specifically endorse providing timely and accessible maternal health services “without surveillance and reporting requirements that violate individual privacy.”
Additional recommendations include addressing the “overmedicalization and paternalistic approach to sexual and reproductive health services,” and promoting midwifery and other forms of community based care for pregnancy and childbirth, and recommendations focusing on increasing telemedicine, mobile clinics, and investing in resilient physical infrastructure in order to ensure equal distribution of services and access for diverse and hard-to-reach populations. This is particularly relevant for U.S. advocates as President Biden attempts to negotiate an infrastructure package that includes priorities like healthcare and childcare.
Tuesday, June 29, 2021
By Shelby Logan (June 29, 2021)
With a fast moving, targeted strategy, the Chinese government is successfully decreasing the population of Uyghurs in Xinjiang through permanent and temporary birth control measures. In November 2019, news broke worldwide that China had begun a gendered campaign of ethnic cleansing, separating male and female Uyghurs into internment camps, or “reeducation centers” and threatening women with prosecution or torture if they did not agree to birth control measures. Survivors of the camps claim to have experienced extreme conditions from nonconsensual sterilization to physical abuse.
Recent reports document plans for forced IUD placement, mandated abortions, and sterilizations and injections that reportedly cease menstruation cycles. Uyghur women deemed to have too many children are forced into labor camps for “training purposes.” In one instance, a Uyghur woman from Urumqi paid a fine for having had three, instead of two, children and was offered free surgical sterilization. At first the sterilization was only a suggestion, but after she did not go through with it, the government threatened to place her in an internment camp if she did not submit to the procedure. Another woman, a Uyghur mother of triplets, said that during detention she and other women were given unknown drugs and injections that caused irregular bleeding and the loss of their menstruation cycle. U.S. doctors later confirmed that she had been sterilized.
Through a program called the “Free Technical Family Planning” project, sterilization surgeries are widely available to all Uyghur women. Alongside the project, counties in the region are waging a campaign to ensure women with three or more children are sterilized. Additionally, authorities actively encourage interethnic marriages between Han Chinese men and Uyghur women in an effort to dilute Uyghur cultural identity, and likely the bloodline. With a majority of Uyghur men interned in camps and labor facilities, the Uyghur women have fewer choices, and are often coerced into relationships with Han Chinese men. The mass sterilization movement and the forced relationships, already raising concerns of eugenic practices, have led human rights experts to call for an investigation of genocide.
The reproductive rights and freedoms of Uyghur women are under fire in Xinjiang. The international community continues to discuss next steps but is constricted by the lack of legal mechanisms available for accountability. Meanwhile, the situation continues to deteriorate as China furthers its tactics to control reproductive health in the country.
Tuesday, June 22, 2021
By Kelly Folkers (June 22, 2021)
As the country braces for the Supreme Court to hear a challenge to Roe v. Wade, Congressional efforts continue to codify the right to abortion into law. This month, Senate Democrats reintroduced the Women’s Health Protection Act (WHPA), which would prevent state governments from interfering with the right.
The reemergence of the WHPA comes as abortion rights hang in a particularly precarious balance. According to the Guttmacher Institute, state legislatures in 47 states have introduced 165 pre-viability bans since January 2021, and 83 have been enacted. At least 10 states have “trigger laws” in place that would ban abortion if the Supreme Court does overturn Roe next year.
The bill’s primary sponsors, Senator Richard Blumenthal (D-CT) and Senator Tammy Baldwin (D-WI) have reintroduced the WHPA in every Congressional session since 2013. Yet, the bill has never received a vote. Likely in reaction to the upcoming Supreme Court challenge, the 2021 WHPA has a record number of sponsors: 48 in the Senate and 176 in the House. Representatives Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX) are the bill’s lead sponsors in the House.
The bill is described as a “guarantee” of abortion rights and would make it significantly harder for individual state legislatures to impose medically unnecessary restrictions. However, this is a misnomer as it does not establish a positive right to abortion services. The WHPA only codifies the pre-existing right to abortion access without doing more to ensure access is available to all.
Instead of taking proactive steps to increase abortion access beyond the current system, the bill goes on the defensive by targeting state laws that make abortion access unnecessarily restrictive. The bill states that patients have a statutory right to services without a variety of limitations or requirements that many state legislatures have in place, like requiring patients to receive an ultrasound, to visit a clinic for a medically unnecessary reason, or to be given medically inaccurate information.
In a reaction to litigation on access impediments, the WHPA creates a framework for analyzing laws across the states. The analysis includes whether a limitation or requirement is reasonably likely to delay access to care, whether it directly or indirectly increases the cost of care, including associated costs for taking time off work, childcare, or travel, or whether it is reasonably likely to result in a decrease in the availability of abortion services in a given state or region.
Though the WHPA would be a welcome step forward, more will be needed to create true reproductive justice. The bill cites reproductive justice as the main goal, stating that reproductive justice is “a human right that can and will be achieved when all people […] have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.” Without a shift from defense to offense and the creation of true structural changes, congressional Democrats fall short of achieving their goal.
Tuesday, June 15, 2021
By Fallon Parker (June 15, 2021)
With the Supreme Court’s decision to take up Dobbs v. Jackson Women’s Health Organization, the constitutional right to an abortion hangs in the balance. Since Roe v. Wade, the Supreme Court has held that bans on abortion before fetal viability (around 24 weeks) are unconstitutional. Dobbs involves a Mississippi law that outlaws abortions at just 15 weeks. As the Court prepares to hear Dobbs pro-choice advocates and attorneys must start to plan for a possible post-Roe world.
Without Roe as a federal stopgap to prevent state legislatures from adopting anti-abortion legislation, the ability to obtain an abortion will vary greatly from state to state. The Center for Reproductive Rights predicts that as many as 30 states will either enact laws prohibiting abortion or already have trigger laws in place that will automatically ban abortion if Roe is struck down.
In a post-Roe world, protection of abortion rights will move squarely into the political arena. A long term strategy of passing laws that support people exercising their full range of reproductive choices, including abortion, will require significant political organizing in all states. An organizing platform focused on electing pro-choice Democrats and progressives would supplement the work that reproductive justice advocates are already doing in their communities and could provide the pro-abortion movement with the momentum to maintain abortion rights in a post-Roe world.
As of November 2020, and due to a 40 year effort on the part of the GOP, Republicans control 30 state legislatures and Democrats control 18. This political dynamic will have far reaching consequences for abortion rights in a post-Roe era and for reproductive justice overall. Anti-abortion legislation is trending all over the country and includes bills that ban abortion after a fetal heartbeat is detected (typically around six weeks into the pregnancy). These same states have launched legislative attacks on the right to economic security, safety, and participation in democracy. In the past six months 14 states made it harder to vote, ten states adopted laws targeting transgender folks, six states allowed people to carry guns without permits, and almost two dozen states voted to reject the federal unemployment benefits in President Biden’s stimulus package.
Part of this political success in state government can be attributed to the GOP’s consistent messaging, including their anti-abortion message. At least while Roe is still intact, Republicans have an “intensity advantage” in the PR war. Their strategy of staking the alleged moral high ground on the issue of abortion has been, unfortunately, effective at putting Democrats and pro-abortion advocates on the defensive and helped the GOP to coalesce local political power.
However, there are bright spots on the horizon. Democrats and reproductive justice advocates were motivated by Stacey Abrams’ success in turning the traditionally Republican state of Georgia blue in 2020. Much of that success, according to Abrams, can be attributed to over ten years of clear messaging and strong local organizing from the state Democratic party and its allies. Democrats, progressives, and reproductive justice advocates around the country are hoping to build on that success. The Democratic National Committee is investing over $23 million in state parties for the 2022 midterm elections, including Democratic parties in historically red states. Organizations like Run for Something, Swing Left, Emerge, Indivisible, and Vote Pro Choice are recruiting and supporting progressive candidates running for local office. Progressive groups have taken a page out of the anti-abortion playbook and drafted model pro-choice legislation for local elected officials to rely on.
All of these political strategies will be crucial to abortion access in a post-Roe world and will serve to supplement the grassroots work reproductive justice advocates have been doing all along.
Tuesday, June 8, 2021
By Shelby Logan (June 8, 2021)
It has been four months since the February 1st military takeover of the civilian government of Myanmar. Not only did the coup stifle democracy: It endangers women in Myanmar as the military has a history of gender-based violence. Activists fear that continued control would result in a rollback of hard-won women’s rights, but even more immediate are the ramifications of military rule for the Rohingya.
The military coup puts the livelihood of 600,000 Rohingya, currently living in Myanmar, in jeopardy. Since August of 2016, the Burmese Military, Border Guard, and police forces have conducted a systematic campaign of brutal violence against Rohingya Muslims in Myanmar’s Northern Rakhine State, with Rohingya women bearing the brunt. The Rohingya have been denied free movement, citizenship rights, access to healthcare, the right to marry and the right to choose how many children to bear.
Before the coup, the military’s persecution of the Rohingya had already escalated to the point where, the Pre-Trial Chamber of the ICC authorized an investigation into crimes against the Rohingya that are within the Court's jurisdiction. Because Myanamar is not a party to the ICC, the investigation is limited to crimes where one of the elements or part of the crime took place in Bangladesh, a state party to the Rome Statute.
More recently, The Gambia filed a case on behalf of the Rohingya against Myanmar with the International Court of Justice alleging violation of the Genocide Convention. The complaint identifies elements indicating genocidal intent: among them, the restrictions on the Rohingya’s ability to marry and bear children, the prevention of free movement including internment in detention camps, and hate campaigns aimed at demonizing the group. The complaint lists genocidal acts including mass executions of Rohingya men, the targeting of children, and the massive scale commission of rape and sexual violence against women.
Although the United States announced sanctions targeting the leaders of the coup, many were already subject to sanctions for the military’s treatment of the Rohingya in recent years, proving that sanctions have been inefficient in stemming the violence. History has shown the consequence of allowing genocide to go unpunished. The international community must work together to force Myanmar to cease its heinous treatment of the Rohingya.
Tuesday, June 1, 2021
By K.A. Dilday (June 1, 2021)
On Friday, President Joe Biden released a proposed budget for 2022. Reproductive rights advocates hailed it for the historic exclusion of the Hyde Amendment: It is the first White House budget in decades to exclude the 1976 Amendment prohibiting the use of federal funds for abortion.
The exclusion is largely symbolic: The Hyde Amendment can only be repealed by lawmakers, and Democrats who support repealing it don’t hold sufficient majority in the Senate to do so. But it is a turnaround for Biden who voted to pass the Amendment as a senator and continued to back it for many years. With this latest step, President Biden is signaling that his administration will support the right of reproductive freedom for all women.
Thus, some reproductive rights activists are cautiously optimistic despite the looming specter of the Supreme Court’s hearing next term of a case that could potentially eviscerate the protections of Roe v. Wade. But there is a group of women in the United States that has suffered disproportionately under the Hyde Amendment and therefore to whom symbolic gestures mean little.
Although all low-income women bear the weight of the Amendment’s restrictions as it affects recipients of the federal-state healthcare program Medicaid, non-elderly American Indian and American Native women use public health services at a higher rate than any other ethnicity according to the healthcare research foundation KFF.
While some states have a workaround for abortion services provided by Medicaid—using exclusively state funds rather than federal—many of the U.S. Indigenous population use the federally funded Indian Health Service (IHS) which operates hospitals and outpatient facilities in addition to providing other support services. Approximately 1.9 million American Indian and Alaska Native women living on or near reservations receive care at those facilities and through linked health service providers.
The Hyde Amendment did not technically apply to the Indian Health Services until 2008: As noted by Andie Netherland in the American Indian Law Review, “...the Hyde Amendment provided that ‘[n]one of the funds contained in [the] Act’ could be used for abortions, [but] the Amendment did not apply, at that time, to the funds allocated to the Indian Health Service through a different act.” In 2008, the Senate expanded the Hyde Amendment’s application to the Indian Health Service.
Despite its not being legally bound by the Hyde Amendment, the Indian Health Service adhered to it in years preceding 2008. A 2002 report by the Native American Women's Health Education Resource Center (NAWHERC) found that between 1981 and 2001, only 25 abortions had been performed by IHS units. The report also cites a 1996 memo from the IHS director clarifying that the IHS would only provide abortions in the case of rape, incest, or limited circumstances when the mother’s life was in danger, the three exceptions permitted under the Hyde Amendment that were pushed through in 1993 under the Clinton Administration.
Reproductive rights activists say that the difficulty of obtaining an exception under the Hyde Amendment is particularly hard on Native American women based on findings that Indigenous women are 2.5 times more likely to report experiencing sexual assault than other races, and one in three Native American women reports having been raped. And, the American Addiction Centers compiled data from the 2018 National Survey on Drug Use and Health indicating that Indigenous Americans have the highest rates of alcohol, marijuana, cocaine, inhalant, and hallucinogen use disorders compared to other ethnic groups.
A recent federal case highlights the particular burden that these challenges and the Hyde Amendment’s restrictions to reproductive rights place on Indigenous women. In the precedent-setting United States v. Flute (2019), the Eighth Circuit reinstated an indictment dismissed by the District Court for South Dakota-Aberdeen against a young Native American woman for manslaughter, after prenatal drug use resulted in the death of her baby four hours after birth. As Eighth Circuit Judge Steven M. Colloton noted in his dissent: “According to the United States Attorney, the government has never before charged a mother with manslaughter based on prenatal neglect that causes the death of a child.”
Flute gave birth on the Lake Traverse Reservation of the Sisseton Wahpeton Oyate Tribe, which is under federal jurisdiction. Her case was characterized by the Harvard Law Review as escalating “to the federal level the state judicial trend of using broad interpretations of statutes designed for other purposes to criminalize prenatal conduct.” As Judge Colloton also wrote in his dissent: "No federal statute enacted after 1909 has expanded the manslaughter statute to encompass a mother’s prenatal neglect." In an article about the Flute case in the most recent edition of the American Indian Law Review, Andie Netherland noted that pregnant Indigenous women who face addiction may face criminal prosecution for involuntary manslaughter “more frequently than non-Indian women due to the unavailability of abortion services within the Indian Health Service.”
For these reasons, Native-American reproductive rights activists say that even post Roe v. Wade, the immediacy of their fight for reproductive justice and self-determination never changed. A 2019 article in Indian Country Today noted “the new abortion laws don’t ever have to be implemented and the Supreme Court doesn’t have to overturn Roe to make abortion inaccessible for Native women; restrictions are nothing new. For Native women, the lack of access to abortions has been real for years.”
The looming loss of reproductive rights feared by many in the United States would not be a loss but a reiteration of the status quo for many Indigenous women. In the absence of real, tangible change, the symbolic exclusion of the Hyde Amendment does not give Indigenous women much cause for celebration.
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 (May 27, 2020)
** Cross posted on Human Rights at Home Prof Blog **
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.
Tuesday, May 25, 2021
By Kelly Folkers (May 25, 2021)
Last week, the Supreme Court agreed to hear a case that poses a direct challenge to the right to seek an abortion in the United States. It’s a test case that has been expected by reproductive rights advocates since the Supreme Court’s rightward lurch during Donald Trump’s four years in office: Trump appointed three conservative justices, all of whom have signaled willingness to roll back reproductive rights. If the Court significantly alters abortion jurisprudence or overturns Roe v. Wade (1973) entirely, reproductive rights will evaporate in many states, leaving millions of women and people who can get pregnant without a fundamental right to their bodily autonomy.
In Dobbs v. Jackson Women’s Health Organization, the Court has agreed to consider whether all bans on pre-viability abortions are unconstitutional. Although pre-viability bans on abortions are unconstitutional under Roe v. Wade and Planned Parenthood v. Casey, the rightward swing of the federal judiciary has emboldened state legislatures to pass pre-viability bans to test the courts. Just this past month, Texas Governor Greg Abbott (R) signed into law a bill banning abortion as early as six weeks—before many people know they are pregnant. South Carolina enacted a similar law in February. Texas and South Carolina join more than a dozen other states with similar laws, many of which have been held unconstitutional and enjoined by court order.
Dobbs involves a Mississippi law called the Gestational Age Act, which prohibits abortions if the “probable gestational age” of the fetus is more than 15 weeks. While there is dispute within the medical community regarding the exact age at which a fetus becomes viable and states vary in their definition of fetal viability (i.e., the fetus’s ability to survive outside the uterus), most experts agree that it is clinically improbable for a fetus to be viable under 22 to 24 weeks. Notably, the Act does not contain exceptions for rape or incest, allowing exceptions only for medical emergencies or severe fetal abnormalities. Mississippi’s sole abortion provider filed suit within hours of the law being enacted, and for now, the Fifth Circuit Court of Appeals has affirmed the U.S. District Court for the Southern District of Mississippi’s ruling to permanently enjoin the law.
Though the Supreme Court is more conservative than it has been in decades, abortion jurisprudence has long been settled in the United States: The state cannot place an undue burden on a pregnant person’s right to have an abortion pre-viability. In 1992, the Supreme Court reaffirmed Roe’s “central holding” that pregnant people have a protected right to seek an abortion in Planned Parenthood v. Casey. Casey adopted the “undue burden” test, which provides that state action violates the right to an abortion if it has the purpose or effect of imposing a substantial obstacle to a person seeking to abort a non-viable fetus. Although Casey permits regulation of abortion before viability, it does not question that bans on abortions before fetal viability are a violation of the Due Process Clause of the Fourteenth Amendment to the U.S Constitution.
Since Casey, Supreme Court decisions have focused on how to apply the undue burden test to laws that regulate the provision of abortion. In the 2016 case Whole Woman’s Health v. Hellerstedt, the Court struck down a Texas law requiring that abortion providers have admitting privileges at nearby hospitals and that facilities where abortions are performed meet the requirements for ambulatory surgical centers. The Court found that the requirements placed a substantial obstacle in the path of people seeking abortions and there was no evidence showing that either requirement made abortions safer. Balancing the law’s benefits and burdens, the Court held that the law imposed an undue burden. Even more recently, in 2020, the Supreme Court struck down an almost identical Louisiana admitting privileges law in June Medical Services v. Russo. The outcome of the cases was similar, but a notable difference was the justices who voted with the majority and their reasoning. In 2016, Chief Justice John Roberts was a dissenting justice, but in 2020 he added the crucial fifth vote to strike down the law in a separate concurring opinion. Justice Roberts stated that his respect for precedent motivated his decision to vote with the Court’s liberal bloc in June Medical, but he stood firm in rejecting the balancing test the Court applied in Whole Woman’s Health.
After June Medical, it remains uncertain what test the Court will apply to determine if restrictions on the provision of abortion impose an undue burden. But Dobbs presents the court with a different issue that goes to the heart of Roe’s central holding: whether a law banning abortion before viability can ever be constitutional.
Some constitutional law experts predict that if the Court holds that bans on pre-viability abortions are permissible, it will effectively allow states to outlaw abortion. Indeed if Roe v. Wade is reversed, more than 20 states have laws banning abortion at various points in fetal viability that are designed to be triggered automatically, enacted swiftly, or dormant only because of Roe, according to Nancy Northup, the president of the Center for Reproductive Rights. These laws would make abortions difficult or impossible to obtain in many states.
A decision in Dobbs is not expected until the spring or summer of 2022, but some state legislatures are already taking action to codify protections for pre-viability abortions if Roe v. Wade is overturned. Some states are going even further: In Oregon, Governor Kate Brown (D) recently signed the Reproductive Health Equity Act, which requires private insurers to cover abortions with no out-of-pocket costs. Similar bills are pending in New Jersey and Virginia. These bills go beyond what the federal Constitution guarantees because they obligate public and private insurers within their states to pay for abortion; the Supreme Court has previously held in Maher v. Roe and Harris v. McRae that state and federal payers, respectively, are not constitutionally obligated to cover abortions.
Until the Supreme Court hands down what may be a landmark decision for reproductive rights, people seeking abortions retain their right to do so, but just barely.
Tuesday, April 27, 2021
By Shelby Logan (April 27, 2021)
This month, the United Nations Population Fund (UNFPA) issued a report on women's bodily autonomy detailing scenarios in which rapists in 20 countries can marry their victims, often against their will, to escape criminal prosecution. In Russia, for example, if an 18 year old statutorily rapes a minor younger than 16, the perpetrator is exempt from punishment if they marry the survivor. These laws, and other laws discussed in the report, deny women bodily autonomy and reflect archaic and discriminatory views about women and girls' right and ability to decide whether or when to have sex.
“Marry Your Rapist” laws deny justice to survivors and signal that rape is not a serious crime. The laws also put survivors at risk for continued abuse and perpetuate stigma against them. Human rights activists fear that even if these laws are abolished, families may still coerce women and girls who become pregnant as a result of rape into marrying their attackers in countries where abortion is criminalized and there are barriers to getting birth certificates for children born out of wedlock.
UNFPA reports that fifty percent of women in 57 countries that were analyzed in the report are denied the right to make their own decisions about having sex, using contraception, or seek reproductive healthcare. In addition to "Marry Your Rapist" laws, 43 countries have no legislation criminalizing marital rape. Further, it is estimated that there are 650 million women alive today who were married before the age of 18 and every year an additional 12 million girls are married before they become adults.
Although all but one of the world’s countries has ratified the Convention on the Rights of the Child, many countries still allow marriage under the age of 18, sometimes with the consent of a parent, guardian, judge or other governmental official. Many countries that prohibit these types of marriage by law still struggle to prevent child marriage. Much like the forced unions resulting from “Marry Your Rapist” laws, many of these marriages take place in traditional or religious ceremonies and are never registered with civil authorities.
Yet, as much as there is a tremendous amount of work to be done, progress is slowly being made. Tunisia, Jordan, and most recently, Lebanon, repealed and reformed clauses within their penal codes that enabled perpetrators to evade prosecution by marrying the women they raped. In August 2017, Lebanon removed a discriminatory legal provision related to article 522 of the Lebanese Penal Code after a successful nationwide advocacy campaign led by UN Women Lebanon and ABAAD Institution for Gender Equality. Activists mobilized during the 16 Days of Activism against Gender-Based Violence to strengthen legislation to protect women and girls from sexual violence and exploitation and to spur broader changes of societal norms. All three countries also closed loopholes that enabled families to force women into marriage with their rapists to prevent the social stigma of pre-marital sex.
These changes are historic legal victories for women’s movements in the protection of bodily autonomy, and examples of the path forward to combatting these patriarchal laws. By centering the stories of real women harmed by these violent policies, advocates are demonstrating how passionate and skillful activism can bring about landmark change and provide a blueprint for legal reform in the countries where these harmful laws remain.