Reproductive Rights Prof Blog

Planned Parenthood Announces Plans for 2008 Election

The Wall Street Journal: Planned Parenthood to Push Candidacies, by Brody Mullins:

WASHINGTON -- For the first time, abortion-rights advocate Planned Parenthood Federation of America Inc. is launching a major effort to elect pro-abortion-rights candidates to Congress and the White House in November.

The nation's largest reproductive-health-care provider plans to spend $10 million in hopes of persuading one million people to vote for abortion-rights candidates in the 2008 election. Planned Parenthood will roll out its election plans today to mark the 35th anniversary of the Supreme Court decision in Roe v. Wade that made abortion legal.

The Planned Parenthood Action Fund, Inc. (the political and advocacy arm of Planned Parenthood Federation of America) joins EMILY's List (which has endorsed Hillary Clinton) and NARAL Pro-Choice America in campaigning for pro-choice candidates.  Planned Parenthood endorsed John Kerry for President in 2004, the first time it had ever endorsed a presidential candidate, according to the Wall Street Journal.  However, Planned Parenthood's One Million Strong website does not endorse a candidate.  It does include a video of speeches given by Barack Obama, Hillary Clinton, and Elizabeth Edwards to an audience of Planned Parenthood supporters last year.

It's the 35th Anniversary of Roe v. Wade

It has been 35 years since the Supreme Court issued its landmark ruling declaring that women have a constitutional right to abortion.

Click here for anniversary features from the ACLU, including a video in which ACLU staff discuss the importance of reproductive freedom in the fight for women's equality.

John Breen on Abortion and Legal Modesty and Moralism

John M. Breen (Loyola University Chicago) has posted Modesty and Moralism: Justice, Prudence and Abortion- A Rely to Skeel & Stuntz on SSRN. Here is the abstract:

In a recent article, Christianity and the (Modest) Rule of Law, law professors David Skeel and William Stuntz argue that American law should be modest in its ambitions. They contend that law is not an appropriate response to many social problems, including abortion. They argue that the rule of law suffers when law attempts to regulate that which it cannot change – a vice they refer to as “legal moralism.” Skeel and Stuntz make these arguments from an Evangelical Christian perspective.

This essay examines Skeel and Stuntz's ideas concerning legal modesty and legal moralism, particularly regarding abortion. I argue that their essay could have benefited from a more thorough engagement with the Christian intellectual tradition.

I also argue that Skeel and Stuntz undermine their claim that law is frequently incapable of affecting social change by relying on Gerald Rosenberg's deeply flawed discussion of abortion prior to Roe v. Wade. By relying solely on Rosenberg's book, Skeel and Stuntz ignore evidence that abortion increased following the state reform efforts of the late 1960s and early 1970s and the decision in Roe.

Many commentators have argued that law should be used in a non-coercive manner to curb the incidence of abortion through greater social assistance to women and families. I show that data indicates that these sorts of laws would have a marginal effect on the nearly 1.3 million abortions that take place each year.

Skeel and Stuntz see that culture enjoys a priority over law in influencing individuals' choices. However, they misunderstand the importance of law in shaping culture. I argue that abortion as a social problem cannot be resolved solely by legal means. Instead, law should be part an effort of cultural transformation. I offer the example of how law has worked with cultural norms in significantly reducing the incidence of drunk-driving fatalities beginning in the 1980s.

The Condom Song

I'll take this over abstinence education any day!

Via Feminist Law Professors and Newt in a Teacup.

Christopher Elmendorf on the Right to Vote and the Right to Abortion

Christopher S. Elmendorf (UC Davis) has posted Undue Burdens on Voter Participation (Is the Right to Vote Like the Right to an Abortion?) on SSRN. The article will be published in Hastings Constitutional Law Quarterly. Here is the abstract:

During October Term 2007, the Supreme Court will hear its first case in more than thirty years in which the plaintiffs maintain that the state has unconstitutionally hindered eligible voters' access to the polls. The case, Crawford v. Marion County Election Board, presents a facial challenge to Indiana's recently enacted photo ID requirement for voting. Relying in part on the Court's recent abortion jurisprudence, the U.S. Solicitor General has filed an amicus brief arguing that the Court should reject the Crawford plaintiffs' facial claim while inviting future as-applied challenges by individual voters or precisely defined classes of voters for whom the ID requirement may operate as a severe impediment to voting. This essay argues the SG's abortion/as-applied model for voter participation claims is a Siren's song: enormously appealing and, if followed, sure to lead the federal courts to a place they will no doubt regret: mired in a bog of politically fraught questions about the details of the voting process, and bereft of manageable rules for decision. The best hope for avoiding the bog, I argue, is to treat the right to vote as a right whose doctrinal content derives from the citizenry's collective interest in being governed by representatives who are accountable to the people, pursuant to Article I and the Seventeenth Amendment. But this will require abandoning the nominal status of the right to vote as right that is merely or primarily individual and personal in nature.

2006 U.S. Birth Rate Highest Since 1961

And, to go along with the previous post:

The Lexington Herald-Leader/AP: Against the trend, U.S. births way up, by Mike Stobbe:

Bucking the trend in many other wealthy industrialized nations, the United States seems to be experiencing a baby boomlet, reporting the largest number of children born in 45 years.

The nearly 4.3 million births in 2006 were mostly due to a bigger population, especially a growing number of Hispanics. That group accounted for nearly one-quarter of all U.S. births. But non-Hispanic white women and other racial and ethnic groups were having more babies, too.

An Associated Press review of birth numbers dating to 1909 found the total number of U.S. births was the highest since 1961, near the end of the baby boom. An examination of global data also shows that the United States has a higher fertility rate than every country in continental Europe, as well as Australia, Canada and Japan. Fertility levels in those countries have been lower than the U.S. rate for several years, although some are on the rise, most notably in France.

Experts believe there is a mix of reasons: a decline in contraceptive use, a drop in access to abortion, poor education and poverty.

U.S. Abortion Rate Continues Long-Term Decline

Washington Post: Abortions Hit Lowest Number Since 1976, by Rob Stein:

The number of abortions performed in the United States dropped to 1.2 million in 2005 -- the lowest level since 1976, according to a new report.

The number of abortions fell at least in part because the proportion of women ending their pregnancies with an abortion dropped 9 percent between 2000 and 2005, hitting the lowest level since 1975, according to a nationwide survey.

At the same time, the long decline in the number of abortion providers appears to be stabilizing, partly a result of the availability of the French abortion pill RU-486, the report found, because some physicians who do not perform surgical abortions provide it to their patients.

The report did not identify reasons for the drop in abortions, but the researchers said it could be caused by a combination of factors.

Read more on the report from the Guttmacher Institute.

Good Stuff on the RH Reality Check blog today:

Roe Gave Birth to Politics of Personal Destruction, by Scott Swenson:

The 35th Anniversary of Roe must be about more than just one medical procedure. It must also be about understanding how the political tactics many Americans reject have their roots in the election immediately following Roe and how those tactics continue to divide us today. We cannot expect to heal our democracy until we understand what these tactics are doing to our politics.

Show Me the Pattern: Missouri's Abortion Ban, by Pamela Sumner:

Anti-choice groups and their political allies, namely Gov. Matt Blunt, are setting the stage for Missouri to become a test case in the next phase of attacks against Roe v. Wade, and a new national report on reproductive rights found more evidence of the manner in which Gov. Blunt and his anti-choice allies in the General Assembly are going to new and dangerous heights to constrain abortion access.

Lawsuit Filed Over High School "Anti-Abortion Club"

San Jose Mercury News: Suit filed over anti-abortion club on high school campus, by Howard Mintz:

A conservative legal organization has filed a lawsuit in San Jose federal court on behalf of a Westmont High School student who accuses school officials of blocking her efforts to establish and promote an anti-abortion club on campus.

In a complaint filed Monday, the Alliance Defense Fund maintains that Westmont and the Campbell Union High School District have discriminated against the student by refusing to recognize her anti-abortion club. The lawsuit asks a federal judge to order the school district to overturn its policy....

Owen Hege, Westmont's principal, said he was surprised by the lawsuit because the school has already given the club trial status, similar to other clubs trying to get established. Hege acknowledged that he moved slowly with the student's initial request because "it does tread in a sensitive area," but has recently allowed the club to meet and move forward after consulting with district officials.

Carole Joffe on Abortion and the Presidential Campaign

Carole Joffe (Sociology, UC Davis) has posted The The Republican Candidates’ Abortion Problem: Its not Just about Abortion Anymore on the Beacon Broadside:

I haven’t sorted out the penalties...of course there’s got to be some penalties to enforce the law, whatever they may be." So spoke George H.W. Bush, in one of the major gaffes of his first presidential run in 1988, during a debate with his opponent, Michael Dukakis. Bush, who had only recently begun to trumpet his antiabortion sentiments to dubious Republican social conservatives, was responding to a question about appropriate punishment for women who would obtain illegal abortions should Roe v Wade be overturned. The next morning, after frantic late night discussions, Bush’s handlers called the press for a "clarification." Bush meant to say doctors who performed abortions, not women who received them, should be jailed in such a situation.

Twenty years later, Mike Huckabee, running for the Republican nomination, makes no such missteps. With none of the discomfort that Bush I showed, Huckabee at his rallies gets the party line of the antiabortion movement right: if Roe is overturned, doctors who perform abortions should be punished, while the recipients of such abortions must be seen as "victims."

But Huckabee, a former Baptist preacher and the candidate of choice of evangelicals, is an exception in the clarity and consistency of his position on abortion. There is a long history of "evolution" on abortion from politicians in both parties. For example, Bill Clinton and Al Gore, both from Southern states, had mixed records of support for abortion early in their careers before they each went on to become staunch allies of the abortion rights movement. But in the campaign of 2008, it is mainly the Republican candidates who are squirming.

Read the full post.  See also: Republican Debate: No! Not the "Should the Woman Be Punished for Abortion" Question! Run away!

Jamaica: Report Recommends Repeal of Abortion Prohibition

Jamaica Gleaner: 'Rethink abortion' - Advisory group wants current laws repealed - Botched jobs put strain on public purse, by Tyrone Reid:

Due in large part to an alarming number of botched abortions taking place in the island, a Ministry of Health-commissioned report has recommended that current laws prohibiting the practice be repealed and replaced with legislation outlining conditions under which medical termination of pregnancy would be lawful.

A report to be tabled in Parliament by the Abortion Policy Review Advisory Group has revealed that botched abortions are burdening the public health sector as many women who suffer from the complications that arise after the bungled operations are unable to pay for the costly treatment they receive.

On Sex After Prostate Surgery, Confusing Data

New York Times: On Sex After Prostate Surgery, Confusing Data, by Tara Parker Pope:

For men having prostate cancer surgery, one of the biggest fears is that they will be left impotent. Unfortunately, the research that might help address that question is likely only to confuse.

A notable study in 2005 showed that a year after surgery, 97 percent of patients were able to achieve an erection adequate for intercourse. But last month, researchers from George Washington University and New York University reviewed interim data from their own study showing that fewer than half of the men who had surgery felt their sex lives had returned to normal within a year.

So which of the studies is right? Surprisingly, they both are. 

Obama Campaign Defends His Record on Abortion

There's lots of coverage on the political blogs of the Obama campaign's response to Hillary Clinton's attacks on Barack Obama's choice record.

The Trail (Washington Post): Gone From the Granite State, But Tactics Not Forgotten, by Alec MacGillis (on the aftermath of Clinton's strategy in New Hampshire and its potential lingering effects)

Political Intelligence (Boston Globe): Clinton, Obama campaigns tangle over abortion, by Scott Helman (including  a flier the Obama campaign is distributing to Nevada voters)

The Huffington Post: Obama Emphasizes Pro-Choice Record As Clinton Questions 'Present' Votes, by Max Follmer

The Swamp (Baltimore Sun): Obama campaign defends his abortion-rights record, by Mike Dorning

ACOG's Position On Religious Refusals Criticized by Some Doctors As "Elevat[ing] the Patient's Autonomy"

American Medical News: New ACOG position on abortion refusal drawing fire, by Kevin O'Reilly:

A recent American College of Obstetricians and Gynecologists' position statement outlining the limits of conscientious refusal in reproductive medicine is drawing fire from physicians who oppose abortion.

The ACOG Committee on Ethics opinion says doctors whose personal beliefs may require them to "deviate from standard practices" such as providing abortion, sterilization or contraceptives should:

• Give patients prior notice of their moral commitments and provide accurate and unbiased information about reproductive services.
• Refer patients in a timely manner to another doctor who can provide the requested service.
• Provide medically indicated services in an emergency when referral is impossible or might affect a patient's physical or emotional health.
• Practice close to physicians who will provide legal services or ensure that referral processes are in place so that patient access is not impeded....

David Stevens, MD, CEO of the Christian Medical & Dental Assns., said ACOG's position "minimizes the whole concept of the right of conscience and elevates the patient's autonomy as the trump card. If the patient wants it, the doctor has the obligation to provide it."

For more on religious refusals and reproductive rights, see this report by the ACLU.

Student Scholarship

Dov Fox (Yale Law School) has posted Retracing Liberalism and Remaking Nature: Designer Children, Research Embryos, and Featherless Chickens on SSRN. Here is the abstract:

Liberal theory seeks to achieve the moral and practical goods of toleration, civil peace, and mutual respect within modern pluralistic societies by excluding from public debate those arguments that arise from within formative conceptions about what gives value to human life. I ask whether it is reasonable to bracket, for purposes of public deliberation, our deepest moral views about genetic engineering. The answer to this question depends, at least in part, on how we come down on those moral issues that such biotechnological practices presupposes. I argue that the moral language of liberal justice - of rights and duties, interests and opportunities, freedom and consent, equality and fairness - cannot speak to the moral concerns at the heart of such practices. My goal is not to indict liberalism as a valuable framework in many areas of theory and practice. I mean, instead, to challenge the suitability of liberalism to furnish a plausible and coherent account of the moral status for a range of biotechnological practices.

Misinformed consent bill in Indiana

We're going to see a whole lot of this in 2008, thanks to Justice Kennedy's off-topic musings in Gonzales v. Carhart.

Indianapolis Star: Abortion advice bill reintroduced in Senate, by Bill Ruthhart:

Life begins at conception, and a fetus could feel pain during an abortion.

Indiana would require doctors to deliver that heavily debated statement, in writing, to abortion patients under proposed legislation that re-emerged Thursday at the Statehouse.

A similar bill died in the Senate last year, but its author, Sen. Patricia L. Miller, R-Indianapolis, is pushing it again this session.

The legislation, Senate Bill 146, was debated Thursday in the Senate Judiciary Committee but received no vote.

Embryonic stem cells created without destroying embryos

Los Angeles Times: Stem cells created without destroying embryos, by Karen Kaplan:

Scientists reported Thursday that for the first time they have made human embryonic stem cells without destroying embryos, a development that the government's top stem cell official said would make the controversial research eligible for federal funding.

Story Landis, who chairs the National Institute of Health's stem cell task force, said that with certain safeguards, the new method appeared to comply with federal restrictions that have largely cut scientists off from the $28 billion the government spends on medical research each year....

Researchers at Advanced Cell Technology in Worcester, Mass., created four stem cell lines out of individual cells plucked from 3-day-old embryos, which continued to develop normally after the procedure. The method was described in the online edition of the journal Cell Stem Cell.

Charles Kindregan on Assisted Reproductive Technology

Charles P. Kindregan (Suffolk University Law School) has posted Thinking About the Law of Assisted Reproductive Technology, Wisconsin Journal of Family Law, Vol. 27, p. 123, 2007, on SSRN. Here is the abstract:                

This article surveys some of the difficult unresolved legal issues created by the increased use of assisted reproduction to procreate children. Some aspects of this technology, such as intrauterine insemination, have been widely used for a few decades by married couples and has gained legal recognition in statutory and decisional law. However, the widespread use of intrauterine insemination by unmarried opposite sex couples and same sex couples is largely unregulated and legally problematical, creating problems for courts throughout the country which have struggled with issues relating to parental rights, custody, visitation and child support in the absence of legislative guidance.

Even beyond the use of intrauterine insemination, other newer reproductive technologies such as in vitro fertilization, embryo cryopreservation and transfer, gestational surrogacy and posthumous reproduction have created even more potential and actual legal issues about which the legislatures have for the most part remained silent. Such technologies have raised questions about parental status, determination of maternity, genetic abnormalities, multiple births, status of gamete or embryo donors, child support obligations, the role of adoption in application of these technologies, medical malpractice, government regulation, health insurance, divorce disputes over disposition of cryopreserved embryos, the social security status of children conceived posthumously by assisted reproduction and numerous other matters.

The article examines the impact of these technologies on the concept of the family. The right to procreate is a basic fact in American family law doctrine, but the pro-creative choice in the context of families which have not or are only slowly gaining legal recognition such as same sex marriages or civil unions, and non marital families, has become controversial in disputes over marriage. For example, challenges to a state's choice to limit marriage to heterosexual couples have almost always raised the issue about the purpose of marriage, and because of the widespread use of assisted reproduction among same sex couples to procreate the issue has squarely been raised as to whether the procreation argument any longer has any validity in a state's bar to same sex marriage. The article examines the different kinds of family units employing collaborative reproduction today, and some of the court responses to this reality. The article also surveys the potential application of the 2000 Uniform Parentage Act (as amended in 2002), which while not yet widely adopted, does address some of these issues raised by assisted reproduction.

Argentine Governor Vetoes Abortion Regulation

Thanks to Dr. Martin Hevia (Escuela de Derecho, Universidad Torcuato Di Tella, Argentina) for the following post:

As one of his first measures, the recently elected current governor of the Province of La Pampa in Argentina, Oscar Mario Jorge, vetoed Provincial Law 2394, which established a protocol on how doctors at public hospitals should behave in cases of non-punishable abortions (Art. 86 of the Argentine Criminal Code allows for abortion only for therapeutic reasons and for eugenic reasons).

According to an official press report, the main reason for the veto was that, even though the text of Law 2394 made reference to the exceptions in subsections 1 and 2 of Art. 86 of the Criminal Code, it introduced new interpretations of provisions on abortion of the Criminal Code, which modify and enlarge the application of those provisions. In the view of the Governor of La Pampa, this is unconstitutional because Provincial legislatures cannot make federal law - the Criminal Code in Argentina is federal legislation and, according to Art. 75.12 of the Argentina Constitution, the Provincial Legislatures cannot legislate on criminal law. The Governor also noted that Law 2394 defined "health" as "physical, psychological, and social well-being" (a definition also favoured by the World Health Organization) and, therefore, enlarged the scope of exceptions considered under the Criminal Code.

Law 2394 also established a register of conscientious objectors. The Governor said that this register is unconstitutional because it violates Art. 19 of the Argentine Constitution which is understood as establishing a constitutional right to privacy.

Finally, Law 2394 established medical and psychological support for women before and after the abortion, which was naturally not mentioned in the Criminal Code.

In 2007, some other Argentine Provinces and cities have passed legislation establishing protocols that establish guidelines for doctors that deal with the abortions that are permissible under the Argentine Criminal Code.

For the official press report of the Executive Power of La Pampa, see:

http://www.lapampa.gov.ar

(go to the link "Noticias Oficiales" on the left of the screen and look for news on 17/12/2007)

For newspaper coverage see:

http://buscador.lanacion.com.ar/Nota.asp?nota_id=972034&high=aborto

http://www.pagina12.com.ar/diario/sociedad/3-96335-2007-12-18.html

Right to Life of Michigan vows to push for another state ban that mirrors the federal law

Detroit Free Press: Abortion foes won't yield to legal setback, by Chris Christoff:

Michigan's leading anti-abortion group said it would not give up on trying to pass another ban on so-called partial-birth abortion, despite the U.S. Supreme Court's refusal Monday to revive debate on a 2004 state ban struck down by a lower court.

The U.S. 6th Circuit Court of Appeals in Cincinnati had ruled the Michigan law unconstitutional because it also could prohibit other, legal abortion procedures.