Reproductive Rights Prof Blog

Supreme Court to Hear Arguments Tomorrow in AT&T v. Hulteen (Title VII Pregnancy Discrimination Case)

Via Feminist Law Professors:

Tomorrow the Supreme Court will hear oral argument in the case, AT & T v. Hulteen — the case revolving around the interpretation of the scope of gender discrimination and pregnancy discrimination in employment under Title VII and the Pregnancy Discrimination Act.

December 9th, 2008

From Dionne Scott at the Center for Reproductive Rights:

Four women who entered the workforce prior to the enactment of the Pregnancy Discrimination Act (PDA) are disputing AT & T’s calculation of their pensions. That calculation was based on a pre-PDA policy which denied the women full credit during their maternity leaves.

The Center for Reproductive Rights wrote a brief that informs the Court of substantive equality principles, arguing that prior to 1976 (before PDA was enacted), it was the uniform view of the federal courts of appeals and the EEOC that discrimination based on pregnancy constituted sex discrimination within the meaning of Title VII (which protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion).
PDA, enacted in 1978, only confirmed that this view of Title VII was correct.

The brief is here.

Jonathan Herring on the Legal Status of the Body

Johnathan Herring (University of Oxford - Faculty of Law) has posted Your Body, My Body, Our Bodies on SSRN. Here is the abstract:

This article considers the legal status of the body. It argues that our bodies are in constant interaction with and are dependent upon other bodies and the world around us. To see our bodies as our property or something over which we have rights overlooks the communal aspect of bodies.

The Future of Abortion: Controversies and Care

The Abortion Review is making available papers from a conference, The Future of Abortion: Controversies and Care, held in London in June 2008:

The BPAS conference The Future of Abortion: Controversies and Care was a groundbreaking event. It took place in Westminster, London, in the midst of a battle over the UK’s abortion law, and brought together clinicians, academics, policymakers and advocates from the UK, Europe and the USA.

To take forward the international, interdisciplinary discussion set in motion by the conference, Abortion Review is producing a series of special editions based on the papers presented there. Contributions to this first edition, Abortion, Ethics, Conscience and Choice, go to the heart of the moral and ethical debates about abortion.

Download papers from the conference here.

Call for Participation: Gender, Sexuality and Law

The Canadian Law and Society Association invites papers and proposals on the Political Economy of Gender and Sexuality in Legal Scholarship:

Canadian legal feminism has a strong tradition of examining the political economy of law's regulation of gender and sexuality. The productive and reproductive labour of women, the gendered and sexed dimensions of 'the worker', and the ideology of the market have all been themes intersecting with Canadian scholarship on law, gender and sexuality. The current crises in the banking and finance sectors are likely to dominate Canadian and transnational politics in the coming period, underscoring again the importance of political economy to legal scholarship and activism. A sharp global economic decline is likely to disproportionately impact upon poor and marginalized populations, and may have long-lasting social impacts.

At the same time, the current economic crises may also represent a weakening of the neo-liberal grip on western legal structures and consciousness. Invited are individual paper and panel proposals to consider the political economy dimensions of current feminist, queer, gay and lesbian scholarship on law.

The Association urges papers and panelists to approach this topic broadly and creatively to consider themes such as: narratives of crisis and economic fragility in legal consciousness, the intersection of identity and political economy in legal theory, the impact of economic crisis on law reform, the place of gender in the labour sector (where is Jill-the-teacher in the contest between Joe-the-plumber and Joe-the-hedge-fund-manager?), in what ways, if at all, might the financial crisis disrupt neo-liberal ideologies of the independent, self-regulating economic actor, and what might be the implications of this for law reform and activism on migration, citizenship, family law, and so on.

Deadline for submissions: January 18, 2009

South Dakota's "Informed Consent Law" and the Doctor-Patient Relationship

New England Journal of Medicine: South Dakota's Abortion Script Threatening the Physician-Patient Relationship, by Zita Lazzarini:

Under a law that went into effect in July, physicians in South Dakota must tell any woman seeking an abortion that she is terminating the life of "a whole, separate, unique, living human being" with whom she has an "existing relationship," that her relationship "enjoys protection under the United States Constitution and under the laws of South Dakota," and that abortion terminates that relationship along with "her existing constitutional rights with regards to that relationship."  

The "informed-consent" law was passed in 2005 but was immediately suspended by an injunction sought by Planned Parenthood, which operates the only South Dakota clinic providing abortions. On June 27, 2008, in Planned Parenthood Minnesota v. Rounds, a divided Eighth Circuit Court of Appeals lifted the injunction, clearing the way for implementation....

The South Dakota requirements, referred to as "the script" by the media, signal a new step in states' efforts to restrict abortion. The law is unique in ways that should cause concern to physicians, patients, and protectors of the physician–patient relationship. As part of an ongoing challenge to abortion, it has import far beyond the borders of South Dakota.

See also: New England Journal of Medicine: Physicians and the First Amendment, by Curfman, et al.:

In the November elections, the citizens of three states resoundingly defeated initiatives aimed at curtailing reproductive rights. In Colorado, a proposed amendment to the state's Constitution would have given the same legal rights to fertilized eggs as to living persons. This amendment, which was rejected by a wide margin, would have had broad ramifications for abortion rights, the use of contraceptive agents, and stem-cell research. In California, a parental notification proposition backed by antiabortion forces was also rejected. In South Dakota, a ballot measure that would have effectively banned all abortions in the state was defeated, as was a similar measure 2 years ago.  Those who support the principle of reproductive freedom can take heart in the overwhelming failure of these initiatives. But unbeknownst to many, there remains on the books in South Dakota another law, known as the informed consent to abortion law, that is cause for concern.

 

Catholic Church Creating Premature Uproar Over FOCA and Religious Refusals

The Christian Science Monitor: Catholic groups fear abortion rights bill, by Ben Arnoldy:

First on the Obama administration's to-do list: a stimulus package, bailouts, and ... abortion? Given the imperatives of the economic crisis, picking an abortion fight early on would seem highly unlikely.              

But the Roman Catholic Church is coordinating a national postcard campaign next month to oppose the Freedom of Choice Act (FOCA). Abortion opponents fear the new Democratic majority in Washington could succeed in passing the decades-old bill and Barack Obama would make good on what he told Planned Parenthood in July: "The first thing I'd do as president is sign the Freedom of Choice Act."...

Rhetoric aside, it's not certain that FOCA will move in Congress, much less get passed in its current form. Scholars are divided on whether the current bill actually jeopardizes conscience clauses – though they agree it is too vague.

What Does the "Pro-Life" Movement Want? Don't Ask Ross Douthat.

The New York Times today published an astoundingly uninformed, naive defense of the current "pro-life" movement, by Ross Douthat, a senior editor at The Atlantic.  See: Abortion Politics Didn’t Doom the G.O.P.:

An iron law of recent American politics dictates that any Republican setback at the polls will be quickly pinned on the pro-life movement.... [W]hy should abortion opponents, of all conservative factions, take the blame for the financial meltdown, or the bungled occupation of Iraq, or the handling of Hurricane Katrina?

But never mind. Pro-choice Republicans, in particular, know exactly whom to blame for their party’s showing.

Douthat tries to paint the anti-choice movement as reasonable and compromise-seeking:

Compromise, rather than absolutism, has been the watchword of anti-abortion efforts for some time now. Since the early 1990s, advocates have focused on pushing largely modest state-level restrictions, from parental notification laws to waiting periods to bans on what we see as the grisliest forms of abortion.

Douthat completely ignores the fact, openly acknowledged by anti-choice advocates, that the movement sees these restrictions as mere steps on the way to ultimately banning abortion completely.  They have not settled into compromise; indeed, they are ready to pounce with all-out bans as soon as they feel their opportunity has arrived (the two recent attempts to pass abortion bans in South Dakota are evidence of this).

Douthat then goes on to cite polls that he claims demonstrate the public's desire for more restrictions than the Supreme Court would permit under Planned Parenthood v. Casey. 

The public is amenable to compromise: majorities support keeping abortion legal in some cases, but polling by CBS News and The Times during the presidential campaign showed that more Americans supported new restrictions on abortion than said it should be available on demand. And while some pro-lifers would reject any bargain, many more would be delighted to strike a deal that extends legal protection to more of the unborn, even if it stopped short of achieving the movement’s ultimate goals.

He pretends as though Casey is to blame for this state of affairs, making me wonder whether he has ever read Planned Parenthood v. Casey or understands how many restrictions states already can and do enforce against women seeking abortions:

But no such compromise is possible so long as Roe v. Wade and Planned Parenthood v. Casey remain on the books. These decisions are monuments to pro-choice absolutism, and for pro-lifers to accept them means accepting that no serious legal restrictions on abortion will ever be possible — no matter what the polls say, and no matter how many hearts and minds pro-lifers change.

It's well known that the public supports some restrictions on abortion and that most will disagree with a polling question that asks whether they support "abortion on demand."  That tells us nothing about whether the public prefers more restrictions than Casey currently permits.  Under Casey itself, the Court upheld mandatory waiting periods, government messages discouraging women from seeking abortion, and parental involvement requirements.  Since then, states have imposed even more intrusive measures, and the Supreme Court has upheld the first-ever federal ban on certain abortion methods.  There isn't a whole lot further to go short of banning abortion entirely.  And the public is certainly not ready to go that far.  When South Dakota, one of the most "pro-life" states in the country, placed just such a ban on its ballot in 2006 and again this year, voters rejected it (this despite the fact that the 2008 version contained limited exceptions for rape, incest, and medical emergencies).

As for Douthat's concluding words, they're just gibberish.  If you can make sense of what it means for "pro-lifers" to "compromise" on abortion and not be "absolutists," while still fulfilling the "movement's very purpose," let me know:

But so long as the Supreme Court remains closely divided, and a post-Roe world remains in reach, the movement’s basic political task must remain the same. Not because pro-lifers are absolutists who reject compromise, but because any real compromise will always depend on overturning Roe. Giving up on this goal would mean giving up the movement’s very purpose, while gaining nothing in return.

It's disappointing that the New York Times would devote op-ed space to a contributer who has neither thought through nor honestly articulated the "pro-life" agenda.  A much more insightful piece on these same issues can by found in Denise Ross's, What's the Matter with South Dakota?, in The New Republic.

Dahlia Lithwick on Selective Solicitude for Health Care Providers' Rights of Conscience in the Reproductive Health Context

Slate: Nursing Grudges, by Dahlia Lithwick:

What does it tell us about the state of the abortion wars today that battles once waged over the dignity and autonomy of pregnant women have morphed into disputes over the dignity and autonomy of their health care providers instead? Two of the most pitched battles over reproductive rights in America right now turn on whether health workers can be forced to provide medical services or information to which they ethically or professionally object. But as we learn from these fights, our solicitude for the beliefs of medical workers is selective: Abortion opponents will soon enjoy broader legal protections than ever. Those willing to provide abortions, on the other hand, seem to enjoy far fewer. And women seeking reproductive services? They will continue to be caught in the tangle between the two.

Yet Another Study Debunks Myth of a "Post-Abortion Syndrome"

ABC News/Reuters: Abortion Not Seen Linked With Depression:

No high-quality study done to date can document that having an abortion causes psychological distress, or a "post-abortion syndrome," and efforts to show it does occur appear to be politically motivated, U.S. researchers said on Thursday.

A team at Johns Hopkins University in Baltimore reviewed 21 studies involving more than 150,000 women and found the high-quality studies showed no significant differences in long-term mental health between women who choose to abort a pregnancy and others.

Unfortunately, many -- including the conservative members of the U.S. Supreme Court -- prefer myth to reality.

Planned Parenthood Offers Gift Certificates; Anti-Choice Groups Object

From the Planned Parenthood of Indiana website:

Looking for an unusual, yet practical gift this holiday season? Planned Parenthood of Indiana (PPIN) is now offering gift certificates for services or the recipient’s choice of birth control method. The gift certificates can be purchased online in increments of $25 or for any amount at some of PPIN’s 35 health centers. Contact your local health center to see if they offer the certificates.

The gift certificates can be given to women and men to cover essential services like screenings and birth control. Services such as annual exams for women, which include breast exams and Pap tests, typically cost $58.

Indy Star: Gift certificate covering abortion stirs controversy, by Francesca Jarosz:

For the folks at Planned Parenthood, it is a creative way to help ensure that women receive important health services at a time when money is tight. For members of Right to Life, it is a wildly inappropriate idea that is an affront to their Christian beliefs.

Gift certificates may be a last-minute -- even boring -- holiday staple, but the new certificates on sale at Planned Parenthood clinics in Indiana are no typical stocking stuffers.

The certificates, which can be used for exams and screenings as well as abortions, were the brainchild of organization leaders who realized the demand for practical gifts during trying economic times and decided to capitalize on the most practical need of all: basic health care....

Shepherd said Planned Parenthood leaders expect the majority of the certificates will be used for services other than abortions and intend to make them available year-round.

The organization offers services such as pelvic exams, breast cancer screenings, walk-in pregnancy testing and birth control. About 95 percent of the agency's services are unrelated to abortion, Shepherd said.

John Stewart jokes about the gift certificates on the Daily Show:

The Daily Show With Jon StewartM - Th 11p / 10c

Planned Parenthood Gift Cards

Barack Obama Interview
John McCain Interview

Sarah Palin Video
Funny Election Video

KS Supreme Court Sanctions Former AG for Mishandling of Planned Parenthood Abortion Records

Kansas City Star: High court sanctions Kline for handling of abortion records, by Joe Lambe & Laura Bauer:

The Kansas Supreme Court this morning sanctioned Phill Kline for his handling of Planned Parenthood records and ordered him to give copies of them to the Kansas attorney general.

The high court ordered that a set of the records be given to Attorney General Steve Six by the end of the day Dec. 12. And by noon Jan. 10, Kline or a subordinate must meet with Six to explain what the records mean.

See also Kansas City Star: Despite harsh words, Kline gets to keep abortion records, by Joe Lambe & Laura Bauer:

In a 40-page ruling Friday, the Kansas Supreme Court slammed Johnson County District Attorney Phill Kline for his handling of an ongoing abortion case.

But in the end, after justices called Kline’s actions inexcusable and accused him of not having respect for the law, he got what he wanted.

Kline gets to keep medical records of women treated at Planned Parenthood in Overland Park — the basis of his pending 107-count criminal case against the clinic. He only has to provide copies of all investigative materials to the Kansas attorney general. They’re due next Friday.

Politicizing Statutory Rape Reporting Requirements

Last night Bill O'Reilly reported on a "sting operation" some UCLA college students conducted on Planned Parenthoods to catch them in the act of refusing to report statutory rape when minors come in seeking confidential reproductive health care.  Here is the video:

Of course, he of the "no-spin" zone declines to mention the often confusing intersection of statutory rape laws, child abuse reporting laws, and patient confidentiality requirements reproductive health care providers must navigate.  He also ignores the conflicting health policy concerns that confront health care professionals who want to protect minors from abuse while also ensuring that fear of disclosure does not deter minors from seeking important healthcare they need and want, whether that be contraceptive services, testing and treatment for sexually transmitted infections, abortion, or pregnancy care and counseling.

For a more balanced and informed discussion of the issue, see Politicizing Statutory Rape Reporting Requirements: A Mounting Campaign?, by the Guttmacher Institute.  Here's an excerpt:

State laws requiring the reporting of sexual intercourse involving an underage minor—often referred to as "statutory rape"—are intended to safeguard adolescents from sexual coercion and exploitation, particularly by older partners. This body of law is complex and sometimes unclear, and therefore can be difficult for law enforcement agents, school officials, reproductive health care providers and other adults who frequently interact with adolescents to navigate.

Beyond the legal complexity and ambiguity, statutory rape reporting requirements can present a challenge for those who recognize the value in both assuring that minors have access to confidential health care and protecting adolescents from sexual exploitation. This is particularly true for reproductive health care providers, who usually are obliged to report suspected cases of sexual abuse—and often are uniquely positioned to detect it. At the same time, they are ethically, and sometimes legally, required to honor a patient's privacy rights.

Couples Torn Over What To Do With Extra Frozen Embryos

NY Times: Parents Torn Over Fate of Frozen Embryos, by Denise Grady:

For nearly 15 years, Kim and Walt Best have been paying about $200 a year to keep nine embryos stored in a freezer at a fertility clinic at Duke University — embryos that they no longer need, because they are finished having children but that Ms. Best cannot bear to destroy, donate for research or give away to another couple.

The embryos were created by in vitro fertilization, which gave the Bests a set of twins, now 14 years old.

Although the couple, who live in Brentwood, Tenn., have known for years that they wanted no more children, deciding what to do with the extra embryos has been a dilemma. He would have them discarded; she cannot.

Perspectives on HIV/AIDS, Gender Violence, and Marriage, from Population Action International

RH Reality Check: In Their Own Beds: HIV and Marriage, by Amy Coen:

This World AIDS Day, Population Action International is exploring a different side of the HIV/AIDS epidemic, one that many people might not even realize is an issue - the prevalence of HIV in marriage.  Our new documentary, The Silent Partner: HIV and Marriage, explores this very issue.  It tells the stories of women from different backgrounds who were infected with HIV in their own homes, in their own beds, from their own husbands. 

Most people believe that if a woman makes it to marriage without contracting HIV, she is safe.  However, the reality can be quite different. Judy Atieno, one of the women profiled in The Silent Partner, found out she was HIV-positive while she was pregnant with her fourth child.  She says, "You have to depend on this man for everything - the husband, he pays the school fees for the kids, he buys food for the house... you don't question where he walks, how many women he has outside - for the sake of these children."

PAI Blog: Silent No More: Gender Norms and HIV/AIDS, by Wendy Turnbull:

The large banner stretched across busy Langata Road near Nyayo football stadium in Nairobi, Kenya declares, "We CAN End All Violence Against Women" as the traffic jam below grinds on. It signals the annual "16 Days of Activism" campaign - from November 25 (International Day for the Elimination of Violence Against Women) to December 10 (International Human Rights Day) - against gender violence.  This two-week global advocacy campaign for women's rights aptly envelopes World AIDS Day, for the issues of gender violence and HIV/AIDS are inseparable.

Here in Kenya, HIV/AIDS prevalence has increased in both urban and rural areas in recent years and the alarm bells have sounded. There seems to be growing recognition among policymakers and program managers that HIV and AIDS cannot be viewed and acted upon as solely a clinical matter. Deeply entrenched social norms make women and girls highly vulnerable to HIV - the central tenet of PAI's newest documentary, The Silent Partner: HIV in Marriage, which premiered in Nairobi last week.

For more information on this documentary, click here.

Baltimore Will Host World Stem Cell Summit

Baltimore Sun: Baltimore to host stem cell summit, by Laura Smitherman:

Baltimore will host the 2009 World Stem Cell Summit, solidifying its position as one of the nation's foremost crucibles for bioscience research, Gov. Martin O'Malley and other officials announced today.

The summit, to be held over three days in September, is expected to bring together more than 1,200 scientists, companies and foreign government emissaries to share information in the fast-emerging field of stem cell research. The science is also expected to get a boost if President-elect Barack Obama reverses President George W. Bush's restrictions on federal funding for research on human embryonic stem cells, as expected.

New Guidelines Define Best Practices for Stem Cell Research

Via MarketWatch: Press Release: The International Society for Stem Cell Research Releases New Guidelines to Shape Future of Stem Cell Therapy:

Today, the International Society for Stem Cell Research (ISSCR), the world's leading professional organization of stem cell researchers, released new guidelines for the responsible development of safe and effective stem cell therapies for patients. A Commentary article that summarizes the Guidelines for the Clinical Translation of Stem Cells will be published by Cell Press in the December issue of Cell Stem Cell, the official affiliated journal of the ISSCR.

These guidelines define a roadmap for medical researchers and doctors, outlining what needs to be accomplished to move stem cells from promising research to proven treatments for patients. The new guidelines will accelerate the translation of stem cell research into practice while addressing associated scientific, clinical, regulatory, ethical and social issues. Founded on core principles of scientific rigor and ethical conduct, the recommendations offered in the guidelines include an insistence on expert evaluation and independent oversight, a thorough informed consent process to provide patients with essential information on the unique aspects of stem cell-based treatments, and transparency in reporting of clinical trial results.

...Too often rogue clinics around the world exploit patients' hopes by offering unproven stem cell therapies, typically for large sums of money and without credible scientific rationale, oversight or patient protections.

Why Did South Dakota Voters Twice Refuse to Approve an Abortion Ban?

The New Republic: What's The Matter With South Dakota?, by Denise Ross:

How one of the most pro-life states in the country ended up voting against banning abortion--twice.

South Dakota state legislator Larry Rhoden is as loyal a pro-life crusader as you are likely to find in the Rushmore state. Rhoden worked enthusiastically in 2004 to pass a state bill that would ban nearly all abortions. When that failed, he continued to push the issue--helping to form an abortion task force that would give legitimacy to the ban effort, and helped lead the efforts on another abortion ban bill that passed the legislature but failed when referred to a statewide vote as a ballot initiative in 2006. He even lent his support to the most recent incarnation--a ban including exceptions for rape and incest--that failed as a ballot initiative again this past Election Day.

But after two defeats at the ballot box, the conservative Republican is ready to throw in the towel. "I would question the wisdom of anybody that wanted to bring it forward again," says Rhoden, who makes his living as a rancher in the sparsely populated western corner of the state. His personal view on abortion hasn't changed, but as a policy-maker, Rhoden makes it plain that he wants no part of any more abortion bans. How did South Dakota--a state frequently described as "the most pro-life in the country"--become such hostile terrain for anti-abortion efforts?

Dec. 1 Was World AIDS Day

Via the World AIDS Campaign:

The 1st of December, World AIDS Day, is the day when individuals and organisations from around the world come together to bring attention to the global AIDS epidemic. 2008 marks the 20th anniversary of World AIDS Day. Whilst we have come a long ways since 1988, there is still much more to be done.

Huffington Post: World AIDS Day and Bush's Tiny Shot at a Legacy, by Max Bernstein:

"I'll give some speeches, just to replenish the ol' coffers... I don't know what my dad gets - it's more than 50-75" thousand dollars a speech."

-George W. Bush on life after the Presidency

President Bush:

As you tap your watch to hurry along January 20th, and James Buchanan's ghost counts the days until he can formally leave the bottom of any reasonable Presidential ranking list, talk inevitably turns to your legacy. As far as having any to speak of, it's not looking good with the unnecessary war, Katrina, the tanking economy, last minute deregulation of worker safety measures, the list goes on. However, it is World AIDS Day -- and despite the countless, grave failures of the past eight years, it's hard to not give you at least a B minus on your work toward fixing the AIDS crisis in Africa. Yes, you clouded up the largest health aid effort the U.S. has ever embarked on with a ridiculous moralistic undertone that demanded that one-third of the funds in PEPFAR be used for programs that promote abstinence, but there are still well over a million people receiving treatment for HIV and AIDS in Africa because of it.

Children Whose Mothers Took Epilepsy Drug While Pregnant May Face Increased Risk of Autism

WebMD Health News: Epilepsy Drug, Pregnancy Raise Autism Risk, by Bill Hendrick:

Women who take the epilepsy drug valproate while pregnant may increase their child's risk of autism, a new study shows.

British researchers looked at 632 children, almost half of whom were exposed to epilepsy drugs during gestation. Nine of the 632 have been diagnosed with autism, and one has shown symptoms of the disorder, Rebecca Bromley, a PhD student and one of the researchers at the University of Liverpool, tells WebMD....

The children whose mothers were taking valproate alone for epilepsy were seven times more likely to develop autism, compared to children whose mothers did not have epilepsy and were not taking any drug while pregnant, the study shows....

The risk seen with valproate was not seen with the other epilepsy drugs, Bromley says.

New Federal Medical Refusal Rule Would Reach Beyond Abortion

LA Times: Broader medical refusal rule may go far beyond abortion, by David Savage:

Reporting from Washington -- The outgoing Bush administration is planning to announce a broad new "right of conscience" rule permitting medical facilities, doctors, nurses, pharmacists and other healthcare workers to refuse to participate in any procedure they find morally objectionable, including abortion and possibly even artificial insemination and birth control.

For more than 30 years, federal law has dictated that doctors and nurses may refuse to perform abortions. The new rule would go further by making clear that healthcare workers also may refuse to provide information or advice to patients who might want an abortion....

Proponents, including the Christian Medical Assn. and the U.S. Conference of Catholic Bishops, say the rule is not limited to abortion. It will protect doctors who do not wish to prescribe birth control or to provide artificial insemination, said Dr. David Stevens, president of CMA.