Wednesday, January 28, 2009
I. Glenn Cohen has posted Intentional Diminishment, the Non-Identity Problem, and Legal Liability on SSRN. The article has been published as part of a symposium by the Hastings Law Journal. Here is the abstract:
This Article, lying at the intersection of law and bioethics, examines whether it is wrongful to use assisted reproductive technology to intentionally create disabled children and whether legal liability should attach to such acts. In particular, this Essay considers the way these issues are intertwined with what philosophers have called the "Non-Identity Problem," the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all.
In her Article in this symposium, Kirstin Smolensky suggests that the Non-Identity Problem should cause us to extinguish tort liability in cases where disabled children are created by preembryo selection but not if it was done through (a still hypothetical technology enabling) the genetic manipulation of a pre-embryo to induce a disability.
In this Article I critically examine this claim in two ways. First, I suggest some problems with her arguments for drawing a distinction (for Non-Identity Problem and hence legal liability purposes) between the two methods of creating disabled children.
Second, I examine whether legal liability should be barred even for cases where the Non-Identity Problem applies. I set out several approaches drawn from the bioethics literature that suggest that the parents have acted wrongfully by creating disabled children notwithstanding the Non-Identity Problem. I then offer some tentative views about whether any of these approaches is a valid basis for legal liability, discussing tort law, which is Smolensky's focus, and also extending the project beyond tort to discuss criminal law and other forms of legal regulation.
Given the uproar the Catholic Church has initiated over FOCA, and its ominous warnings of hospital closures, a little reminder is in order. Hospitals affiliated with the Catholic Church serve the public, and they rely heavily on public dollars to do so. Often, they are the exclusive health care provider in a community. Do we really want to support such hospitals with our tax dollars and still allow them to pick and choose what services to provide based on religious objections their patients may not share? MergerWatch released an important study in 2002 on religiously affiliated hospitals, funding, and limitations on services. Here is an excerpt from the Executive Summary:
Religiously-sponsored hospitals in the United States bill the government more than $40 billion a year, while using religious doctrine to restrict medical care, especially reproductive services.
A new national study from the MergerWatch project finds that religiously-sponsored hospitals report more than $40 billion a year in gross patient revenues from Medicare, Medicaid and other government programs.
Reproductive services — including contraception, emergency contraception for rape survivors, sterilization, abortion and infertility services — are frequently banned at religiously-sponsored hospitals, along with “safer sex” counseling to prevent HIV/AIDS. End- of-life choices, such as the option to refuse or remove feeding tubes, are sometimes restricted. Treatments derived from embryonic stem cells are likely to be the next category of banned services.
Religious sponsors operate 13 percent of all community hospitals in the United States and nearly one in every five hospital beds. In an increasing number of communities, patients have no other accessible or affordable choice of a hospital. The study, “No Strings Attached: Public Funding of Religious Hospitals in the United States,” concludes that in the rush to enact laws (known as “refusal clauses”) protecting the religious practices of these hospitals, Congress and state Legislatures have ignored the needs of patients whose tax dollars help support those hospitals.
“Religiously-sponsored hospitals serve and employ people from a wide variety of faiths and — as this study has demonstrated — rely heavily on public funding,” said Lois Uttley, Director of the MergerWatch Project and co-author, with Ronnie Pawelko, of the new study. “Yet these hospitals refuse to provide basic health care services needed in the communities they are licensed to serve.”
Download the full report: No Strings Attached.
CBS News: Abortion Foes Warn Of Hospital Closures, by Brian Montopoli:
On the past two Sundays, parishioners at the Holy Family Church in Nutley, New Jersey, have received a stark warning: If the Obama administration and Democratic Congress have their way, Catholic hospitals around the country will be forced to close.
The reason? A piece of legislation known as the Freedom Of Choice Act, or FOCA, that opponents believe will force hospitals and doctors to perform abortions even if they have moral opposition to doing so....
Debate rages among legal scholars over whether FOCA, if instituted, would really overturn "conscience" protections and thus potentially mean the closures of Catholic hospitals, which make up about a third of all hospitals in the country.
According to Ted Miller, the communications director at NARAL Pro-Choice America, Maryland is among the states that have adopted FOCA-like legislation in an effort to codify abortion protections, "and you don't see Catholic hospitals closing in Maryland." But as Melinda Henneberger notes, Sen. Barbara Boxer, who introduced FOCA in the Senate, said in a statement that the legislation "supersedes any law, regulation or local ordinance that impinges on a woman's right to choose" - which could be taken as a sign that it would invalidate prior "conscience" clauses....
FOCA won't see passage anytime soon, he says, because according to NARAL's calculations, there are only 40 truly "pro-choice" senators in the 111th Congress and 146 "pro-choice" representatives in the 111th Congress - not nearly enough to pass the legislation.
The Catholic Church loves this gremlin. For a reality check, see Catholic Church Creating Premature Uproar Over FOCA and Religious Refusals and Slate Opinion Piece on Obama's Intentions to Sign Freedom of Choice Act (which includes a response to Henneberger's piece).
National Advocates for Pregnant Women (NAPW) presents:
Date: Wednesday, February 11, 2009
Time: 9:00 a.m. to 6:00 p.m.
Place: New York University School of Law, 40 Washington Square South, NYC
People working in the field of criminal law, family law, and child welfare, often have cases that involve issues of drug use. These lawyers, social workers, counselors, advocates and investigators, however, are often trying to do their jobs without the benefit of evidence-based research or access to experts knowledgeable about drugs, drug treatment and the relationship between drug use, pregnancy and parenting. That is why on February 11, 2009 we are sponsoring a spectacular one-day continuing education program entitled: Drugs, Pregnancy and Parenting: What the Experts in Medicine, Social Work and the Law Have to Say. Please join us and please help us spread the word.
If your work involves criminal law, family law, child welfare law, advocacy on behalf of children, parents or families, pregnant and parenting women and their families or issues of drug use – this continuing education program is for you. Even if this is not specifically your field of work, this truly interesting day will be a great way to earn continuing education credits. Substance Abuse Counselors can earn New York CASAC credits.
This dynamic program features nationally and internationally renowned medical, social work, and legal experts as well as people with direct experience who will help distinguish myth from fact, evidence-based information from media hype and provide meaningful tools for improved advocacy, representation, care and treatment. Panelists will discuss current research on marijuana, cocaine, methamphetamine, as well as other areas of research regarding drug use, prenatal exposure to drugs, recovery, treatment and parenting. This up-to-date research is critical for effective representation and care.
NY Times: The Epidemic That Wasn’t, by Susan Okie:
...When the use of crack cocaine became a nationwide epidemic in the 1980s and ’90s, there were widespread fears that prenatal exposure to the drug would produce a generation of severely damaged children. Newspapers carried headlines like “Cocaine: A Vicious Assault on a Child,” “Crack’s Toll Among Babies: A Joyless View” and “Studies: Future Bleak for Crack Babies.”But now researchers are systematically following children who were exposed to cocaine before birth, and their findings suggest that ... the long-term effects of such exposure on children’s brain development and behavior appear relatively small....
Cocaine is undoubtedly bad for the fetus. But experts say its effects are less severe than those of alcohol and are comparable to those of tobacco — two legal substances that are used much more often by pregnant women, despite health warnings.
For a response to the article, see: Salon: Drug-addicted and pregnant, by Nancy Goldstein
The Atlantic: On Obama's Urging, House Dems To Drop Family Planning From Stimpak, by Marc Ambinder:
According to the AP, President Obama called Henry Waxman and personally asked that the provision making it easier for states to pay for family planning funding for Medicaid be stricken from the bill.
Though details aren't final, and though Waxman hasn't reacted in public yet, Democrats in the House seem to be ready to concede the point to the White House.
A Democrat familiar with the administration's reasoning said that while Obama and the House still considered it "good policy" and did "save money," it became "an easy target for critics who said it would not help the economy, so better to take it out and keep focus on the bill creating jobs."
The provision will likely return in later legislation.
Huffington Post: What Obama's Nixing Family Planning Money Tells Us, by Ian Welsh:
President Barack Obama asked Comittee Chairman Henry Waxman to remove family planning money from the stimulus bill after Republicans objected. This is on the heels of nixing bankruptcy reform because, well, Republicans objected.
Money for family planning is good stimulus as there is unfulfilled demand due to chronic underfunding. People can be hired immediately and there is demand for the service. It fits in a stimulus bill very well because it provides immediate spending. In fact it fits better than many of the other things in the bill, such as tax cuts for corporations which we know from experience will create few if any jobs.
Tuesday, January 27, 2009
New York Times: The Myth of Rampant Teenage Promiscuity, by Tara Parker-Pope:
The news is troubling, but it’s also misleading. While some young people are clearly engaging in risky sexual behavior, a vast majority are not. The reality is that in many ways, today’s teenagers are more conservative about sex than previous generations.
Today, fewer than half of all high school students have had sex: 47.8 percent as of 2007, according to the National Youth Risk Behavior Survey, down from 54.1 percent in 1991....
The latest rise in teenage pregnancy rates is cause for concern. But it very likely reflects changing patterns in contraceptive use rather than a major change in sexual behavior. The reality is that the rate of teenage childbearing has fallen steeply since the late 1950s. The declines aren’t explained by the increasing availability of abortions: teenage abortion rates have also dropped.
Rutgers School of Law - Newark presents:
“Rutgers School of Law-Newark Celebrates Women Reshaping American Law” - Feb. 13, 2009
United States Supreme Court Justice Ruth Bader Ginsburg will be the keynote speaker for the symposium "Rutgers School of Law-Newark Celebrates Women Reshaping American Law" on Friday, February 13, 2009.
The all-day event marks the publication of a new book Equal: Women Reshape American Law (Norton, February 2009), which tells the narrative history of the pioneering work of women lawyers to compel the law and the legal profession to address gender discrimination. Opening remarks at the symposium will be delivered by the book's author, Fred Strebeigh, a Yale University professor of non-fiction writing. He will discuss his research and the integral role of Rutgers School of Law-Newark in advancing gender equity for women. Professor Catharine A. MacKinnon of the University of Michigan Law School will deliver the closing remarks.
Speakers also include Diane Crothers, Esq. (Rutgers '74), co-founder of the Women's Rights Law Reporter; Janice Goodman, Esq., former director, Rutgers Women's Rights Litigation Clinic; Diana Guza-Wells (Rigelman) (Rutgers '72), J.D., M.D., who, as a Rutgers law student, was involved with Justice Ginsburg's first gender discrimination legal work; Professor Emerita Annamay Sheppard (Rutgers '58), faculty member in the Rutgers Women's Rights Litigation Clinic; and Clinical Professor and Director of the Special Education Clinic Esther Canty-Barnes (Rutgers '81).
For more information and online registration, please see http://law.newark.rutgers.edu/WomenReshapingAmericanLaw.html. Please register by Feb. 6, 2009.
The Gender and Sexuality Law Program at Columbia Law School presents:
A Symposium Honoring the Contributions of Professor Martha Nussbaum to the Scholarship and Practice of Gender and Sexuality Law
Feminism as Liberalism
Professor of Law, Rutgers Law School
Curators’ and Edward D. Ellison Professor of Law, UMKC School of Law
Professor of Law, Fordham Law School
History, Identity and Sexuality
Mary Anne Case
Arnold I. Shure Professor of Law, University of Chicago Law School
R. Gordon Hoxie Professor of American History, Columbia University
Director, Barnard Center for Research on Women
Gender and Development
Robert S. Lynd Professor of Sociology, Columbia University
Domenic J. Paino 1955 Professor of Political Science and
Women’s and Gender Studies, Amherst College
Professor of Political Science and Women’s Studies, University of Wisconsin – Madison
Professor Martha Nussbaum
Katherine Franke and Suzanne Goldberg
Directors, Gender and Sexuality Law Program
Papers to be published in a special issue of the Columbia Journal of Gender and Law
The symposium will be held on February 13, 2009, from 9:00 am - 6:00 pm. More information here.
Monday, January 26, 2009
CBS News: Down Economy + Egg Donations = Fast Cash, by Cindy Hsu:
In these tough economic times, people are getting more creative to make ends meet.
According to fertility clinics, more and more women are turning to egg donation to earn as much as $10,000.
The applications are pouring in from women wanting to donate their eggs at Northeast Assisted Fertility Group in Midtown. In the last couple months, the number of applicants has doubled to about 100 a week.
San Francisco Chronicle: Economic stimulus or just more pork?, by Zachary Coile:
As Congress rushes toward what leaders of both parties predict will be a speedy passage of an $825 billion economic stimulus package, critics from GOP lawmakers to government watchdog groups are questioning whether key parts of the bill will spur economic growth or whether they're wasteful pork....
House Minority Leader John Boehner, R-Ohio, criticized a part of the bill's $87 billion package to help states with Medicaid costs that would allow states to expand their family planning services. Leaving a White House meeting with Obama on Friday, Boehner said, "How can you spend hundreds of millions of dollars on contraceptives? How does that stimulate the economy?"
House Speaker Nancy Pelosi, appearing on ABC's "This Week" on Sunday, defended the spending. "The family-planning services reduce cost," she said. "The states are in terrible fiscal budget crisis now, and part of it, what we do for children's health, education, and some of those elements, are to help the states meet their financial needs."
Sunday, January 25, 2009
NY Times: Constance E. Cook, 89, Who Wrote Abortion Law, Is Dead, by Dennis Hevesi:
Constance E. Cook, a former New York State assemblywoman who was co-author of the law that legalized abortion in the state three years before the Supreme Court’s landmark decision in Roe v. Wade, died Tuesday at her home in Ithaca, N.Y. She was 89....
Mrs. Cook, a Republican, represented the 128th Assembly District....
[H]er most significant influence came with the passage, on April 10, 1970, of the abortion-rights law that she wrote with State Senator Franz S. Leichter, a Manhattan Democrat. Three decades later, she seemed modest about it.
“I didn’t really have a sense at that time that we had done something momentous, though it was long overdue,” Mrs. Cook told The New York Times in April 2000. “Looking back now, it seems like a bigger deal.”
President Obama's decision in his first days to reverse the so-called "global gag rule" or "Mexico City policy" barring international aid connected to abortion led me back to some of the excellent scholarship that has occurred in this area. For ConLawProfs, the issue has always been a problematic one in terms of pure doctrine. Roe v. Wade does not apply to foreign aid or women outside the United States, but does that mean the issue is not a constitutional one? And what exactly is this "global gag rule" anyway?
Read the full post.
Dov Fox (Yale Law School) has posted Reproduction Law in International Perspectives on SSRN. Here is the abstract:
The word "eugenics" derives from the Greek words eu (good) and gen (relating to birth), or eugenes, which means "good in birth." In Heredity and Hope, sociologist and historian Ruth Schwartz Cowan defends modern genetic testing - the new genetics - by distinguishing it from twentieth century eugenics - the old genetics. Examining the history of carrier screening and prenatal diagnosis, Cowen suggests that we are right to recoil from the old genetics, with its coercive methods and hateful motives, but affirms that we should embrace a new genetics, which enables parental autonomy and promotes offspring well-being. I call Cowen's defense of the new genetics into question by challenging the disanalogy she draws between the old genetics and the new genetics. Drawing on contemporary case studies of reproduction law in Israel, Cyprus, Taiwan, China, Singapore, and the United States, I try to show that the new genetics is similar, in important and objectionable respects, to the old genetics. The argument proceeds in three parts. Part I unpacks the moral goods of parental autonomy and offspring well-being that Cowan locates in the new eugenics. Part II unravels the disanalogy between the old genetics and the new genetics by demonstrating their shared biological approach as a solution to social ills. Part III argues that the new genetics threatens to undermine social equality for people with disabilities.
In this week's New York Times Magazine, Daniel Bergner writes about research into women's desire and arousal, in What Do Women Want?. Here is an interesting passage regarding the current focus on biological difference and sexual desire:
To account partly for the recent flourishing of research like Chivers’s, Heiman pointed to the arrival of Viagra in the late ’90s. Though aimed at men, the drug, which transformed the treatment of impotence, has dispersed a kind of collateral electric current into the area of women’s sexuality, not only generating an effort — mostly futile so far — to find drugs that can foster female desire as reliably as Viagra and its chemical relatives have facilitated erections, but also helping, indirectly, to inspire the search for a full understanding of women’s lust. This search may reflect, as well, a cultural and scientific trend, a stress on the deterministic role of biology, on nature’s dominance over nurture — and, because of this, on innate differences between the sexes, particularly in the primal domain of sex. “Masters and Johnson saw men and women as extremely similar,” Heiman said. “Now it’s research on differences that gets funded, that gets published, that the public is interested in.” She wondered aloud whether the trend will eventually run its course and reverse itself, but these days it may be among the factors that infuse sexology’s interest in the giant forest.
Saturday, January 24, 2009
Public to Pregnant Women: Don't Have An Abortion, But Don't Have A Child Either If It Means Inconveniencing Others
Apropos my blogging-for-choice comment that we need to change the judgmental, punitive way we talk about women and pregnancy....
NY Times: Candace Parker Is Balancing Career and Family, by Karen Crouse:
The Los Angeles Sparks’ Candace Parker is carrying a child this year when she was being counted on to carry a league. If the W.N.B.A. is not roundly thrilled with her pregnancy, which became public earlier this month, Parker has decided she can live with that.
“My whole career has been trying to please people in basketball,” Parker, a 22-year-old newlywed, said Friday in a telephone interview. “Now it’s time to please myself.” She added, “For me, family has always come first.”...
W.N.B.A. Commissioner Donna Orender said her initial reaction to Parker’s pregnancy was a quiet sigh of resignation. Then she thought of all the women in the more traditional workplace struggling with the issue of when or if to start a family, and she realized that Parker’s pregnancy provided a perfect modeling moment.
“Here she is, front and center, and people are discussing the timing of her reproductive life,” Orender said Friday in a telephone interview. “That’s a very public discussion that hasn’t happened before. I do think that’s a good thing for women who go through these issues often in silence or alone.”...
Unlike athletes in individual sports like golf, swimming or running, Parker has teammates who will be affected by her pregnancy. On Internet message boards, people have described Parker as “selfish” and argued that she should not have become pregnant while under contract with the Sparks. Her pregnancy prompted her to forfeit a $1.5 million payday to play for a Russian club this winter.
New York Times: Obama Reverses Rules on U.S. Abortion Aid, by Peter Baker:
WASHINGTON — President Obama repealed rules on Friday that restricted federal money for international organizations that promote or provide abortions overseas, sweeping aside a pillar of the social policy architecture of George W. Bush’s presidency.
The executive order that Mr. Obama signed reverses one of the first measures enacted by Mr. Bush when he took over the White House eight years ago and capped an opening-week flurry of action intended to signal a sharp break from the past in domestic and foreign arenas.
“For the past eight years, they have undermined efforts to promote safe and effective voluntary family planning in developing countries,” Mr. Obama said of the restrictions. “For these reasons, it is right for us to rescind this policy and restore critical efforts to protect and empower women and promote global economic development.”
In a written statement, Mr. Obama said he would work with Congress to restore financial support for the United Nations Population Fund. But he bemoaned the “politicization” of abortion and promised to reach out to all sides to initiate a new dialogue about reducing unintended pregnancies.
Friday, January 23, 2009
Carol Sanger (Columbia Law School) has posted Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice on SSRN. Here is the abstract:
Several state legislatures now require that before a woman may consent to an abortion, she must first undergo an ultrasound and be offered the image of her fetus.The justification is that without an ultrasound, her consent will not be fully informed. Such legislation, the latest move in abortion regulation, supposes that a woman who sees the image will be less likely to abort. This Article explores how visual politics has combined with visual technology, and how law has seized upon both in a campaign to encourage women to choose against abortion. While rarely analyzed, the significance of seeing, or what one court has called sensory and contemporaneous observance, in fact appears throughout the law. This Article develops a visuality of law, focusing specially on the treatment of fetal imagery.
Drawing upon medical and ethnographic literature on sonography, this Article situates the regulatory appeal of mandatory ultrasound within a preexisting visual familiarity with the fetus. I argue that while a welcome and rewarding experience in the context of wanted pregnancies, ultrasound becomes pernicious when required by law in connection with abortion. The argument I develop is that not only is an abortion decision itself protected, but so is the deliberative path a woman takes to reach that decision.
Mandatory ultrasound intrudes upon that protected area of decisionmaking in several respects. First, simply by virtue of having an ultrasound, a pregnant woman is promoted into the category of mother and it is against this conscripted status that she must proceed. Second, unlike other compulsory forms of abortion disclosure, the statutes require the woman to use her body to produce the very information intended to dissuade her from pursuing an abortion. The resulting fetal image is intended as a self-evident statement about the meaning of human life.
But characterizing the fetus as a child, as most ultrasound statutes do, is a political description, not a scientific one. It confuses medically informed consent with what I identify as morally informed consent, that realm of personal considerations that are a woman's alone to determine. Imbued with indelible social meaning, the mandatory ultrasound requirement replaces consent with coercion - not about the ultimate decision, but about how a woman chooses to get there.
Via National Post:
The American Life League issued the following press release regarding its victory over a company that makes doughnuts. Apparently "choice" is bad, even if it's a choice between honey glazed and plain:
KRISPY KREME CORRECTS 'FREEDOM OF CHOICE' FAUX PAS
Washington, D.C. (18 January 2009) – In light of a nationwide marketing trend to capitalize on the inauguration of President-elect Barack Obama, American Life League challenged Krispy Kreme Doughnuts, Inc. Thursday on the propriety of using the phrase "freedom of choice" in their corporate announcement regarding a free doughnut giveaway on Jan. 20 - Inauguration Day. Subsequently on Friday, Krispy Kreme updated the announcement. The following is a statement from Judie Brown, President of American Life League:
"We are grateful to Krispy Kreme executives who realized the inappropriate use of the phrase "freedom of choice" and have changed their announcement, available on their web site."
See also: Opposing Views: NEWS: Krispy Kreme Retracts Pro-Choice Obama Donuts:
Hoping to capitalize on the unprecedented buzz surrounding Barack Obama's historic inauguration, donut king Krispy Kreme recently announced a promotion to give away one free donut to every customer on Inauguration Day. In order to promote the event, Krispy Kreme released the following statement:
"Krispy Kreme Doughnuts, Inc. is honoring American's sense of pride and freedom of choice on Inauguration Day, by offering a free doughnut of choice to every customer on this historic day, Jan. 20. By doing so, participating Krispy Kreme stores nationwide are making an oath to tasty goodies -- just another reminder of how oh-so-sweet "free" can be."
No sooner had the press release hit the wires than activists were protesting what they saw as an tacit endorsement of a pro-choice agenda and President Obama's pledge to uphold abortion's legality.
H/T: Rebecca Bratspies
Minnesota Independent: Anti-abortion activist slams car into Planned Parenthood clinic, by Andy Birkey:
A man slammed his SUV into the Planned Parenthood clinic on Ford Parkway in St. Paul early Thursday morning. Police say the man was an anti-abortion activist and was praying when they found him. Thursday was the 36th anniversary of Roe v. Wade, the landmark decision that found a right to privacy regarding abortion and therefore made abortion legal....
The clinic only suffered minor damage.