Reproductive Rights Prof Blog

Kathleen Sebelius Accepts Obama's Offer as HHS Secretary

NY Times: Kansas Governor Accepts Offer as Health Secretary, by Peter Baker:

President Obama asked Gov. Kathleen Sebelius of Kansas on Saturday to become his nominee for secretary of health and human services, tapping a red state ally to help him push through his plan to remake the nation’s health care system.

Ms. Sebelius accepted the president’s offer and will be introduced by Mr. Obama at the White House on Monday, said administration officials, who spoke on the condition of anonymity to avoid upstaging the formal announcement. The selection comes just days before Mr. Obama hosts a health care summit meeting at the White House....

In selecting Ms. Sebelius, Mr. Obama has decided to risk running headlong into the nation’s volatile abortion wars. Since Ms. Sebelius’s name emerged as a leading candidate for the health job, anti-abortion groups have assailed her record and vowed to fight her confirmation.

Obama Adminstration Begins Process to Reverse Bush Religious Refusal Reg

Wash. Post: Obama Administration to Reverse Bush Rule on 'Conscience' Regulation, by Rob Stein:

Policy Provides Sweeping Federal Protections to Health-Care Workers Who Refuse to Provide Care That Violates Their Beliefs

The Obama administration has begun the process of rescinding sweeping new federal protections that were granted in December to health-care workers who refuse to provide care that violates their personal, moral or religious beliefs.

The Office of Management and Budget announced this morning that it was reviewing a proposal to lift the controversial "conscience" regulation, the first step toward reversing the policy. Once the OMB has reviewed the proposal it will published in Federal Register for a 30-day public comment period....

The administration took the step because the regulation was so broadly written that it could provide protections to health-care workers who object not only to abortion but also to a wide range of health-care services, said the HHS official, who asked not to be named because the process had just begun.

Kirsten Smolensky on Creating Children with Disabilities -- Plus Responses

Kirsten Rabe Smolensky (University of Arizona) - Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions:

Using preimplantation genetic diagnosis (PGD), parents can screen embryos for genetic traits such as deafness and Achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent trend raises the important legal question of whether children can sue their parents in tort for selecting disabling genetic traits.
 
This article suggests that children should be able to successfully sue their parents who engage in certain direct genetic interventions. Tort law should protect a child's moral right to an open future where parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths. In reaching this conclusion, the article addresses various barriers to tort liability, including "no duty" arguments, parental tort immunity, and a variety of constitutional concerns.

Jaime S. King (Hastings) - Duty to the Unborn: A Response to Smolensky:

This article responds to Professor Kirsten Smolensky's article in Hastings Law Journal titled Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions by arguing in favor of creating a duty for individuals to act as reasonably prudent parents with respect to their preimplantation reproductive decisions. In addition, the article advocates use of a balancing test to determine the reasonableness of parents' choices when compared to the risks associated with using genetic testing and assisted reproductive technologies. The article concludes with an argument for national regulation as the primary social response to challenges associated with assisted reproductive technology rather than tort liability.

The abstract of another response by I. Glenn Cohen was earlier posted on this blog and is available here.

Symposium on Protecting Women's Privacy

William and Mary Journal of Women and the Law Symposium

Starts: February 28, 2009 at 8:30 AM
Ends: February 28, 2009 at 4:30 PM
Location: McGlothlin Courtroom, Law School
Contact: [email protected]

Summary

On Feb. 28, the W&M Journal of Women and the Law will host its annual symposium. The 2009 event is titled "From the Courtroom to the Mother's Womb: Protecting Women's Privacy in the Most Important Places."

Full Description

2009 William and Mary Journal of Women and the Law Symposium
Title: From the Courtroom to the Mother's Womb: Protecting Women's Privacy in the Most Important Places

This year the Journal of Women and the Law has gathered six dynamic speakers from law schools around the country to speak on this year's Symposium topic: Women and Privacy Laws. Presentations will range from discussions on prostitution and pornography to reproductive rights privacy, to anonymity in online social networks, and finally to court records.

The symposium is free, but pre-registration is appreciated. RSVP to [email protected].

8:30:
Reception in Law School Lobby

9:15:
Welcome (McGlothlin Courtroom)

9:30: 
Ann Bartow, University of South Carolina School of Law:  Johns, Pimps and Prostitutes

10:30:
Richard Storrow, CUNY School of Law: Infertile Women, Autonomy, and the Maternal-Fetal Conflict in Clinical Care

11:30:
Rebecca Hulse, William & Mary Law School:  Privacy or Access? The Public/Private Distinction in Domestic Violence Court

12:30: Lunch

1:20:
Bridget Crawford, Pace University Law School: Privacy, Pregnancy and Taxation

2:20:
Caitlin Borgmann, CUNY School of Law: Abortion, the Undue Burden Standard, and the Evisceration of Women's Privacy

3:20:
Danielle Citron, University of Maryland Law School: Cyber Civil Rights

South Carolina House Passes 2-Visit Requirement for Abortions

Via the Daily Women's Health Policy Report: South Carolina House Passes Bill Requiring Mandatory Waiting Period for Abortions

South Carolina's House on Tuesday voted 83-28 to approve a bill (H. 3245) requiring women to wait at least 24 hours after an ultrasound before receiving an abortion, the AP/Rock Hill Herald reports. The bill, called the "two-visit bill" by critics, increases the state's mandatory waiting period from one hour. Advocates for the measure said it will give women time to reflect on their decision, as well as put South Carolina in line with a majority of states that have similar laws. Some Democrats noted that other states do not connect the waiting period with an ultrasound. Rep. Steve Parker (R) said the bill "will save lives" and that "[i]f we save one life, I think it's worthwhile."

According to the AP/Herald, Republicans defeated efforts to include provisions in the bill exempting rape survivors and protecting the jobs of women who make the two-day trip. Critics of the bill who proposed the amendments said requiring two trips creates a burden for low-income women living in rural areas because they have to take two days off work and arrange travel to one of three clinics in the state that offer abortion services.

Trial Against Kansas Abortion Provider Dr. George Tiller Set to Begin in March

Feminist Wire Daily Newsbriefs: Tiller Case to Move Forward in Kansas Court:

A motion by Dr George Tiller's lawyers to dismiss the criminal case against him was denied yesterday by Sedgwick County District Judge Clark Owens. This pre-trial motion sought to dismiss criminal charges against Dr. Tiller of Wichita, Kansas for allegedly violating a state law requiring an "independent" second physician's concurring opinion before performing later term abortions. Tiller is an abortion provider who is one of the few late-term abortion providers in the US that serves women with troubled pregnancies and complicated health problems....Tiller’s trial is scheduled to begin March 16.

Here is background on the case from the Daily Women's Health Policy Report:

A pretrial hearing in the case against Kansas late-term abortion provider George Tiller adjourned "abruptly" last week, with testimony scheduled to resume in January, the AP/Wichita Eagle reports (Hegeman, AP/Wichita Eagle, 11/21). Tiller is accused of violating a 1998 Kansas state law on post-viability abortions that requires a second, independent in-state physician to confirm that a pregnant woman would suffer "substantial and irreversible" harm to "a major bodily function" without an abortion (Daily Women's Health Policy Report, 9/17). In the pretrial hearing, Tiller's attorneys are seeking dismissal of the charges or suppression of evidence because of alleged "outrageous conduct" by former Kansas Attorney General Phill Kline (R), who initiated the investigation of Tiller (AP/Wichita Eagle, 11/21). Kline was succeeded as attorney general by Paul Morrison (D), who later resigned after it was revealed that he was having an affair with a woman who worked in the attorney general's office. The defense also alleges that the woman, Linda Carter, pressured Morrison to pursue the charges against Tiller (AP/Kansas City Star, 11/20).

Meanwhile, the AP is reporting that a formal ethics complaint is expected against former Kansas Attorney General Kline.

Carter Dillard on the Moral and Legal Duties of Prospective Parents

Carter Dillard (Loyola University New Orleans) has posted Child Welfare and Future Persons on SSRN. Here is the abstract:

While ethicists have delved deep into the rights and wrongs of procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore prospective children and their interests, and the misperception that a fundamental rights boundary absolutely forbids state intervention. But recently a small door has opened in this wall between law and ethics: as courts faced with having to repeatedly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent builds and the possibility of ex ante regulation of procreation and parenthood grows, a moral and legal debate is developing over what duties prospective parents owe their future children and the society with which those children will interact. But increasingly the debate is a muddle of inapposite and conflicting state probation and constitutional law in search of statutory guidance. This Article attempts to cut through it, and to state the intermediate-level principle at its core:

A prospective parent has a moral and legal duty to be fit when he or she has a child, one arising from or creating correlative claim-rights shared by the state and prospective children, and a prospective parent has no liberty to have a child until he or she is fit.
 
The Article then argues for codification of this principle, to be applied in cases of recurring child abuse and neglect.

University of Baltimore Law School Hosts Second Annual Feminist Legal Theory Conference

University of Baltimore School of Law: Applied Feminism: How Feminist Legal Theory is Changing the Law

The University of Baltimore School of Law will hold its Second Annual Feminist Legal Theory Conference on Friday, March 6, 2009. The conference will bring together law students, legal academics, practitioners and activists to explore the concrete ways in which feminist legal theory is (or is not) changing the law. The day's events will conclude with a keynote presentation from Dr. Maya Angelou.

William Saletan on Abortion and the "Culture Wars"

NY Times Op-Ed: This Is the Way the Culture Wars End, by William Saletan:

PRESIDENT OBAMA wants to end the culture wars. He recently called for “common ground” on abortion reduction and an end to the “stale and fruitless debate” over family planning. His joint address to Congress this week could be an opportunity to change that debate. But to make a real difference, he’ll have to tell two truths that the left and the right don’t want to hear: that morality has to be practical, and that practicality requires morals....

Mr. Obama, like many other pro-choicers, doesn’t like to preach on these issues. He talks about family planning purely in terms of access and affordability. Overseas, that’s a huge challenge. But in this country, the principal cause of abortions isn’t that we can’t get birth control. It’s that we don’t use it.

Beth Burkstrand-Reid on Women's Health and Reproductive Rights

Beth A. Burkstrand-Reid (University of Illinois College of Law) has posted: The Invisible Women: Availability and Culpability in Reproductive Health Jurisprudence on SSRN. Here is the abstract:

Women’s health is widely assumed to be a central consideration in reproductive rights cases. I examine court decisions relating to contraception, abortion and childbirth and demonstrate that while this assumption has historical validity, consideration of women’s reproductive health as a protectable interest is declining in reproductive health cases. This is being accomplished in significant part through application of one or both of two recurring devices.

First, judges regularly -- and often inaccurately -- cite the theoretical availability of alternative reproductive health services as proof that women’s health won’t suffer even if a law curtailing reproductive rights is upheld. I label this the “availability tool.”

Second, when alternatives are not available, decisions blame women for the lack of availability. I call this the “culpability tool.” Application of the availability and culpability tools in reproductive health cases regularly results in a truncated analysis of how laws impact women’s reproductive health. 

I show that while the availability and culpability tools can be applied in a manner that appropriately considers women’s health interests, in practice, the tools are often used incorrectly, and thus may contribute to the undervaluing of women’s health in reproductive health jurisprudence.

Spain May Legalize Early Abortions

Telegraph.co.uk: Spain prepares to fully legalise abortion, by Fiona Govan:

Spain is preparing to fully legalise abortion for the first time to allow women to have terminations on demand in the early stages of pregnancy.

The move has put the Socialist government on a collision course with the   Catholic Church which has argued the need "to restrict and not expand   abortion" in Spain.

A parliamentary committee presented recommendations to Congress this week that   included legalising early stage abortions, while gradually imposing more   restrictions as pregnancies progress.

The proposals will form the basis of a draft bill to be presented to   Parliament later this year that will tackle one of the traditionally Roman   Catholic nation's final taboos and bring the abortion law in line with most   other European countries.

State Legislative News

The North Dakota Senate has approved a measure that would require clinics offering abortion to post signs telling patients that no one can force them to have an abortion (AP story here).  The Arkansas Senate has passed a bill that parallels the federal "Partial-Birth Abortion" Ban Act, banning abortion procedures with no health exception (NY Times story here).

Oakland, CA, Pastor Sentenced Under Ordinance Limiting Abortion Clinic Protests

San Francisco Chronicle: Pastor sentenced for Oakland abortion protest, by Henry K. Lee:

A pastor at a Berkeley church was sentenced Thursday to three years' probation and fined $1,000 after becoming the first person convicted under an Oakland ordinance barring protesters from coming within 8 feet of anyone entering an abortion clinic.

Walter Hoye could have faced up to two years in jail after a jury convicted him last month of two misdemeanor counts of unlawfully approaching patients at the Family Planning Specialists Medical Group at Second and Webster streets.

The case was an emotional one, and pro-choice and anti-abortion advocates jammed the Oakland courtroom for the sentencing hearing. Dozens of people unable to find seats filled the hallway outside....

The "medical safety zone" around abortion clinics was set by the Oakland City Council in 2007. Abortion protesters must stay at least 8 feet from women, staff or escorts entering the buildings.

Kansas Gov., Possible Nominee For Health Secretary, Is A Pro-choice Catholic

NY Times: Kansas Governor Seen as Top Choice in Health in Health Post, by Peter Baker & Robert Pear:

Gov. Kathleen Sebelius of Kansas, an early Obama ally with a record of working across party lines, is emerging as the president’s top choice for secretary of health and human services, advisers said Wednesday. 

Should she be nominated, Ms. Sebelius would bring eight years of experience as her state’s insurance commissioner as well as six years as a governor running a state Medicaid program....

One issue that could draw attention is her stance on abortion. A Roman Catholic who says abortion is wrong, Ms. Sebelius vetoed a bill requiring clinics to report information on why a late-term abortion was performed, drawing the condemnation of the archbishop of Kansas City, Kan.

NYC Plan to Convert Catholic Schools to Charter Schools Faces Opposition

NY Times: Hurdles for a Plan to Turn Catholic Classrooms Into Charter Schools, by Javier Hernandez:

To the Roman Catholic bishop of Brooklyn, it seemed like an act of salvation on par with Noah and the ark. Mayor Michael R. Bloomberg heralded it as a “win-win situation.”

They had unveiled a plan to convert four Catholic schools scheduled for closing into public charter schools, giving their students and teachers a soft landing and avoiding a crippling infusion of children into crowded neighborhood schools. But despite the celebratory air this month as Mr. Bloomberg and the bishop, Nicholas A. DiMarzio, announced the idea, the plan faces significant legal, political and educational hurdles....

The obvious First Amendment issues may be among the easiest to resolve, legal and educational experts say. Crucifixes would be obscured, proselytizing by teachers would be banned during school hours and religious portions of the curriculum would be jettisoned. But what about the city’s required fourth-grade health curriculum? The church objects to the sex-education components on moral grounds, and in several cases where the city already leases school buildings from the diocese, conflicts have been avoided by moving students off campus for the health portion.

New Annotated Bibliography on International Abortion Access

The International Reproductive and Sexual Health Law Programme, Faculty of Law, University of Toronto has published Access to Abortion Reports: An Annotated Bibliography.  From the Introduction:

This annotated bibliography brings together government reports, non-government reports, and secondary literature that investigate women's access to legal abortion services under different legal regimes. These reports are distinct from reports on the incidence of induced abortion.

Access reports document the implementation or effects of laws regulating access to abortion services.
. Do women have access to the services to which they are legally entitled?
. What barriers impede women's safe and effective access to legal abortion?
. What are the consequences?
. If denied access to legal services, where do women obtain abortion services?

The purpose of this annotated bibliography is to contribute to other efforts to improve understanding of existing gaps between the formal legal regulation of abortion and the operation of laws in practice. The reports are listed alphabetically by region and country. Where reports are unavailable, annotations are based on secondary material. These annotations seek to identify: the report's central thesis; barriers affecting access to safe abortion; consequences of the legal regulation of abortion; and recommendations for legal reform. Restatements of law, where provided, pertain to the law as it was in effect at the time of the report's publication.

Symposium: Legal Developments and Challenges in Reproductive Justice

Cardozo Journal of Gender and Law is hosting a Symposium on Legal Developments and Challenges in Reproductive Justice:

In this time of political change and economic uncertainty, the status of reproductive rights is shifting rapidly. Advocates are trying to understand these rights broadly and inclusively to anticipate potential avenues for development of social justice and its obstacles.
What do new lawyers need to know about the present landscape to help achieve reproductive justice?

Wednesday, February 25, 2009

8:30am - 5:30pm

Benjamin N. Cardozo School of Law, Moot Court Room

55 Fifth Avenue, New York City

India: Supreme Court to Review Abortion Law

The Hindu News Update Service: Supreme Court to examine law on abortion:

The 38-year-old abortion law was on Friday challenged in the Supreme Court which sought a response from the government for continuing with a provision prohibiting termination of pregnancy after 20 weeks even if there was a fatal risk to the mother and the foetus.

The apex court, which at first was of the view that the issue could be raised at the government level, issued a notice to the Centre after it was contended by a Mumbai doctor that the 20-week cut of limit for abortion had become obsolete as in developed countries it had been extended to 26 weeks.

The Short List for Supreme Court Vacancies

Wash. Independent: Ginsburg’s Cancer Surgery Sparks Speculation About Future Justices, by Daphne Eviatar:

The news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery yesterday for early-stage pancreatic cancer has already led to much speculation about who President Obama is likely to pick for the next court vacancy.  Although Ginsburg, a tiny but tough 75-year-old who never missed a day on the court  — even during treatment for her last bout of cancer (she had colon cancer in 1999) — has said nothing about stepping down anytime soon, court-watchers do love to speculate. Justice John Paul Stevens, 88, has long been expected to step down at some point during this administration, but judging from his appearance at the president’s inauguration, he seems to be doing very well these days.

In any event, here are some of the likely candidates expected to be considered for the next vacant Supreme Court post.

Harvard Law School Dean Elena Kagan Mentioned as Possible Future Replacement for Justice Ginsburg

Wash. Post: Harvard Dean, Chosen as Solicitor General, Goes Before Senators, by Robert Barnes:

When Harvard Law School hosted a huge dinner a few years ago for the conservative Federalist Society, the school's dean, Elena Kagan, received such long and enthusiastic applause that she felt compelled to hold up her arms in mock protest.

"You are not my people," she said to laughter -- and more applause.

Kagan will try to retain the reputation as the liberal whom conservatives could like when the Senate Judiciary Committee today considers her nomination to become the nation's solicitor general, the "10th justice" who represents the government before the Supreme Court and the nation's appeals courts.

President Obama's choice is the first woman nominated for the job, and she has the support of each of the last eight men who have held the title, starting with President Ronald Reagan's solicitor general, Charles Fried, who calls her "awesomely intelligent" and recounted the Federalist Society dinner story for the Senate committee....

But senators may want to know about Kagan's legal philosophy not just because of her pending nomination but for the future. Hers is a name found on most lists of potential Supreme Court nominees, an issue that has become more pertinent because of the ages of some of the justices and Justice Ruth Bader Ginsburg's recent disclosure that she is being treated for pancreatic cancer.

FoxNews: Kagan Confirmation Hearing Doubles as Vetting for Potential New Justice:

The woman who would be confirmed as solicitor general in the Obama administration got some pointed questioning Tuesday       from senators who may be asked to vote for her for another post -- Supreme Court justice.

Elena Kagan, the Harvard Law School Dean and friend of President Obama, is rumored to be on the "short list" of candidates for the high court and a possible replacement for Justice Ruth Bader Ginsberg, the only woman on the court, left-leaning and in questionable health following pancreatic cancer surgery within just this past week.