Reproductive Rights Prof Blog

Pro-Choice Groups Caught Off Guard by HHS's New Reg on Abortion Coverage in High-Risk Insurance Pools

Politico: Abortion groups caught off guard, by Sarah Kliff:

Anti-abortion groups leapt into action last month when the National Right to Life Committee warned that elective abortions would be covered under a Pennsylvania insurance program created by the health care reform law. . . .

And within a day, the anti-abortion groups got what they wanted: a nationwide ban on coverage for most elective abortions in the so-called high-risk insurance pools, a position reaffirmed in a Health and Human Services regulation released on Thursday.

Abortion rights advocates were caught completely off-guard. . . .

FDA Approves First Trial of Embryonic Stem Cell Treatment on Humans

NY Times: Prescriptions blog: F.D.A. Clears Way for Embryonic Stem Cell Trial Using Patients, by Andrew Pollack:

The world’s first authorized test in people of a treatment derived from human embryonic stem cells has been cleared to begin by the Food and Drug Administration.

The trial will test cells developed by Geron Corporation and the University of California, Irvine in patients with new spinal cord injuries. . . .

Brigham Fordham on Genetic Interventions in Favor of Disability

Brigham A. Fordham (Phoenix School of Law) has posted Disability and Designer Babies: Rethinking the Debate Over Genetic Interventions in Favor of Disability on SSRN. Here is the abstract:

If deaf parents purposely use new genetic technologies to give their child the genes for deafness, have the parents harmed the child? This and similar questions regarding parents who make genetic choices in favor of disability have preoccupied much of the scholarship regarding new artificial reproductive technologies. Some have argued that we should determine whether a child has been harmed by pondering whether the child’s “right to an open future” has been violated by the parents’ genetic intervention. If that right is violated, some say, the parents should be subject to tort liability for inflicting harm upon the child.

This Article considers the consequences of attempting to hold parents liable in tort for making genetic decisions in favor of socially disfavored physical attributes, such as disabilities. A legal scheme that asks judges and juries to separate “good” physical attributes from “bad” ones is problematic, especially when dealing with disabilities. Parents, who have personal experience with the physical traits in question, are better equipped to decide what is best for their offspring than jurors who have less experience and less at stake. Using the “open future” framework to second-guess parental decisions about socially disfavored physical traits only disrupts the parent-child relationship and suggests that discriminatory attitudes are natural and acceptable.

Moreover, the concern over genetic interventions in favor of disability is largely misplaced. Disabled parents who want disabled children are few in number and diverse in purpose. The recent focus on these parents in the debate over genetic intervention improperly assumes that such parents are incapable of making good choices and that the physical traits they prefer are inherently damning.

 

"Pregnancy Denial" Among French Women Leads to Infanticide

Time Magazine: Why Are French Women Killing Their Babies?, by Bruce Crumley:

The question is as horrifying as it is important to ask: Why are a rising number of French women killing their newborn babies? Finding the answer has become a matter of urgency following the discovery on Wednesday of eight infants allegedly smothered to death and buried by their mother in northern France. And with that case marking at least the fifth instance of multiple infanticide reported in France since 2003, it has become vital for the nation to confront the phenomenon that appears to be behind it all: a mental condition known as pregnancy denial.

This latest case of newborn murder in France was uncovered in the northern town of Villiers-au-Tertre, after eight tiny bodies were found buried in the gardens of two separate homes. . . .

In India, Young Unmarried Women Face Obstacles to Early Abortion

Guttmacher News Release: YOUNG, UNMARRIED WOMEN IN INDIA FACE OBSTACLES TO OBTAINING EARLY ABORTIONS:

A new study by researchers at the Population Council, New Delhi, shows that many young, unmarried Indian women who received abortion services in 2007–2008 faced obstacles to obtaining the procedure early in their pregnancies. Shveta Kalyanwala and colleagues surveyed 549 women in the Indian states of Bihar and Jharkhand who had an abortion. Among these women, 84% decided before the end of the first trimester to have an abortion, but only 75% were able to obtain one during that time period. The authors believe that several factors contributed to women having an abortion later in pregnancy, including a delayed recognition of pregnancy, lack of awareness that abortion is legal for unmarried women and lack of support from partners and family.

While 83% of women surveyed realized they were pregnant within the first two months of their pregnancy and 91% within the first trimester, 9% did not realize it until the second trimester. Furthermore, only 22% of women had been aware prior to becoming pregnant that abortion services were legally available to unmarried women. . . . 

DC Metrobus Ads Promote Free Female Condoms

Washington Examiner: D.C. promotes free female condoms in Metrobus ads, by Joey Flechas:

The District has become one of the first cities in the nation to distribute female condoms for free, and the Washington AIDS Partnership has rolled out a campaign to use the condoms as a way to combat the spread of HIV.

The "DC Doin' It!" campaign started this week, with ads appearing on the sides of 460 Metrobuses and brochures being distributed through community partners to promote the Female Condom Initiative. . . .

Obama Administration Issues Rule Banning Abortion Coverage In High Risk Insurance Pools

ACLU Press Release:

WASHINGTON –The Obama administration today issued a new interim rule excluding abortion coverage from the Pre-Existing Condition Insurance Plans, or high-risk insurance pools, created by the recently enacted Patient Protection and Affordable Care Act.
 
Even using their own private funds, individuals will not be able to buy policies that cover abortion in these pools. The only exemptions will be for women who have been raped, who are the victims of incest or who will likely die if they carry a pregnancy to term. Under this new rule, women with serious health conditions such as heart disease may be forced to carry pregnancies to term despite serious harm to their health.
 
High-risk pools will exist until 2014 when the state exchanges become operational, as provided for in the Affordable Care Act. The pools will allow people with pre-existing conditions who have been denied coverage on the individual market to purchase health insurance. Women participating in high-risk insurance pools are especially vulnerable and may have a special need for abortion coverage.
 
The following can be attributed to Laura W. Murphy, Director of the American Civil Liberties Union Washington Legislative Office:
 
“The Obama administration has put up an unnecessary barrier to comprehensive health care to the women who need it most by singling out abortion in these high-risk pools. Coming from a pro-choice administration, this is an unfortunate decision. The government should not make personal medical decisions for women; every woman should have the ability to decide what is right for her health and her family.”

Study Shows Babies Born Prematurely Are More Likely to Suffer Serious Health Risks

Time Magazine: Study: The Health Risks of Late Preterm Births, by Alice Park:

In the largest study of its kind, researchers find that the risk of severe breathing problems rises significantly in babies born prematurely, even those born in the so-called late preterm period.

Health experts consider babies born at or after 37 weeks' gestation to be full term, and those born between 34 weeks and 37 weeks to be late preterm. (Preterm is defined as less than 34 weeks' gestation.) Many previous studies have shown that compared with full-term babies, those who are born too early are at higher risk of dying shortly after delivery and are more likely to suffer neonatal complications that require lengthy stays in the hospital. . . .

Backers of Colorado's Personhood Measure Regroup With a 2010 Ballot Proposal

Boston Globe/Denver Post: Backers of ‘personhood’ measure regroup:

Colorado is the only state in the union with a 2010 ballot proposal to redefine what a person is. Organizers of Amendment 62 are hoping to turn their 3-to-1 defeat at the polls in 2008 into constitutional change.

If approved, the measure would define the term “person’’ and rights in the state Constitution “to apply to every human being from the beginning of the biological development of that human being.’’

The 2008 ballot proposal, disapproved by almost 73 percent of Colorado voters, sought to define personhood as beginning with a fertilized human egg.

Organizer Keith Mason said the 2010 campaign strategy entails a revolutionary tool called MyCampaignTracker.org. More than 1,300 people have connected to work for Amendment 62. . . .

Research Shows Ob/Gyns Are Deterred From Providing Abortion Services Due to Stigma and Formal and Informal Policies

Guttmacher News Release: Obstacles to the Integration of Abortion Into Obstetrics and Gynecology Practice (Perspectives on Sexual and Reproductive Health, Volume 42, Number 3, September 2010):

CONTEXT: Obstetrics and gynecology residents who are trained in family planning and intend to provide abortions after residency often do not ultimately do so. The extent of the professional barriers physicians face trying to integrate abortion into their practice is unknown.

METHODS: In 2006, in-depth interviews were conducted with 30 obstetrician-gynecologists who had graduated 5–10 years earlier from residency programs that included abortion training. Interviews about physicians' experiences with abortion training and practice were coded and analyzed using a grounded theoretical approach.

RESULTS: Eighteen physicians had wanted to offer elective abortions after residency, but only three were doing so at the time of the interview. The majority were unable to provide abortions because of formal and informal policies imposed by their private group practices, employers and hospitals, as well as the strain that doing so might put on relationships with superiors and coworkers. Restrictions on abortion provision sometimes were made explicit when new physicians interviewed for a job, but sometimes became apparent only after they had joined a practice or institution. Several physicians mentioned the threat of violence as an obstacle to providing abortions, but few considered this the greatest deterrent.

CONCLUSIONS: The stigma and ideological contention surrounding abortion manifest themselves in professional environments as barriers to the integration of abortion into medical practice. New physicians often lack the professional support and autonomy necessary to offer abortion services.

Neil Siegel and Reva Siegel on Pregnancy, Equal Protection, and Sex-Role Stereotyping

Neil Siegel (Duke Law School) and Reva Siegel (Yale Law School) have posted Pregnancy and Sex-Role Stereotyping, from 'Struck' to 'Carhart' on SSRN. Here is the abstract:

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In short, the Court’s 1970s cases hold that the antistereotyping principle constrains laws that classify by sex, but do not find the principle violated where government regulates pregnancy. Our Essay unsettles this familiar story by making three points.

First, we show that in the 1970s, Ruth Bader Ginsburg and the women’s movement argued that the antistereotyping principle applied to pregnancy; the movement viewed the regulation of pregnant women as a paradigmatic site of sex-role stereotyping. Second, we show that even though the Court initially had difficulty seeing that sex role stereotypes were sometimes implicated in cases concerning the regulation of pregnancy, the Court’s constitutional decisions have increasingly come to recognize the relationship between pregnancy discrimination and sex discrimination. Third, we suggest that the Court and other constitutional interpreters should revisit Geduldig and read the decision’s holding more precisely - and narrowly - as recognizing that, while there are legitimate reasons for regulating pregnancy, such regulation can be animated by invidious or traditionally stereotypical judgments. This understanding has implications for both equal protection and reproductive rights cases.

GOP Candidates for Georgia Governor Too Focused on Abortion, Some Voters Feel

Atlanta Journal-Constitution: Handel, Deal focus on abortion; voters want to hear about jobs, by Aaron Gould Sheinin:

Contrary to popular belief, Karen Handel and Nathan Deal actually have discussed more than just abortion in their runoff campaign for the GOP nomination for governor.

But, for some voters, it's still too much. . . .

One week since Handel and Deal emerged as the top two finishers in the primary, their campaigns for the Aug. 10 runoff have narrowed in focus, tone and appeal. With five fewer candidates now running, the pair are focusing exclusively on each other and trying to find any advantage they can to persuade Republican voters to return to the polls. . . .

California Likes Republican Senate Candidate Fiorina, But Not Her Anti-Abortion Stance

Politico: Fiorina faces challenge on abortion, by Emily Schultheis:

Former Hewlett-Packard CEO and Republican Senate candidate Carly Fiorina is drawing almost the same support from California voters as incumbent Democratic Sen. Barbara Boxer, according to recent polls.

Fiorina’s position on abortion? Not so much.

A full 71 percent of Californians favor either keeping the state’s liberal abortion laws intact or making abortion easier to obtain, according to new data from the Field Poll. The same percentage said they support the Supreme Court’s decision in Roe v. Wade.

That’s a potential obstacle for Fiorina as she attempts to become the first anti-abortion candidate to win a California race at the top of the ticket since 1986. . . . 

Striving for Equally Shared Parenthood

NY Times: Motherlode blog: Parents as Teammates, by Lisa Belkin:

Speaking of equal parenting, last week’s letter from the mom who was disappointed in her husband’s parenting, while he was angry that she was the favored parent, brought a thoughtful letter from Marc and Amy Vachon. They guest-post periodically on Motherlode, and their book, “Equally Shared Parenting: Rewriting the Rules for a New Generation of Parents,” is a primer on a collaborative lifestyle.

The problems this couple have, they would argue, can’t be understood without looking at the larger cultural context. . . .

Courtney Joslin on Protecting the Families of Lesbian and Gay Parents Across State Lines

Courtney G. Joslin (UC Davis School of Law) has posted Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines on SSRN. Here is the abstract:

Until recently, when a lesbian couple had a child through artificial insemination, only one member of the couple was considered the legal parent of the resulting child at the moment of birth. Today, in a small but growing number of states, this is no longer the case. Instead, in this small group of states, from the moment of birth, both members of the couple are treated as legal parents of a child born to the couple through artificial insemination. While this advancement in state law is tremendously important for many children, the resulting protections are extremely tenuous. These children are assured protection only so long as they and their families remain in one place, never crossing state lines. This essay explores why this legal vulnerability exists and offers a proposal for mitigating this potentially harmful state of affairs.

Anti-Choice Group Backs Avowedly Pro-Choice Candidate for Mass. Governor

Boston Globe: Abortion foes lend support to Cahill, by Stephanie Ebbert:

Wins endorsement despite backing for right to choose

Independent candidate for governor Timothy P. Cahill last week picked up the endorsement of a key Massachusetts antiabortion group despite his support for abortion rights, which he promoted on his campaign website just two months ago as one of his “core values.’’

The Massachusetts Citizens for Life State Political Action Committee announced its endorsement of Cahill last Monday, saying he would be an “outstanding advocate for the unborn, the disabled, and the elderly.’’ . . .

But Cahill’s spokeswoman Amy Birmingham maintained yesterday that he remains pro-choice. On Friday, she said, “He would never do anything to overturn Roe v. Wade.’’ . . .

Student Writing Competition on Women's Bodily Freedom

CALL FOR PAPERS

WOMEN'S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA AND THE WASHINGTON COLLEGE OF LAW:

LEGAL ESSAY WRITING COMPETITION

The status and future of women's bodily freedom in American policy-making and jurisprudence.

The Modern American announces the American University Washington College of Law essay competition, open to all full-time and part-time law students enrolled in and attending an accredited law school in the United States.

DEADLINE: October 1st, 2010, at noon (Eastern Standard Time).

Download Call for Papers

Daniel Sperling on Reproductive Law and Policy in Israel

Daniel Sperling (The Hebrew University of Jerusalem) has posted Commanding the ‘Be Fruitful and Multiply’ Directive: Reproductive Ethics, Law and Policy in Israel on SSRN. Here is the abstract:

The article provides an up-to-date overview of reproductive ethics, law and policy in Israel and discusses cultural and social factors explaining the fact that Israel has one of the highest fertility and birth rates in the World, especially within the developed countries. The article concludes with three observations on the future of reproductive law and policy in Israel.

Carter Dillard on Procreation, Harm, and the Constitution

Carter Dillard (Loyola University New Orleans College of Law) has posted Procreation, Harm, and the Constitution on SSRN. Here is the abstract:

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional?

These questions are not new, but my answers to them are and add to the existing literature in several ways. First, I offer a possible resolution to a recent debate among legal scholars regarding what has been called the nonidentity problem and its relation to the right to procreate. Second, using that resolution, I provide a novel constitutional argument that at least begins to justify limiting the right to procreate.

This Essay proceeds in three parts. Part I introduces the nonidentity problem, explains why it creates seemingly irresolvable dilemmas for constitutional law, and sketches out two opposing positions in the legal debate. Part II uses a common exception to the nonidentity problem to buttress Lukas Meyer’s solution: the notion of threshold harm. If my argument holds true, one cannot admit there is such a thing as a life not “worth living” without endorsing the notion that future persons deserve lives above some minimum threshold of well-being. Finally, Part III analogizes threshold harm to the state’s compelling interest in protecting the welfare of living children. It demonstrates that if the state can limit the fundamental right to parent children when the parenting would cause the children’s lives to be below a defined threshold of well-being, then the state can limit the fundamental right to procreate.

 

Supreme Court at its Most Conservative in Decades

NY Times: Court Under Roberts Is Most Conservative in Decades, by Adam Liptak:

WASHINGTON — When Chief Justice John G. Roberts Jr. and his colleagues on the Supreme Court left for their summer break at the end of June, they marked a milestone: the Roberts court had just completed its fifth term.

In those five years, the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.

And for all the public debate about the confirmation of Elena Kagan or the addition last year of Justice Sonia Sotomayor, there is no reason to think they will make a difference in the court’s ideological balance. Indeed, the data show that only one recent replacement altered its direction, that of Justice Samuel A. Alito Jr. for Justice Sandra Day O’Connor in 2006, pulling the court to the right. . . . .