Reproductive Rights Prof Blog

I. Glenn Cohen on Regulating Reproduction and "Best Interests of the Child" Justifications

I. Glenn Cohen (Harvard Law School) has posted Regulating Reproduction: The Problem with Best Interests on SSRN. Here is the abstract:

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to re-productive technologies? Should the state fund abstinence education?

One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal. The Article demonstrates that while parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state interventions that seek to influence whether, when, and with whom individuals reproduce, such justifications are problematic and misleading. The Article’s aim is nothing short of re-writing our way of thinking about the regulation of reproduction.

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Nadia Sawicki on Abortion "Informed Consent" Debate

Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy) has posted The Abortion Informed Consent Debate: More Light, Less Heat on SSRN. Here is the abstract:

One of the most notable developments in American abortion policy is the expansion of state abortion informed consent policies. South Dakota, for example, now requires physicians to state that the abortion will “terminate the life of a whole, separate, unique, living human being.” Oklahoma law prohibits a medical provider from performing an abortion unless he has first performed an ultrasound, “display[ed] the ultrasound images so that the pregnant woman may view them,” and provided a verbal description thereof. Such laws have faced significant criticism from medical ethicists and legal scholars, who argue that the laws are ideologically motivated and fundamentally inconsistent with the doctrine of informed consent.

While recognizing the potentially dubious nature of these new requirements, this Article contends that the current articulation of the argument from informed consent does not serve critics’ purposes as effectively as they might hope. Contrary to popular belief, the doctrine of informed consent provides limited guidance about appropriate procedures in the clinical context – including what information must be disclosed, how it should be disclosed, and the motivations of the discloser. Rather, as this Article demonstrates, informed consent is and has always been a socially constructed doctrine, one highly dependent on implicit value judgments that are just now being made explicit in the context of elective abortion.

By emphasizing a more nuanced understanding of informed consent, this Article aims to defuse and civilize the heated debate surrounding the new breed of abortion disclosure requirements. More importantly, it offers critics the opportunity to bolster their challenges to some of the most problematic provisions, such as those requiring disclosure of disputed factual information, those requiring disclosure of non-medically material information in the clinical context, and those requiring patients to view information or images against their will. Finally, it encourages critics to shift their emphasis from informed consent-based arguments towards potentially more persuasive arguments grounded in public policy and constitutional theory.

Supporters Discuss Defeat of Personhood Amendment

The Wall Street Journal: 'Personhood' Supporters Regroup After Big Defeat, by Cameron McWhirter:

Brandon Sanford, a 22-year-old finance major at Mississippi College, voted this week against a proposed amendment to the state constitution that would have declared fertilized human eggs to be people with legal rights.

"It just wasn't very clear to me what the vote would mean for women, contraception, abortion," said Mr. Sanford, who personally opposes abortion. "It was way too broad."

This college in the heart of the Bible Belt should have been friendly territory for supporters of the so-called personhood effort. Founded in 1826, Mississippi College is affiliated with the state Baptist Convention, which pushed for the amendment's passage.

But even in this area the amendment flopped, despite strong political, religious and financial backing by many residents in the suburbs of Jackson. . . .

Defeat of ‘Personhood’ Initiative Linked to Concerns Over Access to Birth Control

Politico: Birth control seen as a factor in 'personhood' vote, by J. Lester Feder:

Concerns about women’s access to contraception contributed to the last-minute defeat of the Mississippi's "personhood" anti-abortion amendment, abortion rights supporters said after Tuesday’s vote.

The amendment, earlier seen as a shoo-in, lost by a 16 point margin in one of the most conservative and anti-abortion states in the country. Its supporters are seeking to get similar “personhood” initiatives on the 2012 ballot in several states, including Nevada, Ohio and Florida.

Opponents of the amendment, which would have given fetuses full rights as persons from the moment of fertilization and could have criminalized forms of birth control that prevent implantation, said it reflected a growing effort by the anti-abortion movement to target reproductive health services beyond abortion. And that, they said, places it out of step with public opinion even in a conservative state like Mississippi. . . .

The History and Politicization of Birth Control in the U.S.

NPR: How Birth Conrol And Abortion Became Politicized:

 

The first birth control clinic in the United States opened in 1916. It was operated by Margaret Sanger, who started the clinic after becoming outraged that she couldn't give her patients — poor women in the tenements on New York City's Lower East Side — information about contraceptive options.

 

"Sanger [went] to these squalid, crowded homes of these young women bearing many children who are begging her — while giving birth — for information about contraception," says historian Jill Lepore. "And it [was] illegal for her to give them any information."

 

Lepore's latest New Yorker piece chronicles the history and politicization of birth control in America. "From the start," she writes, "the birth-control movement has been as much about fighting legal and political battles as it has been about staffing clinics, because in a country without national health care, making contraception available to women has required legal reform.". . .

Voters Reject Mississippi Personhood Amendment

Huffington Post: Mississippi 'Personhood' Amendment Vote Fails, by Emily Wagster Pettus:

JACKSON, Miss. — Mississippi voters Tuesday defeated a ballot initiative that would've declared life begins at conception, a proposal that supporters sought in the Bible Belt state as a way to prompt a legal challenge to abortion rights nationwide.

The so-called "personhood" initiative was rejected by more than 55 percent of voters, falling far short of the threshold needed for it to be enacted. If it had passed, it was virtually assured of drawing legal challenges because it conflicts with the Supreme Court's 1973 Roe v. Wade decision that established a legal right to abortion. Supporters of the initiative wanted to provoke a lawsuit to challenge the landmark ruling. . . .

U.N. Rules Peru Must Amend Restrictive Abortion Law

Center for Reproductive Rights press release: U.N. Rules that Peru Must Relax Restrictions on Abortion:

Today, an international human rights body condemned Peru for violating the human rights of a young woman seeking legal abortion services in the country and ruled that the government must ease its restrictions on abortion.

In a groundbreaking decision issued in L.C. v. Peru—a case brought by the Center for Reproductive Rights and its partner organization in Peru PROMSEX—the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) ruled that Peru must amend its law to allow women to obtain an abortion in cases of rape and sexual assault; establish a mechanism to ensure the availability of those abortion services; and guarantee access to abortion services when a woman’s life or health is in danger–circumstances under which abortion is currently legal in the country.
 
“Once again, the U.N. has made it clear that denying access to essential medical services, including abortion, constitutes a violation of human rights,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “This young woman’s case illustrates the horrifying consequences when governments deny women access to the full range of reproductive health services that is their right. We will continue to press Peru to safeguard the reproductive rights of women not only on paper, but intheir daily lives.”
 
The case revolves around L.C.*, a 13-year-old rape victim, who was left seriously disabled after state health officials denied her a potentially life-saving abortion.

Over the course of four years, she was repeatedly raped by different men in her neighborhood. When she discovered that she was pregnant, she threw herself from the roof of a building—but the suicide attempt failed. The broken spine she suffered from the fall could have been repaired, but doctors refused to perform surgery because the procedure could harm her pregnancy. . . .

Mississippi Personhood Initiative Prompts "Provocative Philosophical Debate"

The Christian Science Monitor: Is an embryo a 'person'? Mississippi set to decide in abortion referendum, by Patrik Jonsson:

Initiative 26, a Mississippi ballot measure, asserts that 'personhood' begins at conception. The proposed state constitutional amendment, which challenges the 1973 Roe v. Wade abortion ruling, goes to voters Nov. 8.

After years of antiabortion groups whittling away at the edges of Roe v. Wade, Mississippi is poised to cut straight to the chase by asserting that "personhood" begins at conception, meaning that any type of abortion or postconception birth control could be considered murder.

Part of a salvo aimed at overturning Roe v. Wade, Initiative 26 is a ballot measure that comes up for a vote Nov. 8 and is backed by both the Republican and the Democratic gubernatorial candidates. . . .

Ultimately, says City University of New York law professor Caitlin Borgmann, the initiative's "extreme view of personhood" fails to "give us all the dignity and autonomy to wrestle with these decisions ourselves.... This is a morally complex question, but the problem with Amendment 26 is it makes it seem like a very simple question." . . .

Spokesperson for Mississippi Personhood Intiative Admits Amendment Would Outlaw Some Birth Control Methods

The Florida Independent: Personhood USA spokesperson admits Mississippi amendment would affect birth control, by Virginia Chamlee:

Despite past statements to the contrary, some “fetal personhood” supporters are now admitting that, if enacted, their legislation would likely not only outlaw abortion, but some forms of birth control, as well.

Supporters of Mississippi’s “personhood” bill have long argued that it would only outlaw abortion, but many critics say that the vague wording of Amendment 26 (which would give fertilized human eggs legal status) would likely outlaw birth control pills. Speaking with NPR’s Diane Rehm yesterday, Personhood spokesperson Walter Hoye stated that if birth control ends the life of a “human being,” it would indeed be impacted by the measure.

When asked if there were any restrictions on birth control included in the amendment, Hoye said “no… well, yes,” but added that some forms of birth control (including the morning-after pill) would be outlawed. . . .

NPR – The Diane Rehm Show: Consequences of Granting Legal Status to a Fertilized Human Egg:

Mississippi will ask voters next week to decide whether to give legal status to fertilized human eggs. If the ballot measure is approved, abortion would become tantamount to murder. And in vitro fertility clinics and popular methods of birth control could be outlawed. Many observers deem it one of the gravest assaults on women's reproductive rights in decades. Similar efforts to redefine "personhood" are in the works in several states. Colorado voters twice defeated personhood initiatives recently. But many expect the Mississippi measure to pass. We'll talk about the latest tactics in the battle against abortion. . . .

Scholarship on Mississippi's Personhood Initiative

Supra, the Online Companion to the Mississippi Law Journal, has published a symposium issue of short essays on the Mississippi personhood initiative.  The essays are available here: Mississippi Personhood and Initiative 26 Symposium

Even Mississippi Governor Haley Barbour Concerned about Personhood Initiative

CBS News: Haley Barbour "concerned" about Mississippi anti-abortion amendment, by Stephanie Condon:

Mississippi is an "enormously pro-life state," Gov. Haley Barbour said Wednesday, but he and other opponents to abortion rights in the state are nevertheless concerned about an anti-abortion amendment on the ballot there.

Next week, on November 8, Mississippi voters will vote on Initiative 26, otherwise known as the "personhood initiative," which would amend the state constitution to declare a fertilized human egg a "person." The one-paragraph initiative asks voters: "Should the term 'person' be defined to include every human being from the moment of fertilization, cloning, or the equivalent thereof?"

"I'm somebody that believes life begins at conception, that's one of the reasons I'm pro-life," Barbour said Wednesday on Fox News. "But a lot of pro-life people have problems with this particular language... There's concern this is ambiguous, even in an enormously pro-life state like mine, there is some concern about this.". . .

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On the inconsistency of declaring one's belief that "life begins at conception" while professing concern over the reach of this amendment, see: What the Mississippi Personhood Amendment Tells Us About “Life”

See also: The Meaning of 'Life': Belief and Reason in the Abortion Debate

Excommunicated Nun Comments on Her Involvement in Lifesaving Abortion

Chicago Sun-Times: Phoenix nun excommunicated over abortion decision speaks out:

The hospital official who was excommunicated from the Catholic Church last year is speaking out for the first time.

Sister Margaret McBride, who was targeted by Bishop Thomas Olmsted for her role in a lifesaving medical procedure that the bishop deemed an abortion, will be honored this weekend by Call to Action, a national group that supports a married priesthood, women priests, gay marriage and other positions that the church opposes.

“Call To Action recognizes Sister Margaret’s careful work with a complex issue, her courage in a time of censorship and public pressure, and her witness to the need to stand firm in the face of opposition while striving to protect life in all its venues,” the organization said of its decision to honor McBride. . . .

Paolo Ronchi on the Right to Abortion under the European Convention of Human Rights

Paolo Ronchi (University of Oxford – St. John’s College) has posted A, B and C v. Ireland: Europe's Roe v. Wade Still Has to Wait on SSRN. Here is the abstract:

Does the European Convention of Human Rights (ECHR) include the right to abortion? Is there ECHR obligation for Member States to legalise or de-penalise abortion? Can the right to privacy enshrined in Art. 8 ECHR be interpreted as guaranteeing a right to abortion? The European Court of Human Rights (ECtHR) has never before had the occasion to rule directly on these issues. A Grand Chamber of the ECtHR has held 11–6 in A, B, and C v Ireland (application no.25579/05), final judgment 16 December 2010, that the ECHR plainly does not confer a right to abortion.

Richard F. Storrow on Legal Hazards of Cross-Border Reproductive Travel

Richard F. Storrow (CUNY School of Law) has posted Assisted Reproduction on Treacherous Terrain: The Legal Hazards of Cross-Border Reproductive Travel on SSRN. Here is the abstract:

The growing phenomenon of cross-border reproductive travel has four significant legal dimensions. First, laws that ban or inhibit access to assisted reproductive procedures in one country lead patients and physicians to travel to other countries to acquire, to contribute to or to provide assisted reproductive services. Such laws may include provisions that criminalize those who assist or advise patients to undertake such travel. Second, the law may expressly criminalize crossing borders to obtain, to be a donor for or to perform certain procedures. Third, the law may interfere with the ultimate goal of reproductive travellers by refusing to recognize them as the parents of the child they have crossed borders to conceive. Finally, facilitating cross-border reproductive travel may expose physicians, attorneys and brokers to malpractice or other civil liability. This article explores these legal dimensions of cross-border reproductive care and uses the legal doctrines of proportionality, extraterritoriality and comity to assess the legality and normative validity of governmental efforts to curb or limit assisted reproductive practices.

Ambiguity of Mississippi "Personhood" Amendment Raises Serious Legal Issues

New York Times- Op-Ed: Mississippi's Ambiguous 'Personhood' Amendment, by I. Glenn Cohen & Jonathan F. Will:

ON Nov. 8, Mississippi voters will be asked to decide on a proposed amendment to the state constitution, which would define as a person “every human being from the moment of fertilization, cloning, or the functional equivalent thereof.”

Most of the debate on this proposal has fallen on traditional lines. In our charged political climate, that is understandable, but it is also profoundly misleading. Whether one supports abortion rights or not, there are serious issues with this amendment — not because of the principles it seeks to represent, but because, as a legal matter, it is profoundly ambiguous. . . .

Regulating Deceptive "Crisis Pregnancy Centers"

The Nation: Regulating CPCs: Consumer Protection or Affront to Free Speech?, by Kate Murphy:

Last April, Shari Plunkett, the founder of First Resort, a San Francisco Bay Area chain of anti-abortion crisis pregnancy centers, sent an e-mail to First Resort followers. “With the closing of five abortion clinics in the Bay Area in March, our call volume has never been higher,” she began. “Women are calling in survival mode, with utter panic in their voices. They are clinging to abortion because it’s the only ‘help’ they know.” She continued, “‘Planned Parenthood has closed’, they tell us, ‘I need an abortion, can you help me?’ ” Of these abortion clinics closing, Plunkett later added, “This is one of the most amazing opportunities we’ve ever had to serve abortion minded women.”

First Resort clinics, of course, do not provide abortions, nor do they refer for them. Indeed, like most crisis pregnancy centers, their primary function is to dissuade pregnant women from choosing abortion. Many crisis pregnancy centers employ deceptive means to lure women into their doors, and offer misleading or inaccurate information about abortion to women once they’re inside. It is this confusion, and the culture of orchestrated deception that accompanies crisis pregnancy centers, that has spurred a number of cities to propose, and sometimes pass, legislation to require crisis pregnancy centers to disclose basic factual information about their services. Anti-abortion advocates assert that such legislation should be thrown out as First Amendment violations and, as some of these ordinances get struck down, it seems some federal judges agree. . . .

Herman Cain’s Ever-Changing Position on Abortion

International Business Times: Cain Now Opposes Abortion With No Exceptions: His Ever-Changing Positions, by Maggie Astor:

Herman Cain said on Sunday that he opposed abortion under all circumstances, including in cases of rape, incest or to save the mother's life.

This position puts Cain to the right of even most anti-abortion/pro-life activists, who often oppose exceptions for rape or incest but almost invariably support an exception if a woman's life is in danger.  

It is also the latest in a string of contradictory positions he has taken on abortion, which raises the question of whether he actually believes abortion should be illegal without exceptions or whether he just thinks that's what voters want to hear. . . .