Reproductive Rights Prof Blog

Female Law Student, Barred from Testifying on House Contraception Panel, Speaks Out

The Politicker: Sandra Fluke Discusses Being Rejected From House Contraception Hearing, by Hunter Walker:

Georgetown law student Sandra Fluke talked to The Politicker today about her rejection from yesterday’s House oversight committee hearing on President Barack Obama’s controversial contraception coverage rule. House Democrats wanted Ms. Fluke to be a witness at the hearing, but the committee’s chair, California Congressman Darrell Issa, denied the request and said she was ”not found to be appropriate or qualified.” . . .

Sandra Fluke posted the testimony she intended to give on YouTube:

 

Lawrence O'Donnell Questions Santorum Donor Over Comment on Aspirin As Contraception

MSNBC: The Last Word with Lawrence O'Donnell:

Visit msnbc.com for breaking news, world news, and news about the economy

Virginia Embryonic Personhood Bill Represents "Latest Front" in Abortion Battle

CNN:  Virginia's "personhood" bill is latest front in the culture war, by Athena Jones, by Athena Jones:

In the Virginia House of Delegates, Republican Robert Marshall is a longtime abortion opponent who has tried repeatedly to pass legislation in his state that would give rights to the unborn.

This year, on his third try, Marshall just might get his wish, and that has advocates for women's reproductive rights concerned. . . .

 

Majority of Births To Women Under 30 Are Out-of-Wedlock

The New York Times: For Women Under 30, Most Births Occur Outside Marriage, by Jason DeParle & Sabrina Tabernise:

It used to be called illegitimacy. Now it is the new normal. After steadily rising for five decades, the share of children born to unmarried women has crossed a threshold: more than half of births to American women under 30 occur outside marriage.

Once largely limited to poor women and minorities, motherhood without marriage has settled deeply into middle America. The fastest growth in the last two decades has occurred among white women in their 20s who have some college education but no four-year degree, according to Child Trends, a Washington research group that analyzed government data. . . .

Santorum on Contraception, and Abortion in Cases of Rape

New York Daily News: Santorum's foes pounce on GOP hopeful's 2006 comment that birth control is 'harmful to women', by David Boroff:

GOP presidential hopeful Rick Santorum is rising in the polls, causing everyone to analyze every word he says - even ones he uttered six years ago.

Comments the former U.S. senator made about birth control in 2006 are coming under fresh scrutiny now.

The Pennsylvania Republican, who was in the middle of an unsuccessful bid for reelection to the U.S. Senate in 2006, said in a televised interview that contraception is "harmful to women." . . .

 

Politico:  Santorum: Prenatal testing leads to abortion, by David Catanese:

Rick Santorum said on Sunday he believes specific types of prenatal testing leads to a greater number of abortions.

"A lot of prenatal tests are done to identify deformities in utero and the customary procedure is to encourage abortions," he said. "We know that 90 percent of Down syndrome children in America are aborted, so to suggest, where does that come from?" . . .

 

On Piers Morgan, Santorum recently addressed contraception and responded to the question, "Does Rick Santorum like women?":

Piers Morgan has also asked Santorum what he would tell his daughter if she were raped and sought an abortion:

 

Thousands of Women Sign Petition Opposing Virginia Embryonic Personhood Bill

CBS-6: Thousands of women sign petition opposing 'personhood' bill:

 

Virginia Pre-Abortion Ultrasound Bill Prompts Outcry

Virginia's bill mandating pre-abortion ultrasound is abhorrent. . .

Slate: Virginia’s Proposed Ultrasound Law Is an Abomination, by Dahlia Lithwick:

Under the new legislation, women who want an abortion will be forcibly penetrated for no medical reason. Where’s the outrage?

This week, the Virginia state Legislature passed a bill that would require women to have an ultrasound before they may have an abortion. Because the great majority of abortions occur during the first 12 weeks, that means most women will be forced to have a transvaginal procedure, in which a probe is inserted into the vagina, and then moved around until an ultrasound image is produced. Since a proposed amendment to the bill—a provision that would have had the patient consent to this bodily intrusion or allowed the physician to opt not to do the vaginal ultrasound—failed on 64-34 vote, the law provides that women seeking an abortion in Virginia will be forcibly penetrated for no medical reason. I am not the first person to note that under any other set of facts, that would constitute rape under state law. . . .

. . . but it won't be the first such law:

Washington Post - Wonkblog: Is Virginia’s ultrasound bill the future of abortion regulation?, by Sarah Kliff:

A Virginia law that would mandate ultrasounds prior to an abortion is gaining steam — and coming under intense criticism — as it heads to Republican Gov. Bob McDonnell’s desk. Virginia’s House of Delegates and Senate have both passed the bill, while the governor has spoken favorably of the provision. . . .

The Virginia law is not, however, without parallel in the world of abortion restrictions. Ultrasound laws to limit abortion access began taking off in the 1990s and, according to the Guttmacher Institute, now stand in 26 states. Of those, a handful look a lot like Virginia’s: Seven states require an abortion provider to conduct an ultrasound and offer to show the image to the woman. . . .

See also: RH Reality Check: Virginia Delegate Says Mandatory Ultrasound Bill Will Turn Doctors Into "Criminals" Under the Law:

Next week, Virginia Delegate David Englin (D-45) plans to change the conversation around the forced transvaginal ultrasound bill (or as we believe it is more accurately described, the state-sanctioned rape bill) next week by addressing its potental criminality under Virginia's object sexual penetration statute. . . .

I think this depends, among other things, on whether a court would find implied consent on the basis that the ultrasound is a precondition to obtaining an abortion, which the woman could decline. It hardly seems fair to interpret a woman as "consenting" to such a procedure if the alternative is to forego an abortion, but it wouldn't surprise me to see a court distinguish the criminal statute on this ground.  After all, many lawmakers still seem to view forcible rape as the only "honest rape."

In Contraceptive Coverage Debate, Religious Groups Try to Up the Ante by Conflating Contraception and Abortion

The New York Times: Religious Groups Equate Some Contraceptives With Abortion, by Pam Belluck & Erik Eckholm:

Adding to their passionate opposition to the rule that employees of religiously affiliated institutions must receive insurance coverage for birth control, Roman Catholic bishops and some evangelical groups have asserted that it also requires coverage of some forms of abortion.

They contend that methods of contraception including morning-after pills and IUDs can be considered “abortifacients” because, these advocates say, they can act to prevent pregnancy after a man’s sperm has fertilized a woman’s egg. . . .

____________________________________________________

Although birth control pills and IUDs apparently act primarily to prevent ovulation or fertilization, the Catholic bishops and others say that any chance that an egg may be fertilized but not implanted is morally intolerable.  What they ignore is that approximately one half of all fertilized eggs are spontaneously aborted, even in the absence of contraception.

-CEB

Republican House Committee Excludes Female Panelists From Hearing on Contraception Coverage Rule

ABC News - The Note Blog: Rep. Darrell Issa Bars Minority Witness, a Woman, on Contraception, by Tom Shine:

A Capitol Hill hearing that was supposed to be about religious freedom and a mandate that health insurers cover contraception in the United States began as an argument about whether Democrats could add a woman to the all-male panel.

“Where are the women?” the minority Rep. Carolyn Maloney, D-N.Y., asked early in the hearing. . . .

Oklahoma Senate Approves Embryonic "Personhood" Measure by Wide Margin

Chicago Tribune/Reuters: Anti-abortion 'personhood' bill clears Oklahoma senate, by Steve Olafson:

Oklahoma lawmakers edged closer toward trying to outlaw abortion on Wednesday by approving "personhood" legislation that gives individual rights to an embryo from the moment of conception.

The Republican-controlled state Senate voted 34-8 to pass the "Personhood Act" which defines the word person under state law to include unborn children from the moment of conception. . . .

The bill text is available here.

Hindering Reproductive Freedom Through Financial Barriers

The New York Times – Economix blog: Raising the Price of Reproductive Rights, by Nancy Folbre:

A political and cultural battle has now become an economic siege. Having failed to roll back legal access to abortion and contraception, opponents now seek to make them as costly as possible.

It’s a clever strategy, because it does not require majority political support. Small legal and bureaucratic changes can often be carried out under the political radar. The women most directly affected are those with the weakest political voice and the lowest discretionary income.

In a New York Times/CBS News poll conducted last month, 23 percent of Americans said abortion should not be permitted. In many states, a much larger percentage seems willing to go along with efforts to make it extremely difficult to obtain. . . .

Virginia Lawmaker Calls Abortion "Lifestyle Convenience" During Ultrasound Bill Debate

Huffington Post: Virginia Ultrasound Bill: Republican Lawmaker Calls Abortion 'Lifestyle Convenience', by John Celock:

A top Republican legislative leader in Virginia described abortion as a "lifestyle convenience" during the floor debate on a controversial measure to require trans-vaginal ultrasounds before a woman can get an abortion.

State Del. C. Todd Gilbert (R-Woodstock) made the comment midday Tuesday as the House of Delegates took up consideration of the ultrasound bill. The bill -- which then passed the House 63 to 36 -- would require any woman seeking an abortion in the state to receive an ultrasound first. As an external ultrasound is not able to produce a necessary picture early in pregnancy, a trans-vaginal ultrasound would be needed to produce an image of the fetus. . . .

The Washington Post – blog: Del. Gilbert says he 'regrets' comments on abortion, by Anita Kumar:

Deputy House Majority Leader C. Todd Gilbert (R-Shenandoah) said Tuesday night that he “regretted” his “insensitive comments”earlier in the day about abortion being a “lifestyle convenience.”

“Abortion is a sad and deeply serious occurrence,’’ Gilbert said in a statement.  “Individuals on both sides of this issue agree that it is tragic for all involved.  I recognize that few women undergo the procedure lightly. It leaves scars, both mental and physical, that can last forever.  I regret that my comments earlier today on the House floor were insensitive to that reality.’’

Gilbert, who opposes abortion rights, shocked opponents of a bill that would require women to undergo an ultrasound before an abortion when he said: “In the vast majority of these cases, these are matters of lifestyle convenience.” . . .

Susan Appleton on Reproduction and Regret

Susan Frelich Appleton (Washington University Law) has posted Reproduction and Regret on SSRN. Here is the abstract:

What is the legal significance of regret following a reproductive decision or outcome? In Gonzales v. Carhart, a Supreme Court majority offered one answer to this question, famously invoking the regret of some women for their past abortions as a reason to uphold a federal law criminalizing a particular abortion procedure. But Gonzales is not the first case to confront what I call 'reproduction and regret,' and the Court’s approach in Gonzales ignores the contrasting judicial responses from these other cases.

This Article supplies the missing analysis - contextualizing Gonzales’s treatment of reproduction and regret by identifying and developing five additional models. These additional models come from disputes about adoption surrenders, the performance of surrogacy arrangements, support obligations arising from children born of unplanned pregnancies, the use of previously frozen embryos, and the status of sperm donors. Each model depicts a different understanding of reproduction and regret, supplementing Gonzales and the ensuing commentary on that case with a more expansive inquiry into the work courts have used regret to perform and the unarticulated assumptions or normative commitments that might explain the doctrinal and rhetorical inconsistencies. This wider lens illuminates regret’s regulatory function across the range of cases.

This Article’s examination of regret as a regulatory tool in turn has three analytical payoffs. First, it disrupts Gonzales’s depiction of regret as a natural and self-generated emotion, clarifying the role of the state in producing regret. Second, it reinforces the critiques of Gonzales’s use of maternal stereotypes with a more robust account of gender that not only includes stereotypes of fatherhood but also exposes a specific link among regret, heterosexual intercourse, and unexamined beliefs about sexual pleasure. Finally, it highlights deep policy rifts in family law, a field that continues to prioritize the regulation of sex in particular, despite rhetoric to the contrary.

The importance of the jurisprudence of reproduction and regret transcends the particular disputes that exemplify it. As a general matter, contemporary family law celebrates what the Supreme Court has called 'the private realm of family life' and scholars have called “the republic of choice.” This vision not only puts a premium on individual decision making; it also complicates the question of what the legal significance of an actor’s own second thoughts about such decisions should be. An analysis of reproduction and regret thus offers a window into family law’s foundational values and contests writ large, providing insights into the principles, themes, and clashes dominating family law today.

Center for Reproductive Rights Reopens Lawsuit Against FDA Restrictions on Plan B Contraceptive

Center for Reproductive Rights - press release: Center for Reproductive Rights Reopens Lawsuit Against FDA Restrictions on Emergency Contraception: 

Center requests addition of HHS Secretary Kathleen Sebelius as defendant, seeks immediate and unrestricted

02.08.12 - (PRESS RELEASE) Seeking immediate relief that would allow emergency contraception over-the-counter access for women of all ages, today the Center for Reproductive Rights asked a federal court to reopen the Center’s 2005 lawsuit against the Food and Drug Administration (FDA) for imposing unnecessary age restrictions on the drugs, also known as the “morning-after pill.”

The Center also requested the addition of U.S. Department of Health and Human Services Secretary Kathleen Sebelius as a defendant in the reopened case for her role in recently overruling the FDA’s decision to approve Plan B One-Step for over-the-counter status in December 2011. . . .

Mitt Romney's Abortion Evolution

Because there apparently can never be enough news stories on Mitt Romney's abortion flip-flopping. . . .

The New York Times: Romney’s Path to ‘Pro-Life’ Position on Abortion, by Sheryl Gay Stolberg:

WASHINGTON — From the moment he left business for politics, the issue of abortion has bedeviled Mitt Romney.

n 1994, as a Senate candidate, he invoked the story of a “close family relative” who had died after an illegal abortion and insisted that abortion should be “safe and legal,” though he was personally opposed. In 2002, while running for governor of Massachusetts, he sought the endorsement of abortion rights advocates, promising to be “a good voice” among Republicans, one advocate said.

In 2005, Governor Romney shocked constituents by writing an opinion article in The Boston Globe that declared: “I am pro-life.” . . .

Justice Ginsburg Discusses Court's Abortion Jurisprudence

ABA Journal: Justice Ginsburg: Roe v. Wade Decision Came Too Soon, by Debra Cassens Weiss:

The U.S. Supreme Court may have moved too quickly when it found a constitutional right to abortion in Roe v. Wade, according to Justice Ruth Bader Ginsburg.

Speaking at a Columbia Law School symposium on Friday, Ginsburg said the court could have delayed hearing the case while state law evolved on the issue, the Associated Press reports. "It's not that the judgment was wrong, but it moved too far too fast,” she said. . . .

_____________________________________________________

The full AP story is here.

I attended this symposium and was also struck by Justice Ginsburg's story about a case that she felt would have been the better case to bring first, one in which a woman in the military faced discharge because she chose to carry her pregnancy to term.  Justice Ginsburg said she thought this would have been a wiser first step, because the woman's choice was for childbirth.  Here's a story on Justice Ginsburg's discussion of that case: Salon: Ruth Bader Ginsburg’s alternative abortion history, by Irin Carmon.

-CEB

Catholic Bishops Reject Obama's Compromise on Contraceptive Coverage Rule

The New York Times: Bishops Reject White House's New Plan on Contraception, by Laurie Goodstein:

The nation’s Roman Catholic bishops have rejected a compromise on birth control coverage that President Obama offered on Friday and said they would continue to fight the president’s plan to find a way for employees of Catholic hospitals, universities and service agencies to receive free contraceptive coverage in their health insurance plans, without direct involvement or financing from the institutions. . . .

VA Bills Will Further Limit Funding for Abortions for Medicaid Recipients and Allow Discrimination by Adoption Agencies

Reuters: Virginia lawmakers pass abortion, adoption bills, by Matthew A. Ward:

(Reuters) - Virginia would halt taxpayer-funded abortions for low-income women in cases where the fetus is severely physically deformed or mentally deficient under Republican-backed legislation passed Friday by state lawmakers.

The House of Delegates voted 64-35 to strip the Board of Health of its ability to fund abortions for Medicaid recipients when a physician certifies that the fetus would be born with a "gross and totally incapacitating physical deformity or mental deficiency."

The measure comes amid a raft of conservative bills in the Virginia General Assembly, which shifted to the right following the 2011 general election.

Separate legislation backed by the state Senate on Wednesday would require women to be given an ultrasound and the chance to see the fetal image before an abortion is performed. . . .

Louisiana Congressman Takes The Onion's Planned Parenthood Satire For Fact

The Hill: Lawmaker office duped by The Onion's Planned Parenthood Satire, by Justin Sink:

Rep. John Fleming (R-La.) fell victim to satirical news outlet The Onion on Friday, reposting a story facetiously reporting that Planned Parenthood had announced the opening "of its long-planned $8 billion Abortionplex" on his Facebook page.

The article, which is months old, was reposted on the paper's website last week amidst controversy over the Susan G. Komen Foundation's announcement — later retracted — that it wouldn't provide grants to Planned Parenthood because it was under congressional investigation. . . .

U.S. Teen Pregnancy Rate at Lowest Level Since 1972

Guttmacher Institute: U.S. Teen Pregnancy Rate at Lowest Level in Nearly 40 Years, by Rebecca Wind:

Rates Down Among All Racial and Ethnic Groups;
Disparities Persist

Teen pregnancies have declined dramatically in the United States since their peak in the early 1990s, as have the births and abortions that result; in 2008, teen pregnancies reached their lowest level in nearly 40 years, according to “U.S. Teenage Pregnancies, Births and Abortions, 2008: National Trends by Age, Race and Ethnicity,” by Kathryn Kost and Stanley Henshaw of the Guttmacher Institute. In 2008, the teen pregnancy rate was 67.8 pregnancies per 1,000 women aged 15–19, which means that about 7% of U.S. teens became pregnant that year. This rate represents a 42% decline from the peak in 1990 (116.9 per 1,000). Similarly, the birthrate declined 35% between 1991 and 2008, from 61.8 to 40.2 births per 1,000 teens; the abortion rate declined 59% from its 1988 peak of 43.5 abortions per 1,000 teens to its 2008 level of 17.8 per 1,000. . . .