Reproductive Rights Prof Blog

Richard Storrow on Anti-Abortion-Rights Incrementalism and Assisted Reproductive Technology

Concurring Opinions: Why is Reproductive Technology a Battleground in the Abortion Debate?, by Richard Storrow (CUNY Law School):

Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, tending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today. 

The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. . . .

Report on Effect of Texas Legislature's Family Planning Funding Cuts on Women in Rio Grande Valley

Center for Reproductive Rights and the National Latina Institute for Reproductive Health:  The Fight for Women's Reproductive Health in the Rio Grande Valley:

In late 2012 and early 2013, the Center for Reproductive Rights and the National Latina Institute for Reproductive Health documented the impact of state funding cuts to family planning services on women in the Rio Grande Valley. This report draws from their stories to show how funding cuts to women’s preventive services are more than failed policies—they are violations of their human rights. . . .

Albuquerque Voters Reject 20-Week Ban

The New York Times: Albuquerque Voters Defeat Anti-Abortion Referendum, by Fernanda Santos:

Voters here on Tuesday defeated a ballot question that sought to ban abortions after 20 weeks of pregnancy, delivering a critical setback to an anti-abortion movement that had sought to use this progressive city to recalibrate the national debate around women’s reproductive rights. . . .

Freedman & Stulberg on Conflicts in Care for Obstetric Complications in Catholic Hospitals

Lori R. Freedman (University of California, San Fransisco) & Debra B. Stulberg (The University of Chicago Medical Center) have published Conflicts in Care for Obstetric Complications in Catholic Hospitals in AJOB Primary Research.  Here is the abstract:

A recent national survey revealed that over half of obstetrician-gynecologists working in Catholic hospitals have conflicts with religious policies, but the survey did not elucidate the nature of the conflicts. Our qualitative study examines the nature of physician conflicts with religious policies governing obstetrician-gynecologist (ob-gyn) care. Results related to restrictions on the management of obstetric complications are reported here. Methods: In-depth interviews lasting about one hour were conducted with obstetrician-gynecologists throughout the United States. Questions focused on physicians’ general satisfaction with their hospital work settings and specific experiences with religious doctrine-based ob-gyn policies in the various hospitals where they have worked. Results: Conflicts reported here include cases in which Catholic hospital religious policy (Ethical and Religious Directives for Catholic Health Care Services) impacted physicians’ abilities to offer treatment to women experiencing certain obstetric emergencies, such as pregnancy-related health problems, molar pregnancy, miscarriage, or previable premature rupture of membranes (PPROM), because hospital authorities perceived treatment as equivalent to a prohibited abortion. Physicians were contractually obligated to follow doctrine-based policies while practicing in these Catholic hospitals. Conclusions: For some physicians, their hospital's prohibition on abortion initially seemed congruent with their own principles, but when applied to cases in which patients were already losing a desired pregnancy and/or the patient's health was at risk, some physicians found the institutional restrictions on care to be unacceptable.

H/t: Linda Hutjens

Supreme Court Split on Decision Not to Block Texas Abortion Law

SCOTUSblog: Texas abortion law left in effect, by Lyle Dennison:

Splitting five to four, the Supreme Court late Tuesday afternoon refused to block a Texas abortion law that critics say is forcing the closing of one-third of all clinics in the state.  The Court had been studying the issue for the past week.  The majority said that the challengers had not met the requirement for setting aside a federal appeals court’s order permitting the law to take effect on October 31.

The majority specifically included Justices Antonin Scalia, who wrote separately in a concurring opinion joined by Justices Samuel A. Alito, Jr., and Clarence Thomas.  But Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy presumably voted with those three, because it would have taken five votes to act definitively on the plea by doctors and clinics when there were four Justices who wanted to block the law. . . .

Justice Stephen G. Breyer wrote for the four dissenters, including Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. . . .

___________________________

The order and opinions are available here.

Supreme Court Refuses To Block Texas Abortion Law

ACLU press release:  Supreme Court Refuses to Block Texas Abortion Law:

Health Care Providers Vow to Continue Fight to Protect Women

The U.S. Supreme Court today declined to halt a Texas law that has forced more than a dozen of the state’s women’s health centers to stop providing abortion care, leaving large parts of the state without an abortion provider and preventing women from obtaining abortions.                                                                                                  

“We are not giving up on Texas women,” said Louise Melling, deputy legal director of the American Civil Liberties Union. “If the constitutional right to abortion means anything, it must mean that laws like this one that prevent women from obtaining an abortion must be invalidated. This is a very disappointing decision, but we will continue to do everything we can to protect the health and rights of Texas women.”

The case will now continue in the Fifth Circuit Court of Appeals, which will hear the full merits of the case in January 2014. . . .

Continue reading

Women on Birth Control Pills More Likely To Be Diagnosed With Glaucoma, Study Finds

NPR: Using Birth Control Pills May Increase Women's Glaucoma Risk, by Nancy Chute:

Taking birth control pills may increase a woman's risk of eye disease later in life, a study finds, because they may reduce protective levels of estrogen. . . .

In this study, researchers looked at data on 3,406 women over 40 who participated in a bignational health survey administered by the Centers for Disease Control and Prevention. The women who had taken oral contraceptives for more than three years were more than twice as likely to be diagnosed with glaucoma.

But the absolute risk of getting glaucoma after age 40 is small, about 1.86 percent, according to the CDC. So doubling that risk would bring it up to a bit under 4 percent.

And there's no proof that taking birth control pills, which contain hormones that keep estrogen levels from peaking midway through a woman's monthly cycle, cause the apparent increased risk. . . .

The End of Chile's Harsh Abortion Law?

The Atlantic: Is This the End of One of the World's Harshest Abortion Laws, by Erica Hellerstein:

In July, a harrowing story dominated headlines in Chile: "Belen," an 11-year-old girl from the southern city of Puerto Montt, had been raped and impregnated by her mother's partner—and was not legally permitted to have an abortion. Belen vowed on television to have the baby. Chile's president praised her "depth and maturity." Outraged pro-abortion activists ransacked a cathedral in the capital, Santiago.

Now, four months later, the country is once again at a crossroads on abortion. On November 17, for the first time in history, Chileans will cast ballots in a presidential election where the top two candidates are women—not to mention childhood playmates with a turbulent past. And the outcome of the race could have major implications for reproductive rights in one of the few countries in the world where getting an abortion can still land you in jail. . . .

Why the Early Abortion Pill Has Not Revolutionized Abortion Care

New York Magazine:  Why the Abortion Pill Didn't Change Everything, by Ann Friedman:

In 1993, Time magazine declared mifepristone — the abortion pill that’s often called RU-486 — “The Pill that Changes Everything.” In 1999, The New York Times Magazine called it a “little white bombshell” with “enormous political consequences.” On a political level, activists hoped that it would allow women to sidestep clinic protests and make abortion less controversial. Advocates hoped — and anti-abortion groups feared — that the abortion pill would be prescribed by regular doctors, family practitioners and OB/GYNs, allowing women to have an abortion in the privacy of their home, far from the picket lines. It would move abortion toward the mainstream realm of routine health care. And on a medical level, women were curious about the method: taking a pill seemed to promise a more convenient, less invasive experience.

By 2013, though, it’s become clear that the pill hasn’t revolutionized the way most women get abortions; it’s become just another front in the legislative and legal battles over reproductive rights, one more method pro-choice activists must fight to defend. . . .

Sen. Blumenthal and Rep. Chu on Women's Health Protection Act of 2013

Huffington Post: An Historic Push to Protect Reproductive Rights, by: Sen. Richard Blumenthal & Rep. Judy Chu

The antiabortion bill introduced just days ago in the Senate -- mirroring the House's 20 week restrictions -- is a nonsensical, unconstitutional nonstarter. But it is still dangerous -- more for what it reflects in the nation than its chances of passing. . . .

This assault on essential, constitutionally protected rights has gone on too long. We are introducing the Women's Health Protection Act of 2013 this week to end it, once and for all. . . .

Albuquerque Voting on 20-Week Abortion Ban Today

The American Prospect: 20-Week Abortion Bans: Coming to a City Near You?, by Amelia Thompson-Deveaux:

If you want to take a plunge into the roiling id of the anti-choice movement, go to Albuquerque, New Mexico. Tomorrow, the half-million residents of the state's most populous city will vote on a ballot measure that would ban abortion after 20 weeks. . . .

If the ballot measure passes on Tuesday, it could go into effect as soon as early December. But it will almost certainly face a legal challenge. Caitlin Borgmann, a professor of law at the City University of New York, says there are a couple of tacks the measure’s opponents, who will likely be led by the ACLU of New Mexico, could take. In addition to arguing that the 20-week ban violates the precedent set by Roe v. Wade, they could contend that the restriction runs afoul of New Mexico’s Equal Rights Amendment. But, she adds, any court would be wading into unchartered waters. “It’s a clever new tactic,” Borgmann says. “It’s a sign that [anti-choice activists] have realized that they may be able to achieve locally what they can’t do statewide, particularly when you’re talking about something like later abortions when you have so few providers.”

TIME:  Vote Lands Albuquerque at Center of Abortion Battle, by Grace Wyler:

National groups collide in New Mexico's largest city as residents weigh the first municipal ban of late-term abortions in the U.S.

Students leaving afternoon classes at the University of New Mexico last Thursday were greeted with a raucous spectacle: abortion protesters had flooded the campus, passing out flyers and occasionally yelling slurs from across the quad. . . .

This circus has become familiar in Albuquerque, where city residents will vote Tuesday on the nation’s first-ever municipal referendum to ban abortions after 20 weeks. The vote — which would effectively end late-term abortions in New Mexico — has turned this low-key, progressive city of a half million people into the latest flash point in the abortion culture wars. . . .

Democratic Senators Introduce Women's Health Protection Act

The New Republic: How Blue States Could Push Back For Abortion Rights, by Nora Caplan-Bricker:

Wednesday, a group of legislators introduced a different kind of abortion bill into the U.S. Senate. The Women’s Health Protection Act would outlaw all regulations on abortion that “are more burdensome than those restrictions imposed on medically comparable procedures, … do not significantly advance women’s health or the safety of abortion services, and … make abortion services more difficult to access.” In layman’s terms, it would make all of the nearly 200 laws impeding abortion rights that have been enacted at the state level since 2011 illegal. “Enough is enough,” said Representative Judy Chu at a press conference on Capitol Hill. “We’ve been playing defense far too long. It’s time to stop playing Whac-A-Mole in each state. We need to provide a national response in fighting this.” . . .

Slate:  Finally!, by Dahlia Lithwick:

Anti-choice activists have been gunning hard to outlaw abortion. Today, the Democrats pushed back. . . .

26 Real Abortion Stories

New York Magazine: 26 Women Share Their Abortion Stories, by Meaghan Winter:

Of all the battles in our half-century culture war, perhaps none seems further from being resolved, in our laws and in our consciences, than abortion. It’s a fight now in its fifth decade, yet in the past two years, 26 states have passed over 111 provisions restricting abortion. In Texas, the state where the single, pregnant woman who became Jane Roe sued for access to an abortion 41 years ago, Wendy Davis became a national hero for filibustering abortion legislation, as did her governor for signing it into law. . . .

Wave of New State Abortion Restrictions Increases Likelihood of Supreme Court Review

USA Today: Steady stream of abortion cases headed toward high court, by Richard Wolf:

A steady stream of abortion cases are heading toward the Supreme Court, making it only a matter of time before the justices are likely to consider a new wave of state restrictions. . . .

"It's a pivotal moment," says Caitlin Borgmann, a City University of New York law professor who writes a blog on reproductive rights. "The restrictions are now getting to a point where they're actually shutting down clinics." . . .

20-Week Abortion Ban May Be Languishing in U.S. Senate, but Anti-Choice Advocates Pursue Same Measure Locally Via Albuquerque Ballot Initiative

The Washington Post: Albuquerque’s considering the abortion ban languishing in the Senate, by Niraj Chokshi:

In a week and a day, voters in Albuquerque, N.M., may succeed where Congress is stalled: They could ban abortions at or after 20 weeks of pregnancy.

Last week, a measure to ban the practice was introduced in the Senate after a similar bill passed the House in June. But even the bill’s sponsor, Sen. Lindsey Graham (R-S.C.), doesn’t expect it to garner enough votes to pass. Its fate may be at best uncertain and at worst doomed federally, but voters in Albuquerque will have a chance to weigh in on what could be the nation’s first such ban at the city level next Tuesday. And proponents see it as part of a new strategy that involves pushing abortion restrictions at the local — rather than state or federal — level. . . .

Dov Fox on the "Potential-Life Interest" in Reproduction Law

Dov Fox (University of San Diego School of Law) has posted Interest Creep on SSRN. Here is the abstract:

Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call interest creep. Interest creep is the uncritical expansion of underspecified interests like national security and child protection to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts.

This Article examines interest creep through the illuminating lens of reproduction law in which it has thrived. Courts have resolved disputes including surrogacy contracts, genetic testing torts, and property claims for lost embryos by casual appeal to the state’s interest in “potential life” that Roe v. Wade designated as the canonical kind that can override rights. My analysis of every case and statute that has invoked this potential-life interest reveals its use to mean not one but four species of government concern. These distinct concerns for prenatal welfare, postnatal welfare, social values, and social effects operate under different conditions and with varying levels of strength. I apply this novel conceptual framework to live controversies involving fetal pain, sex selection, and stem cell research. These case studies demonstrate how ordinary interpretive methods equip courts to unravel the complexity of concerns that interests like “potential life” absorb over time amidst evolving facts and competing values. More broadly, this examination provides a model for how in other areas of law, from campaign finance to affirmative action, judges and lawmakers can repair the confused decisionmaking that interest creep promotes.

See also: The Huffington Post: The Forgotten Holding of Roe v. Wade, by Dov Fox:

Most people identify Roe v. Wade with a single landmark judgment. This is the case that extended the constitutional right of privacy to a woman's decision about whether to keep a pregnancy. Indeed, political, judicial, and scholarly debates about Roe have fixated on the source, content, and legitimacy of that individual right to abortion. . . .

Supreme Court Faces Many Possibilities for Ruling on Abortion

The National Law Journal: The Abortion Docket, by Marcia Coyle:

In the past two years, anti-abortion groups have seeded state laws with abortion restrictions. Challengers to court rulings for and against those laws now are knocking on the doors of the U.S. Supreme Court. . . .

Lindsey Graham, Not Marco Rubio, Sponsors 20-Week Abortion Ban

The New Republic: Did Lindsey Graham Sponsor the Abortion Ban Because Marco Rubio Wouldn't?, by Nora Caplan-Bricker:

On Thursday, South Carolina Senator Lindsey Graham introduced a bill that would outlaw abortion at 20 weeks, a companion to a measure that passed the House of Representatives this June and an echo of laws that have already passed in more than a dozen conservative states.  Anti-abortion activists have been looking for a sponsor the legislation since it passed the lower chamber, and Graham has pro-life bona fides tracing back to his introduction of the Unborn Victims of Violence Act in 1999. And though President Barack Obama has vowed to veto the bill if, by some fluke, it passes the Senate, its appearance in the capital still seems a natural way for the national party to channel the rabid vitality of its state-level cousins. Only one thing seems strange: Wasn’t this bill supposed to be Florida Senator Marco Rubio’s pet project? . . .

Seventh Circuit Ruling on Contraception Mandate Deepens Circuit Split

The National Law Journal: Ruling Against Contraception Mandate Deepens Circuit Split, by Sheri Qualters:

A federal appellate ruling barring enforcement of the Affordable Care Act’s law's mandate that employer-provided health insurance cover contraception and related services has deepened the appellate split over that issue.

A divided panel of the U.S. Court of Appeals for the Seventh Circuit ruled on Nov. 8 that Religious Freedom Restoration Act of 1993 claims against the mandate were “very likely to succeed.” . . .

Last week’s ruling put the appellate tally at 3-2 in favor of plaintiffs opposed to the mandate. The Tenth Circuit held that a company could be a "person" exercising religion in this context and the D.C. Circuit similarly sided with owners of a company. . . .

U.S. Supreme Court Declines to Review Oklahoma Ultrasound Requirement

The New York Times: Justices Leave in Place Ruling Against Abortion Ultrasound Requirement, by Adam Liptak:

The Supreme Court on Monday let stand a state court’s decision striking down an Oklahoma law that required women seeking abortions to have an ultrasound image placed in front of them and to listen to a detailed description of the fetus before the procedure. . . .

H/t: Priscilla Smith