Reproductive Rights Prof Blog

ACLU Report Examines Domestic Violence and Police Practices

Advocates, service providers, attorneys, and people working in membership-based organizations were invited to share stories and recommendations regarding policing and domestic violence and sexual assault in response to a nationwide survey that was open for a one-month period in April to May 2015.  More than 900 people responded.  The report, Responses from the Field: Sexual Assault, Domestic Violence, and Policing, captures their responses.  The authors report that 

[w]hile respondents told us about promising practices, most of which included significant collaborations between law enforcement and advocates, overall, we heard very discouraging stories.   Respondents reported significant police racial and ethnic bias, as well as bias on the basis of sexual orientation and sexual identity, poverty, immigration status, language, and against victims who have a criminal history including sex workers.  They described how contact with the police has negative collateral consequences for victims including in immigration, child protective services involvement, and economic consequences.  Respondents also reported that a significant number of victims have goals that do not align with those of the criminal justice system including the desire to seek a non-punitive intervention, the need to “move on” coupled with the expectation that criminal justice involvement will be lengthy and (re)traumatizing, and the fear that they would lose control of the process.

For more, see the report, at the link above, and the blogpost at Move to End Violence, written by co-authors Sandra Park, ACLU, Donna Coker, University of Miami School of Law, and Julie Goldscheid.  The authors welcome your feedback, comments, and suggestions for re-thinking the role of the criminal justice system within efforts to end gender-based violence. 

Hillary Clinton's Proposal to Improve Health Care for Women Veterans

Jezebel (Nov. 11, 2015): Hillary Clinton Releases Plan to Improve Health Care for Female Veterans, by Joanna Rothkopf:

On Tuesday, Hillary Clinton released a number of policy proposals specifically aimed at the Department of Veteran’s Affairs and the Veteran’s Health Administration. Among these proposals include a special focus on increasing quality of care for women and transgender veterans.

These proposals would for the VA to increase access to reproductive rights services, and privatize VA health care.

Michael Dorf Publishes Paper on Late-Term Abortions

Dorf on Law (Nov. 10, 2015): Measuring the Chilling Effects of Late-Term Abortion Limits, by Michael Dorf:

Here is the abstract for the paper:

Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights. We tested these assumptions with respect to abortion rights. By comparing abortion rates with state laws over a two-decade-plus period, we found a statistically significant correlation between laws forbidding late-term abortions and the reduction of not only late-term but also “near-late-term” abortions, i.e., abortions in the roughly one month before the period in which abortions are forbidden. That effect persists even after controlling for potentially confounding variables, such as the number of abortion providers and pro-life public opinion. Moreover, the effect is not limited to the year of enactment or associated with failed policy initiatives, suggesting that the impact is due to the law itself rather than associated publicity. These findings are consistent with, and strongly suggestive of, a chilling effect on abortion providers and/or women seeking abortions. This result undermines the implicit assumption that the chilling effect is unique to laws regulating speech and vindicates the general proposition that laws can chill the exercise of constitutional rights beyond their literal coverage. 

 

Dr. Willie Parker on Why He Provides Abortions

New York Times (Nov. 18, 2015): Why I Provide Abortions, by Willie Parker:

Recognizing that "women face harsh life circumstances and incessant hostility, merely for wanting to exercise their right" to terminate their pregnancies, Dr. Willie Parker describes the lack of access to abortion in the American South, where the majority of pregnancies are unintended, as nothing short of a public health crisis.  He was moved away, he writes, from holding moral views against abortion by a sermon delivered by the Rev. Dr. Martin Luther King: 

I was moved by his discussion of the quality of the good Samaritan and of what made the Samaritan “good.” The Samaritan reversed the question of concern, to care more about the well-being of the person needing help than about what might happen to him for stopping to give help. I realized that if I were to show compassion, I would have to act on behalf of those women. My concern about women who lacked access to abortion became more important to me than worrying about what might happen to me for providing the services.

Dr. Parker gave up his obstetrics practice in 2009 to provide abortion full time.

Oklahoma Seeks to End Planned Parenthood Funding

New York Times (Nov. 20, 2015): Oklahoma: Governor Seeks to End Planned Parenthood Funding:

Gov. Mary Fallin on Thursday asked Oklahoma’s Health Care Authority to cut its contracts with two Planned Parenthood affiliates, citing high rates of billing errors. The request by Ms. Fallin, a Republican, comes as Republican governors of several states have moved to cut funding for Planned Parenthood after an anti-abortion group released videos that it said showed Planned Parenthood officials negotiating prices for fetal tissues from abortions. Planned Parenthood has said that the videos were heavily edited and has said it does not profit from fetal tissue donation. Nico Gomez, the chief executive of the Oklahoma Health Care Authority, said his office would not take any action until it completed an audit. In 2015, Oklahoma paid the two Planned Parenthood affiliates $100,145 for 19,546 claims. A review showed no improper use of Medicaid funds, but showed a billing error rate of 20.3 percent rate at one and 14.2 percent at the other, the governor’s office said. Officials with Iowa-based Planned Parenthood of the Heartland, which operates a clinic in Tulsa, called the move "premature and incredibly disappointing." Ms. Fallin said ending the contracts with the two affiliates, which operate in six locations in Oklahoma City and Tulsa, would not interfere with a woman’s ability to have a choice of health care.

Indian Government Moves to Ban Foreigners from Surrogacy

CTV News (Nov. 7, 2015): Anguish after India Moves to Ban Surrogacy for Foreigners:

After banning gays and singles from having children with the help of Indian surrogates in 2012, the Indian government has now ordered infertility clinics to cease serving foreigners altogether, citing sketchy ethics in the surrogacy industry.  The move led immediately to an outcry by those in the industry worried about cases in progress.  In response to the new policy, one court ruled that the ban would be lifted for couples working with two clinics in Bombay.  But there are no guarantees that others already pursuing surrogacy will be able to continue.

Surrogates, too, have been aggrieved by the change.  Only through surrogacy have some women been able to afford homes or to send their children to school. 

Industry leaders in India worry that the new ban will drive international commercial surrogacy in India underground.

California Judge Orders Frozen Embryos Destroyed

New York Times (Nov. 18, 2015): California Judge Orders Frozen Embryos Destroyed, by Andy Newman:

In a much-anticipated case, a trial court judge has ordered that a dispute over frozen embryos that arose in the course of a divorce case be resolved according to a contract entered into by the parties at the time the embryos were created with the use of their gametes.  That contract provided that the embryos would be destroyed if the couple ever divorced.  The woman in the case, seeking a judgment that would override the contract, argued that her cancer rendered using the frozen embryos her last hope to have children genetically related to her.  The decision giving effect to the intentions of the parties as reflected in their written agreement reflects a trend across the country.  It also reflects that in the majority of these cases, the decision has supported the party who does not wish to procreate.  Courts in Pennsylvania, Illinois and Maryland, however, "have ruled in favor of women who argued that their frozen embryos provided their only chance to have biological children . . . ."

Crisis Pregnancy Centers a Stealth Attack on Abortion

New York Times (Nov. 12, 2015): The Stealth Attack on Abortion, by Meaghan Winter:

In her op-ed, Winter calls crisis pregnancy centers what they are: religious nonprofits established to obstruct women's access to abortion.  As states line up to defund the cancer screenings, H.I.V. testing, ultrasounds, contraception, violence against women programs and other services low-income women have come to rely on from Planned Parenthood, and as clinics are shuttered by TRAP laws, low-income women are left with these unlicensed facilities funded by public dollars ($1 million dollars in Ohio) but which offer only options counseling, pregnancy tests, and ultrasounds.  Such facilities outnumber abortion clinics by at least three to one.

One strategy used by the evangelical workers at crisis pregnancy centers is misinformation: informing women that abortion leads to infertility, suicide, and failure to bond with future children.  California recently passed a law requiring crisis pregnancy centers to announce that they are not licensed medical providers and to tell women that the state has programs for affordable family planning, abortion services, and prenatal care.  The transparency law is now being challenged in court.

Carol Joffe on the Religious Right's Opposition to Planned Parenthood

Scholars Strategy Network, No Jargon (Nov. 10, 2015), hosted by Avi Green:

In this podcast, Carol Joffe, a professor in the Department of Obstetrics, Gynecology and Reproductive Sciences at the University of California, San Francisco, tracks the origins of the religious right's opposition to Planned Parenthood and reflects on the importance of safe, legal abortion in contemporary American society.

Supreme Court Denies Certiorari In Planned Parenthood Case

New York Times (Nov. 17, 2015): Supreme Court Turns Down Appeal in Case over Planned Parenthood Documents, by Adam Liptak:

The Supreme Court has rejected a petition to review New Hampshire Right to Life v. Department of Health and Human Services.   The case was brought to force disclosure, under the Freedom of Information Act, of documents a Planned Parenthood affiliate submitted to the federal government in a successful bid for funding.  The plaintiffs in the suit disapprove of using public monies to subsidize the termination of pregnancies. 

The United States Court of Appeals for the First Circuit had reasoned that FOIA carves out an exception for the documents sought in a provision protecting "trade secrets and commercial or financial information obtained from a person and privileged or confidential."  The documents in question contained commercial information. 

Dissenting from the denial of certiorari, Justices Thomas and Scalia took the position that disagreements over the Freedom of Information Act in the lower courts warranted the Supreme Court's review.

What’s the Harm?: Understanding Reproductive Injustice

On Friday, October 30th, legal academics, activists, litigators, social scientists, and doctors came together at NYU School of Law for “What’s the Harm?: Understanding Reproductive Injustice,” a symposium cosponsored by NYU's Carr Center for Reproductive Justice and Reproductive Justice Clinic and the Center for Reproductive Rights.

The convening was especially timely given the Supreme Court’s recent decision to hear Whole Women’s Health v. Cole this term, the unprecedented attacks on Planned Parenthood over the past year, and the increasing criminalization of pregnant women under child abuse and neglect statutes.

Panelists explored the harm of restrictive reproductive healthcare laws by looking at women’s experience with pregnancy, birthing, abortion, access to healthcare, and the criminal justice system. They considered the impact of the laws on the practice of medicine, the doctor-patient relationship, and patient choice and dignity. Panelists addressed the role of scientific and medical expertise in legislatures and courts and explored how recent abortion jurisprudence may have wider implications for constitutional law.

Videos of the symposium panels and a case study are available online: Panel 1: Harm to the Law, Panel 2: Harm to Pregnancy and Childbirth, Panel 3: Harm to Women.  Professor Richard Epstein's symposium comments on the implications that abortion jurisprudence may have on constitutional law are reflected in a recent piece he published in Newsweek.

We have invited symposium participants to guest blog. Look for their blogs over the next few weeks. 

Compensation for Virginia Sterlization Victims Advances

The News and Advance (Nov. 15, 2015): Compensation for Sterilization Victims under Review, by Alex Rohr:

Regulations by which people forcibly sterilized at Virginia training centers may receive compensation are under review by the governor’s office, according to the Department of Behavioral Health and Developmental Services.

The Virginia Compensation for Victims of Eugenics Sterilization Program holds $400,000 to compensate individuals with intellectual and developmental disabilities who were forcibly sterilized at Virginia institutions, including Central Virginia Training Center in Madison Heights.  The program offers a one-time payment of $25,000 to living victims of sterilization or the estates of those who died after Feb. 1, 2015.

It is believed that thousands were forcibly sterilized in Virginia state institutions between 1924 and 1981.

 

China's "Loneliest Generation" Reflects on One-Child Policy

New York Times (Nov. 13, 2015): End of China’s One-Child Policy Stings Its "Loneliest Generation’", by Javier C. Hernandez and Amy Qin:

Many people in China celebrated the decision by the Communist Party last month, after more than three decades of the one-child policy, to allow married couples to have two children, calling it a rare human rights victory in a country where freedoms are tightly restricted. But for some of the more than 150 million young people who grew up as only children, the announcement has reawakened feelings of isolation and regret, according to interviews with more than two dozen of them.

Those interviewed recounted the problems the policy has caused: a generation of selfish, pessimistic children with no siblings to help them care for aging parents and a shortage of workers in a growing economy, the primary rationale articulated by the government for ending the policy.  Some have called on the government to apologize for denying them a sibling.

The policy was imposed to combat overpopulation.  It created a generation of well-educated children who have close relationships with their parents.  Although many young Chinese couples would like to have more than one child, the high cost of raising a second child in contemporary Chinese cities is giving some of them pause.   

Supreme Court will hear Texas abortion case this term

On Friday, Nov. 13, the Supreme Court agreed to hear Whole Woman's Health v. Cole, its first major abortion case since 2007.   The Court granted certiorari on three questions: (1) Does a court err by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government's interest in promoting health? (2) Did the U.S. Court of Appeals for the Fifth Circuit err in concluding that the applicable standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the state's interest in promoting health—or any valid interest? (3) Did the Fifth Circuit err in holding that res judicata provides a basis for reversing the district court's judgment in part?  Whole Women's Health challenges an omnibus Texas law that would close all but 10 of Texas's 40 abortion clinics.  There is currently no decision as to whether the Court will also hear Jackson Women's Health Organization v. Currier, which challenges a Mississippi law that would close down the last abortion provider in the state.

For more information about the case, check out Lyle Denniston on SCOTUSblog and the New York Times.

 

Doctors in U.S. to Try Uterus Transplants

New York Times (Nov. 13, 2015): Uterus Transplants May Soon Help Some Infertile Women in the U.S. Become Pregnant, by Denise Grady: 

The New York Times reports that in the next few months, doctors at the Cleveland Clinic plan to be the first in the U.S. to transplant a uterus into a woman so she may become pregnant.

Uterine transplantation is a new frontier, one that pairs specialists from two fields known for innovation and for pushing limits, medically and ethically — reproductive medicine and transplant surgery. If the procedure works, many women could benefit: An estimated 50,000 women in the United States might be candidates. But there are potential dangers.

The transplant process involves a lengthy surgery, and a one year recovery period before trying to become pregnant. Like other transplant recipients, women who undergo the procedure must take anti-rejection drugs.  Their pregnancies will be considered high risk.  The transplant will be temporary, and the uterus will be removed after the woman has one or two babies.  The procedure has been performed successfully at the University of Gothenburg in Sweden.  When asked by the NYT about possible ethical concerns, Jeffrey Kahn a medical ethicist at Johns Hopkins who is unconnected to the research stated, "We're doing lots of things to help women have babies in ways that were never done before.  It falls into that spectrum."  

The Center for Reproductive Rights Calls for Your Story

As you may know, the Center for Reproductive Rights has two cases that are being conferenced by SCOTUS this month involving challenges to restrictive abortion laws in Texas and Mississippi. CRR is hoping that lawyers who have had abortions will be willing to speak out (or lend their names) about the importance of the Court protecting constitutional rights meaningfully; and how their abortions enabled them to fully participate in the "economic and social life of the Nation" as discussed in 1992’s Planned Parenthood v. Casey.

If you are interested in participating, please contact Erica Smock, Director of Judicial Strategy at CRR at [email protected]

The ACA's contraceptive mandate returns to the Supreme Court

The Atlantic (Nov. 6, 2015): The Little Sisters of the Poor are Headed to the Supreme Court, by Emma Green:

On Friday, the Supreme Court agreed to take a set seven cases related to the Affordable Care Act's contraceptive mandate.  Emma Green writes:

All [seven cases] have come through different circuit courts in the past months, where they’ve mostly lost. But, these cases are a big deal: They are the latest in a long series of challenges to this portion of the law, the most notable of which was last summer’s Hobby Lobby case, which involved for-profit employers.

Religious organizations are exempt from the contraceptive mandate. Religious non-profits and (after Hobby Lobby) closely held, for profit businesses that have a religious objection have an accommodation that allows them to fill out a form which prompts a third-party to provide coverage instead.  According to Green, the plaintiffs in the seven cases say that "they believe filling out the form still amounts to complicity in providing people with contraception."

Still no word on whether the Supreme Court will hear an abortion case this term. 

 

 

 

Richard Epstein on the rational basis test and abortion jurisprudence

Newsweek (Nov. 5, 2015): Abortion Goes on Trial Again Before the Supreme Court, by Richard Epstein:

Noted libertarian, Richard Epstein has authored an opinion piece on Whole Women’s Health v. Cole and Jackson Women's Health Organization v. Currier, the two abortion cases the Supreme Court is considering for review.  Although Prof. Epstein criticized Roe v. Wade in 1973, he argues that the Supreme Court should strike down abortion restrictions in both cases.  Noting that the evidence before the district court in Whole Women's Health showed that "that the Texas restrictions were far more likely to increase the risk of abortions" rather than further the state's purported interest to promote the safety of abortion facilities, Prof. Epstein argues that "the rational basis test should not be allowed to eviscerate the painful compromises wrought in Casey. The commonly used test gives undue credit to legislative wisdom on this highly charged political issue."

 

Trial Commencing in Coerced C-Section Case

RH Reality Check (Nov. 4, 2015): Coerced C-Sections: The Latest Reach of Fetus First Laws, by Jessica Mason Pieklo:

Michelle Mitchell is suing her doctor for assault and battery alleging that she was coerced into having a c-section.  The case is scheduled to go to trial in Augusta Circuit Court Nov. 4.  Jessica Mason Pieklo writes:

According to court documents, Mitchell claims that once she was admitted to the hospital, [her doctor] demanded she have a c-section based on an ultrasound image performed a week earlier . . .  and concerns over the baby’s size. Mitchell says that her previous doctor had recommended an induction of labor or c-section, but gave her no indication that vaginal birth was medically not an option or that a c-section was required.

Mitchell says that she signed a document refusing consent for the c-section, and that over the next four hours, [the doctor] and other employees of the hospital threatened her in various ways, including calling Child Protective Services to take her expected child away should she fail to consent. According to the complaint, after hours of this treatment, Mitchell relented.

The doctor has argued that Mitchell changed her mind after signing the signed refusal and consented to the surgery.  Pieklo notes that the number of c-section births have grown in this country making the question of patient autonomy increasingly important.

 

Despite High Restrictions Abortion is Common in Nigeria

Guttmacher Institute (Dec. 2015): The Incidence of Abortion in Nigeria, by Akinrinola Bankole et al.:

Although abortion is only legal in Nigeria when necessary to save a woman's life, a new study published by the Guttmacher Institute has found that 1.25 million abortions were performed in 2012.  Most of these abortions were clandestine and many unsafe.  Unsafe abortion is a major contributor to maternal mortality in Nigeria, which has one of the highest maternal mortality rates in the world.