Friday, June 30, 2017
The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.
Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics. With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes. Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same. The list of selected cases, a description of the process of selecting decisions, and the opinions considered but not included, are on the application website (https://goo.gl/forms/9JYv7GtR2gJMDVbY2).
Proposals must be to either 1. rewrite an opinion (subject to a 10,000-word limit) or 2. comment on a rewritten opinion (4,000-word limit). Rewritten decisions may be majority opinions, dissents, or concurrences. Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made. The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.
Those who are interested in rewriting an opinion or providing commentary should complete the form found here:
Applications are due no later than Friday, July 21, 2017. The editor will notify accepted authors and commentators by Monday, July 31, 2017.
First drafts of rewritten opinions will be due on Friday, February 2, 2018. First drafts of commentaries will be due on Friday, March 9, 2018.
If you have any questions, please contact Rachel Rebouché at [email protected].
Wednesday, June 28, 2017
Romper (Jun. 23, 2017): This New Hampshire Law Accidentally Let Pregnant Women Get Away With Murder, by Kenza Moller
New Hampshire lawmakers recently passed a bill defining a fetus of 20 weeks or older as a human with full rights, exposing anyone who causes the death of such a fetus to the risk of being charged with a homicide.
Senate Bill 66 is soon-to-be one of about 38 fetal homicide laws currently on the books throughout the country. Supporters generally think of fetal homicide laws as providing an avenue for women to press charges if their unborn children are killed in an incident such as a car crash or violent assault. Opponents, however, criticize such legislation, citing it as an attack on women's reproductive rights. Fetal homicide laws, they argue, can be construed to punish women who miscarry or are suspected of inducing an abortion.
Republican lawmakers here, though, added a clause to the bill intended to assuage pro-choice fears, but the initial wording implied possible scandalous results.
The bill read that "any act committed by the pregnant woman" or her doctor wouldn't apply in any second-degree murder, manslaughter, or negligent homicide cases, according to Slate. The fine print there, of course, is that "any act" could include far more than just an abortion.
Technically, that would make physician-assisted suicide and murder A-OK for pregnant ladies. Whoops. Once lawmakers noticed the fairly serious loophole, however, they quickly fixed it on Thursday in a legislative move (called an "enrolled bills process") usually reserved for correcting spelling or grammatical errors.
New Hampshire Governor Chris Sununu is expected to sign the bill into law--without granting pregnant women the right to murder--going into effect January 1, 2018.
Saturday, June 24, 2017
TIME (Jun. 22, 2017): 4 Ways the Senate Health Care Bill Would Hurt Women, by Amanda MacMillan
The newly unveiled Senate health care bill intended to repeal the Affordable Care Act has a name: the Better Care Reconciliation Act of 2017. The Senate bill looks very similar to the American Health Care Act passed by the House of Representatives earlier this year, with a few changes. What hasn't changed much is the debilitating effects the legislation could have on women and families, and especially low-income Americans and those with pre-existing conditions.
Under the Senate plan, women could lose essential benefits like cervical cancer screenings, breast pumps, contraception, and domestic violence screening and counseling, and prescription drug coverage could be severely limited. The bill also slashes Medicaid, which currently funds half of all childbirths in the United States, and includes language that allows states to impose employment requirements for Medicaid eligibility.
The Senate plan eliminates Medicaid reimbursements to Planned Parenthood for one year, which would further limit access to essential services like well-woman visits, cancer screenings, and STI testing. Finally, the Republican plan repeals the individual mandate and the requirement that employers with 50 or more employees provide health coverage. Without these requirements, many women will lose their health insurance and face unique challenges, particularly regarding childbirth. With the U.S.'s maternal mortality rate already the highest among the developed world, both the House and Senate bills are likely to make a bad problem worse.
Friday, June 23, 2017
Ms. Magazine (Jun. 21, 2017): Calling on Congress to Support Black Women's Maternal Health, by Meliss Arteaga:
Last week, members of the Black Mamas Matter Alliance (BMMA), a maternal health advocacy committee organized by SisterSong, briefed members of Congress and non-profit groups on Capitol Hill about the state of black maternal health in the United States. BMMA called on Congress to "improve policies that impact the health of pregnant black women and stressed that access to affordable contraception and abortion is a human rights issue."
The U.S. maternal mortality rate has risen by more than fifty percent between 1990 and 2016. According to the Centers for Disease Control (CDC), black women are four times more likely to die during pregnancy, childbirth, and the year following childbirth than white women, and black women also experience more pregnancy complications than white women.
What is causing this significant discrepancy between black and white women? A combination of poverty-driven health disparities, systemic racism in healthcare, and lack of access to care lead to poorer health outcomes for black families.
"Racial discrimination is very real in the health care system," said SisterSong Executive Director Monica Simpson. "We need to listen to pregnant women, talk to pregnant women and love pregnant women. That includes ensuring that programs and policies support the health and the needs of pregnant women."
Thursday, June 22, 2017
Texas Observer (Jun. 20, 2017): How Texas' Anti-Abortion Lawmakers Win Even While Losing in Court, by Sophie Novack:
Earlier this month, Texas Governor Greg Abbott signed Senate Bill 8 into law, "an omnibus measure that mandates burdensome clinic regulations and outlaws a safe, common abortion procedure" known as dilation & evacuation, or D&E. SB 8 is the most sweeping set of restrictions on abortion care signed into law in Texas since House Bill 2 in 2013, culminating in last year's Whole Woman's Health v. Hellerstedt ruling by the U.S. Supreme Court that struck down two of the bill's major provisions. A lawsuit against SB 8 is expected later this summer.
Novack argues that while abortion-rights advocates ultimately claimed victory in the courts over HB 2, the law "forced the closure of more than half the state’s abortion clinics, and only three have reopened since." The main issue for abortion-rights advocates, Novack says is that "legislation often moves faster than the courts, and SB 8 could wreak similar havoc on the abortion provider community in Texas.
“We’re looking at again the possibility of clinic closures and other restrictions that force women to leave the state if they need abortion care,' said Amanda Allen, senior state legislative counsel at the Center for Reproductive Rights, which filed the lawsuit against HB 2 and has pledged to fight SB 8. 'In terms of access on the ground, this presents a huge threat to Texas.”
The major provisions at issue in SB 8 are a requirement that fetal remains be buried or cremated, and a ban on D&E, the most common form of second-trimester procedure. Abortion-rights advocates take some comfort in knowing that both of these provisions have been successfully challenged in court, but if either provision goes into effect, clinics could face closure for failure to comply with the law.
Texas Right to Life pushed the D&E ban, while Texas Alliance for Life championed the fetal burial/cremation requirement. Each group has a different strategy: Texas Right to Life favors pushing the D&E ban to the Supreme Court, while Texas Alliance for Life favors "a more incremental approach" that chips away at access until the Supreme Court becomes less favorable to abortion rights. Said Joe Pojman, executive director of Texas Alliance for Life: "it’s very clear now that [Justice Kennedy] will not uphold any state or federal provision that makes abortion less accessible, that’s the unfortunate reality."
In January, a federal judge blocked new Texas regulations that would’ve required burials for fetal remains. Courts have blocked D&E abortion bans in four other states. While it remains to be seen how courts will decide on SB 8, the battle will be long, and if it plays out like HB 2, there could be lasting consequences.
Wednesday, June 21, 2017
[Cross-posted on Human Rights at Home Blog] (June 21, 2017): U.N. Experts Tell U.S. They Are Concerned About Laws Criminalizing Women Who Have Abortions, by Cynthia Soohoo:
Since the Presidential election last fall, we’ve seen intensified attacks on women’s reproductive health. In the current political environment, it’s even more crucial that U.N. human rights bodies call out the U.S. when it violates human rights. Yesterday, United Nations human rights experts sent a letter to the U.S. government expressing concern about criminalization of abortion and the declining access to reproductive health services. The letter welcomed state efforts to turn back the “negative trend on women’s reproductive rights” and urged states to adopt laws to help ensure that women’s human rights are respected, like the Reproductive Health Act currently pending in the New York state legislature.
Human rights bodies have repeatedly recognized that women’s access to reproductive health services implicates multiple human rights including the right to dignity, autonomy, personal integrity, health, non-discrimination and freedom from cruel, inhuman and degrading treatment. Given the range of rights involved, U.N. experts on health, violence against women, and discrimination against women banded together to write a joint letter to the U.S. expressing their concerns.
The experts’ letter focused on two current threats to reproductive rights – “the failure to provide adequate access to services for the termination of an unwanted pregnancy” and the “criminalization of abortion.” Last year, the U.N. Working Group on Discrimination Against Women criticized the “ever-increasing barriers . . . created to prevent [women’s] access to abortion procedures” in the U.S. Yesterday’s letter reiterated these concerns and specifically focused on laws that allow women to be criminally prosecuted for terminating their own pregnancies.
The human rights experts emphasized that criminalizing women for having abortions “instrumentalizes women’s bodies, undercuts women’s autonomy and puts their lives and health and risk” because women who experience complications will not seek medical help for fear of prosecution. The letter also warned that because symptoms of spontaneous miscarriage and self-induced abortion can be similar criminalizing abortion often results in “collateral consequences, including the imprisonment of women who have had miscarriages.” Last month, the experts criticized an El Salvador law criminalizing abortion noting that, in addition to violating the rights of women who chose to terminate their pregnancies, the law resulted in the arrest and prosecution of women who suffered miscarriages.
Human rights law emphasizes that governments must ensure that people can meaningfully access their human rights. In the U.S. context, this means that a constitutional right to abortion is not sufficient if women cannot actually access abortion and family planning or are punished or penalized for their reproductive health choices. The experts expressed concern that criminal prosecution of self-induced abortions “has discriminatory effects on economically disadvantaged women whose limited resources render them unable to access safe reproductive health services in the same manner as privileged women.”
In addition to the onslaught of anti-choice laws that are being passed in Texas and other states, laws criminalizing women who have abortions are often remnants of laws passed before Roe v. Wade that were never repealed. For instance, New York still has a pre-Roe law on the books that imposes criminal penalties on women for self-inducing an abortion. It also criminalizes health care providers who perform abortions after 24 weeks -- even if the abortion is necessary to preserve a woman’s health or if the fetus is not viable. Human rights bodies have recognized that forcing a woman to continue a pregnancy knowing that the fetus she is carrying will not survive is cruel, inhuman and degrading treatment. And denying a woman access to an abortion when necessary to preserve her health violates the U.S. Constitution.
The experts’ letter is addressed to the U.S. government, but the experts aren’t holding their breath awaiting a reply from the Trump Administration. Instead, the letter urges New York to pass the Reproductive Health Act, which would repeal the criminal abortion provisions, and encourages similar state efforts to bring their laws in compliance with human rights law.
Wednesday, June 14, 2017
Nation (June 13, 2017): Why is Reproductive Justice Vital to This Political Moment? A New Book Breaks it Down, by Dani McClain:
In 1994, a dozen black women at a pro-choice conference developed a new intellectual framework for understanding reproductive health and rights. Loretta Ross explains“We placed ourselves in the center of our analysis and made the case that while abortion was a crucial resource for us, we also needed health care, education, jobs, day care, and the right to motherhood.” At that moment the reproductive justice movement was born.
Twenty-three years later, Ross and historian Rickie Solinger have published "an introduction" to reproductive justice. According Dani McClain of the Nation:
This history will be new and useful reading to some people long connected to reproductive-rights struggles, but Ross said she and Solinger wrote Reproductive Justice primarily as a teaching tool for high-school and college students. “So much of feminist theory is presented in such abstract language you can’t even begin to understand it even if you’ve got a PhD in women studies,” she said. “I took pains to make sure we could talk about complex concepts but in a way that someone with good reading skills could understand.”
The book explains howrace, class, ethnicity, sexuality, gender expression, and immigration status intersect with gender to impact a person's ability to protect her reproductive health, choose whether and when to have a child and safely raise the children that she has. The reproductive justice movement also recognizes the need to embrace human rights concepts that go beyond our Constitution, including positive government obligations to protect and ensure rights and to create enabling conditions. A comprehensive book on reproductive justice has been sorely needed and “When we created reproductive justice in 1994, it was for this political moment,” Ross said.
Tuesday, June 13, 2017
Guardian (May 13, 2017): UN repeats criticism of Ireland's cruel and inhumane' abortion laws, by Henry McDonald:
For the second time in a year, the UN Human Rights Committee has held that Ireland's highly restrictive abortion law violates women's human rights. Under Irish law, women are not permitted to have an abortion even in cases in which the fetus suffers from a fatal abnormality. In 2010, Sioban Whelan was denied access to an abortion in Ireland after being told that her fetus suffered from a fatal condition.
"When I received the diagnosis, I was told I would have to continue with the pregnancy since Ireland’s abortion laws do not allow you to end the pregnancy even in these circumstances.
If I wanted to end the pregnancy, I would have to travel to another jurisdiction. This, to me, was very wrong and I knew that the suffering I endured because I had to travel to access healthcare was inhuman."
The Human Rights Committee agreed that denial of an abortion in such instances constitutes cruel, inhuman and degrading treatment. As in a case brought by Amanda Mellet last summer, the Committee held that Whelan was entitled to damages. It also stated that Ireland should change its abortion law. In order to do so, Ireland must amend its constitution, which protects fetal life. An Irish Citizen's Assembly recently voted in favor of changing the 8th Amendment in April.
Monday, June 12, 2017
New York Times (June 10, 2017): States Lead the Fight Against the President's Rollback of Birth Control, by Sheryl Gay Stolberg:
The Trump Administration's draft rule, leaked last week, would expand the number of employers and insurers that could claim exemptions under current Affordable Care Act's birth control mandate. In anticipation of this type of Department of Health and Human Services regulation and other federal threats to birth control access, a number of states are considering state laws to ensure access to affordable birth control.
In 2014, California was the first state to pass legislation that codified the ACA's birth control mandate under state law. Illinois, Vermont and Maryland have also passed contraceptive equity laws. State lawmakers are also looking at how to make contraceptives more accessible. Last week, Nevada's Republican governor signed a bill requiring insurers to cover 12 months of birth control at a time with no co-payment. Washington and Colorado recently passed similar bills.
According the New York Times, "[c]urrently, 28 states have some type of 'contraceptive equity' law aimed at making birth control cheaper and more accessible." Efforts to pass state legislation to expand contraceptive coverage and access can codify current ACA provisions at the state level and even expand access in some states. But sole reliance on state initiatives will create unequal access to contraceptives for women based on where they live.
Thursday, June 1, 2017
Rewire (May 30, 2017): No Idle Threat Dangerously Outdated Abortion Laws Must Go, by Farah Diaz-Tello and Clare Murphy:
In New York state, the legislature is considering a bill to remove abortion, including self-induced abortion, from the penal code. A proposal in the U.K. Parliament would change a 19th-century criminal law that allows prosecution of people who end their own pregnancies.
Why are advocates pushing for these reforms now? Because antiquated criminal abortion laws remain on the books in both places and pose a danger that women can be prosecuted for having abortions. In both New York and the U.K., when abortion was legalized, legislatures amended existing criminal abortion laws to create exceptions to the criminal provisions providing that abortion would be legal in certain circumstances. The U.K. law requires that legal abortions be performed in hospitals and clinics, thus leaving women who choose to self-induce abortions outside of a clinical setting open to criminal prosecution. Similarly, in New York, self-inducing an abortion is a crime. Both laws were "drafted at a time when no one could imagine safely and effectively ending a pregnancy with pills." Today, women are increasingly obtaining pills online to induce medication abortion. And in both New York and the U.K. women have been prosecuted for self-inducing abortion.
The experiences of people seeking abortions from the U.K. to New York teach us that access to affordable clinic-based abortion is critical, but is not enough to ensure that no one goes to jail for ending their own pregnancy. Nowadays, people may be pushed toward self-directed care by clinic closures and unnecessary restrictions, or pulled toward it by the private and personalized experience promised by abortion with pills.
The New York bill would move provisions regulating abortion from the Penal Code to the Health Code where they belong.