Reproductive Rights Prof Blog

Judge OK denying parole to pregnant addict for baby's sake

The Washington Post (Oct. 12, 2017): Judge OK denying parole to pregnant addict for baby's sake, by Associated Press: 

A Pennsylvania judge last year denied a 28-year-old pregnant woman parole even after she had served her minimum jail sentence.

Britnee Becker was arrested on a theft case probation violation and appealed the judge's decision. The higher court, though, said the judge was justified in denying Becker parole in order to protect her unborn child from Becker's drug use.

The appeals court says the judge was right to consider Becker’s unborn child, especially since Becker acknowledged using heroin when she was five months pregnant. She was arrested for the violation in May 2016.

The court says that denying Becker parole “ensured Becker could not use heroin and harm her unborn child.”

Court blocks undocumented teen's abortion — for now

USA Today (Oct. 20, 2017): Court blocks undocumented teen's abortion — for now, by Richard Wolf:  

A federal appeals court sought a compromise solution Friday in a dispute between a 17-year-old undocumented teenager who wants an abortion and a federal agency that doesn't want to help her get it.

A three-judge panel that includes two Republican appointees gave the Trump administration until Oct. 31 to find a sponsor for the girl, who crossed from Mexico to Texas last month and is 15 weeks pregnant. That would facilitate the abortion without involving the Department of Health and Human Services.

Advocates for Jane Doe say that finding a sponsor for the child could take too long. If a sponsor is not found within 11 days of this ruling, the matter returns to district court Judge Tanya Chutkan, who issued to initial order to allow the teen to get an abortion. 

The government has argued that she can get the abortion if she returns to Mexico, at which point she would be denied the opportunity to remain in the United States as she wishes. 

While this ruling was unsigned, the three judges intend to write separate opinions, including one concurring with the judgment and one strongly dissenting. 

U.S. judge orders Trump administration to allow abortion for undocumented teen

The Washington Post (Oct. 18, 2017): U.S. judge orders Trump administration to allow abortion for undocumented teen, by Maria Sacchetti:

 

Federal District Judge Tanya Chutkan ordered the U.S. government to allow an undocumented, pregnant minor in its custody to have an abortion if she chooses.

 

The Justice Department has already appealed the ruling, asking for a stay to prevent the teen from having an “irreversible elective abortion” while the appeal is pending. "Court filings make clear that the government is trying to prevent minors in its custody from having abortions, a departure from U.S. practice under Obama."

 

Jane Doe, as she is referred to in court documents, has been held in custody in South Texas since crossing the border illegally in September. She says that federal officials have refused to transport her to a clinic for the procedure and have instead taken her, against her wishes, to a Christian pregnancy facility that aims to persuade patients against abortion and allegedly conducted, also against her will, an ultrasound. The government has informed the girl's mother of her pregnancy. Both of these actions are potential violations of the minor's constitutional rights. 

 

All that is required of the government in this instance, per Judge Chutkan's order, is completion of routine paperwork that would allow the minor to visit a clinic.

Breastfeeding Behind Bars: Do All Moms Deserve the Right?

Huffington Post (Sept. 17, 2017): Breastfeeding Behind Bars: Do All Moms Deserve the Right?, by Kimberly Seals Allers

33-year-old Monique Hidalgo is mom to a 5-week old baby. Her child's father brings their infant to visit her on the weekends, as Hidalgo is also an inmate at a New Mexican state prison. Due to her incarceration, Hidalgo was refused contact with her newborn when she wanted to breastfeed her. She was also denied access to a breast pump that would've allowed her to provide milk for her baby from behind bars.

Last month, though, a Sante Fe judge ruled that the Corrections Department policy denying incarcerated mothers their right to breastfeed was unconstitutional. The judge ordered that Hidalgo be able to breastfeed her child during visits and also ordered that she receive access to an electric pump.

"While there have been many cases, both in federal and state court, affirming a woman’s right to breastfeed in a public place or at work, incarcerated women have largely been left out of this conversation,” said Amber Fayerberg, Ms. Hidalgo’s lead counsel, at Freedman Boyd Hollander Goldberg Urias & Ward, whose firm is working the case pro-bono. “This case acknowledges that incarcerated women are not just “inmates,” but women and, often, mothers,” Fayerberg said in an email interview.

Prisons are generally punitive over rehabilitative when it comes to incarcerated parents dealing with incarceration. Society rarely accounts for the circumstances that led to a parent's imprisonment, including poverty and racism. An incarcerated mother is deemed a "bad mom" in order to justify stripping her of the opportunity to maintain important, biological connections with her child like breastfeeding. 

Women's advocates highlight that, in an effort to punish mothers, policies like those that forbid breastfeeding are actually punishing the infants as well, depriving them not only of their mother, but also of the benefits associated with breastfeeding. Experts also find that enabling the mother-baby connection may be a beneficial way to keep a mother connected to her family and community, therefore increasing her chances of successful re-integration and discouraging recidivism. 

Reproductive justice is scarcely considered with incarcerated women in mind, however, Democratic senators have recently introduced positive legislation. Senator Corey Booker (D-NJ) introduced The Dignity for Incarcerated Women's Act. The bill would prohibit federal prisons from shackling pregnant women or placing them in solitary confinement, require federal prisons to provide free tampons and pads for women, and would extend visiting hours for inmates and their children. 

Even as we make progress, though, the question remains: which aspects of the mother-child connection are a right versus a privilege? When the early months of an infant's life are so critical to future development, shouldn't minimizing the separation of incarcerated mothers and their children be a societal goal rather than a constitutional battle? 

Chilean Court Upholds Right to Abortion

Tribunal Constitucional de Chile (Aug. 21, 2017):

A Chilean court has upheld a law decriminalizing abortion in cases of rape, fatal fetal impairment, and when a woman's life is in danger.  A group of conservative senators representing more than a quarter of the members of Senate challenged the law's constitutionality.

The decision is grounded in international human rights treaties.  With these rights in mind, and in view of the effect of pregnancy on women, the court concluded that the criminal law should be used only as a last resort.

Regarding the "threat to the woman's life" criterion, the Court has decided that only assessment of the physician attending the woman is necessary in order not to delay the provision of care.

The opinions of two physicians are required in an assessment of whether a case is one of "fatal fetal impairment."  The Court warned against "decisional paralysis" in such cases, since delay can pose a danger to the patient.

Finally, in cases of rape, a child under the age of 14 must have an abortion before 14 weeks of gestation, while an older patient has under 12 weeks of gestation.

Even though it remains under in the Inter-American human rights systems whether artificial legal persons have the right to conscientious objection, the Court, intending to promote freedom of conscience and religion, ruled that hospitals and clinics may lodge institutional conscientious objections to abortion.

Planned Parenthood: Indiana Judge's Ruling a Victory for Young Women

Saint Louis Post-Dispatch (Jun. 29, 2017): Planned Parenthood: Judge's Ruling a Victory for Young Women, by Rick Callahan (AP): 

A federal judge in Indiana Thursday blocked part of a new law that would have required a judge to determine whether a pregnant minor's parents should be notified if she sought an abortion. Republican Governor Holcomb of Indiana, who signed the law in April, frames it as a "parental rights issue."

Reagan-nominated U.S. District Judge Sarah Evans Barker who enjoined the provision also blocked two additional provisions--one requiring physicians to verify the relationship between a minor and her parents or guardians and another that would have prevented anyone assisting an un-emancipated minor seeking an abortion.

Attorney General Curtis Hill has not yet decided if he will appeal the Judge Barker's decision to the 7th Circuit Court of Appeals in Chicago.

How Anti-Abortion Lawmakers Win Even While Losing in Court

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.

Kansas Attorney General Apologizes for Citing Dred Scott to Defend Restrictions on Abortion

ABA Journal (Oct. 20, 2019): Kansas Attorney General Apologizes for Dred Scott Citation in Abortion Brief, by Debra Cassens Weiss:

Derek Schmidt, the Attorney General of Kansas, has apologized for an egregious lack of taste and good judgment in citing the United States Supreme Court's abominable Dred Scott decision in the brief he submitted to the Kansas Supreme Court court defending his state's restrictions on abortion.  The case was cited as support for banning all second-trimester abortions, a ban the lower courts reasoning was in violation of the Kansas Constitution's Bill of Rights.  Schmidt argued that the use of language from the Declaration of Independence in Kansas's Bill of Rights regarding  equality and inalienable rights is, like the Declaration itself, "merely aspirational."  Schmidt cited Dred Scott, the case denying African-Americans citizenship, in support of that proposition.  

New York’s Highest Court Expands Definition of Parenthood

New York Times (Oct. 18, 2016): A Complex Case Tests New York State’s Expanded Definition of Parenthood, by Sharon Otterman:

New York has had an expanded definition of parenthood since August.  The new test is whether a couple intended to have and raise a child together.  It was meant "to provide equality for same-sex parents and the opportunity for their children to have the love and support of two committed parents.”  Now the new test is being applied in a difficult case involving a lesbian couple's break-up and the boy whom one of the women legally adopted.

Circe Hamilton applied to adopt a boy from Ethiopia in 2009.  Her partner Kelly Gunn intended to adopt the boy as a second parent.  Before the adoption was finalized in 2011, however, the couple broke up but remained friends.  Hamilton, overwhelmed by the challenges of motherhood, called upon Gunn to help her with childcare, shelter and even employment.  Now that Hamilton wants Gunn out of her and her son's lives, Gunn is arguing that the adoption would never have happened without the couple's mutual efforts.  Hamilton, however, is arguing that she intended to parent alone. 

The judge in the case must decide whether the involvement of Gunn in the boy's life amounts to parentage or just the benevolence of a trusted friend.  Several questions are guiding the proceedings, now before the Supreme Court in New York County:  "How formalized was the relationship between Ms. Gunn and [the boy]? What did he think Ms. Gunn’s role was? Did Ms. Gunn assume the duties of a parent? What would be the impact on[the boy] if their relationship ended?"   

The case is particularly fraught because now Hamilton wants to move to London with the boy.  For now, the court has ordered the boy's passport confiscated so that Hamilton does not abscond with him.   

SCOTUS Denies Trans Teen’s Use of Boys Bathroom

The Daily Beast (August 4, 2016): SCOTUS Denies Trans Teen’s Use of Boys Bathroom, by Samantha Allen: 

Gavin Grimm, a 17 year old transgender boy, had his right to use the boy's bathroom at school placed on "temporarily on hold" by SCOTUS.   In a 5-3 decision, the Court granted an emergency stay of a 4th Circuit ruling allowing Gavin to use the boys room while the Court decides whether or not to grant review of the case.  If Court denies the request, the Fourth Circuit's decision will go into effect.  If it grants review, Gavin will have to wait several months for the case to be briefed and argued before the Court issues a decision.  Either way, his lawyers are upset that their client has to use a single stall bathroom that no other student in the school is required to use until the Court decides whether to take the case. Set against a slew of similar cases across the U.S., this case is sadly not the first of it's kind, nor does it look like it will be the last. Gavin's lawyers  stated: 

“I woke up this morning and couldn’t believe that we had to tell our client that the court considered it an ‘emergency’ to stop  him from using the restroom,” said Chase Strangio, the ACLU staff attorney who started the #LoveForGavin hashtag.

 

Expert Testimony in Inter-American Court's Forced Sterilization Case

Reprohealth Law (June 15, 2016): Forced Sterilization Case Against Bolivia: Expert Testimony by Christina Zampas:

We continue to follow the story of I.V. v. Bolivia, the Inter-American Court of Human Rights' first case of forced sterilization (see previous post here).  Brought against Bolivia by an immigrant woman from Peru, the case alleges multiple violations of the American Convention on Human Rights by doctors who claim they obtained her consent to sterilization during a cesarean section.  The doctors claimed the patient needed to be sterilized because a future pregnancy would be dangerous. 

An expert on forced sterilization, Christina Zampas brought to bear the United Nations' and the European Court of Human Rights' standards on the subject, including numerous cases against Slovakia concerning the forced sterilization of Roman women.  Her position is that sterilization for the prevention of future pregnancy cannot be justified on the ground of medical emergency:

Even if a future pregnancy might endanger a person’s life or health, alternative contraceptive methods can be used to ensure that the individual does not become pregnant immediately. The individual must be given the time and information needed to make an informed choice about sterilization. The provision of information, counseling and sterilization under the stressful conditions of childbirth are not only a violation of the right to information but also violate the right to privacy, physical integrity and human dignity and are a gross disregard for an individual’s autonomy, rising to the level of inhuman and degrading treatment.

Zampas also urged the court to recognize the multiple layers of discrimination underlying sterilizations in circumstances like those faced by I.V. and justified by "medical necessity."  The decision to sterilize, usually made by men, is often informed by stereotypes that cast women as incapable of rational reproductive decision making. 

 

Related articles

Sterilized Peruvian Woman Seeks Justice from Inter-American Court of Human Rights

What Can Be Done about Maternal Mortality in Uganda?

AfricLaw (June 3, 2016): Uganda: Why the Constitutional Court Should Rule on the Right to Health, by Michael Addaney:

Responding to the shocking statistic that thirteen women giving birth in Uganda die each day due to circumstances that could be prevented (e.g., severe bleeding, infection, hypertensive disorders and obstructed labor), Michael Addaney notes that universal human rights could play a role in addressing the crisis.  The current obstacle, he notes, is the political question doctrine, which forbids courts from deciding certain cases because the question lies in the province of elected officials. 

In 2011, a non-governmental organization sued Uganda for violating the constitutional rights to health and life by not providing basic minimum maternal health care.  The court ruled that the petitioners had presented a political question.  Addaney notes, however, that the International Court of Justice has questioned judicial dodging of "political" questions "whenever the rights, interests or status of any person are infringed or threatened by executive action."  The Supreme Court of Uganda appears to agree.  In 2015, it reversed the ruling of the lower court, holding that "the petition has critical questions that need constitutional interpretation." 

Addaney is hopeful that with the evolution of human rights and modern constitutionalism the political question doctrine will see its end. 

 

 

Eight states now striving to repeal abortion restrictions

The Guardian (June 30, 2016): Planned Parenthood: eight states now striving to repeal abortion restrictions, by Molly Redden

The victory of the recent SCOTUS decision that slammed down Targeted Regulations of Abortion Providers (TRAP Laws) is already resonating within the reproductive rights community. Planned Parenthood made a statement about the next steps that their legal department plans to take now that the ruling has been handed down by the nation's highest court. In an effort to rally voters for the upcoming November election - both for the Presidency as well as more locally - Planned Parenthood, along with the Center for Reproductive Rights, has its eyes on states beyond Texas: 

Lawmakers are formulating specific plans to target similar abortion restrictions in Arizona, Pennsylvania and Virginia, and  they are broadly prepared to repeal laws in Florida, Michigan and Texas. In Tennessee, Planned Parenthood is looking to  support litigation by the Center for Reproductive Rights against that state’s building requirement law. They will also target Missouri’s admitting privileges law. Earlier this week, officials with Planned Parenthood of Kansas and mid-Missouri signaled that they were prepared, if necessary, to mount a legal challenge.

While some state laws restricting abortion have already fallen in light of the Supreme Court decision, Planned Parenthood and The Center for Reproductive Rights intend to move forward against more challenging laws in the above mentioned states, as well as others, in order to protect reproductive rights nationwide. 

Here’s What You Need to Know About Your Birth Control Access

Rewire, June 9, 2016, Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling, by Bridgette Dunlap 

In a well-thought-out and organized article, Bridgette Dunlap looks at the impact the Supreme Court’s “non-decision” in Zubik v. Burwell will actually have on women’s access to contraceptives. Quelling what she assumes to be a reader's ever present worry, Dunlap discusses the current legal mandates in place for employers of all kinds and emphasizes that “the vast majority of people with insurance are currently entitled to contraption without a co-payment – that includes people for the most part, who work for religiously affiliated organizations.” Dunlap emphasizes the importance that coverage of the Supreme Court's ruling in Zubik not not overstate the impact of the non-decision:      

    The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news     about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally.     Seriously, tell your friends.

Planned Parenthood Attacker Unfit for Trial

New York Times (May 11, 2016): Judge Finds Planned Parenthood Shooting Suspect Unfit for Trial, by Jack Healey:

Robert Dear, the profoundly disturbed gunman who murdered 3 persons and maimed 9 at the Planned Parenthood in Colorado Springs last November, is unfit to stand trial.  Dear suffers from delusions that the government has been following and spying on him for years.  The trial is now at a standstill, as Dear is consigned to a mental institution in an attempt to restore him to competency.  The presiding judge will review the case on August 11th.  Dear has been uncooperative with his counsel and appears to want to the trial to proceed.  

Planned Parenthood Sues Over Fraudulent Videos

New York Times (Jan. 15, 2016): Planned Parenthood Sues Abortion Foes, by Erik Eckholm:

Planned Parenthood mounted a legal counterattack Thursday against the anti-abortion activists who used covertly taped videos to accuse the organization of trading in aborted baby parts, charging in a federal lawsuit that “anti-abortion extremists” had engaged in a three-year “complex criminal enterprise.”

Defendants in the lawsuit include the Center for Medical Progress, which created and disseminated the videos and is registered as a charitable trust in California, and the head of Operation Rescue, Troy Newman, described as a "dangerous and reckless extremist" in the complaint.  These activists hoped to convince the American public that Planned Parenthood was illegally trading in aborted baby parts, an allegation that was not substantiated in subsequent congressional and state investigations.  The videos have nonetheless fueled the campaign to de-fund Planned Parenthood and have triggered vandalism, harassments and threats of violence at its clinics.   

The complaint charges fraud and violations of conspiracy laws, state privacy laws and specific statutes and seeks money damages.  The complaint may be found here.

 

Symposium on Little Sisters of the Poor

SoctusBlog (Dec. 17, 2015): Symposium: Integrity, Mission, and the Little Sisters of the Poor, by Richard W. Garnett:

The current iteration of the religious-freedom challenge to the Affordable Care Act’s preventive-services mandate (not, as is sometimes suggested, to the act itself) is called Zubik v. Burwell. This is unfortunate. True, the caption choice improves the “optics” for the Obama administration and reduces the likelihood of awkward headlines and embarrassing talking points. However, calling the case – as I will – Little Sisters of the Poor better captures its bizarre core and character. Calling it by this name reminds us that the administration has not reluctantly stumbled into but has instead doggedly pursued a conflict with a religious community of Roman Catholic nuns over whether and how its employees will receive government-mandated, cost-free insurance coverage for prescription contraceptives. Regardless of how the Court rules, that this pursuit appears to have been for the administration a matter not merely of policy but also of principle is extraordinary.

 

Lawsuit Against TRAP Law Filed in Oklahoma

RH Reality Check (9/22): Lawsuit Asks Oklahoma Supreme Court to Block Anti-Choice Omnibus Bill, by Jessica Mason Pieklo:

Continuing its pro-choice advocacy in Oklahoma, the Center for Reproductive Rights has petitioned the Oklahoma Supreme Court to block a TRAP law that is scheduled to come into force on November 1st.  Pieklo writes:  

SB 642 includes language that advocates claim could be interpreted to bring felony charges for any violation of the more than 140 statutes targeted at physicians and medical facilities providing abortion.

The lawsuit was filed on behalf of one of only two abortion providers in the state.

 

Federal Judge Permanently Enjoins Wisconsin Admitting Privileges Law

The Journal Sentinel: Judge rules Wisconsin abortion law unconstitutional, by Daniel Bice & Cary Spivak:

A federal judge on Friday struck down a Wisconsin law requiring doctors performing abortions to get hospital-admitting privileges, concluding that the measure was enacted primarily to provide an obstacle for women seeking abortions.

U.S. District Judge William Conley, who earlier had put the law on hold, ruled that the 2013 law is unconstitutional. He issued a permanent injunction blocking its enforcement. . . .

_________________________________

The opinion is available here.

ACLU Challenges Alabama Law that Puts Teens Seeking Abortions on Trial

Associated Press: Ala. Abortion Law Lets Judges Appoint Lawyers for Fetuses, by Kim Chandler: 

The American Civil Liberties Union on Wednesday asked a federal judge to block an Alabama law that allows a fetus to be represented in court when a minor is seeking judicial permission for an abortion.

While abortion opponents have rolled out a variety of new restrictions on abortion in recent years - including new requirements on clinics and doctors - ACLU staff attorney Andrew Beck said the Alabama law was unique. . . .

 Here's the Daily Show's take on it (from January):

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