Would I trust my partner with birth control?

Melissa Torres-Montoya, Resident Blogger (’11, University of California, Berkeley School of Law)

Would I trust my partner with birth control?  Thinking of past partners the answer would have to be; yes, yes, no, maybe, absolutely not.  Which I guess mean that my answer to that question has changed over the years so it really depends. With technological breakthroughs and the eventuality of a male birth control, this is a question that will be contemplated more and more often.

Vogue recently published a story on their website where one man shared he and his wife’s exploration of this question.  While he brings up some interesting points, issues that I’m sure will cross the minds of many when tackling this question, their exploration of a male using birth control mostly reenforces gendered stereotypes, lacks real acknowledgment of how each relationship is unique as is their decisions about how to control their fertility.  When the writer of this Vogue profile & platform piece describes how he and his wife discussed the idea of a male in control of birth control more generally than just within their own relationship, he describes how his wife found the idea of “putting a male in charge of contraception” “amusing,” even suggesting “that putting the male in charge of contraception would just embolden him to have sex with random women, and riskier sex at that; unlike a condom, the pill would do nothing to prevent disease.”  Not surprisingly, these same concerns were expressed when a female birth control pill was developed.  These are also some of the same concerns that are currently being expressed about PrEP, a daily pill that works sort of like birth control but instead to reduce the likelihood of HIV transmission rather than pregnancy.  I won’t argue that social norms around sex haven’t entirely changed since the advent of the birth control pill, and while some conservatives would argue the family system has broken down, I think it’s pretty evident that monogamous relationships, marriage and family units still remain the overwhelming norm even while most women at one point in their lives use a form of contraception.  The birth control pill and other new contraceptive options have revolutionized sexual agency, allows couple’s to plan pregnancies and has been instrumental in women being able to enter into the work force.  Both PrEP and the male birth control pill could provide similarly positive social benefits.

Sure, there could be the instance where both people in a couple slip up on their pill, thinking they have double protection because they’re both using a form of birth control.  And maybe we might have to redouble sex education efforts to make sure that everyone ACTUALLY knows the only way to prevent STIs is through condom use.  But the addition of a male birth control pill as a contraceptive option, allows more individuals to take control of their fertility, allowing them to choose when and whether they ever want to become parents.  Similarly, while PrEP may not be a medication that should be recommended for everyone, it does offer one more avenue for people to engage in sexual activity while safeguarding their sexual health by reducing the likelihood that they will become HIV+.  I, for one, am all for developing more options that allow for sexual agency and overall improve the public’s health, as well as pushing forward a society in which we trust both men and women to each take actions to protect their sexual and reproductive health.

Today’s Special: Red Herring

S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Abortion and rape are two emotional issues, which is why it is critical to think before speaking about either.  In a recent Slate article, Emily Bazelon underscores this point by examining the claim made by anti-choice lawmakers that rape rarely results in pregnancies.  The claim is made in an effort to oppose extending late-term abortion access to rape victims.

Bazelon reveals that the only science backing this claim is experimentation in Nazi Germany.  During Hitler’s regime, anatomist Dr. Hermann Stevie used the bodies of 174 executed – mostly reproductive-age – females to study the effects of stress on the female reproductive system.  He found imprisoned women awaiting execution experienced less ovulation and sometimes had “shock bleedings.”

In 1972, anti-choice obstetrician Fred Mecklenburg butchered Stevie’s research, writing that the Nazis selected women who were about to ovulate, sent them to a mock-gas chamber, then brought them back to study the effect on their ovulatory pattern.  The result, he reported, was that an extremely high percentage of these women did not ovulate.

As Bazelon points out, “prison wasn’t the gas chamber.  And the prolonged trauma of anticipating execution isn’t the same as the shock of rape.”  Yet Mecklenburg’s report is the basis for anti-choice claims that women don’t get pregnant from rape.

We all have reasons for our stance on abortion.  They may be rooted in fact, ideology, or personal experience.  But please, not in German Nazi-era science.  It’s imperative that when it comes to abortion politics, we do more than just appeal to emotion. That won’t get us anywhere.


S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Karla and Jacob dated 5 months before she was diagnosed with lymphoma.  Since cancer treatment would render Karla infertile, Jacob provided his sperm for a hospital to develop embryos and cryogenically store them until a later date.  Two months later, he dumped her (via text message).  Now, three years later and cancer-free, the couple is in “limbryo” as a court determines whether to grant Jacob’s injunction against Karla implanting the embryos.

Szafranski v. Dunston[1] illustrates just how far procreation has been separated from parenting – and we’ve only seen the tip of the iceberg.  The first human created through IVF in the US was born in 1981.  Since then, surrogacy and the purchase or donation of biological material has resulted in the birth of 5 million babies conceived using ART.[2]  Parenting via contract isn’t a new phenomenon – we’ve been doing it as long as adoption has been in existence.  Procreating by contract is.

But when contracts fail, potential procreators have the constitution on their side.  And there is nothing up to this point showing that Szafranski or Dunston had a contract. Szafranski’s essential argument in the case is that Dunston is violating his constitutional rights, asserting constitutional notions of privacy.  Dunston has potential contract-based arguments in estoppel or performance, but her essential stance has been that her constitutional right to become a parent trumps his constitutional right not to.  Can’t the court see that this is just Roe in reverse?

As we move towards a more artificial era of child conception, its important to take a stance on whether genetic material is used against our will. Unless there is a contract in place, there should be contemporaneous mutual consent to the use of embryos.  Just think how Dunston would feel if Szafranski wanted to implant an embryo into his wife?  I have a feeling she’d be singing a different constitutional tune.

[1] http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1122975.pdf

[2] http://anthropologyworks.com/index.php/2013/02/14/assisted-reproductive-technologies-reviewing-recent-perspectives-and-addressing-research-gaps-in-medical-anthropology/

Django Rechained

Rosie Wang, Resident Blogger (’14, Columbia Law School)

Going into the midnight premiere of Django Unchained, the only real context I had was that (1) It was a Quentin Tarantino movie and (2) in Spike Lee’s opinion, it was racist. Coming out of it, I thought, “Wow, that was breathtakingly racist.” And not because of the copious use of racial slurs (which is what Mr. Lee objected to).

There’s something much more subtle and insidious in it’s portrayal of slavery: It adopts wholesale and without irony some of the worst plantation tropes and erases and reinterprets the historical narrative of black women’s lack of reproductive autonomy.

In Django Unchained, a German bounty hunter frees a slave, Django and partners up with him in capturing criminals. Django is dedicated to finding and rescuing his wife Hildy, who now belongs to a plantation owner who has male slaves killing each other for sport. It’s supposed to be okay for Tarantino to write and tell this story because it is a revenge fantasy of slaves rising up against their masters and thus subversive and empowering. However, there is a lot that goes wrong in the execution of this idea.

The black body is on sensationalistic display in a way that no white body equivalently is. Hildy is put in the “hot box” for trying to run away, and has water splashed over her nude body when she is released. Django is suspended upside down, naked and about to be castrated after his true intentions to save his wife are revealed.  Nearly naked black men fighting to death appear on screen multiple times. These are fraught images because the institution of slavery viewed black women’s bodies as  open for sexual consumption and black men’s bodies as threatening and open for torture. The way Django Unchained offers images of naked black bodies for visual consumption is exploitative and revels in the morbidity of the scenes, rather than aiming for historical accuracy.

With no historical background knowledge, someone watching the first scene depicting a plantation might think that a black woman’s life under slavery consisted of swinging on oak trees in hoop skirts – as long as she didn’t try to escape. In reality, coerced reproduction and rape is the way that slavery was sustained and slave owners’ wealth multiplied after the 1807 ban on the slave trade. The monetary worth of slave women being auctioned was determined by speculations on her reproductive capacity. Slave owners would pair their slaves with multiple partners and force them to engage in sexual activity without regard for any person’s consent. Slave women were especially vulnerable to sexual assault by their masters and the resulting children from such rapes were targets of violence by the master’s wife.

Harriet Jacob’s narrative of her own experience, Incidents in the Life of a Slave Girl describes her 55 year old master beginning sexual advance on her when she was 15. She eventually forms a relationship and has two children with another white man as the only method for escaping him. Children were often sold away from their mothers, dashing any potential of forming family bonds. Hildy is 27, and some mention is made of her role as a sex worker, but the very real reproductive consequences are never addressed. The legacy of all this is an entrenched distrust of the medical system among many black women which leads to poor health outcomes and the stereotype of not being able to be trusted to make their own reproductive decisions.

No Standard Deviation from Our Principles

Rosie Wang, Resident Blogger (’14, Columbia Law School)

Here is an alarming fact that I didn’t know until recently: Some studies have found that it is actually more likely for a woman to conceive after rape than after consensual sex. So much for the woman’s body having a way to shut that down. On the contrary, this tragic reality seems to highlight the necessity of abortion as an option.  But what is behind the link between lack of consent and increased likelihood of conception?

Jonathan and Tiffani Gottschall looked at the results from the National Violence Against Women survey and found that out of the 405 women who said they had been raped, pregnancy occurred at rate of 6.42% Horrifyingly, this is more than twice the rate that women become pregnant from consensual sex. The Gottschalls eliminated a few possibilities: rape does not induce ovulation, nor is the sperm of the rapist unusually viable. One hypothesis they present is that of male choice. Supposedly, rapists target women who are young and desirable. And since the markers of beauty and the markers of high fertility overlap, a woman with high fecundity is more likely to be chosen by a rapist because of these physical cues. Various news outlets [Huffington Post here, Politico here, Washington Post here]  have trotted out these findings as a refutation against the blatant misinformation perpetuated by Todd Adkin and his ilk.

However, there is something very wrong with this picture.

First of all, rape is not primarily about sexual attraction, rape is about power and anger. Second, this type of correlation between visible fertility and rape veers straight into the territory of victim-blaming. I imagine wildly misguided “advice” based on these findings that puts the onus on the victims to obscure their physical cues of fertility. “If she had worn something baggier, that would have obscured her ideal hip to waist ratio, she wouldn’t have been raped.” Sadly, since two-thirds of rapes are committed by someone known to the victim, and 38% of rapists are a friend or acquaintance, it would seem like rapists do not target the women with the highest and strongest fertility cues, but those whose familiarity and trust they can exploit. Thus, even if some piece of information or research looks like a good argument for reproductive justice, it’s often worth it to dig a bit deeper and look at what the implications mean.

Reductio ad Absurdum: A Response to the New York Times

Burke Bindbeutel, University of Missouri School of Law

“The Two-Minus-One Pregnancy” is a disappointing recent New York Times article. Ruth Padawer describes a discomfited backlash to the medical procedure that allows a pregnant woman to opt for a single childbirth when she is carrying twins. Beneath a patina of thoughtful consideration, the author reverts to some tried and true anti-choice tropes: that the choice to abort will make a woman a social pariah, that she will never overcome her regret. The article casts a woman’s personal choice in a thoroughly negative light.

I am a fraternal twin, as well as an older brother, and a younger brother. I have never thought of myself as fifty percent of a natural, God-given package deal. Once born, a person is an independent entity and not a spectral reminder of a difficult choice, despite what the pundits believe.

Padawer’s waiting room is a coven of hysterical second-guessing and guilt. When parents exercise discretion in building their families, Padawer reasons, they are opening themselves to the frustration of too much choice. In a consumerist society, endless choice leads to bafflement, so judicious would-be mothers must naturally end up with the nagging dissatisfaction of discount shoppers.

The article points to a rift amongst abortion rights advocates by quoting from the comment board of urbanbaby.com. Reduction, this contingent insists, is less defensible than abortion because a woman ought not resist the number of fetuses that nature, or fertility drugs, has provided her. When a Philadelphia doctor in the early 1990’s agrees to reduce a pregnancy, “a stream of patients” quickly mobilizes to selfishly request reductions. This narrative stigmatizes not just the right to choose, but female empowerment in general.

I was haughtily summarizing the article to a fellow LSRJ member over lunch. She pointed out that the case for pregnancy termination is very strong when complications, or too many fetuses, jeopardize a mother’s health. But the decision to go from two to one probably turns on a parent’s preference rather than impending danger. The issue reminded my friend of sex selection, which does not appear to deserve the same legal protection as other controversial procedures.

Dismounting from my high horse, I started to see where my friend was coming from. The issue was not an easy one. Our campus events aim at coalition-building, and elective pregnancy termination wrinkles a lot of noses at Mizzou.

But reduction helps our LSRJ chapter to focus on just what sort of reproductive justice we advocate. If you support the right to choose, you should be prepared to disagree with someone’s choice. Access to family-planning resources is a human right, and how those resources are used is a personal decision.

And that’s what seems to disturb Padawer’s medical establishment most: the freedom of a woman deciding if and when to have children. The doctors in the article are more preoccupied with advancing their own ethical credentials than with serving their patients. “We were in the business to improve pregnancy outcomes, and those reductions didn’t fit the criteria,” says Dr. Ronald Wapner. A woman’s evaluation of economic and social limitations to child-rearing does not fit into Dr. Wapner’s career ambitions.

Reproductive justice allows people to determine how they establish their families. Medical technology facilitates that goal. Having a choice allows parents to allocate their priorities as compassionately as possible.

From Page to Practice: Where’s My Bump? Just Responses to Working Women’s Infertility Crisis




While stereotyped as hyper-fertile African American women are affected by the opposite characteristic: we are more likely studies say, than white counterparts between the ages of 25 and 44 to be and remain infertile.


If you did not know this, do not be ashamed.  Most physicians don’t know it either.  A recent Centers for Disease Control report says 6.1 million U.S. women between the ages 15 and 44 had trouble conceiving; 2.1 million married couples experienced infertility, and 9.2 million women had made use of infertility services.


In a study of  US physicians’ perceptions of fertility, only 16% of the responding physicians correctly identified African Americans as the racial group most at risk for fertility, 82% thought white women were most at risk. While stereotyped as hyper-fertile most studies say that African American women are more likely than white counterparts between the ages of 25 and 44 to be and remain infertile.


The Research


Most fertility research involves wealthier white women, because they are the biggest consumers of fertility clinics whose patients or patients’ data are available for research studies. The story of African American women’s fertility, emerging from the most recent empirical research available seems to be this. Continue reading

ART, Expense, and Infant Health

A recent NY Times pair of articles focuses on the human, medical, and social costs of implanting multiple embryos via IVF and IUI, resulting in a spike in both multiple births and a litany of health risks to these babies. The articles, and ensuing barrage of public comments, can be read here: “The Gift of Life, and Its Price,” “Grievous Choice on Risky Path to Parenthood.” In IUI, parents who conceive multiples also face the decision of whether to terminate some fetuses using the procedure termed “selective reduction”. IUI is much cheaper than IVF, and more readily covered by insurance, but the chance of success is lower and ability to control multiples non-existent.


The most startling assertion in the IVF article was an analysis by reproductive health experts and providers explaining the financial and business motivations on providers to disregard medical guidelines by implanting more embryos than may be safe for mom or her babies. Fertility practices want to boost their success rates and attract clientele in a highly competitive and lucrative medical field, and parents apparently think that implanting more, or rejecting selective reduction in IUI, will secure greater chances of a viable pregnancy and satisfy their emotional or religious needs to a degree that makes the risks worth taking. If the underlying reason for the increase in multiple implantations and subsequent births is really a symptom of our profit-based medical system, some suggest we utilize insurance schemes as a way to address this issue. If insurance companies are required to cover IVF, whereas many now only cover IUI, they could regulate the financial incentives by only reimbursing doctors for single implantations. Continue reading