I was delighted to attend the Northeast Regional LSRJ Conference at New York Law School on February 13, 2010. Leigh Campbell and Courtney Patterson did an excellent job organizing.  The theme was “The New War on Reproductive Justice: The Changing Tactics of the Anti-Choice Movement.”  The following are the primary pieces of information I took away from each informative panel.

Jordan Goldberg from the Center for Reproductive Rights and Alexa Kolbi-Molinas from the ACLU Reproductive Freedom Project discussed the importance of acting on a state and local level, rather than focusing only on Supreme Court decisions. The state representatives are much more likely to listen to individual members of their constituencies, meaning that time spent contacting legislators is certainly not wasted.  Currently, there is legislation in many states throughout the country aimed at redefining life and personhood.  If this legislation is passed it could effectively outlaw abortion, many forms of contraception and emergency contraception in that state. Additionally, it would open the doors to criminal charges on behalf of the fetus.  Needless to say, the implications are staggering and those developments are worth following.

Sabrina Shulman, the Political Director at NARAL Pro-Choice New York, talked about the latest strategies of the anti-choice movement.  Ms. Shulman described the movement as being an “under-the-radar campaign of fear and intimidation.”  The most startling aspect to me (more…)

While most legal symposia consist of academics speaking at length about their current research intended for publication in an upcoming journal symposium issue, the NYU Review of Law & Social Change is seeking to do something different in its February 12th symposium, From Page to Practice: Broadening the Lens for Sexual & Reproductive Rights. As part of the Page to Practice model, we are integrating practitioner voices into the discussion. Through the conversations that develop, the symposium planners hope to bring an on-the-ground critical lens to academic work and encourage collaborations around strategy that extend beyond traditional silos.

As part of this collaborative model, we are posting some of the academic presenters’ abstracts here. Given that this is a one-day symposium, the organizers hope to begin the conversations early through comments and ideas posted here on RepoRepro and on the Reproductive Rights Prof blog.

For more information about the symposium, please see the invitation below: (more…)

Procedure and substance are well-acknowledged to be elusive categories in law. Procedure shades off into substance, such that their divide is not discoverable by mere logic or reason. It is a divide drawn to carry out a purpose.^[1] This acknowledgement does not deprive the divide of meaning. It redirects the inquiry. Rather than ask on what side a set of facts falls, we ask: why categorize as procedure or substance? What is both the purpose and effect of drawing the divide?

A procedure-substance divide in abortion liberalization can be traced to the 1994 U.N. International Conference on Population and Development (ICPD) and its Programme of Action.^[2] The ICPD was an intergovernmental meeting under the auspices of the United Nations, where abortion was first recognized as a matter of concern for the transnational collective. To be particular, unsafe abortion was the subject of concern. Following much controversy and prolonged debate, governments and other participants agreed to address “the health impact of unsafe abortion as a major public health concern.”^[3] Unsafe abortion is pregnancy termination undertaken by persons without necessary skills or in an environment that fails minimum medical standards, or both.^[4] Unsafe abortion is a major cause of maternal mortality and morbidity in developing countries. Every year an estimated seventy thousand women die and millions more suffer with complications from unsafe abortion.^[5] Controversy stemmed from the legality of abortion. Regardless of modifier, safe or unsafe, abortion is a criminal offence under penal code or other statute in the vast majority of the world. (more…)

Introduction

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. (more…)

For my comments on Panel One, Reproductive Justice: Expanding the Vision to “Collateral” Fields, I would like to “expand” by focusing more specifically on the interrelationships of lesbians and abortions.

Lesbians are by definition “reproductive outsiders,” as Jenni Millbank has rightly theorized.  This outsiderness, in theory and in practice, is most obvious in several categories:  as the protection of legal parenthood status from challenges by non-lesbians, including the state in its child protective powers;  as the conflict between lesbians who have legal parenthood status and lesbians who do not have legal parenthood status (often, although not always, following biological status); and as the legal ability to access “reproductive technology,” including very basic and rather non-technological technology such as insemination.

Thus there is an important argument to be made that lesbians and other sexual minorities do not inhabit a “collateral” field to be integrated into the house of reproductive rights.  Additionally, it is also true that reproductive rights have an essential place in the LGBT legal reform movements.   The symbiotic relationship between reproductive rights and sexual rights is not unproblematic, but it is an experience that is lived, litigated, and theorized.   The experience occurs across various societies and states, with diverse economic, racial, ethnic, and disability hierarchies.  

Here I’d like to highlight the specific relationship between lesbians and abortion. (more…)

There are at least three different questions we can ask about the role that morality can or should play in issues related to the contemporary LGBT rights movement: First, can the government legitimately account for questions of morality when it legislates in LGBT-related matters? Second, should the LGBT rights movement rely on moral arguments when it seeks reform through the political and legislative processes? And third, should the LGBT rights movement rely on moral arguments when it litigates?

The quick answer to the first question is “it depends.” The quick answers to the second and third questions are “yes” and “no” respectively. I elaborate briefly below on each of these.

The Supreme Court held in Bowers v. Hardwick that moral judgments, as codified into law, provided a sufficient basis upon which to withstand a due process challenge to a statute that prohibits a certain conduct or practice. This “morality is enough” holding was renounced by the Court in Lawrence v. Texas, at least when it comes to a conduct or practice that implicates a liberty interest (such as the choice of sexual partners).

It is clear, then, that moral judgments or reasons are not enough to justify the criminal sanction of consensual same-sex sexual conduct engaged in by adults. But what role can morality play in other types of LGBT-related legislation? Can morality, for example, constitute a sufficient basis upon which to justify the denial of marital or adoption rights to LGBT people? (more…)

What is the relationship of health and abortion in law? How do the responses to this question change as one moves through various historical periods, from states to the national level in federations, or from the domestic to the international arena? Does conceiving (pun intended) of abortion as tethered to women’s health result in more authority, autonomy, equality, or safety for women — or less?When contraception and abortion were legal in England and the United States, the banner of health provided arguments for their criminalization. Once contraception and abortion were criminalized, health became one of the justifications for regimes of partial decriminalization that allowed conditional access to methods of controlling fertility. For example, doctors and midwives who could demonstrate a patient’s health-based need for a “therapeutic” abortion sometimes had defenses to criminal prosecution. “Health” similarly justified immunities for those who sold condoms to men.

Roe v. Wade reflects both these traditions: in Roe, “health” offers reasons for regulation as well as for exemption from regulation. Roe recognizes, in the second trimester of a pregnancy, the state’s interest in regulating abortion to protect maternal health, and in the third trimester, the state’s interest in regulating abortion to protect potential life — so long as government allows women access to abortions necessary to protect their lives or health. (more…)

In my undergraduate years I lived in Las Vegas, and I often guest spoke to classes and groups about transgender issues.  One of the things I would often discuss was hate crimes.  I had statistics on other affected groups, and the rate at which they were victims of hate crimes.  But the number of people who fell victim to hate crimes based on gender identity always surprised people, zero.  There was no such thing as a hate crime against someone for their gender identity. 

On Wednesday October 29, 2009 President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.  After 10 years of disagreements over the bill, this new federal hate crimes act affords protections based on someone’s actual or perceived sexual orientation and/or gender identity. 

Over the last 10 years there have been various barriers to the final passage.  The bill made it through the House of Representatives in April.  However, to get it through the Senate, Democrats attached this bill to the 2010 National Defense Authorization Act, a $680 billion defense bill.  (http://www.washingtonpost.com/wp-dyn/content/article/2009/10/28/AR2009102804909.html) (more…)

While in office, former president Clinton declared that “Abortion should be safe, legal and rare.” Last week, the Boston Globe reported that support for legalized abortion among Democratic White men has declined nine percent in the last year, and that 41% of Americans now favor increased restrictions on access to abortion. I can’t help but wonder how categorizing a constitutional right as something that should be prevented has influenced this shift.

When he spoke those words, President Clinton likely did not anticipate that 41% of Americans might support the latest law out of Oklahoma. The state’s new law requires physicians to report personal information about abortion patients to the state, which will post the information online. 

The new requirement looks like many state laws that require healthcare providers to report the date of birth, sex, race, and residence of people who test positive for infectious diseases like tuberculosis. Ostensibly, infectious disease reporting helps officials protect the public against outbreaks, and in most instances, patients’ personal information is strictly confidential.

With this law, Oklahoma not only tests the strength of our nation’s medical confidentiality laws, it places abortion in the category of diseases from which the public needs to be protected.

(more…)

Ever since I first learned about “conscience clauses,” which allow medical providers to refuse to provide medical treatment or referrals based on their own personal beliefs, they have fascinated me. I find pharmacist refusal clauses to be particularly interesting. While I whole-heartedly support each and every person’s right follow his or her conscience, I, as an RJ advocate, can’t help but notice that one person’s conscientious refusal is another person’s barrier to obtaining a necessary reproductive health service (for example, emergency contraception).  In rural communities, which may only have one pharmacy or pharmacist, a conscientious refusal can altogether prevent women from obtaining the health care services they need. I find myself thinking, “you are a pharmacist, dispensing prescriptions and behind-the-counter medication is your job – so do your job.” Nonetheless, I am uncomfortable compelling individuals to perform an action merely because that action is a commonly accepted practice in the profession.

A perfect case-in-point is the emerging “Refuse to Sign” campaign. Begun by clergy in Ohio, the Refuse to Sign Campaign seeks “the separation of church and state by advocating equal marriage rights for all people, regardless of sexual orientation, by encouraging faith communities, and their leaders, not to sign state-issued marriage licenses.” Some religious leaders are merely refusing to sign the licenses; some are refusing to perform marriage ceremonies at all. Following my pharmacist refusal logic, I should think that performing marriage ceremonies is the clergy’s job, and they should do it. But I don’t. I realize that the analogy isn’t a perfect fit, but it raises some interesting questions for me. Can I both support a pastor’s right to refuse to marry people and oppose a pharmacist’s right to refuse to dispense prescriptions? Or does support of one logically require support of the other?

(more…)