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From Page to Practice: Join the Conversation!

Repo Repro — Fri, 05 Feb 2010 23:30:35 +0000

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…)

From Page to Practice: Reclaiming the Entire Home After Lawrence v. Texas

Repo Repro — Fri, 05 Feb 2010 23:19:36 +0000

In Lawrence v. Texas,^{^[1]} the United States Supreme Court not only struck down Texas’ sodomy law, but also provided a more expansive ruling, holding that immorality alone cannot serve as a justification to prohibit a certain practice. This case was considered one of the greatest victories in history for the LGBT community. However, some have argued that Lawrence, important as it is, offered only “domesticated liberty” for LGBTs in that its ruling did not extend beyond the private domain and gave no acceptance to the notion of a more substantial kind of sexual liberty that the queer community embraces.^{^[2]} Although I find merit in this critique, I believe that even the perceived domestic liberty provided by Lawrence did not truly offer enough of an opportunity for gays to freely practice a gay lifestyle in the home. In fact, it seems that Lawrence only offered gays freedom in the bedroom, but not in the rest of the home. The image of a gay family of any kind, with or without children, living freely and publicly was not part of the vision that Lawrence suggested. The majority opinion emphasized that its decision “does not involve whether the government must give formal recognition to any relationship that homosexual person seeks to enter.” Therefore, while Lawrence did provide for domestic liberty, the domestic liberty was intended to be confined to the bedroom exclusively. In this respect, Lawrence provided sexual rights but not reproductive rights. (more…)

From Page to Practice: Reclaiming Values and Morality

Repo Repro — Fri, 05 Feb 2010 22:31:04 +0000

“Reproductive rights” is a legal term. When a woman is making a decision about abortion, she’s not making a legal decision - she’s making a personal, moral decision that involves matters close to her heart - her religious beliefs, moral values, and life circumstances. Yet this is rarely recognized in legal and policy work, and that is having an adverse effect on efforts to preserve support for legal abortion. To claim or reclaim the language of values and morality in a positive way, we have to recognize that reproductive and sexual issues are primarily personal and begin to use moral - as opposed to rights - language when appropriate and sincere.

A decision about abortion is a moral decision in another sense: it can be more ethical - or more moral - to terminate an unwanted pregnancy than to continue it, for a host of reasons, including severe family conflict, the needs of other children, and a woman’s or family’s ability to care for another child. (more…)

From Page to Practice: How Thinking Like Pro-Choice Lawyers Can Win the Battle and Lose the War

Repo Repro — Fri, 05 Feb 2010 22:07:34 +0000

I founded National Advocates for Pregnant Women (NAPW) in order to do cross–issue work. Having had the privilege of working in many of the main-stream pro-choice organizations and having worked extensively with the founders and leaders of the Reproductive Justice Movement, I came to the conclusion that women’s reproductive rights and health would never be secure if the focus of our legal work remained on the defense of abortion rather than on the women who have them. Women’s lives are not just influenced by whether or not they can end a pregnancy, but also by all of the political, economic, and social conditions that enhance or limit their ability to be full and equal participants in society. I also became clear to me that the mainstream pro-choice movement was missing an extraordinary number of opportunities to build alliances and strength across issues.

As a result, NAPW has worked to build bridges between reproductive rights and drug policy reform advocates, identifying shared interests and the strong relationship between the war on abortion and the war on drugs. NAPW has also taken the lead in building bridges between those who defend the right to choose abortion and those who defend the rights of pregnant women at all stages of pregnancy, including during labor and delivery. NAPW believes that “Birth Justice” must be fully part of the definition and agenda of the Reproductive Justice Movement. In this post, however, I want to focus on one case and one example of how failure to do cross-issue, multi-strategy work undermines the effort to defend Roe v. Wade, and more importantly, the women who become pregnant and sometimes have abortions. (more…)

From Page to Practice: Abortion Liberalization: Transnational Legal Advocacy across a Procedure-Substance Divide

Repo Repro — Fri, 05 Feb 2010 21:17:26 +0000

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…)

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

Repo Repro — Fri, 05 Feb 2010 20:57:46 +0000

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…)

From Page to Practice: International Human Rights Law in the Struggle for Reproductive Justice in Latin America

Repo Repro — Fri, 05 Feb 2010 20:04:48 +0000

Reproductive justice remains an unfulfilled promise for Latin American (LA) women. This is particularly the case with regard to abortion. With the exception of Mexico City and Puerto Rico, the region’s laws still embrace either a model of total criminalization (i.e., Chile, Nicaragua or El Salvador) or variations of a hardly accessible model of indications (i.e., Argentina, Brazil, Colombia or Peru). Moreover, irrespectively of the regulatory approach adopted, LA abortion laws share at least two traits: (a) they are largely non-complied with by women forced to resort to backstreet abortions in significant numbers; and (b) they are extensively unenforced both from the point of view of criminal prosecution and from the perspective of the duty to provide legal abortion services when indications are the rule. Another common characteristic of the region’s abortion rules is the stability of the practices of noncompliance and under-enforcement. A stability that has endured the transitions to democracy underwent by a majority of LA countries since the 1980s. As it has proved to be the case with other women rights issues during such transitions, in Latin America, democratization did not equal liberalization.

Faced with the reluctance to embark or even address abortion law reform by politicians and players from all sides in the ideological spectrum, LA feminists turned to international human rights law in search of another tool to promote a liberalizing reinterpretation of domestic laws. Indeed, in the years following the UN Conferences in Vienna, El Cairo and Beijing, feminists increasingly began to explore alternative uses of what was then slowly becoming a more woman friendly international human rights law with respect to many issues, reproductive rights among them. As part of this shift, feminist organizations timidly began to bring cases to international forums. Such feminist move towards international law in the quest for reproductive justice reforms took place in a context in which the internalization of international human rights had achieved some potential and where transnational networks of activists were successfully building a common legal language.

(more…)

From Page to Practice: Theorizing Lesbians and Abortion

Repo Repro — Thu, 04 Feb 2010 19:41:56 +0000

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…)

From Page to Practice: Morality and the LGBT Rights Movement

Repo Repro — Thu, 04 Feb 2010 19:33:06 +0000

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…)

From Page to Practice: Health Excepted, Health Accepted

Repo Repro — Thu, 04 Feb 2010 19:21:41 +0000

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…)