Abortion, Circumcision, and the Politics of Documenting Informed Consent

Last week, as the New York Times reported, a fight over documenting informed consent to a particular Jewish circumcision ritual is brewing. To quote from the article:

The city Board of Health passed a regulation in September that required written parental consent before a ritual circumcision could be done. In the procedure, common among ultra-Orthodox Jews, the person performing the circumcision uses his mouth to remove blood from the incision. The oral contact, known in Hebrew as metzitzah b’peh, is considered dangerous by public health officials, because of the possibility of spreading diseases, specifically herpes. Failure to comply with the regulation could result in warnings and fines.

To be clear the New York City Board of Health has NOT outlawed the procedure, despite its herpes risk. Instead it only requires that written parental consent be given. My first reaction, and I suppose the reaction of many, is “what could possibly be wrong with that?”  On reflection, though, I began wondering what might be learned by juxtaposing this requirement against another one that is trying to influence parental choice…laws on informing women about the risks of abortion and requiring the offering or viewing of an sonogram.

As John Robertson, among others, has recently detailed:

Read More

JAMA Forum: Reproductive Freedom and the 2012 Presidential Election

Glenn Cohen and his co-author, Eli Adashi, have a new blog post out at the JAMA Forum on reproductive freedom and the presidential election:

It is commonly assumed that the economy will constitute the key, if not sole, battleground of the 2012 presidential election. That may well be the case. In the past several months, however, both parties have paid ever-growing attention to the possibility that the candidates’ positions on issues involving reproductive freedom could affect the leanings of women voters and thereby the final outcome. In conducting intense monitoring—not to mention targeted messaging—in this area, both presidential campaigns have acknowledged that for many women, especially women of reproductive age, reproductive health is as much an economic issue as it is a health care issue.

In a departure from past campaigns, the 2012 presidential election ventures beyond the confines of the abortion issue to incorporate a tapestry of competing ideologies on related questions. Given the interest in these issues, the positions articulated by President Obama and Governor Romney in the domain of reproductive freedom may well be a factor in the 2012 election, because an analysis reveals 2 very different points of view.

Read more…

“The New Normal” and Reproductive Technology and the Law

Inspired in part by attending the “Baby Markets Roundtable” (an annual gathering of reproductive technology and the law scholars) this week at Indiana Bloomington, I wanted to share a few thoughts on the new NBC television show The New Normal. The series is a sitcom that follows the lives of a gay male couple (David and Bryan) who decide to employ a surrogate (Goldie), who herself has a young child through a prior relationship (Shania). The last cast member that is part of the family is the Goldie’s fairly right-wing grandmother known as “Nana.”

First the good: This is one of the few portrayals of surrogacy on TV, period. With a few exceptions, usually surrogacy comes in as a plot-of-the-week on lawyer shows when something has gone wrong. Here is one of the few positive, normalizing, portrayals of surrogacy.

Now the not-so-good:

Read More

NEJM: Cutting Family Planning in Texas (and more)

Our friends over at the New England Journal of Medicine just alerted us to a new perspectives piece addressing the impact of cutting family planning funds in Texas (the piece was also picked up by Politico).  The authors interviewed 56 leaders of organizations throughout the state that provided reproductive health services using public funding before cuts went into effect, and what they found was disturbing:

  • Most clinics have restricted access to the most effective contraceptive methods because of their higher up-front costs (choosing pills over IUDs or subdermal implants).
  • Clinics have started to turn away those who canot pay, when previously their visits would have been covered by public funds, and women who can pay the newly instated fees are choosing less effective methods and fewer tests to save money.
  • A number of clinics have lost their exemption from Texas’ law requiring parental consent for teens under 18 who seek contraceptives.

Overall, the authors conclude that laws intended to defund Planned Parenthood in an attempt to limit access to abortion (even though federal and state funding cannot be used for abortion anyway) have resulted in policies limiting women’s access to range of preventative reproductive health services and screenings.

Alta Charo weighs in via a NEJM podcast, discussing the future of reproductive health care for women in the US, particularly in light of upcoming elections (as well as the article we discussed last week on conscientious action, and other general issues in reproductive health policy).  Take a listen!

And one more NEJM plug for now: our Bill of Health blogger Kevin Outterson also has a podcast online discussing the record-breaking settlements of pharmaceutical fraud cases and the need for further regulation.

Reproductive Politics

By Michele Goodwin

In recent months, women’s reproduction has been in the spotlight.  A few weeks ago, the Republican Party adopted an anti-abortion platform calling for a constitutional amendment outlawing abortion and making no exception for victims in cases of incest, rape, or to save the woman’s life.  Ironically, some of the very same party leaders responsible for drafting the amendment issued demands for the Missouri Congressman, Todd Akin, to resign or step aside in a hotly contested Senate race after he made controversial claims that “legitimate” rapes rarely result in pregnancies.

As the gender war plays out in high profile ways, we should be aware that abortion politics is not the only area in which women’s reproductive rights are closely scrutinized and under threat of political attack.  Relatively little attention has focused on the pernicious on-the-ground forms of criminal policing targeted at pregnant women across America.

Since the late 1980s, state legislatures have enacted criminal feticide laws that now ensnare women for a broad range of activities, including falling down steps, suffering drug addiction, refusing cesarean sections, or attempting suicide. For example, in 2010 Utah Governor Gary Herbert signed into law the “Criminal Homicide and Abortion Revisions Act,” which specifically applies to miscarriages and other fetal harms that result from “knowing acts” committed by women.  A prior version of the bill drafted by state legislator Carl Wimmer authorized life imprisonment for pregnant women who engage in reckless behavior during pregnancy that could result in miscarriage and stillbirth.  Arkansas, Florida, Minnesota, and some other states define child abuse as intentional or neglectful harm to the fetus.

Read More

Mitt Romney’s Son’s Abortion Contract

Over at Concurring Opinions, Dave Hoffman (via TMZ), writes:

Tagg Romney (son of Mitt) and his wife Jen entered into a surrogacy contract which contained a clause purporting to require the surrogate to abort on demand given a particular set of contingencies: We’ve learned Tagg and his wife Jen, along with the surrogate and her husband, signed a Gestational Carrier Agreement dated July 28, 2011.  Paragraph 13 of the agreement reads as follows: “If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate . . . In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents.  In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision . . . Any decision to abort because of potential harm to the child, or to reduce the number of fetuses, is to be made by the intended parents.”

It is a common error to think that contract terms are specifically enforceable as written.  I believe that there is literally not one judge in the country who would require a surrogate to abort on demand against her wishes notwithstanding this clause.  In part, this results from the law’s traditional reluctance to enforce specific performance of personal services contracts.  Here, that’s coupled with the constitutional interests in bodily integrity that the Baby M court discussed.  Thus, while TMZ translates the agreement as “Tagg and his wife, Jen, had the right to abort the fetuses if they felt they would not be healthy,” the better line would be “Tagg and his wife, Jen, have an exit right which they can exercise if the surrogate fails to abort.” That is, failure to abort on demand would be a material breach by the surrogate, relieving the Romneys from their duty to pay.  Whether it would additionally then lead the Romneys to be able to sue – for costs incurred, probably – is unclear to me, as I think some judges would find an abort-on-demand clause against public policy.

Abortion clauses are not that uncommon in surrogacy agreements. I have actually address the constitutional and normative issues briefly in two 2008 papers. Here are my thoughts on the matter:

Read More

9th Circuit: Prosecution of Women Seeking Illegal Abortions Likely Unconstitutional

By Nadia N. Sawicki

In May 2011, Jennie Linn McCormack was charged with violating an Idaho law making it a felony for any woman to undergo an abortion in a manner not authorized by statute. The 9th Circuit Court of Appeals has recently upheld the U.S. District Court for the District of Idaho’s grant of a preliminary injunction restraining enforcement of the statute under which McCormack was charged.

McCormack’s crime, according to prosecutor Mark Heideman, was that she used medication legally prescribed by a physician on the Internet to induce abortion. McCormack pursued this option because there were no abortion providers in the eight southeastern Idaho counties proximate to her home, and the cost of traveling 138 miles to a provider Salt Lake City, Utah was beyond her means.

Idaho’s abortion statute is unusual in that it expressly permits prosecution of pregnant women who pursue illegal abortions, rather than being limited to third-party abortion providers. Hiedeman contended that his prosecutorial authority under the statute was valid, arguing that the health and safety justifications for criminalizing illegal abortions are just as relevant when the responsible actor is the pregnant woman herself. The 9th Circuit disagreed. It noted that abortion laws have historically been aimed at protecting women from unqualified abortion providers, and that most statutory and common law precedents exempt women from liability for actions taken in connection with abortion. Judge Pregerson supported the validity of McCormack’s claim that prosecuting pregnant women for illegal abortion poses an undue burden on reproductive choice in that it requires women to police their providers’ compliance with abortion laws.

Read More

Conscientious Actions and Refusals

Great new Perspectives piece by Lisa Harris out in NEJM on the need to recognize that conscience can compel action, not only refusals to provide certain types of care (including abortion).  Elizabeth Sepper makes a similar argument in her forthcoming article in the Virginia Law Review.

First,  let me just say that I couldn’t agree more – it is essential to recognize both sides of the coin.  As I’ve argued elsewhere, both ought to be respected and protected, to a point, but the issues raised by conscientious refusal versus conscientious action are distinct in some important ways.  The primary problem with refusals is that they can burden patients by creating barriers to care, if not managed appropriately.  On the other hand, conscientious action would make care available to patients – and what could be wrong with that?

Read More

Is the Self Defense Exception Consistent with the Belief that a Fetus is a Person?

In Glenn Cohen’s first post on this blog, he questioned whether Mitt Romney’s position on abortion was coherent with respect to the rape and incest exception, but did not question the self-defense exception itself.  He addressed the self-defense exception briefly: “Through the well-known doctrine of self-defense, the criminal law has long recognized that an individual may be justified in killing to protect his or her own life, or possibly health, and these exceptions merely reflect a similar view as to fetuses.”  He is correct to say that this is the established position, one that dates at least as far back as the Talmud.  But, assuming one believes that the fetus is a person entitled to the full panoply of rights, is the self-defense exception defensible?

Lethal self-defense is generally legally justified when used to protect your life.  This is even true in cases where the attacker is not morally culpable. Judith Jarvis Thompson, in her article entitled “Self Defense,” argues that this is true because they will “otherwise violate your rights that they not kill you.”  She then extends the rights of self-defense to third parties arguing that the rights are not personal (agent-relative).

Additionally, in the article “A Defense of Abortion,” Judith Jarvis Thompson argues forcefully against the position that abortion should be impermissible even when the mother’s life is at risk. This position is untenable from the perspective of the mother because “[i]t cannot seriously be said that . . . that she must sit passively by and wait for her death.”  In the abortion case, it follows that a third party (doctor) has the right to save the mother’s life as well.  I find this to be a convincing argument against the position that abortion should never be allowed.  But does it establish that every time the health of the mother is at risk she has the right to abort the fetus, killing a person?

Read More

Disability, fetuses and discrimination

By Pablo de Lora

Is “eugenic abortion” better described as discrimination against the disabled? That is one of the hottest issues currently debated in Spain (yes, we sometimes have some spare time to avoid discussing our financial crisis), now that the conservative party is attempting to amend our latest legislation on abortion (2010).

Down España, among many other advocacy groups for the disabled, is encouraging the Spanish Government to enforce the Convention on the Rights of Persons With Disabilities (2006) which states (article 10) that “every human being has the inherent right to life” and that States “shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others”. In support of their position, these groups refer to the recent Recommendations made by the Committee on the Rights of Persons with Disabilities as regards to the Report submitted by Spain (Sixth Session, 19-23 September 2011). It is worth quoting the Committee’s own phrasing: “[it is recommended] that the State Party [Spain] abolish the distinction made in Act 2/2010 in the period allowed under law within which a pregnancy can be terminated based solely on disability” (the full text can be found here).

Interestingly enough, in the United States, far from relying on the Convention to fuel their cause, some pro-life groups despise it as a pro-choice instrument and are urging their representatives not to ratify it (see here and here).

Very broadly, since 2010, a woman in Spain may abort in the first 14 weeks of pregnancy (with the requirement of receiving advice and waiting for three days to mature her decision). Beyond that term, and up to week 22, terminating a pregnancy is legally permitted either if the mother’s life or health is at serious risk or the fetus has been diagnosed with some “anomaly”. When the disease is life-threatening (think, for instance, anencephalic fetuses or the fatal condition known as “bilateral renal agenesis”) or extremely severe and incurable, the abortion might be performed even after the 22 weeks threshold. So, as opposed to a “normal fetus”, a “disabled fetus” – so to speak – is not given the same opportunity to be safe after 14 weeks of gestation. Is that a form of morally impermissible discrimination? I think not. Read More