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Call for Papers: Intersections in Reproduction:
Perspectives on Abortion, Assisted Reproductive Technologies,
and Judicial Review
Abortion and reproductive technologies have historically occupied separate realms in law, policy, and academia. In spite of some obvious and natural overlap, scholarship exploring the relationship between abortion and assisted reproduction is sparse. In 2014, Judith Daar (Whittier Law School) and Kimberly Mutcherson (Rutgers Law-Camden) will co-guest edit an issue of the Journal of Law, Medicine & Ethics devoted to articles reflecting on this relationship. JLME is a peer-reviewed journal published by the American Society of Law, Medicine & Ethics.
The guest editors are open to a wide range of scholarship from authors steeped in various aspects of reproductive justice, reproductive rights and reproductive technologies who can explore the future of assisted reproduction and abortion as matters of scholarly concern and legal regulation, especially when viewed as part of a larger movement for reproductive rights and reproductive justice. The term reproductive technologies should be interpreted broadly in this context to go beyond IVF and include a range of techniques used in conjunction with assisted methods of conception.
Questions papers might choose to tackle include, but are in no way limited to:
In a fascinating opinion piece in the New York Times this past weekend, neuroeconomist Gregory Berns writes: “For the past two years, my colleagues and I have been training dogs to go in an M.R.I. scanner — completely awake and unrestrained. Our goal has been to determine how dogs’ brains work and, even more important, what they think of us humans. Now, after training and scanning a dozen dogs, my one inescapable conclusion is this: dogs are people, too.”
As Berns explains, his research found a striking similarity between dogs and humans in the structure and function of a part of the brain known as “the caudate nucleus.” It was previously known that in humans, the caudate plays a key role in positive emotions, including the anticipation of things we enjoy, such as food, love, and money. What Berns and his colleagues discovered is that in dogs, the caudate is activated when they are exposed to hand signals indicating food, the smells of familiar humans, or the return of their owners. While Berns emphasizes that these findings do not “prove that dogs love us,” he concludes that “using the M.R.I. to push away the limitations of behaviorism” suggests that dogs have “emotions just like us.”
There is much thought-provoking material to write about in this opinion piece (including the fact that they “treated the dogs as persons,” with consent forms, the right to withdrawal, etc.), but what I want to focus on in this post is the premise that neuroscience can resolve contested questions about the existence of mental states—in animals, or even in humans.
The allure of this use of neuroscience is that it seems to work around a classic philosophical problem known as “the problem of other minds,” which refers to the puzzle of how one knows whether someone or something, other than oneself, has a mind. Read More
Less than an hour ago, Indianapolis prosecutor, Mr. Terry Curry agreed to drop first degree murder charges against Bei Bei Shuai in an agreement that required her to plead to a misdemeanor. The case was a month away from trial in what would have been the first prosecution of a pregnant woman in Indiana for attempting suicide. Ms. Shaui ate several packets of rat poison in a desperate attempt to end her life after being abandoned by her boyfriend. After being saved by friends and doctors, prosecutors filed first degree murder charges against Shuai, because her baby died.
Bei Bei Shuai’s case highlights the turn to criminal prosecution in fetal protection cases as a terrible national phenomenon. Shuai was spared the horrible fate experienced by poor women, many of color, across the U.S., including Regina McKnight, Paula Hale, Melissa Rowland, and others. In a forthcoming article to be published in the California Law Review, I argue that these prosecutions represent the new constitutional battlefronts as they burden pregnant women’s due process interests while also imposing the type of cruel and unusual punishment disallowed by the Eighth Amendment. I have argued in prior works found here and here that such prosecutions often involve racial profiling and create hierarchies among women’s pregnancies. Indeed, most often the pregnant women targeted for threatening harm to their fetuses are so poor that they lack adequate legal representation, relying on overworked public defenders who make valiant efforts, but lack the economic wherewithal to properly aid in these cases. Shuai’s case was different in that she had Linda Pence, a valiant, private attorney, who spent over two years providing excellent pro-bono legal aid.
Bei Bei Shuai’s release from murder charges also represents another victory for Advocates for Pregnant Women, the leading organization advocating on behalf of indigent pregnant women.
[Cross-Posted at Prawsfblawg]
Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona’s ban on abortion at 20 weeks. As the court described the statute:
The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:
A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.
B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.
The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).
After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don’ t pretend to be disinterested.
Judge Berzon’s opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat “paint-by-numbers” case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.
That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:
The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.
Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.
These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.
Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.
By contrast, I think Judge Kleinfeld’s concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:
[Ed Note: Posted on behalf of Jaime King]
On March 26, 2013, North Dakota Governor, Jack Dalrymple, signed into law two of the nation’s most restrictive abortion bills. The first, HB 1456, prohibits providers from performing an abortion once a fetal heartbeat can be detected, which can be as early as six weeks gestation (Fetal Heartbeat Ban). The second, HB 1305, prohibits providers from knowingly performing abortions sought solely because of the sex of the fetus or because the fetus has been diagnosed with a genetic abnormality or the potential for a genetic abnormality (Sex and Genetic Selection Ban).
Much of the press coverage and discussion of these unprecedented laws has focused on the Fetal Heartbeat Ban. This is largely because the prohibition eliminates nearly all access to abortion in the state and poses a direct challenge to a woman’s right to choose to have a pre-viability abortion free from undue state interference, as delineated in Planned Parenthood v. Casey. Viability has typically been established around 24 weeks gestation, which is generally considered the end of the second trimester. The sweeping nature of this prohibition essentially negates the impact of a prohibition on sex or genetic selective abortions, as testing for those conditions, even with non-invasive prenatal testing techniques, cannot be performed reliably prior to nine or ten weeks gestation. By that point, the Fetal Heartbeat Ban would already prohibit any form of selective abortion.
But we should not ignore this law, as it is the more insidious of the two. As a direct threat to abortion access for all women, the Fetal Heartbeat Ban is very likely to be found unconstitutional, short of a complete overturning of Roe v. Wade. The Sex and Genetic Selection Ban, however, is subject to more debate. Since Roe, we have largely assumed that women can have an abortion for any reason prior to viability, but the courts have never directly addressed the issue. Recent polls have found that over 3/4 of Americans would support bans on sex selective abortions, and five states have already passed sex selection bans. The question of whether a woman’s reason matters is upon us.
Opening the door to permit states to invade and assess women’s private thoughts regarding her reasons for having an abortion strikes directly at the heart of the reproductive liberties protected by the Fourteenth Amendment. If states can regulate access to abortion based on a woman’s reasons for having it, they can significantly limit access in a piecemeal fashion – slowly and deliberately circling in on the right. Read More
The Family, Privacy, Secrets, & The Law Roundtable (March 7-8. 2013) was a great success. Kudos to the brilliant presenters and commentators who came together for this important, groundbreaking session, including Lori Andrews, Glenn Cohen, June Carbone, Laura Rosenbury, Camille Gear Rich, Martha Field, Deborah Epstein, Martha Ertman, Gaia Bernstein, Taunya Banks, Naomi Cahn, Michael Pinard, Karen Czapanskiy, and Eleanor Brown. Thanks to all who attended and contributed to this excellent meeting. Coverage can be found here and here.