woman with iv in her hand in hospital. Labor and delivery preparation. Intravenious therapy infusion. shallow depth of field. selective focus

Maternity Care Choices in the U.K. During the COVID-19 Pandemic

By John Tingle

One of many legal, ethical, and patient safety issues raised by the COVID-19 pandemic across the National Health Service (NHS) is that expectant mothers are considering freebirthing more after home births are cancelled.

The charity AIMS (Association for Improvements in the Maternity Services) states that while there is no specific definition of freebirthing, “…broadly speaking, a woman freebirths when she intentionally gives birth to her baby without a midwife or doctor present. Some women prefer to use the term ‘unassisted childbirth’ or UC to describe this.”

In The Guardian Hannah Summers recently wrote about this issue, which can carry major health risks. For example, if complications occur during a freebirth, professional clinical help will not be at hand to help.

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New TWIHL 182: Abortion Exceptionalism During COVID-19

By Nicolas Terry

I welcome three excellent guests this week. Our discussion centers around new abortion restrictions issued as part of state responses to COVID-19. For example, in Texas, Gov. Greg Abbott issued an executive order banning nonessential medical services. Subsequently, his attorney general interpreted that order as applying to all abortions. Planned Parenthood successfully applied for a temporary restraining order in the district court, only for the Fifth Circuit to lift the stay.

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A family consisting of two adults and one child walk stairs with their backs to the camera.

Lessons from One Child Nation for Health Policy

By Katherine Drabiak

The acclaimed One Child Nation, streaming on Amazon Prime, provides a haunting look at the reasoning, implementation, and consequences behind China’s (now revised) One Child Policy. Director Nanfu Wang expertly weaves together interviews from population health officials, medical professionals, and family members to describe how government policy strictly enforced population control measures through propaganda, forced sterilization, abortion, steep fines, and infanticide.

At first blush, it seems convenient to contextualize these gross violations of human rights as a product of a vastly different system of law and government than the U.S., but this is an oversimplification. Like the U.S., China also has a Constitution that enshrines central principles, such as deriving authority by the power of the people, equality under the law, preservation of human rights, freedom of the human person, freedom of speech and press, and certain freedoms of family life.  Unlike the U.S., a co-existing provision grants broad power to the government to promote responsible family planning.  Among key differences, One Child Nation illustrates the danger of interpreting rights through a prism that elevates social goals, public order, and government defined community interests above individual rights.

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Illustration of a black woman nursing a swaddled baby

Policy Roundup: Improving Maternal Health Outcomes for Black Women

By Alexa Richardson

Data has long shown alarming rates of maternal mortality for black women in the United States, with deaths three to four times the rate for white women. Such deaths are not accounted for by differences in education or income, and systemic racism, including racial bias within the healthcare system, is believed to be a significant contributing factor to the problem. In the past year, this issue has finally made it into the policy arena, with a number of serious policy proposals put forth to try to reduce black maternal mortality.

In April, Congresswomen Lauren Underwood and Alma Adams formed the Black Maternal Health Caucus. Democratic primary candidates Senator Elizabeth Warren, Senator Kamala Harris, and Senator Cory Booker have all put forward proposals to address racial disparities in maternal mortality. And in October, California enacted legislation aimed at reducing racism and improving maternal health outcomes in obstetrics.

But what is the content of the policies being proposed? Are some better than others? This post surveys some of the biggest initiatives underway. It turns out that the measures being discussed vary widely–in approach, in scope, and in ambition. Read More

Pregnant woman sitting across desk from doctor wearing scrubs and holding a pen

Opioid Claims for Fetal Opioid Exposure Alarm Pregnancy Advocates

By Alexa Richardson

Lawyers calling themselves the “Opioid Justice Team” are pushing forward in their mission to certify babies exposed to opioids in utero, as well as “all women in the United States capable of becoming pregnant,” as distinct classes in the multi-district opioid litigation now unfolding in federal court in Ohio. Last week, lawyers filed an amended complaint on behalf of the legal guardians of individuals diagnosed with neonatal abstinence syndrome (NAS), and a list of “experts” with the court. Their claims misrepresent the science regarding fetal exposure to opioids and position fetal rights in opposition to those of pregnant people. National Advocates for Pregnant Women (NAPW) has issued a statement and fact sheet denouncing the claims.

In a series of court filings, sweeping claims about the impact of prescription opioid exposure on fetuses are being made. The lawyers falsely claim “[a]nything a pregnant woman ingests or breathes is transmitted to her baby by the placenta” and that “[i]n-utero opioid exposure leaves most children with physical, social, educational disabilities that require constant and regular interventions. Most of these disabilities are considered permanent.” In actuality, the American College of Obstetricians and Gynecologists states that the available data show “no significant differences” in long-term outcomes for individuals exposed to opioids in utero versus those who are not. The Centers for Disease Control (CDC) finds there may be early childhood impacts on cognitive or developmental abilities from prenatal opioid exposure. However, available studies struggle to separate the physical effects from environmental and social variables. There is not enough data to conclude whether any long-term consequences of fetal opioid exposure exist, the CDC finds.

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Pro-choice and pro-life protesters face off in front of the Supreme Court

“Fetal Heartbeat” Bans are Gaining Momentum, but Abortion Restrictions Come in Many Forms

By Alexandra Hess

Alabama, Georgia, and Ohio have passed laws in recent weeks that ban many, if not all, abortions in their state. These bans are the latest additions to the litany of laws and policies that severely limit or totally prevent access to abortion for women in the United States.

“Fetal heartbeat” bans, like those enacted in both Ohio and Georgia, are some of the most restrictive types of gestational limitations on abortion in the U.S. They prohibit abortion at the point a fetal heartbeat is detectable by ultrasound—as early as six weeks’ gestation. This is often a point before many discover they are pregnant. Ohio and Georgia are not the first states to have enacted fetal heartbeat bans, however, and current legislative trends suggest they will not be the last. In 2019 alone, lawmakers have proposed heartbeat bans in at least 14 other state legislatures. Read More

Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Louisiana TRAP Law Challenge Could Leave Thousands of Women without Abortion Access

By Adrienne Ghorashi

UPDATE: Late Thursday, February 7, the Supreme Court granted Plaintiff’s stay application, meaning Louisiana’s TRAP law may not be enforced while the challengers file an appeal. The Supreme Court will then decide whether to hear the case or deny the petition, letting the Fifth Circuit’s ruling stand.

Justice Roberts sided with the Court’s liberal justices to grant the stay, while Justices Alito, Thomas, Gorsuch, and Kavanaugh would deny it. Kavanaugh also wrote a dissent, saying he would want to see the law go into effect before deciding whether the stay was necessary.

Although this is only a temporary win for the women of Louisiana, these actions could be a sign that a majority of justices have their doubts as to the law’s constitutionality in light of Whole Woman’s Health.

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Pennsylvania Not Alone in Denying Abortion Coverage for Low-Income Women

By Adrienne Ghorashi

Last week, a lawsuit was filed challenging Pennsylvania’s decades-old statute restricting the use of state Medicaid funding to pay for abortion services. The lawsuit, brought by a group of abortion providers in the state, claims the restriction discriminates against low-income women on the basis of sex, in violation of the Pennsylvania Constitution. Read More

Should courts treat destroyed embryos as “lost property” or “wrongful death”?

Bill of Health contributors Glenn Cohen and Dov Fox were featured in this week’s news coverage of novel claims related to recent freezer malfunctions at two major fertility clinics. A class-action suit by one Ohio couple who lost their embryos asks the court to afford embryos standing to use and declare that life begins at conception.Friday’s article asks: “Will Fertility Clinic Disaster Redefine Personhood?” From the piece:

Roe v. Wade made it clear that an embryo or fetus is not a person under the protections of constitutional and federal law. Since then, no [Supreme Court] ju[stices] have suggested otherwise, Dov Fox, a law professor at the University of San Diego, told The Daily Beast. That doesn’t mean that wrongful death claims cannot be filed on behalf of a fetus [or that] the fetus has legal standing as a person overall, but wrongful death can be brought on its behalf—”for lack of a better legal fiction,” Fox said.

Fox added that in similar cases dealing with the loss of embryos due to hospital or clinic in the past, the courts decide that an embryo is not a person for the purposes of wrongful death cases. He pointed to two cases where embryos were damaged—one in Arizona in 2005, and one in Illinois in 2008. Both held that the wrongful death statutes do not apply to the loss of an embryo that hasn’t yet been implanted in a womb. Therefore, it would be surprising if the Ohio court ruled differently. “It would fly in the face of all existing legal precedent,” Fox said. Read More

“That I Don’t Know”: The Uncertain Futures of Our Bodies in America

By Wendy S. Salkin

I. Our Bodies, Our Body Politic

On March 30, at a town hall meeting in Green Bay, Wisconsin, an audience member asked then-presidential-hopeful Donald J. Trump: “[W]hat is your stance on women’s rights and their right to choose in their own reproductive health?” What followed was a lengthy back-and-forth with Chris Matthews. Here is an excerpt from that event:

MATTHEWS: Do you believe in punishment for abortion, yes or no as a principle?
TRUMP: The answer is that there has to be some form of punishment.
MATTHEWS: For the woman.
TRUMP: Yeah, there has to be some form.
MATTHEWS: Ten cents? Ten years? What?
TRUMP: I don’t know. That I don’t know. That I don’t know.

Much has been made of the fact that President-Elect Trump claimed that women who undergo abortion procedures should face “some sort of punishment.” Considerably less has been made of the fact that our President-Elect, in a moment of epistemic humility, expressed that he did not know what he would do, though he believed something had to be done. (He later revised his position, suggesting that the performer of the abortion rather than the woman undergoing the abortion would “be held legally responsible.”)

I am worried about the futures of our bodies, as, I think, are many. That a Trump Presidency makes many feel fear is not a novel contribution. Nor will I be able to speak to the very many, and varied, ways our bodies may be compromised in and by The New America—be it through removal from the country (see especially the proposed “End Illegal Immigration Act”), removal from society (see especially the proposed “Restoring Community Safety Act”), or some other means (see especially the proposed “Repeal and Replace Obamacare Act”).

But, I am like President-Elect Trump in this way: Like him, “I don’t know.” I don’t know what to say about what will happen to our bodies or to our body politic. So instead, today, I will take this opportunity to point to one aspect of the changing face of access to reproductive technologies that has already become a battleground in the fight over women’s bodies and will, I suspect, take center stage in the debate over the right and the ability to choose in coming years. Read More