Analysis and Commentary on Reproductive Law

The GOP, Privacy and Reproductive Rights, and the Backlash

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent attack on reproductive and privacy rights by GOP presidential candidates Rick Santorum and Mitt Romney. Hamilton notes that some state legislatures, such as those of Ohio and Utah, have also taken similar stances—with Arizona and Kansas very possibly following the trend. Hamilton questions the wisdom of these stances, in light of the fact that a sizable majority of the country is not opposed to contraception, and the fact that only with the support of independent and moderate voters could the GOP candidate possibly beat President Obama’s re-election bid. Hamilton also notes that there has been a substantial backlash against such measures, by female legislators who are registering their protest by introducing laws that would, for instance, make it harder for men to obtain Viagra, and regulate ejaculation except when it occurs in the context of conception. Vasectomies, too, have been the target of the female legislators’ efforts—which, of course, are not serious attempts at getting laws passed, but are very serious attempts to draw attention to what the legislators believe is a dangerous attack on women’s rights. Hamilton adds her own “modest proposals” to those of the female legislators, and warns that moving into this delicate and personal area may cost the GOP the presidential election and/or congressional seats.

Men Who Give It Away: The Potential Perils of Free and Non-Anonymous Sperm Donation

Justia columnist and Hofstra law professor Joanna Grossman comments on the legal consequences of different forms of free, non-anonymous sperm donation. As she explains, some of these donations are connected to the online Free Sperm Donor Registry. Grossman, relying in part on previous reportage by 20/20, comments on situations such as that of a man who has given away so much sperm that the government has told him to stop its “manufacture,” and men who donate sperm via what is called “natural insemination”—that is, sex. Grossman explains why in-person sperm donation, especially via “natural insemination” raises complex questions about the legal rights and obligations of the sperm donor—with donors potentially liable for child support, and potentially able to seek visitation or even co-parent status. She also notes that in-person sperm donation may be governed by—and may, in some instances, violate—FDA regulations pertaining to the donation of human cells and tissue. Among other legal sources, Grossman covers the original and revised Uniform Parentage Act (UPA) in the column.

A New York Woman Is Arrested for Self-Induced Abortion: What Does This Tell Us About Abortion Law?

Justia columnist and Cornell law professor Sherry Colb comments on a little-known but significant feature of New York abortion law: It defines self-induced (and other) abortion as a crime, when the woman at issue has been pregnant for more than 24 weeks (the estimated time of fetal viability), unless an abortion is necessary to save the woman’s life. This pre-Roe law was applied recently when New York authorities arrested a woman who allegedly had completed a self-induced abortion, using an abortion tea, when she was 25 weeks pregnant. (She was arrested after a building superintendent reportedly found the dead fetus in a trashcan.) In analyzing the New York law at issue, Colb also discusses relevant background regarding the constitutional, legal, and moral status of the right to terminate a pregnancy. Among other points, Colb notes that New York’s law may prove counterproductive, in that it deters women from seeking emergency care related to a post-viability self-induced abortion, for fear that revealing the abortion to healthcare providers will lead to prosecution. She also points out that it is odd that the woman in question is being charged under the anti-self-inducement law in particular, when at the time the abortion occurred, any kind of abortion would have been illegal, unless it was necessary to save the woman’s life. Colb looks to New York’s unique take on abortion—an approach that differs from those of both the pro-life and pro-choice movements—to provide an explanation for its unusual law.

Why Girls Under Seventeen Need a Prescription to Buy the Morning After Pill

Justia columnist and Cornell law professor Sherry Colb comments on regulations regarding the “morning after pill,” a form of emergency contraception that is only available by prescription to girls under seventeen—despite a recent recommendation by the U.S. Food and Drug Administration that it be made available over the counter (OTC) to girls of that age. The Secretary of the U.S. Department of Health and Human Services (HHS), Kathleen Sebelius, overruled the recommendation, but was she right to do so? Colb explains how the morning after pill works; explains how the brains of young girls differ from those of older girls and women; offers a hypothetical to illustrate what may happen if young girls cannot access the OTC morning after pill; considers whether parents’ interests should come into play here; discusses the argument that this kind of OTC contraception is a form of abortion and its relevance or lack thereof; and expresses deep disappointment if this decision by the Obama Administration was at base a political choice.

Mississippi Initiative 26: The Significance of Saying That a “Person” Exists From Conception to Death

Justia columnist and Cornell law professor Sherry Colb comments on a Mississippi initiative that aims to amend the state’s constitution. If passed, the initiative would define a “person” to “include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” The law, Colb notes, plainly clashes with Supreme Court precedent, by banning abortion even very early on in a pregnancy. However, Colb focuses, instead, on how the initiative raises the question of who is a person—arguing that this question only muddies the debate over abortion. She contends that there are two key debates about abortion: a factual debate about embryonic and fetal development, and a moral debate about the consequences of those facts (many of which are well established) for the law. Using the word “person,” Colb contends, might make the speaker seem as if he or she is stating a fact, but really should be characterized as reflecting the speaker’s normative point of view, whether it is pro-life or pro-choice—and thus, confuses the debate. To illustrate the point, Colb gives examples of several ways in which using the word “person” mixes moral and factual points and clouds clear thinking. She also points out that rhetorical problems here are not limited to the pro-life side, pointing out that it also clouds debate to refer to abortion as merely “health-care” as some pro-choice advocates do.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more