1. Control of Conception & Other Aspects of Women’s Health pp. 500-506 Control over reproductive destiny: central to autonomy, equality, non-subordination Griswold v. Conn. (‘65)(married couples’ right of privacy to use contraceptives) Eisenstadt v. Baird (‘72)(extended Griswold to unmarried persons) Roe v. Wade (‘73)(abortion)
1. Control of Conception & Other Aspects of Women’s Health pp. 500-506 Griswold v. Conn. (‘65)(7-2) ·statute criminalized use of contraceptives by married couples; medical providers convicted as accessories to crime, had standing to assert patients’ privacy rights. ·Douglas, for maj.: Found penumbral “zones of privacy” from 1 st (rt of ass’n), 3d (no peacetime quartering of soldiers), 4 th, 5 th, 9 th (rts retained by people), 14 th Am. D.P. Clause.
Griswold v. Conn., Douglas for Maj. Right of privacy in marriage – Ancient institution, precedes Bill of Rights, Constitutional Convention – Intimate to degree of being sacred – Promotes way of life, harmony, bilateral loyalty – Association as noble a purpose as any prior dcn Statute forbade USE; maximum destructive impact on relationship Govt’l purpose to control/prevent m/n be achieved by overbroad means that invade protected freedoms
Griswold v. Conn., Goldberg, Warren,Brennan concurrence Narrower grounds: marital right of privacy as fundamental, personal right “retained by the people” under 9 th Am. D/n interfere w/ State’s proper regulation of sexual promiscuity or misconduct – Quoting Harlan, State may not regulate through criminal law details of marital intimacy.
2. Contraception & Women’s Autonomy Clicker: Do women benefit from being ones primarily responsible for birth control? (yes, no, uncertain/debatable) Preventing conception by sexually active women – 19% birth control pills – 17% condoms – 17% female sterilization – 6% male sterilization – 4% injectable contraceptives, diaphragms, IUDs, other
Plan B: Contraception “Morning After Pill” ·Used when condom fails, or otherwise has unprotected sex. Not generally re promiscuity. ·Available without prescription to consumers 17 years or older. Reqts for pharmacy access vary among states. Okla.? ·Prevents ovulation, may prevent fertilization, alters endometrium (may inhibit implantation) “What would you do”? http://www.youtube.com/watch?v=XPWsLAEujmI
3. Gender Bias in Health Care p. 504 Long history: excluded from medical research & drug test trials. NIH Revitalization Act 1993. Sexuality/gendered medical product disasters: Dalkon Shield IUD (unbearable pain, perforation, infection, sterility); DES – to prevent miscarriages (cancer, birth defects, male sterility); Benedictin – anti-nausea (birth defects), silicone breast implants (leakage > arthritic, autoimmune disorders) Differential health care treatment: gender, race, ethnicity, class (heart attack symptoms, psychological disorders)
4. Insurance & Women’s Health pp. 504-05 EEOC v. UPS (D. Minn. 2001)(employer’s selective exclusion of prescription contraceptives from comprehensive prescription plan violated Title VII) “Since late 1990s, fed. Govt & growing number of states require health plans to include prescription contraceptives if other prescription drugs are covered.” fn 167: 2004 art., listed 20 states]
4. Insurance & Women’s Health Health Care Reform Act & pending regulations: Nov. 2011-Feb. 2012 bruhaha, re whether Catholic employers must provide contraception coverage. Q: is this “war on religion”? “Obama compromise” places requirement to provide birth control on insurance company & not employer. Q: what is appropriate resolution? Many “Catholic” employers have millions of non- Catholic employees.
5. Sterilization p. 505 Ugly history – Buck v. Bell (1927) OWH “3 generations of imbeciles is enough”; upheld forced sterilization. – Skinner v. Oklahoma (1942)(invalidating forced vasectomy of habitual felony offenders) – N.C. forced sterilization of welfare moms. Cf. In re Primus (1975)(pro bono volunteer lawyer’s offer to represent protected 1 st Am. Core Right of Ass’n) Current news: NC developing compensation system for surviving women who were sterilized under that program. Current: ct-authorized sterilization when sought parents & guardians of developmentally disabled women, if in their “best interests” (allow sexual activity but avoid pregnancy, birth of children unable to care for)
2. Abortion pp. 506-18 Roe v. Wade (Jan. 22, 1973) N.B. 8 years after Griswold, 1 year after Eisenstadt; expansion of penumbral rights. Trimester approach: – 1 st : unfettered; personal decision between woman & physician – 2d: State’s compelling interest; may regulate to extent reasonably related to preservation & protection of maternal health (provider & facility qualifications, etc.) – 3d (?), State’s compelling interest at point of viability, may ban except when necessary to preserve mother’s life or health
Pro-life Red Rose Annual commemorations, protests, calls for reversing Roe v. Wade
The New Biology & the Question of Personhood: Implications for Abortion T.H. Milby, Ph.D., B. D. Perkins, 9 A M. J. L AW & M ED. 31 (1983)(discussing cloning, chimerism & parthenogesis as relevant to defining beginning of life, personhood). Cerebral development of the fetus more precise criterion than viability standard of Roe, which will be subject to recurrent challenge & reinterpretation based on improvements in neo-natal medicine. Cerebral development is more reasonable basis for regulation, for legal & embryological precision.
Planned Parenthood of Southeastern PA. v. Casey (1992) pp. 510-17 1.24 hour waiting period after medical provider informs woman (nature of procedure, health risks of abortion & childbirth, “probable gestational age of unborn child”) Woman must sign certification that state published materials made available. 2.Spousal notification, with exceptions p. 514 3. Parental consent for un-emancipated minors unless medical emergency or judicial by-pass (mature & IC or “best interests”)
Planned Parenthood of Southeastern PA. v. Casey (1992) pp. 510-17 O’Connor, Kennedy & Souter, for majority (forged consensus) “Liberty finds no refuge in a jurisprudence of doubt... [put aside prior reservations] force of stare decisis... Reaffirms Roe’s essential holding, p. 510
Planned Parenthood of Southeastern PA. v. Casey (1992) pp. 510-17 “Only where state regulation imposes an undue burden on a woman’s ability [to procure an abortion] does the power of the State reach into the heart of the liberty protected by the Due Process Clause....undue burden is [shorthand for] conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus... [invalid purpose calculated to inform, not hinder free choice]” at 512
Planned Parenthood of Southeastern PA. v. Casey (1992) V. Application pp. 512-17 ¶ 1: Oklahoma statutes parallel ¶ 2: overrules prior cases striking state requirements to give truthful, nonmisleading information; psychological well-being is important facet of health, most women would find relevant, m/b dispositive impact on fetus – reduce risk that may later regret uninformed decision w/ devastating psychological consequences.
Planned Parenthood of Southeastern PA. v. Casey (1992) V. Application pp. 512-17 ¶¶4-6 in theory, 24 hr waiting period reasonable measure, balancing interests …. But closer question, in practice may be substantial obstacle …. D. Ct. Fact finding: 2 visits to Dr., exposed to possible harassment, particularly burdensome to those who must travel long distances, must explain whereabouts to husbands, employers, etc. May fall harder on low income. While troubling, d/n establish undue burden.
Planned Parenthood of Southeastern PA. v. Casey (1992) V. Application pp. 512-17 Spousal consent: detailed D. Ct. fact-findings (domestic violence, justifiable fears of telling husband, narrow exceptions virtually non-existent; lack of certificate > draconian Dr.’s license revoked) Held, substantial obstacle, likely to prevent many women from obtaining abortion, same as if it were banned across the board. Parental notification upheld, hope minors would benefit from such consultation. N.B. imptce of judicial by-pass (incest, rape). Cf. Precious