Law Commons^™

The Federal Pregnant Workers Fairness Act: Statutory Requirements, Regulations, And Need (Especially In Post-Dobbs America), Deborah Widiss

Articles by Maurer Faculty

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need small changes at work, such as permission to sit periodically, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such …

Eugenics Not Eradication: How People With Disabilities Have Lost The Right To Life, Ava Standish

Helm's School of Government Conference - American Revival: Citizenship & Virtue

Disability-selective abortion stems from a eugenical philosophy not a hope of eradication. Disabilities cannot be eradicated because they are not diseases. Eugenics seeks to purify society from those who are considered “inferior” and to encourage the rate of births considered “superior.” Eugenics continues today through selective abortion of children with disabilities. These children deserve the right to life guaranteed by natural rights, human rights, and the laws of the United States. Children with disabilities, particularly Down Syndrome, have lost this right to life in the United States and abroad. In the United States, 67% of children with Down Syndrome are …

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia Sawicki

Indiana Law Journal

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article …

Disability And Reproductive Justice, Samuel Bagenstos

Articles

In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written …

Parental Autonomy Over Prenatal End-Of-Life Decisions, Greer Donley

Articles

When parents learn that their potential child has a life-limiting, often devastating, prenatal diagnosis, they are faced with the first (and perhaps, only) healthcare decisions they will make for their child. Many choose to terminate the pregnancy because they believe it is in their potential child’s best interest to avoid a short and painful life. I argue that these decisions should be protected in the same way that parental healthcare decisions are constitutionally protected after birth—including a parent’s refusal or withdrawal of life-saving treatment for an infant or child who is very sick or dying. Parental autonomy ensures that parents …

Law In The Time Of Zika: Disability Rights And Reproductive Justice Collide, Seema Mohapatra

Brooklyn Law Review

This article focuses on finding common ground between those seeking to ensure abortion access and those advocating for disability rights, using the reaction to the Zika virus as a case study. Although the symptoms of Zika in women were often mild, the correlation of Zika infection in pregnant women to microcephaly affecting their newborns led to travel advisories and alarm bells for pregnant women in areas where the Zika virus was prevalent. Although the rise of microcephaly and its connection to Zika was a cause for concern and investigation, the condition itself is not a death sentence, as headlines suggested. …

Personhood Seeking New Life With Republican Control, Jonathan F. Will, I. Glenn Cohen, Eli Y. Adashi

Indiana Law Journal

Just three days prior to the inauguration of Donald J. Trump as President of the United States, Representative Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H.R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. Then, in October 2017, the Department of Health and Human Services released its draft strategic plan, which identifies a core policy of protecting Americans at every stage of life, beginning at conception. While often touted as a means to outlaw abortion, protecting the “lives” of single-celled zygotes may also have implications for the practice …

The Disability Politics Of Abortion, Mary Ziegler

Utah Law Review

With Ohio considering passing the nation’s second ban on abortions motivated by Down Syndrome, the relationship between abortion and disability law has taken on new importance. Disability based bans raise unique legal, moral, and political difficulties for those supporting legal abortion. The core commitments supporting legal abortion—including sex equality—stand in some tension with justifying abortion in the case of a fetal defect or disability.

Given the problems with disability-based bans, it may seem that there is no urgent need to resolve these tensions. Disability-based statutes likely create an impermissible undue burden under Planned Parenthood of Southeastern v. Casey and seem …

Reproductive Justice, Public Policy, And Abortion On The Basis Of Fetal Impairment: Lessons From International Human Rights Law And The Potential Impact Of The Convention On The Rights Of Persons With Disabilities, Carole J. Petersen

Journal of Law and Health

This article argues that we should consider not only American constitutional law but also comparative law and emerging international human rights norms, in order to navigate the difficult issue of abortion on the basis of fetal impairment. The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR)13 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is also a signatory (but not a full State Party) to several other relevant treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the …

Does The Constitution Protect Abortions Based On Fetal Anomaly?: Examining The Potential For Disability-Selective Abortion Bans In The Age Of Prenatal Whole Genome Sequencing, Greer Donley

Articles

This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation …

Beyond Abortion: Human Genetics And The New Eugenics, John R. Harding Jr.

Pepperdine Law Review

No abstract provided.

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Pepperdine Law Review

No abstract provided.

Disability-Selective Abortion And The Americans With Disabilities Act, Dov Fox, Christopher L. Griffin Jr.

Faculty Publications

This Article examines the influence of the Americans with Disabilities Act (ADA) on affective attitudes toward children with disabilities and on the incidence of disability-selective abortion. Applying regression analysis to U.S. natality data, we find that the birthrate of children with Down syndrome declined significantly in the years following the ADA’s passage. Controlling for technological, demographic, and cultural variables suggests that the ADA may have encouraged prospective parents to prevent the existence of the very class of people it was designed to protect. We explain this paradox by showing the way in which specific ADA provisions could have given rise …

A Response To "Two Puzzles", Carl E. Schneider

Book Chapters

In his stimulating paper, Professor Mnookin suggests that the legal issue of neonatal euthanasia may be seen in terms of two puzzles: First, what accounts for the ''striking dichotomy between the law on the books, which apparently outlaws such conduct, and the law in action, which apparently permits it"? Second, why has "the treatment of severely handicapped newborns . . . evoked such a violent storm in the last few years"? Professor Mnookin resolves the first puzzle by suggesting that the ''dichotomy between the law on the books and the law in action may serve as a pragmatic, although not …