Health Law and Policy Commons^™

Romance Is Dead: Mail Order Bridges As Surrogate Corpses, Daniel Epstein

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Reinventing Eugenics: Reproductive Choice And Law Reform After World War Ii, Mary Ziegler

Scholarly Publications

No abstract provided.

Note, Eugenic Feminism: Mental Hygiene, The Women's Movement, And The Campaign For Eugenic Legal Reform, 1900-1935, Mary Ziegler

Scholarly Publications

It is well for every woman, however, to think this matter through and to realize that any women’s movement that is correlated with sterility is doomed to fail and annihilation. What shall it profit us eugenically to have women delve in laboratories, or search the heavens, or rule the nations, if the world is to be peopled by scrubwomen and peasants? – Anna M. Blount, Eugenics, in Woman and the Larger Citizenship, 2847, 2904-05 (Shailer Mathews ed., 1913).

Part I of this article examines the evolution of eugenic thought and policy in the United States between 1880 and 1935, …

Barriers To Access To Abortion Through A Legal Lens, Jocelyn Downie, Carla Nassar

Articles, Book Chapters, & Popular Press

In addressing whether the procedure for obtaining abortions was operating equitably across Canada, the 1977 Badgley Report concluded that for many women, access to abortion was “practically illusory.” Sadly, although abortion on request became legally permissible for Canadian women in 1988, access to a safe and legal abortion remains practically illusory for many women today. A woman seeking an abortion in Canada must overcome numerous barriers. She must find a way to secure for herself some of the limited resources that our health care system provides for abortion. She must also expend her own, often scarce, personal resources: her time, …

Judicial Reasoning About Pregnancy And Choice, Jocelyn Downie, Chris Kaposy

Articles, Book Chapters, & Popular Press

Women in Canada are at risk of abortion becoming increasingly difficult to access. In its landmark 1988 ruling, R. v. Morgentaler, the Supreme Court of Canada struck down the prohibition of abortion in section 251 of the Criminal Code on the grounds that it violated a section of the Charter of Rights and Freedoms which guarantees, among other things, "security of the person". However, all of the justices who ruled that section 25 unconstitutional nonetheless claimed that protecting the fetus is a valid objective of federal legislation, leaving open the possibility that a different and carefully crafted law against abortion …

Brain, Gender, Law: A Cautionary Tale, Carlin Meyer

NYLS Law Review

No abstract provided.

Gender Politics, Gender Paradox: Establishing And Implementing Global Standards For The Promotion And Protection Of Women's Health, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Health Equity, Hpv And The Cervical Cancer Vaccine, Joanna Erdman

Articles, Book Chapters, & Popular Press

This article explores the relationship between technological innovation and health inequity. It examines in particular the relationship between the vaccine against human papillomavirus (HPV) infection, the cause of cervical cancer, and inequity in cervical cancer incidence and mortality. In Canada, screening programs have drastically reduced the incidence of cervical cancer, but their benefits have been unequally distributed. Prevention efforts have disproportionately failed women of disadvantaged social groups. Technological innovation alone will not remedy this inequity. The HPV vaccine merely expands the available means for reducing or increasing health inequity depending on its implementation. For this reason, the article looks beyond …

"Protecting" Women's Health: How Gonzales V. Carhart Endangers Women's Health And Women's Equal Right To Personhood Under The Constitution, Martha K. Plante

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

In The Back Alleys Of Health Care: Abortion, Equality And Community In Canada, Joanna Erdman

Articles, Book Chapters, & Popular Press

The decriminalization of abortion in Canada ensured neither its availability nor accessibility as an integrated and publicly funded health service. While Canadian women are increasingly referred to or seek abortion services from single-purpose clinics, their exclusion from public health insurance often render these services inaccessible. This article considers denied funding for clinic abortion services from the perspective of the Canadian constitutional guarantee of sex equality. The article focuses on the 2004 Court of Queen's Bench's judgment in Jane Doe I v. Manitoba, which framed denied public funding for clinic abortion services as a violation of women's equality rights under the …

Hiv Testing Of Pregnant Women: Why Present Approaches Fail To Reach The Desired Objective & The Unconsidered Option, Michelle Yuen

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Battling Breast Cancer: New York's Laws Are Not Enough, Tara Arschin

Cardozo Journal of Equal Rights & Social Justice

The note argues that New York State should mandate insurance coverage for participation in Phase II and Phase III clinical trials for experimental breast cancer treatments, such as HDCABMT, to address gaps in current law and ensure access to potentially life-saving therapies. While New York has progressive laws on breast cancer awareness and treatment rights, its approach to experimental treatment coverage remains inadequate compared to states like California and Massachusetts. The note advocates for legal reforms to eliminate the need for external appeals and reduce litigation, ensuring consistent and equitable access to clinical trials.

Symposium: Molecules And Conflict: Cancer, Petents, And Women's Health, Eileen M. Kane

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Symposium: Comments On Panel 2, Peter Jaszi

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Developing Markets In Baby-Making: In The Matter Of Baby M, Carol Sanger

Faculty Scholarship

In this Essay, I want to explore the Baby M case from a different, less philosophical perspective. The question I pose is simply this: how did the Sterns and the Whiteheads find one another in the first place? After all, apart from their New Jersey location (and a shared fondness for Bruce Springsteen), the two couples had little in common. Mary Beth was a high school dropout; Betsy had a Ph.D. and M.D. from the University of Michigan. Rick was a Vietnam vet fighting an ongoing battle with unemployment and alcoholism; Bill led what close friends called "a quiet, industrious …

International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm

Faculty Scholarship

The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men) with the right to …

Abortion, Equality, And Administrative Regulation, Gillian E. Metzger

Faculty Scholarship

Abortion and equality are a common pairing; courts as well as legal scholars have noted the importance of abortion and a woman's ability to control whether and when she has children to her ability to participate fully and equally in society. Abortion and administrative regulation, on the other hand, are a more unusual combination. Most restrictions on abortion are legislatively imposed, while guarantees of reproductive freedom are constitutionally derived, so administrative law does not frequently figure in debates about access to abortion.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Abortion: Ensuring Access, Sanda Rodgers, Jocelyn Downie

Articles, Book Chapters, & Popular Press

Access to reproductive health care is essential to women’s health, and for some women, abortion is a key component of that care. But not all women in Canada have adequate, or in some cases any, access to abortion. It is important for Canadian physicians to know the facts about access to abortion so that they can better protect and promote the health of their female patients.

Till Death Do Us Part: Marriage, Hiv/Aids And The Law In Zimbabwe, Slyvia Chirawu

ExpressO

Lying in Sub Saharan Africa, the epicenter of the HIV/AIDS epidemic, Zimbabwe has grappled since 1985 to prevent and mitigate the impact of HIV/AIDS. Statistics point out to one glaring factor- the disproportionate impact of HIV/AIDS on women and in the case of Zimbabwe married women. Laws, policies and practices in relation to marriage predispose married women to HIV/AIDS infection. The answer to protecting women does not lie entirely in the law but in transformative gender equality.

Zimbabwe has two types of recognized marriages and the third type , the unregistered customary law union is given limited recognition. The thread …

The Weldon Amendment: The Ongoing Restrictions On A Woman's Right To Choose, John Patton Fortuno

ExpressO

Under the Weldon Amendment, a “physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility” may refuse abortions, counseling, or referrals, even in cases of rape, incest, or medical emergency.

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

The Necessity Of Sex Change: A Struggle For Intersex And Transsex Liberties, Noa Ben-Asher

Faculty Publications

(Excerpt)

Transsex individuals often desire the future body that they should have, while intersex individuals often mourn the body they had before an unwanted normalizing surgery interfered with it. Thus, Judith Butler, a dominant feminist-queer theorist who has had a significant role in the shaping of queer theory and politics since the early 1990s, has lately commented that "intersex and transsex sometimes seem to be movements at odds with each other, the first opposing unwanted surgery, the second sometimes calling for elective surgery ...." This proposition serves as a point of departure for this Article, which explores current legal …

Restructuring The Debate Over Fetal Homicide Laws, Carolyn B. Ramsey

Publications

The worst problems with the fetal homicide laws that have proliferated around the nation are quite different than the existing scholarship suggests. Critics often argue that the statutes, which criminalize the killing of a fetus by a third party other than an abortion provider, undermine a woman's right to terminate her pregnancy. This concern is overstated. Although supported by anti-abortionists, many of the fetal homicide laws embody the perspective of the so-called "abortion grays," who eschew the absolutism of the doctrinaire pro-choice and anti-abortion camps. This Article explores how a contextual view of life-taking allows us to reconcile legal abortion …

Till Death Do Us Part: Marriage, Hiv/Aids And The Law In Zimbabwe, Slyvia Chirawu

Cardozo Journal of Equal Rights & Social Justice

The article argues that marriage, cultural practices, and legal frameworks in Zimbabwe disproportionately expose women to HIV/AIDS, with marriage paradoxically increasing their vulnerability despite societal expectations of protection. It contends that legal reforms alone are insufficient to address this issue, emphasizing the need for transformative gender equity to challenge the deeply rooted power imbalances and cultural norms that perpetuate women's susceptibility to HIV infection.

The Patient, The Doctor, The Fetus, And The Court-Compelled Cesarean: Why Courts Should Address The Question Through A Bioethical Lens, Thomas Williams

Scholarly Articles in Law Reviews & Journals

Court-ordered Cesarean sections are a relatively recent phenomenon in the intersection of law and medicine. Existing jurisprudence utilizes a legal balancing test when addressing conflicts that arise between physicians and patients regarding obstetrical treatment and care. The authors contend that courts' analyses lack a fundamental element - a bioethical framework. Therefore, the authors believe that in order to better assess such conflicts, courts should incorporate a bioethical framework such as the Georgetown mantra to help complement their legal analyses.

The New "Fetal Protection": The Wrong Answer To The Crisis Of Inadequate Health Care For Women And Children, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article will expand upon the feminist critique by focusing on children's health as well as the health and liberty interests of their mothers. In the first part of this article, I examine the legal and cultural underpinnings of “fetal protection” and explore its current manifestations. In the second part, I place “fetal protection” in a broader context, documenting the ways in which American law currently promotes fetal life, while simultaneously neglecting the lives and health of born children. The third part of the article offers concrete recommendations about how government, both state and federal, can actually achieve the goal …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.