Morgentaler v. The Queen in the Supreme Court of Canada.

In Morgentaler v. R., the Supreme Court of Canada struck down the abortion provisions in the Criminal Code. In a five to two split, a majority of the Supreme Court judges found that section 251 offended a pregnant woman's constitutionally protected right not to be deprived of her "life, liberty, and security of the person." Sheilah Martin reviews the three majority judgments and focuses on the decision written by Madame Justice Wilson. She believes that Madame Justice Wilson's opinion merits special attention in several regards: her conclusions on the constitutional rights of pregnant women; her recognition and validation of women's perspectives on abortion; and her approach to balancing women's interests in reproductive self-determination against the state's interest in regulating reproduction. Sheilah Martin concludes that this decision will reverberate far into the future. Even though it fails to establish clear guidelines concerning governmental power to control access to abortion, its principles outline the legal framework in which future litigation will occur, and it will limit and shape the terms of any ensuing political debate. In addition, Madame Justice Wilson's judgment holds great promise for those looking to the Court to promote the rights of women and other historically disadvantaged groups.     

Theorizing waste in abortion and fetal ovarian tissue use.

This article explores the theoretical implications of the concept of waste as it specifically relates to arguments in favour of fetal ovarian tissue use as a source of donor eggs. The author begins by discussing medico-scientific constructions of women's reproductive bodies as wasteful. The article explores the works of Drucilla Cornell on bodily borders, Julia Kristeva on abjection, and Mary Douglas on pollution to develop a nuanced understanding of the relations between waste, women's reproductivity, and abortion in North American mainstream and medico-scientific cultures. This layered reading of waste and abortion deconstructs a significant assumption of arguments in favour of fetal ovarian tissue use as ethical--that such tissue is just "waste." The author suggests that theorizing waste this way may contribute to ethical analyses of uses of other reproductive materials (that is, embryos) that are supported, in part, by an assumption that those materials would otherwise be "wasted."     

Reproductive choices and informed consent: fetal interests, women's identity, and relational autonomy

In this Article, I describe and examine the severe shortcomings in women's autonomy in the context of reproductive choices in the medical arena. The reproductive choices I explore are those choices that involve gestation: abortion, fertility treatments, and interventions during pregnancy. Due to state and medical interests in the fetus, I describe how information conveyed to patients making reproductive choices is biased towards fetal interests, relies on female stereotypes, and is still conveyed with the objective authority of the medical profession. Moreover, reproductive choices implicate women's values and identity interests that reach beyond medical concerns, which are not part of the informed consent doctrine at all. The narrow, individualistic informed consent torts doctrine intended to protect patient autonomy does not do enough in this context to balance bias nor does it mandate discussion of important identity interests and values. Accordingly, I argue that when faced with reproductive choices, women are not provided the balanced and comprehensive information needed to promote their autonomy. In response to the breakdown in patient autonomy I describe, instead of leaving women alone to make choices or regulating in order to protect them from their choices, a broader framework for supporting reproductive choices should be established. In light of the interdependence of woman and fetus, as well as the broader social context shaping these decisions, I argue that a more contextual, relational perspective of autonomy should be the goal of informed consent in the context of reproductive choices. I suggest a number of reforms that aim to optimize patient autonomy from a relational perspective. I suggest a broad, deliberative doctor-patient consultation and legal reforms that create more balance between the pull towards intervention and fetal protection on the one hand, and non-intervention and protection of women's personal identity interests on the other.     

"Pro-life" absolutes, feminist challenges: the fundamentalist narrative of Irish abortion law 1986-1992

This article asks how Irish abortion law developed to the point of stopping a young pregnant rape victim from travelling abroad to have an abortion in 1992 (Attorney General v.X). The author argues that this case, which ultimately saw the Irish Supreme Court overturn that decision and recognize the young woman's right to abortion, was the last chapter of the fundamentalist narrative of Irish abortion law. The feminist critique of that law needs to consider its particular fundamentalist aspects in order to clarify the obstacles posed to the struggle for Irish women's reproductive freedom. The author argues that a fundamentalist narrative ordered the post-colonial and patriarchal conditions of Irish society so as to call for the legal recognition of an absolute right to life of the "unborn." The Supreme Court's interpretation of the constitutional right to life of the fetus in three cases during the 1980s is evidence that Irish abortion law was constructed through a fundamentalist narrative until that narrative was rejected in the Supreme Court decision in Attorney General v. X.     

Procreative torts: enhancing the common-law protection for reproductive autonomy

Roe v. Wade's twenty-fifth anniversary is likely to herald widespread scholarly commentary on the decision's continued vitality and the future of abortion in the United States. However, if such commentary focuses solely upon the constitutional dimensions and political aspects of a woman's right to privacy, an important dimension of this right will be overlooked. Few commentators have considered the extent to which tort law safeguards a woman's interest in reproductive autonomy. In this article, Professor Northern argues that the interest in reproductive autonomy has not yet received the full protection to which it is entitled and that tort law is poised to evolve distinct causes of action for the interference with procreative autonomy interests. Professor Northern begins with an overview of the medical and psychological literature on abortion-related risks. She goes on to discuss current trends in abortion malpractice litigation. The author then reviews the three basic types of malpractice causes of action--battery, negligence, and lack of informed consent--and explores their application to abortion malpractice claims. The focus of the article then shifts to the development of specialized procreative torts, and Professor Northern contends that courts should go beyond previous decisions to redress any substantial interference with procreative autonomy. Finally, the author asserts that legislative alternatives to the common-law development of procreative torts, such as right-to-know statutes, are less protective of women's interests. Professor Northern concludes that tort law could and should be used to more fully protect women's interests in procreative autonomy.     

Reproductive health,birth control,and fertility change in Sweden,circa 1900–1940

This article deals with two aspects of reproductive health during the latter part of the Swedish fertility decline: failing health as a motive for birth control, and failing health as a possible consequence of illegal abortions. The main argument is that reproductive health was an important factor in most reproductive decisions during this period, a circumstance largely ignored by researchers of the fertility decline. Questions that are addressed include: How can aspects of reproductive health be viewed as explanatory factors of the fertility decline? How did men react to women's need to stop bearing children for health reasons? How did couples seeking abortion, sometimes for health reasons, perceive the risks associated with abortion? A source material mainly consisting of letters, written in the 1930s and sent to the Swedish Association for Sexuality Education, has been used to discern how aspects of health, contraception and abortion were experienced by ordinary men and women. The analysis shows that reproductive health became a motive for birth control, at this point in history, for at least two reasons. Firstly, the experience of childbirth had changed through institutionalization and secularization and, secondly, respectable masculinity was increasingly constructed to include sexual respect towards women. Still, when couples decided to abort, aspects of health were largely ignored. Often abortion was sought because the health risks associated with childbirth were perceived as larger than those associated with abortion. The connection between reproductive health and birth control was, therefore, of a rather complex kind.     

Conscientious objection in reproductive health care: Analysis of Pichon and Sajous v. France

This article explores the issue of conscientious objection invoked by health professionals in the reproductive and sexual health care context and its impact on women's ability to access health services. The right to exercise conscientious objection has been recognized by many international and European scholars as being derived from the right to freedom of thought, conscience and religion. It is not, however, an absolute right. When the exercise of conscientious objection conflicts with other human rights and fundamental freedoms, a balance must be struck between the right to conscientious objection and other affected rights such as the right to respect for private life, the right to equality and non-discrimination, and the right to receive and impart information. Particularly in the reproductive health care context, states that allow health professionals to exercise conscientious objection must accommodate this in such a way that its exercise does not compromise women's access to health services. This article analyses the European Court of Human Rights' decision on admissibility in Pichon and Sajous v. France (2001) and argues that a balancing approach should be applied in cases of conscientious objection in the sexual and reproductive health care context.     

Abortion counseling: to benefit maternal health

This Note examines how both the law and the health care profession neglect women's needs for abortion counseling before, during and after an abortion. Part I analyzes the health care profession's view of counseling, the psychological effects of abortion and how counseling both positively and negatively influences those effects. Part II reviews Supreme Court cases and state law regarding abortion counseling, critizing both the Court's narrow view of counseling and the states' failure to use the legislative process to create laws which benefit maternal health. Part III recommends an expanded role for abortion counseling, in which the counselor can provide emotional support from before the day of an abortion until a woman emotionally recovers from an abortion. This expanded role would be state-mandated, but would remain within constitutional boundaries by providing flexibility for counselors to give individual treatment while respecting a woman's privacy.     

Patriarchy,Abortion, and the Criminal System: Policing Female Bodies

This paper argues for a broader consideration of the issue of abortion—one that stresses the centrality of the denial of reproductive rights in the patriarchal policing of women’s bodies and their sexuality. Globally, the estimates of abortion-related deaths in 2014 ranged from 22,500 to 44,000, and countless women are injured or left infertile by seeking illegal abortions. We briefly review international trends regarding abortion politics and then analyze closely women’s access to abortion in two countries: the United States and Bangladesh. Representing two very different contexts of the developed and the developing world, respectively, we contend that abortion services are being constrained by misogynistic politics that deny women control over their bodies. Finally, the paper reviews recent international efforts to establish abortion rights as part of a broader landscape of human rights. Notably, while there are some efforts in the global north to recriminalize both contraception and abortion, these practices have been characterized by a recent United Nation’s report as the deliberate denial of medically available and necessary services and hence a form of “torture.”     

Reproductive choice: screening policy and access to the means of reproduction

The practice of screening potential users of reproductive services is of profound social and political significance. Access screening lacks a defensible rationale, is inconsistent with the principles of equality and self-determination, and violates individual and group human rights. Communities that strive to function in accord with those principles should not permit access to screening, even screening that purports to be a benign exercise of professional discretion. Because reproductive choice is controversial, regulation by law my be required in most jurisdictions to provide effective protection for reproductive rights. In Canada, for example, equal access can, and should be, guaranteed by federal regulations imposing strict conditions on the licenses of fertility clinics.     

Prenatal diagnosis,genetics and reproductive decision-making

Recent developments in genetic science will potentially have a significant impact on reproductive decision-making by adding to the list of conditions which can be diagnosed through prenatal diagnosis. This article analyses the jurisdictional variations that exist in Australian abortion laws and examines the extent to which Australian abortion laws specifically provide for termination of pregnancy on the grounds of fetal disability. The article also examines the potential impact of pre-implantation genetic diagnosis on reproductive decision-making and considers the meaning of reproductive autonomy in the context of the new genetics.     

Abortion laws in African Commonwealth countries

This paper provides an overview of the range of current (1981) abortion laws in the African Commonwealth countries, traces the origins of the laws to their colonial predecessors, and discusses legal reform that would positively provide for legal termination of pregnancy. The authors claim that the range of these laws demonstrates an evolution that leads from customary/common law (Lesotho and Swaziland) to basic law (Botswana, The Gambia, Malawi, Mauritius, Nigeria's Northern States and Seychelles) to developed law (Ghana, Kenya, Nigeria's Southern States, Sierra Leone, and Uganda), and, finally, to advanced law (Zambia and Zimbabwe). The authors call for treating abortion as an issue of health and welfare as opposed to one of crime and punishment. Since most of the basic law de jure is treated and administered as developed law de facto, the authors suggest decriminalizing abortion and propose ways in which to reform the law: clarifying existing law; liberalizing existing law to allow abortion based upon certain indications; limiting/removing women's criminal liability for seeking an abortion; allowing hindsight contraception; protecting providers treating women in good faith; publishing recommended fees for services to protect poor women; protecting providers who treat women with incomplete abortion; and punishing providers who fail to provide care to women in need, with the exception of those seeking protection under a conscience clause. The authors also suggest clarifying the means by which health services involving pregnancy termination may be delivered, including: clarification of the qualifications of practitioners who may treat women; specification of the facilities that may treat women, perhaps broken down by gestational duration of the pregnancy; specifying gestational limits during which the procedure can be performed; clarifying approval procedures and consents; and allowing for conscientious objections to performing the procedure.     

Abortion Approval as a Ritual of Symbolic Control

The variability of abortion laws and particularly, of the mechanisms employed to implement them attests to the sociocultural specificity of the concrete solutions to the universal problem of reproductive control. The present study examines the implementing mechanisms of the abortion law in Israel, which is a medical committee. Based on interviews with 29 social workers (all women) who serve on the committees, this paper examines how the committees operate. At one and the same time it describes the "control culture" which emerges within the legal procedure; that is, the mechanism's structure, language, accepted discourses and rituals. Foucault's concepts of power/knowledge were found to be most enlightening in this context of regulating abortions. The analysis of the abortion approval procedures portray characteristics of a ritual. A ritual that is analogous to a juvenile court on the one hand, threatening but not really punishing, and on the other hand, a confessional situation in which the woman has to confess her normative wayward behavior such as extra-marital relations, not using contraception, and enjoying sex with no reproductive intentions. The reinforcement of normative attitudes toward women and especially toward motherhood is manifested in the expressions used by the committee members referring to the pregnant woman's future behavior and the expectations from her to abide by them. These two ritualistic facets are central components of symbolic control which the Israeli "reproductive deviant" woman is faced with.     

The Impact of State Laws Protecting Abortion Clinics and Reproductive Rights on Crimes Against Abortion Providers: Deterrence, Backlash, or Neither?

Since Roe v. Wade, most states have passed laws either restricting or further protecting reproductive rights. During a wave of anti-abortion violence in the early 1990s, several states also enacted legislation protecting abortion clinics, staff, and patients. One hypothesis drawn from the theoretical literature predicts that these laws provide a deterrent effect and thus fewer anti-abortion crimes in states that protect clinics and reproductive rights. An alternative hypothesis drawn from the literature expects a backlash effect from radical members of the movement and thus more crimes in states with protective legislation. We tested these competing hypotheses by taking advantage of unique data sets that gauge the strength of laws protecting clinics and reproductive rights and that provide self-report victimization data from clinics. Employing logistic regression and controlling for several potential covariates, we found null effects and thus no support for either hypothesis. The null findings were consistent across a number of different types of victimization. Our discussion contextualizes these results in terms of previous research on crimes against abortion providers, discusses alternative explanations for the null findings, and considers the implications for future policy development and research.     

Surrogacy: is there a case for legal prohibition?

Surrogacy arrangements are a complex and challenging issue for legal regulation. On the one hand, if we wish to promote personal autonomy and enable the infertile to experience parenthood, there is a case for allowing these arrangements to proceed. However, objections to legal sanctioning of surrogacy include concerns for the surrogate and the child born through the surrogacy arrangement. Legally sanctioning surrogacy may also adversely affect social conceptions of women's roles or may be considered a form of commodifying women's reproductive capacities. This article examines these challenges to allowing surrogacy, but concludes that surrogacy should not be legally prohibited.     

Abortion and gender relationships in Ukraine, 1955–1970

This article examines the sociocultural conditions underpinning the so-called ‘abortion culture’ in Soviet Ukraine. Unlike previous studies on abortion in the Soviet Union which have primarily used country-level data, this study employs original sources – in-depth biographical interviews and archival materials – to investigate local conditions and the manner in which decisions regarding abortion were made. The author studied couples whose reproductive years comprise the period from 1955 to 1970, when modern contraceptives were not readily available but abortion was legal. Two localities in Ukraine – the cities of Lviv and Kharkiv – are included in the investigation. The findings suggest that local patriarchal gender regimes and their associated spousal dynamics defined when and how women exercised their agency in birth control and abortion decisions. In couples where spouses communicated about birth control and abortion decisions, the women sought less abortions. These women did not feel a need to exercise their agency, as the husband took over both responsibilities. When abortion was practised as a routine family-size-limitation method, spouses did not communicate about birth control and abortion, and the two were practised solely as a husband's and wife's responsibility, respectively. These women sought abortions to fulfil their own goals and, at the same time, to maintain the dominant patriarchal order in marital relationships as they understood it. Additionally, peer networks seemed to be the crucial element reinforcing women's agency in these processes.     

价值体系中的堕胎规制——生命权与自我决定权、国家利益的宪法考量

堕胎的规制模式大致可分为国家放任模式、国家许可模式和有限制的国家放任模式。这些模式的背后都有着自身的一些独特考量,模式的选取与其社会传统、对胎儿是否为人、宪法权利是否具有积极性、国家是否负有某种保护义务等诸多因素的认知密切相关。目前我国基本上是放任孕妇堕胎。然而,宪法却要求国家履行其对生命的保护义务。鉴于法律应该在社会现实和价值诉求之间寻求合理的互动和对话,我国应该在保护胎儿的生命、孕妇的自我决定权以及国家利益之间进行更为适当的权衡,对我国所施行的堕胎规制模式做出适当的调整。     

Feminist criminology in an era of misogyny†

In this address I make the case for continuing to focus criminological research on gender, sexism, and racism within our lives and within our profession. I also provide a brief case study of a topic many would feel falls well outside our field: reproductive rights. Data are reviewed to reveal the impact of gender on the lives of women—notably the devaluation of work done by women, particularly if the work is deemed feminist. Afterward, recent data on the persistence of both sexism and racism in our field are reviewed. Despite gains made by women (notably in the membership of the field), the highest positions in our professional association are held by men, particularly by White men. Data on the importance of reproductive rights to women are then considered, notably the fact that nearly one third of women will need abortion services by the time they reach middle age. Finally, I review recent efforts by conservatives to recriminalize abortion, specifically through the passage of laws making abortion difficult to arrange, or even outlawing the provision of abortion services. These efforts directly involve the criminal justice system in the criminalization of women's bodies.     

Future fear: prenatal duties imposed by private parties.

The national abortion debate, rising drug use and homelessness, and the return to conservatism intersect in the trend which increasingly recognizes fetal rights, often at the expense of women's rights. Pregnant women, as never before, are faced with criminal charges and physical invasions in the name of protection of fetuses. This Note examines the sociological forces creating these situations and suggests better solutions. The Note cautions against the future fear that private parties will claim a legal right to interfere with a pregnant woman's behavior, and illustrates the need to prevent it.     

Webster and women's equality

The National Abortion Rights Action League (NARAL) and the Women's Legal Defense Fund (WLDF) co-authored an "amicus curiae" brief in "Webster." The brief was written for 77 organizations who believe in equality of women. The brief said that constitutional protection of a woman's right to choose is guaranteed by the right to privacy. The brief said that if abortions were illegal, women would not be able to take place in society equally with men. Liberty would be taken away from women. If the state interferes with abortion, the principle of bodily integrity is violated. In "Winston v. Lee," the Supreme Court found that the state could not compel a criminal to undergo an invasive surgical procedure to retrieve a bullet necessary for the state to prosecute with. 1 in 4 women have a cesarean section, which requires a larger incision in the abdomen, and has many risks. Bearing and raising children often puts a damper on women's employment opportunities. Therefore, if the Supreme Court denied women the right to bear children when and where they wanted, women would not have the right to plan their futures. If the Supreme Court were to agree that "interest in potential life outweighs" a woman's tight to procreate autonomously, states could declare all abortions illegal, investigate them to see if they were induced on purpose, and murder women who induced them. Contraceptive devices could be declared illegal. Laws could be used to force women to submit to cesarean sections and other fetal surgery. Pre-viability abortion restrictions should be rejected because they have old-fashioned notions of women's role in society. They reinforce stereotypes. Missouri's law stresses aiding "potential," rather than actual life.