Reproductive Rights
Racial Classification in Assisted Reproduction
118 Yale L.J. 1844 (2009). This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the expressive dimension of wrongful discrimination. Even practices marked by innocent motives and benign effects can give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. Race-based differentiation in voting ballots, dating websites, and donor catalogs helps us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.
Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart
117 Yale L.J. 1694 (2008). This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court’s recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe—exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with womanprotective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting women’s abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate women’s dignity if protection is based on stereotypical assumptions about women’s capacities and women’s roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative—and constitutional—modes of protecting women who are making decisions about motherhood.
The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right
Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury"
115 Yale L.J. 237 (2005) Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits. In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. A New York clinic mistakenly implanted one woman's embryos in another's uterus. A Florida clinic implanted a woman's embryos after possibly exposing them to Mad Cow Disease. Nonetheless, these plaintiffs, along with others like them, lost--not before juries and not because their doctors were careful, but because their claims were adjudged legally incognizable. Their claims failed because the law lacks a category of injury fitted to the harm parents and prospective parents endure when IVF goes wrong. Put another way, of a tort's four elements (duty, breach, causation, injury), it is with the last--injury--that existing law falls short of the demands of the new technology. What is needed, then, if IVF plaintiffs are to recover, is a new category of injury--"procreative injury"--based on the legal recognition of the human interest in procreation. I will argue that tort law should recognize and protect this procreative interest. In practice, the right to have this procreative interest protected would be the basis for a new cause of action. Call it the tort of "reprogenetic malpractice" : Where a doctor undertakes a duty to care for a patient's procreative interest, and negligently breaches that duty so as to cause the patient procreative injury, the law should provide a remedy. A word is needed about why the IVF context is important--why the "embryo switching," "wrong sperm," and other cases discussed below are more than isolated curiosities. The extra-corporeal manipulation of gametes and embryos is the first, indispensable step in genetic engineering, genetic screening, embryonic stem cell research, the creation of human-animal hybrids and chimeras, certain forms of sex selection, and human cloning. Consequently, IVF doctors and clinics are the gatekeepers to these much-publicized activities at the border of medicine, research biology, genetics, and eugenics. And individual IVF-related injuries, even if they are rare now, are not going to stay rare for long. The field is young, large, growing, prone to experimentation, and relatively unregulated. With no theory of rights fitted out for IVF, tort law is trailing the new technology, unprepared to perform either of its two functions: individual justice or social regulation.
Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts To Protect Abortion Patients and Staff
112 Yale L.J. 1545 (2003) When Lori Driver, an anti-abortion activist, learned that Lisa Smith was scheduled to have an abortion the following day, Driver looked up Smith's telephone number and left her two telephone messages. Smith did not return Driver's calls, so Driver stepped up her efforts, going to Smith's house and leaving anti-abortion literature and a plastic model of a fetus on her doorstep. The next morning, the day of Smith's scheduled abortion, Driver left a message on her answering machine, asking her parents to call about a medical emergency involving their daughter. When Smith arrived at the clinic for her appointment, a protestor called out to her by name and accused her of murdering her baby. An unknown caller left a message for Smith at the clinic that Smith's parents knew about her plan and were distraught. Meanwhile, a clinic representative called Driver's number pretending to be Smith's father returning her message, and the person at the other end informed him that Smith had gone in for an abortion. This example has become all too ordinary. (Incidentally, a divided court denied relief to Smith.) Having lost the legal battle to criminalize abortion, anti-abortion protestors have shifted to a strategy of extralegal deterrence through various techniques of shaming, harassment, and obstruction. Protestors publicize the names of patients and, in at least one case, their medical records. They film patients entering and leaving clinics, and post the images on the Internet. They record license plates in clinic parking lots; track down drivers' names and addresses; visit patients' homes; and send letters to them and their families, friends, boyfriends, and husbands. Protestors even pose as abortion providers, taking down personal information from callers and using that information to contact family members and urge them to intervene. Abortion doctors are also targets of intentional exposure. Protestors picket outside doctors' homes, photograph them, videotape them, and observe them through binoculars. They leaflet cars with the names and addresses of clinic staff. They post doctors' names, addresses, phone numbers, and license plate numbers, as well as video footage of clinic entrances, on the Internet. Intent on going further, they have been planning, and may already have begun, to broadcast clinic footage on public access television. What all these activities--to which this Note refers as "abortion outing"--have in common is that they destroy the privacy and anonymity on which the practice of abortion fundamentally depends. Patients need anonymity to be safe from community retaliation and free from the unwanted influence of friends, family members, and acquaintances. Doctors need privacy to be safe from harassment or violence by community members who oppose what they do. Abortion opponents have rightly guessed that reducing anonymity deters abortion, and their guess is paying off. Fewer and fewer doctors are practicing abortion, to the point where abortion is no longer accessible in much of the country, and prospective patients have been driven away from clinics by the threat of publicity. Because Roe's constitutional right to privacy only protects women against state actors, abortion-rights advocates have fought at the federal and state levels for statutory and judicial protections against protestors. At the federal level, for example, they have helped pass the Freedom of Access to Clinic Entrances Act of 1995 (FACE), which criminalizes the use of, among other things, force or threats to prevent women from entering clinics, and the Drivers' Privacy Protection Act of 1994, which makes it more difficult for anti-abortion activists, among others, to obtain personal information based on names and license plates. At the state and local levels, they have secured laws, ordinances, and injunctions restricting protests outside clinic entrances and doctors' homes. So far, however, advocates have largely overlooked common-law privacy rights as a possible source of protection. This may be a serious mistake. Two common-law torts, in particular, are well suited to the specific harm of abortion outing: the intrusion tort, which covers wrongful intrusions into a person's physical seclusion or personal affairs, and the publication tort, which covers wrongful publication of private facts. These torts are expressively valuable in that they focus on the individuals being harmed rather than on their general class, and empower these individuals to seek change directly through the courts rather than waiting to be protected by their legislators. The torts are also practical in that they actually compensate victims of past violations. They are easier to pursue than legislation, which requires tremendous momentum to overcome the burden of inertia, opposition from interest groups, and competition from other legislative priorities. They carry a lower burden of proof than criminal statutes such as FACE and may apply to a wider range of conduct. Moreover, given the Supreme Court's division over questions related to abortion privacy and its growing resistance to federal law that does not fall neatly within Congress's Commerce Clause powers, the states may now be the more promising arena for protecting abortion-related privacy. This Note examines the possibility of using common-law privacy rights to cover gaps left by other forms of legal protection. Part II sorts out the various privacy interests at stake in the debate over abortion outing and takes stock of the conflicting interests of anti-abortion protestors, which courts must also weigh. Part III develops an account of which privacy interests might be protected through the common law. It will be clear from this account that, in its current form, the common law fails to match many of our intuitions about privacy, or, at best, is inconsistent. Part IV addresses constitutional limits and considerations. Part V concludes.