Current Issue

Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront

27 Aug 2014 01:32pm Michele Goodwin 

Increasingly, state statutes are the primary means through which legal norms affecting low-income pregnant women's autonomy, privacy, and liberty are introduced and shaped. Arrests, forced bed rests, compelled cesarean sections, and civil incarcerations of pregnant women in Alabama, Florida, Indiana, Iowa, Mississippi, New Mexico, South Carolina, Texas, Utah, and Wisconsin merely scratch the surface of a broad attack on pregnant women. This recent era of maternal policing reshapes physician and police interactions with pregnant women accused of violating fetal protection laws (FPLs); inspires (and sometimes requires) medical officials to breach confidentiality when treating pregnant women; motivates selective prosecution against poor women, particularly those of color; and evinces improper judicial deference to medical authority rather than law.

This Article makes three claims. First, it argues that doctors breach what should be an unwavering duty of confidentiality to pregnant patients by trampling the well-established expectations of the patient-physician relationship. Second, it argues that even if states' chief goal is to promote fetal health by enacting protectionist laws, punitive state interventions contravene that objective and indirectly undermine fetal health. Finally, the Article argues that FPLs unconstitutionally situate pregnant women as unequal citizens by unjustly denying them basic human and legal rights afforded other citizens.

Circuit

In re Sanders and the Resurrection of Stanley v. Illinois

16 Nov 2014 01:40pm Josh Gupta-Kagan 

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care, but for decades family courts would not apply this precedent to non-offending parents in child protection cases. Without even citing Stanley, courts held that finding one parent unfit justified taking the child into foster care -- even when the other parent was fit and sought custody. A Michigan Supreme Court decision this past summer, In re Sanders, suggests that courts are now, more than forty years after it was decided, beginning to apply Stanley to protect fit parents' and children's right to stay together.    

Subsequent History Omitted

04 Nov 2014 01:21pm Joel Heller 

The Supreme Court's decision in Shelby County v. Holder striking down part of the Voting Rights Act of 1965 has sparked debate over voting, race, history, and, surprisingly, footnotes. This Essay examines Westlaw's characterization of the Court's earlier decision upholding the VRA in South Carolina v. Katzenbach as "abrogated by Shelby County v. Holder," and uses that characterization as a lens to consider Westlaw's influence on the development of the law.  Because Westlaw's "abrogated" label is both unwarranted and consequential, that proposed subsequent-history clause should be omitted.     

Progressive Property Moving Forward

04 Nov 2014 01:20pm Timothy M. Mulvaney 

In response to Ezra Rosser's article, The Ambition and Transformative Potential of Progressive Property, 101 Calif. L. Rev. 107 (2013), Timothy Mulvaney expresses more confidence than does Rosser in property's potential to serve a role in furthering a progressive society. If property is to serve in this role, however, Mulvaney suggests it is important to redesign and reinterpret property in accordance with three themes-transparency about property rules' value-dependence,humility about the reach of human knowledge and the mutability of our normative positions, and a concern for the socioeconomic identities of those affected by resource disputes-that underlie a broader set of writings than Rosser considers within the contours of "progressive property scholarship" and on which he offers some very preliminary impressions.    



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