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LIRA@BC Law

Abstract

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, in which the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale—the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling in cases of life-limiting fetal conditions. This Article discusses the paternalism and traditional gender stereotypes underlying these newer abortion restrictions and uses empirical studies to discredit the woman-protective rationale justifying them. The Article also suggests a radical, new response to claims that women need protection from second-trimester abortion: the embrace of second-trimester abortion “dangertalk.” First introduced in medical literature by abortion providers, dangertalk refers to the uncomfortable truths about abortion that supporters often avoid. These topics include the nature of second-trimester abortion procedures and the emotional complexity that can especially accompany second-trimester abortion. This Article advocates for greater openness about these topics, arguing that silence only capitulates the narrative of second-trimester abortion to those opposing abortion rights. The Article envisions second-trimester abortion care that more openly recognizes these realities and provides women with more choices that might make second-trimester abortion easier, including alternative procedures and the option of memory-making to process difficult emotions, like grief. Finally, this Article argues that more transparency about these difficult subjects will help rebut the woman-protective rationale used to justify second-trimester abortion restrictions.

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File nameDate UploadedVisibilityFile size
01_lens_donley_web_A1b.pdf
7 Sep 2022
Public
1.13 MB

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Metadata

  • Subject
    • Gender

    • Medical Jurisprudence

    • State and Local Government Law

    • Supreme Court of the United States

  • Journal title
    • Boston College Law Review

  • Volume
    • 62

  • Issue
    • 7

  • Pagination
    • 2145

  • Date submitted

    7 September 2022