Second-Trimester Abortion Dangertalk

66 Pages Posted: 3 Sep 2021 Last revised: 28 Sep 2021

See all articles by Greer Donley

Greer Donley

University of Pittsburgh - School of Law

Jill Wieber Lens

University of Arkansas - School of Law

Date Written: August 27, 2021

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, where 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 (D&E) 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 “danger-talk.” First introduced in medical literature by abortion providers, danger-talk 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 better 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.

Note:
Funding Information: None to declare.

Declaration of Interests: None to declare.

Keywords: Abortion, Due Process, Gender and the Law, 14th Amendment, Fourteenth Amendment, Reproductive Justice, Law and Society, Equal Protection, Health and Inequality

Suggested Citation

Donley, Greer and Lens, Jill Wieber, Second-Trimester Abortion Dangertalk (August 27, 2021). Boston College Law Review, Vol. 62, Forthcoming, U. of Pittsburgh Legal Studies Research Paper No. 2021-30, Available at SSRN: https://ssrn.com/abstract=3914294 or http://dx.doi.org/10.2139/ssrn.3914294

Greer Donley (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412.648.1359 (Phone)
412.648.2649 (Fax)

HOME PAGE: http://www.law.pitt.edu/people/greer-donley

Jill Wieber Lens

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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