Tuesday, April 12, 2016
Deborah Thompson Eisenberg, Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Act Cases, 57 N.Y.L. Sch. L. Rev. 815 (2013)
[T]his article provides an empirical analysis of summary judgment practice in Equal Pay Act (EPA or the “Act”) cases on the front lines of the trial courts. As every first-year law student should know, a court may grant summary judgment under Federal Rule of Civil Procedure 56 only if there is “no genuine dispute as to any material fact.”1 Courts have recognized that because of the “fact intensive nature” of the equal pay inquiry, “summary judgment will often be inappropriate” for equal pay claims.2 Although—in theory—most equal pay claims should survive summary judgment, an analysis of 500 recent EPA cases shows that— in practice—federal district courts summarily dismiss most equal pay claims.
Deborah Thompson Eisenberg (Maryland), Shattering the Equal Pay Act's Glass Ceiling, 63 SMU L. Rev. 17 (2010).
Abstract:This Article provides the first empirical and rhetorical analysis of all reported Equal Pay Act (EPA) federal appellate cases since the Act’s passage. This analysis shows that as women climb the occupational ladder, the manner in which many federal courts interpret the EPA imposes a wage glass ceiling, shutting out women in non-standardized jobs from its protection. This barrier is particularly troubling in light of data that shows that the gender wage gap increases for women as they achieve higher levels of professional status.
The Article begins by examining data regarding the greater pay gap for women in upper-level jobs. To evaluate the EPA’s effectiveness to address pay discrimination for these workers, the Article provides an overview of empirical trends in EPA appellate case law. The analysis shows that courts increasingly dismiss EPA cases at the summary judgment stage, despite the fact-intensive nature of the claims, and that women in non-standardized professional and managerial jobs are less likely to prevail. The Article examines the two competing notions of “equal work” present in EPA case law and proposes a more effective prima facie standard that better accommodates women in non-traditional jobs. The Article then identifies narratives underlying EPA cases that may allow pay discrimination to flourish for women in upper-level jobs, including the expansion of certain defenses into exceptions that swallow the equal payrule, the presumption of incompetence and lower value for women (even at the executive level), and secret pay processes that facilitate pay disparities. The Article analyzes these narratives in light of other psychological and business research and proposes new remedial models to shatter the EPA’s glass ceiling and ensure the promise of equal pay.
What is Equal Pay Day?
From National Committee on Pay Equity: Equal Pay Day is Tuesday, April 12, 2016. This date symbolizes how far into the year women must work to earn what men earned in the previous year. Equal Pay Day was originated by the National Committee on Pay Equity (NCPE) in 1996 as a public awareness event to illustrate the gap between men's and women's wages.
Susan Apel, Guest Blogger, "Equal Pay" Start Talking (2013)
Some prior posts on equal pay:
Location: Massachusetts Historical Society
Katherine Marino, American Academy of Arts and Sciences
The Origins of “Women’s Rights are Human Rights”: Pan-American Feminism and the 1945 United Nation Charter
Comment: Kirsten Weld, Harvard University
In June, 1945, at the conference in San Francisco that created the United Nations, a group of Latin American feminists pushed “women’s rights” into the category of international human rights in the founding documents of the UN and proposed what became the UN Commission on the Status of Women. The Brazilian delegate and feminist Bertha Lutz called their work a “Latin American contribution to the constitution of the world.” This paper examines what “women’s rights” and “human rights” meant to these Latin American activists and how a movement of transnational, Pan-American feminism shaped their ideas and activism. It argues that the notion that “women’s rights are human rights,” often assumed to be a product of U.S./Western European liberal democratic and feminist thought, was in fact forged through transnational collaboration in a context of fraught U.S./Latin American relations.
RSVP so we know how many will attend. To respond, email email@example.com or phone 617-646-0568.
As usual, there will be four programs in this series, two each at the Schlesinger Library and the Massachusetts Historical Society. The complete schedule is available at http://www.masshist.org/2012/calendar/seminars/women-and-gender
Each seminar consists of a discussion of a pre-circulated paper provided to our subscribers. (Papers will be available at the event for those who choose not to subscribe.) Afterwards the host institution will provide a light buffet supper.
We look forward to seeing you at the program!
Monday, April 11, 2016
Jacob E. Gersen (Harvard) & Jeannie Suk (Harvard), The Sex Bureaucracy, California L. Rev. (forthcoming)
Abstract:We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.
However, a 10-year study looked at rapes and sexual assaults between 2001 and 2011 occurring on Massachusetts’ college and university campuses – including dorms, apartments and fraternity houses. The study found that 81 percent of all reported rapes and assaults occurred in the dorms, 9 percent occurred in houses or apartments and only 4 percent occurred in fraternity houses.
When colleges fail to examine where assaults happen, they expose themselves to litigation. More importantly, they miss critical opportunities to explore solutions to the widespread campus sexual assault problem.
Schools should look closely at their own sexual assault reports and consider targeted solutions if there are particular dorms with a high incidence of assaults.
Studies should be conducted at the national level to examine overall patterns. Those studies should examine questions such as whether sexual assaults are more likely to occur in certain types of dorms, such as athlete dorms or even coed dorms. Studies should also look at whether it makes a difference if dorms are coed by floor, by hall or by room.
[This post is an excerpt from a longer article originally posted on The Conversation. The full article can be accessed here: https://theconversation.com/what-schools-dont-tell-you-about-campus-sexual-assault-57163]
Feminist Experiences of Law
Provocations III: IILAH
27-28 October 2016
Room 920, Level 9, Melbourne Law School
Experience is central to feminist thinking and praxis. Understood as the personal, as the subjective, as political formation, as method, or as a contested concept in philosophy, history, sociology, literary and cultural theory, experience had long shaped debates and struggles about what it means to think and act as a feminist. The work that experience does, and has done, in how feminists understand, contest and live with law has official and unofficial histories, and distinct and diverse forms of contemporary argument. This conference seeks to draw together a broad community of scholars and activists to consider, and reconsider, feminist experiences of law. We invite papers from a range of disciplinary, practice and experiential perspectives - reform and socio-legal projects, legal and feminist theories, legal histories and life writing, institutional and doctrinal analysis. We are interested in new ideas, new scholarship, new experiences, and encourage papers that deploy a range of styles and genres.
Following the successful ‘Post feminism/ post critique’? workshop convened at ANU in 2015, the Feminist Experiences of Law workshop will adopt a similar collaborative and egalitarian format. There will be opportunity for 18 participants to present papers; but we encourage others to attend to broaden the conversation. The workshop will however be capped at 40 participants, to enable opportunities for close engagement. There is no registration cost.
Call For Papers
If you would like to give a paper at the Workshop, we invite you to submit a 300-word abstract that addresses the broad themes of the workshop by 30 May 2016 to firstname.lastname@example.org. Successful participants will be notified by 30 June 2016. Paper presenters will be expected to read and engage closely with the other papers in their session in the lead up to the workshop. Details of the form of this engagement will be circulated closer to the workshop date. We welcome abstracts from Early Career Researchers and Doctoral Candidates. Please note we have some capacity to provide travel bursaries for up to 5 PhD candidates and early career researchers, if selected to give papers. Please indicate in your abstract if you would like further information about this.
If you would like to participate in the workshop although not give a paper, please register by email to email@example.com by 30 May 2016. We would encourage all participants to be available for the two days of the workshop, and be prepared to engage in conversation. Successful participants will be notified by 30 June 2016.
The Organizing collective are Ann Genovese (firstname.lastname@example.org), Di Otto (email@example.com), Jenny Morgan (firstname.lastname@example.org), Teresa Gray (email@example.com), and Margaret Davies (firstname.lastname@example.org)
The Feminist Experiences of Law conference is sponsored by the Institute of International Law and The Humanities (IILAH) at the Melbourne Law School.
Friday, April 8, 2016
Sara Mayeux (University of Pennsylvania), H-Net Book Review "Women and Justice for the Poor"
In this bold work of both legal history and professional critique, Felice Batlan sets out to recover “the ‘real’ history of legal aid, a story that the predominantly male leaders in the field of legal aid intentionally masked” (p. 3). For decades, chroniclers of organized legal assistance to the poor have begun the tale in 1876, when the entity now known as the Legal Aid Society of New York was established to serve German immigrants. Even today, the Legal Aid Society touts itself as the nation’s “oldest” organization of its kind. Not so, according to Batlan, who writes instead: “Organized legal aid began with the founding of the Working Women’s Protective Union in New York City in 1863” (p. 17).
Batlan reveals that women “lay lawyers” began serving the poor years before the organized legal profession got involved. Moreover, women continued to play a dominant role in legal aid efforts through the 1940s, whether as lawyers, “lay lawyers,” or social workers. But reform-minded bar leaders like the Boston lawyer Reginald Heber Smith—the Progressive Era legal aid movement’s most prominent evangelist—worried that the perception of legal aid as feminized charity work might undermine their campaign to secure the bar’s support. And so, in their conference proceedings, law review articles, and policy reports, they erased the history of women’s involvement, falsely enshrining the Legal Aid Society as the movement’s vanguard.
A previous book review we posted is here.
The book is here, Women and Justice for the Poor: A History of Legal Aid, 1863-1945
Thursday, April 7, 2016
Julie Stubbs (New South Wales), Murder, Manslaughter and Domestic Violence, in K Fitz-Gibbon and S Walklate (eds) Homicide, Gender and Responsibility, Routledge, Forthcoming
Abstract:Taking a cue from the title of this book, this chapter is organised around the three themes murder, gender and responsibility. It begins by considering the shifting boundary between murder and manslaughter, and, contrary to common wisdom, the lack of consensus around these terms. The focus then shifts to gender, and a consideration of gendered patterns in homicide and femicide using the overlapping categories of domestic homicide and intimate partner homicides. It also demonstrates the value of more complex conceptions of gender to understanding patterns in homicide using an intersectional framework to explore the differential vulnerability of women to homicide. The third theme, responsibility, is examined by reference to legal responses to domestic homicide and intimate partner homicides for battered women. While some women have benefited from law reforms and shifts in legal practices, women who do not conform to idealised notions of what it means to be a battered woman or other ‘benchmarks’ continue to be disadvantaged.
"Tackling the gender gap in the legal profession is becoming more important as the number of women going to law school continues to boom. In fact, women are projected to outnumber men in law schools by 2017."
On the history of women lawyers:
Women have always been a part of the legal system, but remained formally prohibited from the actual practice of law for many years. Nevertheless, women found innovative ways to circumvent existing rules while advocating for more equitable ones.
On the continuing pay gap:
Remarkably, the typical female equity partner currently earns approximately 80% of what a typical male partner earns—despite exceeding the average total hours billed by male partners.
A recent analysis of invoices from more than 3,000 law firms demonstrated that no matter what tier firm women work at, female lawyers are billed at 10% less than male lawyers per hour.
On pockets of progress:
The percentage of women who are law school deans has tripled since 1999. Women hold one in five law school dean positions, 45% of law school associate or deputy dean positions, and 66% of assistant dean positions.
Tuesday, April 5, 2016
With the Yaz birth-control multidistrict litigation led almost entirely by men, the evidence that women are less likely to be first chairs at trials across the legal industry, and the occasional story about old-guard leadership jockeying to ensure continued appointments on steering committees, anecdotal evidence suggests women are underrepresented in leadership positions on plaintiffs' steering committees in MDLs and mass torts.
Although many attorneys say the situation is improving—in large part through efforts from both the judiciary and attorneys who work in the arena—soon hard evidence may be coming forward outlining exactly the disparity mass litigations are facing when it comes to female attorneys serving on leadership panels.
Recently a study has gotten under way at the Sheller Center for Social Justice at Temple University's Beasley School of Law that is aimed specifically at quantifying the various factors that may go into appointing female attorneys onto steering committees.
The study, which is being conducted by research fellow Dana Alvare, will break down the number of women serving on plaintiffs' steering committees nationwide, and will look into how variables such as the type of the cases, whether they are state versus federal litigation, or the gender of the judge, could impact the likelihood of having a more diverse roster of leadership appointments.
Monday, April 4, 2016
Deborah Tuerkheimer (Northwestern), Underenforcement as Unequal Protection, 57 Boston College (forthcoming)
Abstract:Rape law is largely underenforced. Yet criticism of policing practices has myopically focused on enforcement excesses, thus overlooking the problem of the state withholding protective resources. This neglect is particularly troubling where sexual violence is at issue. Empirical evidence demonstrates the operation of pervasive biases in police officers’ decisions not to pursue an investigation. Over time, law enforcement officers have discriminated against rape victims with immunity. Recently, however, this has changed. This Article is the first to describe a new effort by the Justice Department to hold law enforcement officers accountable for failing to protect victims of sexual assault. In important respects, this turn is unprecedented. But insofar as the latest developments target violence without redress, the assertion of federal power in this domain possesses a venerable historical pedigree. When the Equal Protection Clause was conceived, the framers were chiefly concerned with the state’s failure to provide black citizens with protection from private violence. After passage of the Fourteenth Amendment, the “protection model” of equal protection, along with the federal power to enforce it, lay dormant. Recent events have revived this model and this power, allowing us to glimpse a modern version of what the 39th Congress intended. The Justice Department’s latest deployment of its “pattern or practice” enforcement authority may come as close as any intervention since Reconstruction to addressing the framers’ core concern with underenforcement. Notwithstanding the Supreme Court’s divergent jurisprudential framework, the original meaning of equal protection has begun to resurface.
Pok Yin Stephenson Chow (Nottingham), Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights-Treaty Body Practice and the Issue of Ambivalence, Human Rights Law Review, 2016 (Forthcoming)
Over the past two decades, ‘intersectionality’ has become one of the most celebrated notions in international human rights law and discourse. Outside of the US where the concept originated, the sweeping influence of intersectionality has extended to the UK and other members of the European Union where intersectionality has ‘become part of policy initiatives’. It was remarked that intersectionality ‘has acquired considerable conceptual purchase in international human rights law and activism’ and has become the standard multi-disciplinary approach ‘for analyzing subjects’ experiences of both identity and oppression’.
The recognition that intersectionality gained over the years was also evident in the express and implicit references across UN human rights treaty-bodies practice, where the concept was used to highlight how gender discrimination is often intertwined with discrimination on other grounds, such as race, ethnicity and socio-economic background, thus ‘complicating simplistic, singular understandings of the nature of women’s disadvantage.’ In particular, the Committee on the Elimination of Discrimination against Women (‘CEDAW’) acknowledged intersectionality as a ‘basic concept for understanding the scope of the general obligations of States parties [of the Convention]’. Nevertheless, despite such express acknowledgements, the effectiveness of the concept remained uncertain. In particular, it remained unclear whether the juridical understanding of ‘intersectionality’ could fully honor the complexity that intersectional analysis demands. Conaghan thus argues that although intersectionality has contributed tremendously to the feminist movement, the concept has ‘reached the limits of its theoretical potential’. She argues that inequality is a sophisticated and multi-dimensional phenomenon, and that intersectionality, having its roots in law, does not seem to fully address that complexity.
The limitation of intersectionality is exemplified in the works of the UN human rights treatybodies in the context of minority women. Many often cultural and religious practices are deemed ‘harmful’ and discriminatory, but the women who practice them may not agree that these practices are discriminatory. This raised difficult issues regarding whether human rights law could properly accommodate their multiple identities (both as women and as members of their cultural group). Moreover, it is increasingly recognized that the engagement of such practices is often characterised by a form of ‘ambivalence’, i.e. a feeling of ‘open-endedness, incompleteness [and] uncertainty’. Niec observed that while individuals may identify certain manifestations of their traditions as violations of their rights, they may at the same time seek to preserve the group’s culture and religion, because it is the latter that ‘shaped and defined [her] identity as a member of that collective’. Radhika Coomaraswamy, UN Special Rapporteur on Violence against Women, its Causes and Consequences, remarked that even in situations where women have migrated from the community of their birth, the vast majority continued to retain a deep emotional attachment to group identity, and in this respect, the advocacy of the prohibitionof certain practices might offend their sense of dignity and belonging. While it may be reasonably expected that intersectionality could play a greater role in resolving such conflicts – that the application of intersectionality would better address the multiple identities of minority women – the concept have only yielded partial solutions, as shall be demonstrated below.
This article examines the application of intersectionality across the practice of the UN human rights treaty-bodies. Echoing the concerns raised by Conaghan, it ponders the question: whether intersectionality has reached its limits? In particular, it seeks to examine whether intersectionality as applied by the UN treaty-bodies offer a satisfactory solution to situations of ‘ambivalence’.
All workers in New York state will soon be eligible for a guaranteed 12 weeks of paid family leave, one of Gov. Andrew Cuomo’s legislative priorities, which passed Thursday in a long-debated budget agreement.
Beginning in 2018, all full- and part-time employees who’ve been working at their jobs for at least six months will have access to up to eight weeks of leave at half their salaries. The policy, which will be funded by employees through payroll deductions, will gradually phase up over four years to 12 weeks and a maximum of two-thirds of the state’s average wage. It also guarantees job protection for all workers who take leave, even those who work for businesses with fewer than 50 employees, which are not subject to the federal Family and Medical Leave Act.
With this new policy, New York joins California, New Jersey, and Rhode Island on the elite list of U.S. states that offer guaranteed paid leave to hang out with a new baby, bond with an adopted or foster child, or care for a sick family member. Rhode Island offers four weeks of partial pay and New Jersey and California offer six, placing New York far ahead of the pack, though it still trails most other countries in the world when it comes to maternity leave.
Thursday, March 31, 2016
Business and Politics as Women’s Work: The Australian Colonies and the Mid-Nineteenth-Century Women’s Movementpp. 84-106 | DOI: 10.1353/jowh.2016.0006
Rejecting Reproduction: The National Organization for Non-Parents and Childfree Activism in 1970s Americapp. 131-156 | DOI: 10.1353/jowh.2016.0008
Wednesday, March 30, 2016
Something strange is afoot at the U.S. Supreme Court. The justices issued a highly unusual order Tuesday for the parties in Zubik v. Burwell, one of this term’smost-watched cases.
The order instructs the parties in Zubik and a bevy of related cases to “file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees” (“petitioners” in this case, refers to the employers who object to birth control). In case that instruction is not clear, the order also offers an example of a possible regime that may survive review in the Supreme Court:
[T]he parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any
separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan
100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Oxford U. Press)
Holly J. McCammon and Lee Ann Banaszak, editors
Table of Contents
- Introduction, by Holly J. McCammon and Lee Ann Banaszak
Part I Women's Participation in Electoral Politics: 100 Years of Change and Continuity
- Disappointed Hopes? Female Voters and the 1924 Progressive Surge, by J. Kevin Corder and Christina Wolbrecht
- From Seneca to Shelby: Intersectionality and Women's Voting Rights, by Celeste Montoya
- The Evolution of Women's (and Men's) Partisan Attachment, by Heather L. Ondercin
- What's Happened to the Gender Gap in Political Participation? How Might We Explain It?, by Nancy Burns, Kay Lehman Schlozman, Ashley Jardina, Shauna Shames, and Sidney Verba
- Women in State Legislatures from the Gilded Age to the Global Age, by Susan Welch
- 100 Years since Woman Suffrage: Managing Multiple Identities among Latina Congressional Leaders, by Jessica Lavariega Monforti
Part II Women's Political Engagement in Extra-Institutional Politics: A Century of Activism
- U.S. Women's Groups in National Policy Debates, 1880-2000, by Kristin A. Goss
- "Feminism Means More than a Changed World…It Means the Creation of a New Consciousness in Women": Feminism, Consciousness-Raising, and Continuity between the Waves, by Laura Nelson
- Women, Leadership, and the Environmental Movement, by Holly J. McCammon, Allison McGrath, David Hess, and Minyoung Moon
- American Mothers of Nonviolence: Action and the Politics of Erasure in Women's Nonviolent Activism, by Selina Gallo-Cruz
- Women in White Supremacist Movement in the Century after Women's Suffrage, by Kathleen Blee
- Women Occupying Wall Street: Gender Conflict and Feminist Mobilization, by Heather Hurwitz and Verta Taylor
- After Suffrage Comes Equal Rights? ERA as the Next Logical Step, by Tracey Jean Boisseau and Tracy A. Thomas
Tuesday, March 29, 2016
The jury that heard Simpkins’ case awarded her more than $3.6 million, $3.5 million of which was intended to compensate her for depression, PTSD, and other “pain and suffering” that she experienced as a result of the rape. There was just one problem: In Ohio, non-economic damages—which compensate for things such as disability, disfigurement, and trauma—are capped in most cases at $250,000. Now, Simpkins and her lawyer are trying to get the capsdeclared unconstitutional as they apply to minors who are victims of sexual abuse. Their latest brief argues, among other things, that the limits are “arbitrary and unreasonable, and thus a denial of due process,” and that “the effect of the statute is to clearly alter the jury’s finding that she suffered a catastrophic injury. … By arbitrarily overruling that finding, [the cap] violates Jessica Simpkins’ right to a trial by jury.” Ohio’s Supreme Court is expected to rule any day now.
When tort reform reconfigures a state’s legal landscape, women are the most affected. “[W]hile overall men tend to recover greater total damages, juries consistently award women more in noneconomic loss damages than men,” [Lucinda] Finley has written. “Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.” Republican legislators and courts generally don’t limit “economic damages,” which compensate victims for lost wages or concrete medical expenses—but that category only serves to replicate the wage inequalities that women, and people of color, already suffer in the marketplace. Meanwhile, a deeper gender divide is also at work. Finley argues:
Several types of injuries that are disproportionately suffered by women—sexual assault, reproductive harm, such as pregnancy loss or infertility, and gynecological medical malpractice—do not affect women in primarily economic terms. Rather, the impact is felt more in the ways compensated through noneconomic loss damages: emotional distress and grief, altered sense of self and social adjustment, impaired relationships, or impaired physical capacities, such as reproduction, that are not directly involved in market based wage earning activity. Many of these most precious, indeed priceless, aspects of human life are virtually worthless in the market. … [N]oneconomic loss damages become the principal means by which a jury can signal its sense that these types of harm are serious and profound and provide a woman plaintiff with what it regards as adequate compensation.
Monday, March 28, 2016
Zubik v. Burwell, Transcript of Oral Argument
Zubik v. Burwell, Audio of Oral Argument (Oyez)
Balkinization, The Zubik Oral Argument Pt. 2
Only one of these headlines mentions women.
Meaghan Winter, Slate, Roe v. Wade Was Lost in 1992: How "Undue Burden" Has Eroded the Right to Choose
Remembering the day Planned Parenthood v. Casey (1992) was decided:
“We conclude that the central holding of Roe should be reaffirmed,” O’Connor read that June morning in 1992. Miller, by then the head of communications for the newly formed Center for Reproductive Law and Policy, was awed. Here was the first woman ever to sit on the Supreme Court asserting women’s right to abortion. “Oh my God, did we just win?” Miller remembers thinking. “How it that possible?”
But O’Connor kept reading. In “reaffirming” Roe, the court had also mostly upheld four of the five restrictions put in place by the Abortion Control Act, only invalidating the spousal notification law. Abortion remained legal, but the judges introduced two caveats. One was that the states had a compelling interest in protecting unborn life from the “outset of pregnancy”—a stark departure from Roe, which held that states had no such interest until after the first trimester. The other was that states would be able regulate abortion unless their laws “unduly burden” a woman’s right to choose abortion.
Miller, who is now the president of the National Institute for Reproductive Health, remembers her mind spinning. What was an “undue burden”? How could the Pennsylvania restrictions stand if Roe stood too?
And citing my work on the backstory of Akron v. Akron Center for Reproductive Health (1983) where Justice O'Connor first articulated the undue burden standard in dissent. See Tracy A. Thomas, Back to the Future of Regulating Abortion in the First Term, 28 Wisc. J. Law, Gender & Society 47 (2013).
One attorney described the multipart ordinance as “a Christmas tree,” with everything possible hanging off it: a parental consent rule, a mandatory waiting period, and “informed consent” counseling. The attorneys designed it to be a national model. After Kapper proposed the law, experts from cities all over the U.S descended on Akron for four public hearings held over several weeks. Tracy Thomas, associate dean at University of Akron School of Law, later recounted how hundreds of divided locals watched John Willke of National Right to Life, a hero of the anti-abortion movement, present a slideshow of fetal life. (It’s hard to imagine now, but disturbing audiences with images of fetuses was then a cutting-edge tactic.) Gynecologists slated to appear at the hearings were so angered by the anti-abortion advocacy that they walked out without testifying. Shouting erupted in the hallway outside the hearing room.
Viewers watching an anti-abortion representative from Akron on the Today show might have been impressed with what seemed to be the anti-abortion movement’s grassroots organizing skills. But its advocacy wasn’t as homegrown as it appeared.
O'Connor took the position, in part, offered by Prexident Reagan's solicitor general, Rex Lee, adopting the deferential balancing approach of "undue burden." See LeeAmicusBriefAkron. The "unduly burdensome" standard had appeared in prior Supreme Court abortion decisions by Justices Powell (Maher v. Roe, Belliotti v. Baird II (1979)) and Blackmun (Belliotti v. Baird (1976), but O'Connor converted it into a litmus test, rather than a conclusion. And she utilized the test in order to uphold much government regulation, rather than strike down legislation, as the Court had previously used it in three out of four cases except funding. Powell explicitly rejected the undue burden test in Akron, writing the majority opinion invalidating the 17 provisions of the Akron law on informed consent, waiting periods, and hospital regulations, suggesting that he did not intend his previous unduly burdensome language to be used as the constitutional standard.