Tuesday, April 26, 2016
Cary Franklin (Texas), Roe as We Know It, 114 Mich. L.Rev. 867 (2016), reviewing, Mary Ziegler (Florida State), After Roe: The Lost History of the Abortion Debate (2015)
The petitioners in last year’s historic same-sex marriage case cited most of the Supreme Court’s canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control and the right to guide the upbringing of one’s children, was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases. Not once, however, did the petitioners or the majority in Obergefell cite the Court’s most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade.
Saturday, April 23, 2016
Northeastern, Workshop on Reproductive and Sexual Justice
A Vulnerability and the Human Condition Workshop on Reproductive and Sexual Justice
April 29 - 30, 2016
Northeastern University School of Law, Dockser Hall
This workshop will seek to reflect upon the issues of reproductive rights, sexual health, and sexual violence through the lens of vulnerability as a way to advance discussion on related issues of social justice.
Aziza Ahmed, Associate Professor of Law, Northeastern University School of Law
Stu Marvel, Visiting Scholar, College of Social Sciences and Humanities, Northeastern University
Martha Fineman, Robert W. Woodruff Professor of Law, Emory Law
Questions? Contact Rachel Ezrol, firstname.lastname@example.org
Friday, April 29, 2016
|4:00 - 6:00 PM||
Beyond Rights? Locating Discourses of Reproductive Justice and Vulnerability
|6:30 - 8:00 PM||
Saturday, April 30, 2016
|8:30 - 9:00 AM||
|9:00 - 11:30 AM||
Tracking Contestation Around the Regulation of Intimacy
|11:30 am - 12:30 pm||
|12:30 - 2:30 pm||
Pregnancy and Mothering Through a Vulnerability Lens
|2:45 - 4:45 pm||
Resilient Frames: Injury, Victimhood and Criminalization
Wednesday, April 20, 2016
Tuesday, April 12, 2016
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:
Monday, March 28, 2016
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.
Friday, March 18, 2016
The book jacket! Publication is one step closer!
For a preview of the first chapter, see Tracy A. Thomas, The "Radical Conscience" of Nineteenth-Century Feminism
See also Tracy A. Thomas, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW (2016)
Monday, March 7, 2016
Roxane Gay (right) says she rewrote the talk she gave at Saint Louis University last week to focus on abortion rights -- as a protest against a last-minute "reminder" that she shouldn't talk about abortion. Gay, a feminist writer and an associate professor of English at Purdue University, says that her speaking agent received a notice the morning of her talk, saying that the university, as a Jesuit institution, didn't want her speaking about the "pro-choice agenda." Her response was to rewrite her speech to focus on a pro-choice agenda, and to talk about the importance with which she views abortion rights.
She says she thought about calling off the talk, but instead gave the new version to take a stand against censorship.
Here is her actual talk, which she published online:
Roxane Gay, Acts of Faith
In 2014 I published a book of essays, Bad Feminist, and as such, I am often asked several of the same questions—why am I a feminist, how did I come to feminism, what is feminism, can men be feminists? I can rattle off stock answers about gender, equality and intersectionality and these answers are true but sometimes, they feel hollow, or perhaps, incomplete because my feminism is more than a sound byte. It is part of who I am. I believe feminism should be a part of all of us, a default setting for humanity.
I am a feminist, albeit a bad one at times, so I particularly give a damn about women, from all walks of life. I am constantly reminded of work that needs to be done to ensure that all women can move through the world with the same freedom as men. I want to ensure that women receive equal pay. I want to ensure that we can live our lives with some semblance of peace instead of worrying about the pervasive threat of sexual violence as a Sword of Damocles hanging over our heads. I want women to be as encouraged to be ambitious and bold as men are. I want us to benefit from equal opportunities to succeed, professionally and personally. I want men, women and transgender men and women to be freed from the rigidity of gender roles.
And because I am a feminist, I am deeply concerned with reproductive freedom and how unfettered access to affordable birth control is somehow, on the legislative table in many states and that even though abortion is legal, legislators in just as many states are working to curtail women’s access to a medical procedure that is their federally granted right.
Until women’s bodies and women’s choices are no longer subject to legislative whim, we are neither equal nor free. This is not an agenda. This is not a political or a controversial stance. This is a matter of justice. This is, for me, a matter of faith.
Thursday, March 3, 2016
Dahlia Lithwick, Slate, The Women Take Over
When the Supreme Court last heard oral arguments in a landmark abortion case, it was April 1992, the case was Planned Parenthood v Casey, and Sandra Day O’Connor was the lone female justice.
Twenty-four years later, there are three women on the court. And if you countJustice Stephen Breyer as one of history’s great feminists—and I do—then you can view the arguments in this term’s landmark abortion case, Whole Woman’s Health v Hellerstedt, as creating a neat 4–4 split. On one side, you have a group of testy male justices needling a female lawyer for Texas clinics about whether it was even appropriate for them to hear this appeal. On the other, you’ve got four absolutely smoking hot feminists pounding on Texas’ solicitor general for passing abortion regulations that have no plausible health purpose and also seem pretty stupid.***
It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rule.
Wednesday, March 2, 2016
- Linda Greenhouse, NYT, Why Courts Shouldn't Ignore the Facts About Abortion Rights
- NYT Supreme Court Abortion Case Seen as a Turning Point for Clinics
- US News Explaining the Whole Woman's Health v. Hellerstedt Case
- The Atlantic, The Supreme Court Will Hear the Texas Abortion-Access Case
- NPR, Supreme Court Tests Texas' New Restrictions on Abortion
- Con Law Blog, Attorneys, Abortions, and the Amicus Brief in Whole Woman's Health
- Reproductive Rights Blog, Information on Whole Woman's Health
- 5 Questions on the Supreme Court's Latest Abortion Case
- Gender Law Blog, Prominent Historian Argue Coverture in SCOTUS Amicus Brief Opposing Texas Abortion Law
- Linda Greenhouse, Closing Abortion Clinics on Grounds of Protecting Women's Health
- Lisa Pruitt & Marta Vanegas, Urbanormativity, Spatial Privilege, and Judicial Blind Spots in Abortion Law
Transcripts of oral argument available at the Supreme Court website later today, and audio available Friday afternoon.
Wednesday, February 24, 2016
Mary Ziegler (Florida State), Choice at Work: Young v. UPS, Pregnancy Discrimination, and Reproductive Liberty, 93 Denver L. Rev. 219 (2015).
In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.
A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the PDA. For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful-choice principle suggests that while the Court reached the right outcome, Young still falls short of providing women the protection intended by the framers of the PDA. By a 6-3 vote, the Court vacated a Fourth Circuit decision vindicating United Parcel Service’s “pregnancy-blind” employment policy—that is, the policy effectively excluded pregnant workers but did not formally categorize them on the basis of pregnancy. In its application of the McDonnellDouglas burden-shifting analysis, Young removed some of the obstacles previously faced by pregnant workers relying on disparate treatment theories. However, the Court still assumes that employers could have legitimate reasons for discriminating against pregnant workers beyond their ability to do a job, creating precisely the kind of burdens on
Monday, February 8, 2016
The brief in Whole Woman's Health v. Cole is a beautiful summary of women's legal history, and the difference knowing such history can make today.
History holds a lesson for the Supreme Court, the brief warns: Be skeptical of laws protecting women that are written by men.
The nation’s past is littered with such statutes, say the historians who filed the friend-of-the-court brief, and the motives were suspect.***
The brief is filed by professors from across the country in the court’s upcoming abortion case, Whole Women’s Health v. Hellerstedt. It urges the justices to examine the intent of Texas legislators who say they approved new restrictions on abortion providers as health safeguards for the women undergoing the procedure.
“Any new law that claims to protect women’s health and safety should be scrutinized carefully to assess whether its ostensibly protective function actually serves to deny liberty and equal citizenship to women,” said the brief filed by 16 historians, 13 of whom are women.
Wednesday, February 3, 2016
Oral argument was held this past week in PreTerm Cleveland v. Kasich, challenging Ohio's new anti-abortion laws.
House Bill 59 (known as H.B. 59) was the State of Ohio’s 2014-2015 biennial budget bill. The Ohio House of Representatives introduced H.B. 59 on February 12, 2013, and Governor Kasich signed the bill into law on June 30, 2013. H.B. 59 is 3,747 pages long and contains 551 sections. The Bill amends 2,106, enacts 345, and repeals 174 sections of the Ohio Revised Code. Included in HB 59 were three provisions that restrict women’s access to abortion:
First, the Heartbeat and Informed Consent Provision requires doctors to perform ultrasounds at least 24 hours before performing an abortion to detect the presence of a heartbeat. If a doctor fails to perform the ultrasound and performs the abortion anyway, the patient may sue the doctor, and the doctor can be disciplined by the State Medical Board. If the doctor detects a heartbeat, she or he must provide specific information to the patient including the fact that a heartbeat was detected and the statistical probability of carrying the pregnancy to term. If the doctor fails to provide this information to a patient and performs the abortion, the doctor is subject to criminal prosecution.
Second, H.B. 59’s Written Transfer Agreement Provisions require all surgical facilities operating outside hospitals (known as ambulatory surgical facilities) to make written agreements with local hospitals. These agreements would establish a procedure for the hospital to take on patients from the outside facility. However, the Bill forbids public hospitals from entering into such agreements with facilities that perform non-therapeutic abortions. In addition, public hospitals are prohibited from permitting doctors who have privileges to work at the hospital to use their privileges to circumvent this requirement.
Third, the Parenting and Pregnancy Program Provisions of H.B. 59 create a new substantive program that would channel federal funding from the Temporary Assistance for Needy Families block grant to private, nonprofit organizations. The purpose of the program is to promote childbirth, parenting and alternatives to abortion. The private entities to be funded by this program may not participate in or be associated with abortion-related activities including abortion counseling or referrals, performing abortion-related medical procedures or engaging in “pro-abortion” advertising.
Friday, January 22, 2016
For the decision and oral argument, see Oyez, Roe v. Wade (Jan. 22, 1973)
For the history and backstory of legalizing abortion, see:
- Linda Greenhouse & Reva Siegel, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (2010)
- Reva Siegel, Reasoning From the Body: An Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stanford L. Rev. 261 (1992)
- Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012)
- James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)
For the anti-abortion advocacy, after Roe, see:
- Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015)
- Tracy Thomas, Back to the Future of Abortion Regulation in the First Term, 28 Wisc. J. Gender & Law 47 (2013)
For today's commentary, see:
Tuesday, December 15, 2015
Applying limitations on women's reproductive rights equally to men.
H/t Ann Bartow.
Friday, December 11, 2015
Group Challenges AZ Susan B. Anthony-Frederick Douglass Selective Abortion Ban as Discrimination for Perpetuating Stereotypes
This Wednesday, the National Asian Pacific American Women’s Forum (NAPAWF) will challenge Arizona’s ban on so-called race-selective and sex-selective abortions.
NAPAWF along with the Maricopa County Branch of the National Association for the Advancement of Colored People (MC-NAACP) argue the law “targets and stigmatizes Black and Asian American Pacific Islander (AAPI) women and is based entirely on racially motivated stereotypes and generalizations about Black and AAPI women’s reasons for deciding to terminate a pregnancy.”
Lawmakers in support of the ban cite high numbers of sex-selective abortions in Asian countries as a primary reason why the ban should be enacted.
The case will be heard in the Ninth Circuit Court of Appeals in San Francisco. In 2011, the Arizona legislature passed the “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011.”
An earlier court ruling upheld the law on the grounds the NAACP and NAPAWF had no legal grounds to challenge it. The court said, in effect, that if there is no individual claiming that they were personally denied the ability to obtain an abortion, then there is no harm in this case to bring suit. Both groups are challenging that ruling in the Ninth Circuit Court this Wednesday.
” The Arizona law unconstitutionally and unequivocally discriminates against people of color, including Asian Americans,” Miriam Yeung, Executive Director of NAPAWF said to AsAmNews. “Specifically, lawmakers in support of the ban cite high numbers of sex-selective abortions in Asian countries as a primary reason why the ban should be enacted. The Arizona ban was passed based upon racist stereotypes about Asian Americans that have no basis in fact.”
I have written a bit about the Anthony-Douglass Act and the misappropriation of Susan B. Anthony's name for anti-abortion advocacy. See Tracy Thomas Misappropriating Women's History in the Law and Politicis of Abortion, 36 Seattle L. Rev. 1, 8 (2012).
Monday, November 23, 2015
Paula Abrams (Lewis & Clark), The Bad Mother: Stigma, Abortion and Surrogacy, 43 J. Law, Medicine & Ethics (Summer 2015).
Why do certain decisions about reproduction engender social support, other decisions social disapproval? Surrogacy and abortion represent two different facets of procreative liberty, the right to reproduce and the right to avoid reproducing, but these different experiences may carry similar stigmatic harm, for both disrupt traditional expectations of the pregnant woman. This article examines how stigma attached to abortion and surrogacy reveals similar patterns of gender stereotyping. It argues that evidence of stigma is relevant to determining whether laws regulating abortion or surrogacy are based on impermissible stereotyping. Stigma evidence is probative in determining whether gender stereotypes influenced legislative purpose and in assessing the degree of harm imposed by a regulation
Tuesday, September 1, 2015
Sunday, August 2, 2015
A lawsuit brought by a pregnant Alabama inmate seeking access to an abortion was dismissed by a federal judge on Friday after the woman said she had changed her mind and would carry the child.
The action essentially ended a legal clash that had seen the woman go to federal court to assert her right to an abortion, and the county’s district attorney go to an Alabama court to strip the woman of her parental rights over the fetus to block the abortion.
But Alabama has brought efforts to restrict abortion to a whole new level, as the state tried this week to stop a woman from getting an abortion by terminating her parental rights... to her fetus.
District attorney Chris Connolly filed a petition to terminate an incarcerated woman’s parental rights for the sole purpose of stopping her from ending her pregnancy. The woman, known as Jane Doe, had filed a lawsuit in order to be granted a furlough to obtain the procedure. Connolly told a local paper, “Our position, if the termination for parental rights is granted, is that [she] would not have standing to obtain the abortion.” He’s arguing that Doe’s parental rights should be rescinded because she is facing charges of chemical endangerment of a child.
Thursday, July 23, 2015
Linda Greenhouse (NYT/Yale) and Reva Siegel (Yale), Casey and the Clinic Closings: When "Protecting Health" is an Undue Burden, Yale L. J (forthcoming).
Abstract:We seek in this article to understand how the Supreme Court's abortion jurisprudence addresses laws that invoke, not potential life, but women's health as a reason to single out abortion for burdensome regulation that closes clinics. We approach this project with a sense of urgency. The current wave of health-justified restrictions — prominently including laws that require abortion providers to secure admitting privileges at nearby hospitals or to become the functional equivalents of hospitals themselves — is destroying the clinic infrastructure on which women depend in order to exercise their constitutional right to terminate a pregnancy.
There is now a sharp circuit conflict over how judges are to evaluate the states' claims that admitting privilege laws protect women's health. Some circuits read Planned Parenthood of Southeastern Pennsylvania v. Casey and the Court’s subsequent decision in Gonzales v. Carhart to require courts to examine whether health-justified regulations actually and effectively serve health-related ends. Others construe the cases to require judicial deference to the states' claims. We argue that Casey/Carhart require judicial scrutiny of health-justified regulations to ensure these regulations do not obstruct abortion by unconstitutional means.
The analysis of health-justified restrictions we offer rests on an understanding of Casey's undue burden standard — reaffirmed in Carhart — as the product of a compromise over Roe v. Wade. While prohibiting states from banning abortion before fetal viability, Casey allowed government to express a preference for childbirth throughout a woman's pregnancy by trying to persuade her, through a 24-hour waiting period and the provision of information, to forego abortion. Persuasion is the heart of the Casey compromise: government may protect potential life, but not in ways that obstruct women from acting on their constitutionally protected choice.
Regulations that close clinics in the name of women's health, but without health-related justification, do not persuade; they prevent. In so doing, they violate the constitutional principle at the core of the Casey compromise: that government express respect for the dignity of human life by means that respect the dignity of women.
Tuesday, July 14, 2015
Following up on my prior post What Does the Same-Sex Marriage Case and its "Right to Individual Autonomy" Mean for Abortion Rights, suggesting that some of Kennedy's language of autonomy and personal choice might apply to protect abortion rights, here is a view that the SSM decision is not useful to abortion rights.
I find myself increasingly disappointed in Kennedy’s articulation of the right to same-sex marriage. Not because I don’t appreciate the way he discussed marriage as a fundamental right crucial to the dignity of gay and lesbian individuals, but because he doesn’t locate a woman’s right to reproductive autonomy in that same sphere of dignity. ***
When it comes to women reserving dignity for themselves—the dignity to make the most personal choice—whether or not to have children—Kennedy has devolved into patriarchal notions about women’s frailty and inconstancy, with language steeped in stereotypes and gender-normative claptrap.
However useful Kennedy finds it for expanding constitutional protections for certain rights, dignity is a gendered double-edged sword. It’s great for men and it has turned out to be great for same-sex couples who want to get married. But dignity as a concept is worthless when it comes to reproductive rights.
In her article, “Aborting Dignity: The Abortion Doctrine After Gonzales v. Carhart,” Victoria Baranetsky examined the limitations of dignity as a useful constitutional principle, and describes its dual meaning. She wrote, “Dignity has two radically different meanings: femininesocial obligation and masculine autonomy.” (Emphases in original.)