Wednesday, January 11, 2017
A Tennessee sheriff is named in a civil lawsuit after he denied a 29-year-old inmate access to an abortion, saying the woman's life was not in danger and her pregnancy was not the result of a crime, according to recently filed court papers.
The woman, Kei'Choura Cathey, was not released until it was too late for the procedure and had the child in April, the court filing says. Her lawsuit alleges Maury County Sheriff Bucky Rowland illegally denied her access to an abortion, which the nation's top court has protected as a woman's right for decades.
The case, and others around the country, pose questions about what obligations top law enforcement officers have when women who are incarcerated request abortions.
"Courts have generally said prisoners retain their right to access abortion even if they’re incarcerated," said Brigitte Amiri, senior staff attorney for the ACLU's Reproductive Freedom Project.
Friday, December 16, 2016
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). See Introduction, Chapter 1 (Marital Property), Chapter 2 (Marriage reform), and Chapter 3 (Divorce reform). Today I want to talk a bit about Chapter 4 “The Incidental Relation of Mother.”
Stanton’s philosophical point in identifying motherhood as "incidental" was that women’s role of mother did not define her legally or socially, but rather was one incident of her life. In a time when the cult of motherhood and the idealization of the domestic sphere of the home defined women, and denied them all public and legal rights as married women, Stanton clashed with the accepted status quo and challenged the notion that motherhood was the defining attribute of women’s citizenship. But one of the hardest audiences to convince of this was women themselves. Still she persisted in trying to shift the culture, as he wrote to the Seventh National Woman’s Rights Convention in 1856: “The woman is greater than the wife or the mother; and in consenting to take upon herself these relations, she should never sacrifice one iota of her individuality to any senseless conventionalisms.” Stanton herself had seven children, and presented a credible authority of one who could challenge the legal restriction of motherhood, even as she appreciated and enjoyed the role.
Both chapter 4 and chapter 5 of the book further develop the specific concrete rights and actions that Stanton then demanded under her philosophy of incidental motherhood. Chapter 4 addresses Stanton’s views of reproductive rights, most namely the right to “voluntary motherhood” and control of sexual relations and procreation.
This chapter to me was one of the most important chapters as I worked to set the record straight. For today, Stanton has been adopted as a poster-child of the prolife movement. Quite literally, her image and words are used on posters, flyers, and commemorative coffee mugs put out by the prolife organization, Feminists for Life. She is cited, repeatedly, in US Supreme Court amicus briefs as evidence of a feminist history against abortion. However, as I detail in the book and here, Stanton was not a prolife advocate. Not at all. In fact, I found only one reference in all of the thousands of historical documents I reviewed in which Stanton even mentioned the word abortion. In this one line, she lists it as one of many social problems identified by reformers, but which she traces back to the core problem of women’s inequality and lack of control in marriage and social and sexual relations.
What Stanton did talk about was voluntary motherhood. Voluntary motherhood was the ideology of both feminists and conservative women reformers which advocated the right of women to control when they engaged in sexual relations with their husbands. It reject the marital sexual privilege of the husband and the presumed right to unlimited sexual access. Instead, it placed the sole control of sexual relations with the wife, as it was the wife that bore the physical, emotional, and social consequences of pregnancy. It was a theory of abstinence that placed the right of reproductive control within the singular hands of the woman.
Stanton also wrote a great deal about infanticide, rather than abortion. Infanticide was the more shocking claim as it alleged a woman had killed her infant after its natural birth. Stanton defended women accused of infanticide and demand mercy rather than the death penalty. She trumped the defense of Hester Vaughn, an eighteen-year-old English working-class girl convicted of infanticide when her baby was found dead next to her where she had given birth alone, starving, in a freezing cold tenement. Stanton used infanticide to illustrate the injustice of a legal process that included women as jurors, judges, lawyers, lawmakers and even witnesses. For in heavy-handed prosecution of this crime, without prosecution of the male partner or attacker who caused the crime and without mercy from women who understood the situations of such a pregnancy, the law was patently unjust.
Friday, November 4, 2016
Natalia Mehlman Petrzela, Politicizing and Practicing Motherhood
“I’d like to burn you at the stake,” pioneering feminist Betty Friedan famously spat at conservative activist Phyllis Schlafly during a 1973 debate about the Equal Rights Amendment. Her loathing reflected the recognition of a formidable opponent. Though our largely liberal profession took several decades to recognize Schlafly’s power in shaping political culture, the flurry of insightful reflections from historians in the wake of her recent death affirms Schlafly’s rightful place in the historical record even as her anti-feminist and anti-gay politics position her on what many agree is the wrong side of history.
A hallmark of Schlafly’s public persona was portraying the world as a series of stark opposites. Her feminist straw woman was joyless man-hater; in 1977, she contrasted a conservative, “positive woman” with the “miserable” who embraced the new feminist honorific “Ms.” But if we treat Schlafly exclusively as the conservative complement to this caricature, we miss important dimensions of her function in the history of feminism as more than a reactionary foil. An illuminating way to read Schlafly as a more complex figure is to look beyond her rich public life to explore how she perceived motherhood not just as a political symbol but also as a personal practice.
I’m not the first historian to suggest that Schlafly demands a nuanced approach. For one, the feminism Schlafly railed against ironically enabled her political career. Moreover, that illustrious career was constrained by the same misogyny that thwarted women of all political affiliations, as her unsuccessful attempts in the 1950s to break into the old-boys’ foreign policy network proved. For Schlafly’s homages to homemaking (and her frequent infuriating introductory anecdote that she had asked permission of her husband to speak publicly), she rivaled Friedan in her efforts to mobilize a generation of female political neophytes. She sent detailed handwritten notes to housewives, precisely instructing how to organize around “women’s issues” such as education, abortion, and “the homosexual agenda,” which made “family values” a central plank of contemporary conservatism and launched her into public life. Like her early-twentieth-century progressive foremothers, Schlafly used a form of “maternalism” to access the political arena, though in order to promote rather than challenge traditional gender roles even as her very participation embodied such a challenge.
Tuesday, July 12, 2016
Jamie R. Abrams joins us as a guest blogger for July. She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.
Unqualifiedly, “I stand with Planned Parenthood,” consistent with the viral social media hashtag that so mobilized the reproductive rights movement this year. I’ve made my donations. I’ve changed my Facebook status picture. I’ve defended the reputation and profound importance of Planned Parenthood.
I also celebrated last month’s decision in Whole Woman's Health v. Hellerstedt . . . but I did so more privately and discreetly, a point this blog seeks to explore. Whole Woman’s Health challenged the motive and methodology of state legislatures enacting restrictive laws regulating abortion and abortion providers. It concluded that the state does impose an “undue burden” on a woman’s right to choose when it enacts laws that are not medically justified and that restrict access to as many women as the Texas provisions did. I celebrate this decision for its affirmation of the undue burden standard, its demand for sound legislation supported by medicine and science, and the potential it offers to push back on the increasing frequency and intensity of restrictive measures.
Yet, for the most significant Supreme Court decision protecting a woman’s right to choose in decades, what form of mobilized and energized support could be seen away from the Supreme Court steps? I, for one, did not change my social media imagery. In fact, I did not post anything on social media at all, not even a simple link to the decision or news coverage of it. It seemed that only a small handful of my colleagues and friends who are active in this area posted anything other than a few vague social media posts best characterized as “phew” points, more than substantive or celebratory posts.
Interestingly, who was busy blogging and posting about women and what they need and what their rights are . . . . opponents to abortion access! Notably, opponents to the decision were not characterizing this as judicial overreach or inconsistency – like the dissenting justices had – rather, they were tweeting and blogging about how the Supreme Court failed to protect women and make abortion safer for women.
As we breathe a sigh of relief from this legislative and Supreme Court term, we now stand poised to assess the carnage of the past years, and the last year particularly, and to assess the reproductive rights movement’s trajectory. Social movements, like the reproductive rights movement, are about collective action to bring change. They require an oppositional frame and they develop a collective identity. This collective identity defines what it means to join the movement and how its members recognize themselves and are recognized externally. This creates a shared sense of oneness or we-ness. Historic framings of reproductive rights were broadly tethered to larger understandings of women’s equal citizenship and participation in public and private life, including women’s health, women’s autonomy, and women’s freedom.
Contrasting the social and political responses to attacks on Planned Parenthood over the past year to responses to the Whole Woman’s Health decision or even contrasting social and political responses to Whole Women’s Health to historic reproductive rights successes, it merits thoughtful reflection on what the consequences have been to the reproductive rights social movement in having spent so much time in a defensive posture. The movement’s defensive posture in the past year has forced us to shift our emphasis to the myopic focus on defending an institution instead of defending the people and issues that it protects, serves, and saves. When I declare that “I stand with Planned Parenthood,” I am not declaring more directly the politically and historically grounded points that I stand for women’s equal autonomy to make medical decisions and the central importance of women’s reproductive autonomy to control their political, social, professional selves as men do. This focus arose out of necessity, but centralizing a social or political movement so squarely around one institution a worrisome long-term strategy that places too much weight and pressure on the institution’s leaders? Does this institutional focus compromise the collective action or “oneness” of women supporting reproductive rights more broadly?
As I defend the relevance and importance of Planned Parenthood, I worry that its four walls limit me and perhaps the movement’s trajectory. As we stand and defend the four walls of Planned Parenthood and its access to funding, there is reason to worry that the opposition is swiftly co-opting the gendered framing of abortion and the broader rights at stake for women.
I worry that the muted reaction to Whole Woman’s Health reveals a deeper shift and narrowing of the framing of the reproductive rights movement. I write, not to be critical of the past, but looking to the future. There was a critical time and need to “stand with Planned Parenthood.” But we cannot maintain a movement for reproductive justice and women’s bodily autonomy just by defending the necessity and credibility of one institution or even one procedure. I do stand with Planned Parenthood. I also stand with midwives. I also stand with birthing women . . . at home and in hospitals. I stand with women seeking birth control, just as I stand with those not using birth control for reasons religious or otherwise. As we move forward, now is the time to expand the base, expand the conversation, and reach for new allies, not narrow and institutionalize the conversation. We stood in defense of a fortress when we needed to do so. Now we must move forward in ways that restore a sense of “oneness” that is tethered to issues and people.
Monday, July 11, 2016
Carol Sager, Abortion Politics in the Age of Zika, US News
It seems clear then that neither Zika transmission nor pregnancy can be wholly prevented. Despite the most diligent attempts to contracept, unwanted pregnancy happens, whether through contraceptive failure, a partner's refusal to cooperate or bad luck. (Forty-five percent of pregnancies in the U.S. are unintended.) All this procreation takes place against the background of the mosquito season now upon us.
This is where public health runs smack into the politics of reproduction. The CDC advises pregnant women with the virus to seek a medical diagnosis for microcephaly and have it confirmed after their baby is born. But some women may wonder whether they want to continue their pregnancies at all under these circumstances. Here, three facts stand out. First, not all Zika-infected women transmit the virus to their fetuses. Second, if the virus is transmitted, common results are serious birth defects – hearing and vision impairment, seizures, intellectual and physical disability – for which there is no cure. Third, at present doctors are unable to confirm microcephaly until around the 20th week of pregnancy. On these facts, decisions about what course to follow may well be complicated, though at least women in the U.S. have a choice. Unlike most of Central and South America where abortion remains a crime, women in the U.S. have a constitutional right to decide whether or not to terminate a pregnancy.
Yet in a number of U.S. states, exercising that right has been made increasingly difficult. In attempts to create abortion-free zones, states have been hacking away at the abortion right any way they can. The general strategy is to make abortion harder to get – harder legally, financially, emotionally and practically. Common tactics include waiting periods, mandatory ultrasounds and burdensome requirements on clinics and providers. Last week the Supreme Court struck down two such provisions in Texas on the ground that neither advanced the health of pregnant women. But among the Texas regulations still in effect is a total ban on abortion after 20 weeks. Recall that microcephaly cannot be definitively diagnosed until after 20 weeks. This means pregnant women may be timed out of legal abortion in Texas, and may not have the resources to go elsewhere.
Timing isn't the only legal problem. Indiana and North Dakota ban abortions sought on the basis of fetal disability, claiming that such abortions are a form of discrimination. Babies born with microcephaly will certainly be disabled.
Monday, June 27, 2016
Friday, May 27, 2016
The fate of a Northern Indiana woman sentenced to serve 20 years in prison in connection with the end of her own pregnancy is now in the hands of the Indiana Court of Appeals.
Attorneys for Purvi Patel sought Monday to overturn her 2015 convictions of feticide and neglect of a dependent. While the state's interpretation of its feticide law has drawn national interest in the case, Monday's hearing heavily focused on the evidence used to secure Patel's convictions, including whether the prosecution sufficiently proved that the Granger woman knew her child had been born alive.
According to court documents, Patel sought medical help at St. Joseph Hospital in July 2013 after delivering a child at home. When pressed by doctors about her condition, Patel told them she had delivered a stillborn child and discarded the body in a dumpster.
Prosecutors, however, alleged at trial that Patel had ordered abortifacients online, and that her child had been born alive.
On Monday, Patel's attorney, Lawrence Marshall, outlined his case for appeal.
"The evidence in this case was not there whatsoever," Marshall said. "Not a single expert ever said — in any sort of declarative way — that yes, this infant would have survived had Ms. Patel done differently."
Critics of Patel’s convictions argue that the feticide charge was never intended to be used against a pregnant woman, but was instead meant to punish illegal abortion providers. Patel was the first Indiana woman to be convicted of feticide in a case like this.
Marshall lambasted the state's use of the feticide statute in court. He said the law has no role in criminalizing this type of abortion and never should have been applied in Patel's case.
Marshall also took issue with the prosecution's case for neglect, which he said it failed to make at trial. The state, he said, never asked its experts whether his client's child would have made any noise or shown any visible signs of life that would signal to Patel that the baby was not stillborn. Nor did prosecutors ever present any evidence that the baby, born several weeks prematurely, would have survived if taken to a hospital, he added.
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: