Thursday, May 15, 2014

The Gendered Realities of Policing Pregnancy in Tennessee

More from this month's guest blogger, Professor Jamie Abrams from the University of Louisville School of Law. Her scholarly interests include integrating masculinities theory in feminist law reforms such as military integration and domestic violence; examining the tort complexities governing standards of care in childbirth; gendered conceptualizations of citizenship; and legal education pedagogy.

This Huffington Post piece by Chelsea Carmona, Criminalizing Good Maternal Health Care in Tennessee, highlights the troublesome gendered dimensions of Tennessee’s new law criminalizing drug use during pregnancy.  Tennessee’s bill takes effect on July 1st and is the first law of its kind in the United States. The Huffington Post piece notes gendered differences in women’s patterns of drug addiction, describes critical gaps in care for pregnant women in substance abuse programs, and summarizes concerns anticipating the disproportionate prosecution of pregnant women of color, particularly rural women.

What is perhaps most striking about Tennessee’s law is its enactment against such an overwhelming volume of dissent from diverse stakeholders in law, medicine, and social services. Implementation of the bill is especially complex when considered in the context of tort law. As noted, it remains uncertain how a doctor could navigate the duty of care owed to the pregnant woman undergoing methadone maintenance without risking her possible incarceration. Yet to forego the “gold standard” for treating opioid addiction seems to breach a medical standard of care as well. As the law’s effective date looms, the question becomes how opponents of this bill can capture the law’s inevitably troubling impact when the gender, class, and race dimensions are so systematic and pervasive.

May 15, 2014 in Healthcare, Jamie Abrams, Reproductive Rights | Permalink | Comments (0)

Monday, May 12, 2014

Government Files Brief in Sixth Circuit Appeal of KY Same-Sex Marriage Case

We're joined this month by guest blogger, Professor Jamie Abrams from the University of Louisville School of Law. Her scholarly interests include integrating masculinities theory in feminist law reforms such as military integration and domestic violence; examining the tort complexities governing standards of care in childbirth; gendered conceptualizations of citizenship; and legal education pedagogy.  

Last week the Government filed its appeal in Bourke v. Beshear, Kentucky’s Western District Court decision recognizing valid out-of-state marriages.  The arguments raised in this Sixth Circuit appeal are worth a read for many reasons, however, you might consider buckling up in your DeLorean time machine because backward time travel will facilitate maximum reading ease of these arguments.  The full text of the brief is here. 

The government relies heavily on the binding precedential value of Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed by 409 U.S. 810 (1972) for the proposition that same-sex marriage prohibitions can withstand equal protection scrutiny.  The Government then argues that it has a “legitimate economic interest” in regulating the “traditional man-woman marriage model” because “same-sex couples are materially different from traditional man-woman couples” because “only man-woman couples can naturally procreate.”  Thus, the Government argues, “same-sex couples are not similarly situated to man-woman couples” and the marriage distinction withstands equal protection analysis.  The Government argues that “natural procreation” is “of vital importance to the state” and a “stable birth rate” will “support[] long-term economic stability.”  Seems like a surprising approach for the Government to dig in so dominantly on arguments that have been wholly dismissed in other courts.  I was relieved that my Mother’s Day card yesterday did not affectionately highlight my two contributions to the “long-term economic stability” of the Commonwealth.   

May 12, 2014 in Jamie Abrams, Same-sex marriage | Permalink | Comments (0)

Friday, February 14, 2014

Kentucky Opinion Recognizing Out-of-State Same-Sex Marriage

We welcome this morning guest blogger Professor Jamie Abrams from the University of Louisville School of Law.

Advocates for same-sex marriage in the Bluegrass State are toasting fine Bourbon.  Judge Heyburn of Kentucky’s Western District, a George H.W. Bush appointee, struck down on equal protection grounds Kentucky’s ban on the recognition of valid same-sex marriages performed out-of-state.   

While the constitutionality of Kentucky’s own ban was not directly before the court, Judge Heyburn’s opinion in Bourke v. Beshear strongly suggests that Kentucky’s ban sits on perilous constitutional grounds, stating “there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question.”  Op. at 19.  It states that Romer, Lawrence, and Windsor have established the “framework of cases from which district judges now draw wisdom and inspiration,” which have led to “this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled.”  Op. at 23.  Attorneys are expected to file a direct challenge to Kentucky’s marriage ban today. 

After finding the provisions governing out-of-state marriage recognition unconstitutional, the opinion distinctively addressed religious views directly.  The government had argued only that its interest in banning same-sex marriage was to “preserve traditional marriage.”  Although not directly raised in the briefing, Judge Heyburn nonetheless acknowledged that many Kentuckians support the bans based on their religious beliefs and teachings.  Op. at 18.  The opinion acknowledged these concerns and described them as “understandable and deserv[ing] of an answer.”  Op. at 18.  Judge Heyburn responded that:

Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally.  It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it.  Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.  Op. at 18. 

Although the case applied rational basis analysis, the opinion also weighed in on whether sexual orientation is a suspect classification.  The court acknowledged strong precedent suggesting heightened scrutiny is owed; suggested that Lawrence called into question Sixth Circuit precedent relying on Bowers to the contrary; and conducted a cursory suspect class analysis to suggest that “gay and lesbian individuals do constitute a suspect class.”  Op. at 9.  This opinion reads with strong overtones of a “triple crown” victory of recognition of out-of-state marriages, a roadmap to same-sex marriages performed in Kentucky, and a tentative conclusion of sexual orientation as a suspect class.

The full opinion is here: Download BourkevBeshear

February 14, 2014 in Family, Jamie Abrams, Same-sex marriage | Permalink | Comments (1)