Thursday, October 30, 2014
The North Dakota Supreme Court on Tuesday reversed a Fargo-based district judge’s ruling that had blocked a 2011 state law limiting drug-induced abortions, letting the law stand despite three of the court’s five justices saying it violates the U.S. Constitution.
Justices were split on whether the law was unconstitutional under both the state and federal constitutions.
The Supreme Court was evenly split on whether the law violated the state constitution, with Justices Mary Muehlen Maring and Carol Ronning Kapsner finding it did and Chief Justice Gerald VandeWalle and Justice Dale Sandstrom finding it didn’t. Justice Daniel Crothers concluded the state constitutional issue didn’t need to be decided.
Maring, Kapsner and Crothers found the law violated the U.S. Constitution, while VandeWalle found that it wasn’t unconstitutional at the federal level. Sandstrom opined that the federal question didn’t belong before the state Supreme Court.
Tuesday’s opinion hinged on the North Dakota Constitution’s requirement that at least four members of the Supreme Court be in agreement to declare a statute unconstitutional.
For those brave enough to tackle a 103-page opinion and double pluralities, the opinion MKB Management v. Burdick is here.
She The People, WaPo, With Supreme Court Case Pending, UPS Reverses Policy on Pregnant Workers
This week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers: starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.
“UPS takes pride in attaining and maintaining best practices in the area of equal opportunity and employment, and has elected to change our approach to pregnancy accommodations,” a memo sent to workers reads.
Hang on a minute. Isn’t this is the very stance that UPS is arguing against in the upcoming, high-profile Supreme Court case, Young v UPS?
Indeed it is.
UPS’ change of policy was not only announced to its workers on Monday, it was announced to the world in the brief they filed at the Supreme Court just days ago.
The change of policy, UPS attorneys argue in the brief, doesn’t mean they were wrong when they denied temporary light duty to one-time UPS driver Peggy Young, of Landover, Md., when she became pregnant and her doctor recommended she take a hiatus from lifting heavy boxes until after giving birth.
In the brief, UPS attorneys explain it this way: “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”
The UPS move came as a surprise to many workers’ rights advocates and to Young’s attorneys.
“UPS is highlighting the injustice of its own position,” said Sam Bagenstos, one of Young’s attorneys. “In the future, they want to give people like her fair treatment. But they’re still denying her recompense for the unfair treatment that they gave her.”
The move, he said, “shows that what Peggy Young has been asking for all along is common sense.”
Thursday, October 23, 2014
I wrote an article, related to my current book project, on feminist icon Elizabeth Cady Stanton’s views on abortion. Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012). The article was triggered by a political misuse of Stanton for modern feminist-for-life anti-abortion advocacy, which claims she was a strong pro-life advocate. My research showed that Stanton said little about abortion per se. And what she did say about reproductive rights – women’s unilateral right to self-sovereignty in reproductive decisionmaking and justice and forgiveness for women’s crimes of infanticide—suggests the opposite. That to the contrary, her work provides historical support for a woman’s right to personal choice.
I’ve turned up a few more pieces of historical evidence since the publication of the article. Here’s an excerpt from the book chapter draft:
Stanton elaborated on this concern with enlightened motherhood, growing more melodramatic and emphatic. Writing to the Seventh Convention on Woman’s Rights, Stanton said polluted marital relations [with abuse, alcoholism, and misery] produced “the shocking monstrosities of . . . deformed and crippled offspring,” “miserable progeny conceived in disgust and brought forth in agony,” and often confined to asylums. Letter from Mrs. Stanton to Seventh National Woman’s Rights Convention, Nov. 24, 1856. Another consequence of the perversions of marriage was abortion, “What all these advertisements in our public prints, these family guides, these female medicines, these Madame Restells?” Abortion, asylums, and disabled children, Stanton argued, showed “what a depth of degradation the women of this Republic have fallen, how false they have been to the holy instincts of their nature, to the sacred trust given them by God as the mothers of the race?” Women, Stanton argued, had a higher duty to control and deliberate in reproduction, not simply propagate. Her solution was to “let Christians and moralists pause in their efforts at reform and let some scholar teach them how to apply the laws of science to human life.” To her readers in the Revolution, she emphasized the need to base the fundamentals of social and family life “on science and philosophy by educating women into the idea that to bear noble children to noble men with sound bodies and sound minds, is a worthy work and one that brings its own happiness and reward.” But, she continued, “to fill the world with idiots, lunatics, criminals, the blind, the deaf, the dumb,” and to “spend one’s days nursing muling, puling, limp-backed, hydrocephalic abortions of humanity, is not a work worth a Christian woman, but a sin against herself, the state, and a gross violation of the immutable laws of God.” ECS, Mrs. Stanton and the Chicago Tribune, Rev., Feb. 8, 1871.
The eugenic context, then considered an emerging science, is stocking to us today. And that is a story in and of itself. But what can we make of this from a feminist perspective? That Stanton endorsed women’s right, indeed moral duty to control reproduction. That she supported science to control birth. That she argued for a consideration of the health consequences to the child, as women do today when making difficult decisions about severe health defects shown in prenatal testing. And that she condemned religious moralists for their mandates to women on motherhood.
Tuesday, October 14, 2014
Thus reads the article title from the NYT's on Tuesday. The story:
The Supreme Court’s order, which was five sentences long, will allow the clinics to remain open while appeals proceed.
On Oct. 2, the United States Court of Appeals for the Fifth Circuit, in New Orleans, provisionally let stand a Texas law that requires all abortion clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing.
State officials said the law’s requirements were needed to protect women’s health. Abortion providers said the regulations were expensive, unnecessary and a ruse meant to put many of them out of business.
The Supreme Court vacated the part of the Fifth Circuit’s ruling that had let the surgical-center requirement go into effect. It also vacated a second part of the Fifth Circuit’s ruling, concerning the law’s requirement that doctors performing abortions have admitting privileges at a nearby hospital, as it applied to clinics in McAllen, Tex., and El Paso.
Saturday, October 11, 2014
New Republic, How the Pill Overcame Impossible Odds and Found a Place in Million of Women's Purses. Purses?? Well... whatever.
In The Birth of the Pill: How Four Crusaders Reinvented Sex and Launched a Revolution, Jonathan Eig chronicles the decades-long effort to make that fantasy a reality. In his telling, this transformation is thanks to a unique alliance between feminists and scientists: the spotlight-seeking activist Margaret Sanger, the rebel researcher Goody Pincus, the single-minded heiress Katherine McCormick, and the photogenic family doctor John Rock. These four people provide a formula for what it takes to create scientific breakthroughs that are ahead of their time politically: an incredible amount of drive and little concern for traditional values, a willingness to flout powerful institutions and their rewards, a tremendous amount of money, and, eventually, a way to appeal to the mainstream. It’s no wonder that, despite lots of modern talk about disruption and innovation, truly world-changing breakthroughs are so rare.
Saturday, October 4, 2014
Jeffrey Toobin, New Yorker, On Hobby Lobby, Justice Ginsburg was Right
In Hobby Lobby, a narrow five-to-four majority of the Court held that the Religious Freedom Restoration Act of 1993 gave the proprietors of a chain of retail craft stores the right to exempt themselves from certain provisions of the Affordable Care Act. Specifically, the A.C.A. requires firms with more than fifty employees to provide insurance that includes birth-control coverage, or else pay a fine. There was an exemption already for religious institutions. Hobby Lobby, a closely held corporation, is a secular, for-profit business, but the Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, they could deny employer-paid insurance coverage for them. Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ” Ginsburg, though, wondered where the guidance was for the lower courts when faced with similar claims from employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).
The exchange between the two Justices gets to the heart of the issue in Hobby Lobby. When do religious convictions allow individuals (or corporations) to excuse themselves from obligations that are binding on everyone else?
A sampling of court actions since Hobby Lobby suggests that Ginsburg has the better of the argument. She was right: the decision is opening the door for the religiously observant to claim privileges that are not available to anyone else.
Friday, September 19, 2014
ACTIVISTS on warring sides of the abortion debate rarely take the same position when it comes to Supreme Court cases involving women’s rights. But pro-choicers and pro-lifers have found common cause in Young v United Parcel Service, a pregnancy discrimination case the justices will take up on December 3rd. Yet the ideological overlap, while intriguing, is no guarantee that justices will reach consensus.
And the case facts:
Peggy Young was working part-time as the driver of a delivery truck for UPS when she became pregnant in 2006. Ms Young’s midwife, frowning on the requirement in her job description that she haul 70lb boxes, wrote a note to UPS recommending that “she not lift more than 20 pounds." On this basis, Ms Young requested a few months of a lightened load. Other UPS employees were eligible for such an accommodation, she reasoned, so she wasn’t asking for anything out of the ordinary. Workers who were injured on the job, who were disabled under the terms of the Americans With Disabilities Act, or who lost their driving credentials were all eligible (under the collective-bargaining agreement) for “light duty” assignments. But Carolyn Martin, the company’s occupational health manager, rejected Ms Young’s request. Since pregnancy did not fall into any of the three categories of workers eligible for alternate assignments, UPS would not switch her to a less physically onerous job. Ms Martin "empathise[d] with [Ms Young's] situation and would have loved to help her," but sent her packing on an unpaid leave.
Monday, September 15, 2014
Caitlin Borgmann, CUNY Law, has uploaded on SSRN "Abortion Exceptionalism and Undue Burden Preemption." The abstract:
This Article discusses the tendency of some lower federal courts to interpret the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey as essentially occupying the field of potential constitutional claims whenever abortion is involved. Thus, where litigants have alleged constitutional claims other than, or in addition to, undue burden violations, courts have either changed how they normally analyze these constitutional claims or they have even completely foreclosed the application of other doctrines on the grounds that the undue burden standard subsumes or displaces these claims. This Article illustrates this phenomenon in the context of three types of non-undue-burden claims that have been asserted against some abortion restrictions: bodily integrity, equal protection, and the right against compelled speech. Undue burden preemption, I argue, flies in the face of the Court’s recognition that “[c]ertain wrongs...can implicate more than one of the Constitution’s commands.” Where multiple constitutional violations are alleged, the Court’s normal approach is to examine each constitutional provision in turn. There is one well-established exception to this general rule, the “Graham doctrine.” This doctrine provides that, when a litigant asserts a substantive due process claim, and where the Court finds that another more specific constitutional provision applies, the Court analyzes the claim under the more specific provision to the exclusion of substantive due process. This Article argues that undue burden preemption, far from being justified by the Graham doctrine, turns that doctrine on its head.
Sunday, September 14, 2014
A former New York Mets senior vice president, who was fired last month by the club, sued the organization on Wednesday alleging that she was discriminated against on the basis of her sex, and ultimately fired for becoming pregnant while unmarried. Leigh Castergine, who joined the Mets organization in 2010, was the head of ticket sales when, the suit says, she was fired by team COO Jeff Wilpon because he was “morally opposed” to Castergine having a child out of wedlock.
[T]he National Women’s Law Center and law firm Jenner & Block submitted an amicus brief on behalf of 123 Members of Congress in the Supreme Court pregnancy discrimination case, Young v. United Parcel Service, Inc.; the brief highlights the plain language, legislative history and intent of the Pregnancy Discrimination Act (PDA), which Congress passed in 1978. In Young, the Supreme Court will decide for the first time whether the PDA requires an employer to provide light duty to a worker if she needs it because of pregnancy, when the employer provides light duty to workers with similar limitations in ability to work arising out of disability or on-the-job injury. The brief argues that the plain language and legislative history of the PDA demonstrate that an employer may not deny accommodations for medical needs arising out of pregnancy that it provides to other workers based on a similar inability to work.
In 2006, Peggy Young, a pregnant UPS delivery driver in Landover, Maryland, was instructed by her medical provider to avoid heavy lifting during her pregnancy. Although UPS routinely accommodates employees who need light duty because they have a disability or an on-the-job injury—and even when they lose their commercial driver’s license because of a D.U.I. conviction—it forced Young to take a leave of absence for the rest of her pregnancy, causing her to lose her wages and her health insurance coverage. Young sued UPS, but two lower courts ruled against her, finding that the company’s refusal to accommodate pregnancy when it accommodated the medical needs of other workers with similar limitations in ability to work did not constitute pregnancy discrimination
More than 120 members of Congress urged the Supreme Court on Thursday to recognize that pregnant workers are entitled to reasonable accommodations such as light duty, saying it's needed to ensure that expecting mothers are not forced out of their jobs.
In a friend-of-the-court brief, the Democratic lawmakers — 99 from the House, including Minority Leader Nancy Pelosi, and 24 senators — said UPS delivery driver Peggy Young of Lorton, Virginia, was unfairly treated by her employer when it asked her to take unpaid maternity leave rather than provide a less strenuous position as her doctors advised.
Sunday, August 31, 2014
A federal judge in Austin, Tex., blocked a stringent new rule on Friday that would have forced more than half of the state’s remaining abortion clinics to close, the latest in a string of court decisions that have at least temporarily kept abortion clinics across the South from being shuttered.
The Texas rule, requiring all abortion clinics to meet the building, equipment and staffing standards of hospital-style surgery centers, had been set to take effect on Monday. But in his opinion, Judge Lee Yeakel of the United States District Court in Austin said the mandate placed unjustified obstacles on women’s access to abortion without providing significant medical benefits.
The rule “is unconstitutional because it imposes an undue burden on the right of women throughout Texas to seek a pre-viability abortion,” he wrote.
Thursday, August 28, 2014
The story from The Nation:
Once upon a time, when a working woman became pregnant, she’d typically be expected to leave her job and retreat into full-time domestic duties. These days, white-collar career women sport proud baby bumps under power suits, and across the workforce, women now regularly serve as the main breadwinners, and must work before, during, and after pregnancy. Yet many workplaces are still stuck in a Victorian mindset about what pregnant women can and can’t do on the job. Now a new law in Illinois is set to modernize the way bosses deal with pregnant employees.
The so-called Pregnancy Fairness law, which Governor Pat Quinn signed into law yesterday, establishes distinct civil rights protections for pregnant workers who require a modest adjustment to their duties to do their jobs. The employer still has the right to refuse but only if it could prove that the accommodation “would impose an undue hardship” on the business.
Officials with three Louisiana abortion clinics head into a Baton Rouge federal court Thursday morning seeking to delay new state abortion restrictions slated to go into affect Sept. 1.
The new restrictions could shut down most -- if not all -- of Louisiana's abortion clinics next week due to an absence of physicians legally able to provide abortions.
Under the new state law, signed by Gov. Bobby Jindal in June, physicians who perform abortions must have permission to admit patients at a local hospital within 30 miles of the abortion clinic where they work. Abortion clinic officials said their doctors are still waiting to hear back from local hospitals about whether they will be granted admitting privileges, which is why the law should be put on hold for now.
There's more--including the 4 interesting facts in NOLA.COM.
Monday, August 18, 2014
Good luck getting a teaching job in São Paulo if you’re a woman who doesn’t want to undergo a pap smear or have a doctor certify your virginity in a written note. As outlined by a 2012 law that might well have been written decades (or even centuries) earlier, women who wish to become teachers in Brazil’s most populous state must undergo invasive gynecological exams to test for a variety of cancers, ostensibly to determine if the candidates pose a risk of taking extended absences to cope with an illness.
Thursday, August 14, 2014
Women in France can now end a first-trimester pregnancy for any reason — and the full cost of the abortion will be financed by the government — under asweeping new gender equality law approved on Tuesday. The new policy amends the country’s existing abortion law, which currently allows women to get an abortion only if they can prove they’re in “emotional distress.”
When they can't even wait until you are actually pregnantly disabled to fire you.
In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.
What can we learn from this case?
- It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
- If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.
Tuesday, July 22, 2014
"Come September, there will be six abortion clinics in Texas." So states a Salon article.
Six clinics, intended to serve more than 13 million women across a state nearly 300,000 square miles in size, concentrated in five of the state’s largest metropolitan areas and leaving virtually the entire western portion of Texas — the Panhandle, the Rio Grande Valley — without reproductive care. The clinics that remain open in September will be able to do so only because they meet the new standards outlined in H.B. 2, the extreme anti-choice legislation thatWendy Davis spent 11 hours filibustering last June, which mandates abortion providers meet the guidelines for ambulatory surgical centers. These standards can cost up to $40,000 a month to maintain, and have already forced clinics across the state to shut down. With abortion providers in the western part of the state shuttered, women who live in the region — particularly the Valley — are left without options.
Sara Ainsworth, Amicus Curiae Brief, Stormans v. Selecky, 24 Hastings Women's L.J. 303 (2013).
Women and girls in the United States are at high risk of experiencing sexual assault and violence perpetrated by an intimate. Preventing pregnancy after such an assault is, in most cases, critical to a woman’s psychological recovery and physical health. Emergency contraception works effectively after an assault to prevent pregnancy, and is the medical standard of care for treating women and girls of reproductive age after a sexual assault. Yet access to that contraception can be restricted when pharmacists refuse to fill prescriptions on religious grounds.
Ruling for two pharmacists and a pharmacy who objected to dispensing emergency contraception, a federal district judge found unconstitutional a Washington State Board of Pharmacy rule that requires pharmacies to fill all lawful prescriptions on site and in a timely manner. Stormans, Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012).
This amicus curiae brief was submitted on behalf of organizations and experts in domestic and sexual violence, in an appeal of that ruling, Stormans v. Selecky, No. 12-35223, United States Court of Appeals for the Ninth Circuit. The Ninth Circuit has deferred oral argument, pending the Supreme Court's decision in Conestoga Wood Specialties v. Sebelius, No. 13-356. (That case has been consolidated with Sibelius v. Hobby Lobby, Inc., No. 13-354.)
Earlier rulings in Stormans, Inc. v. Selecky: 524 F. Supp. 2d 1245 (W.D.Wash. 2007), vacated, 526 F. 3d 406 (9th Cir. 2008), vacated, 571 F. 3d 960 (9th Cir. 2009), vacated and superseded on reh’g, 586 F. 3d 1109 (9th Cir. 2009).
Saturday, July 19, 2014
Evan Seamone & David Traskey, Maximizing VA Benefits for Survivors of Military Sexual Trauma, 26 Columbia J. Gender & Law 343 (2014)
After decades of highly-publicized sexual assault incidents in the military and more recent indications of increasing reports of military sexual assault, Congress and the military leadership are addressing the epidemic of rape and sexual assault in the Armed Forces head-on. While prevention efforts are vital, there is mounting concern for veterans of the Armed Forces who have left the Service following an assault. A major problem facing MST survivors is the fact that a great majority of those enlisted in the Armed Forces have already suffered previous trauma, including childhood sexual assault. The VA’s standards require that mental health conditions either must have been caused or aggravated by military service. Too often, when a survivor discloses prior abuse, this disclosure results in denial of a claim for service connection — even when there is no question regarding the legitimacy of the rape or sexual assault. Authors Seamone and Traskey offer solutions to solve the problem of how to successfully put forth a claim for service-connection, even when the survivor has pre-enlistment sexual trauma. Beyond this, they provide insight on the VA’s own internal regulations and other hard-to-obtain adjudication materials to provide a clear and accurate picture of the VA adjudication process, emphasizing how any MST survivor can maximize her or his chances of success at each step of the process from initial application, through medical examination, to determinations of diagnosis and causation.
Thursday, July 17, 2014
Democrats in the Senate on Tuesday took a major step in pushing back against the growing trend of regulations that are designed to shut down safe abortion clinics. The Senate Judiciary Committee is hearing testimony on a bill introduced by Sens. Richard Blumenthal and Tammy Baldwin, a bill that would do significant damage to anti-choice efforts to go around Roe v. Wade by regulating abortion clinics out of existence. It's called the Women's Health Protection Act, and it would end the attacks on abortion clinics through one simple measure: requiring states to regulate abortion providers in exactly the same way they do other clinics and doctors who provide comparable services. No more singling out abortion providers.
The bill goes into detail about the specific abortion-only regulations that would not be allowed, but the general principle is that if you don't require it for other outpatient procedures, you can't require it for abortion. Want to force women seeking abortion to listen to a script full of lies and then make them wait 24 or 48 hours to think it over? Better be prepared to do the same for people who need colonoscopies. Want to require a bunch of unnecessary visits before a woman is allowed to have a procedure? Now you need to do that for a biopsy, too. Want to force abortion clinics to meet ambulatory surgical center standards and abortion providers to have hospital admitting privileges? Well, dentists will have to meet the same standards before they can drill a tooth. If this bill passes (more on that below), states would be forced to let abortion providers operate in peace or make everyone else—including, gasp, men—endure the same kind of hassles and mistreatment women seeking abortion now have to endure in much of the country.