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.
Tuesday, July 15, 2014
July 14, 2014
(Washington, D.C.) Today, the U.S. Office of Equal Employment Opportunity Commission (EEOC) issued its first comprehensive Enforcement Guidance on Pregnancy Discrimination and Related Issues since 1983. The guidance outlines the fundamental requirements of the Pregnancy Discrimination Act (PDA) that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons in their ability or inability to work. The guidance also includes the application of the Americans with Disabilities Act (ADA) as amended in 2008.
Saturday, July 12, 2014
From the Reproductive Rights Blog, Senate Judiciary Committee to Hold Hearing on Women's Health Care Protection Act
The Senate Judiciary Committee will hold a hearing on S.1696, The Women’s Health Protection Act: Removing Barriers to Constitutionally Protected Reproductive Rights on July 15. The hearing will be live streamed on the Committee's website.
Via the Center for Reproductive Rights:
The Women's Health Protection Act would prohibit laws and regulations that single out the provision of abortion services for restrictions that are more burdensome than those imposed on medically comparable procedures, do not significantly advance women's health or the safety of abortion services, and make abortion services more difficult to access. The bill currently has 34 co-sponsors in the Senate and 121 in the House. It includes a list of regulations that are per se violations, which you can read here. . . .
[T]he US supreme court's Hobby Lobby decision left most women's groups livid. Terry O'Neill, president of the National Organization for Women, called it "a shocking disregard for women's health and lives." The co-president of the National Women's Law Center, Marcia Greenberger, said the ruling gave companies "a license to harm their female employees in the name of religion."
But the Independent Women's Forum (IWF) - a conservative women's group with at least a quarter-million dollars in financial ties to Rush Limbaugh - called the decision "undoubtedly good news". The group's director of cultural programs, Charlotte Hays, told a crowd outside the court, "This is a great day," and called the ruling a victory "for anyone who believes in freedom of conscience." This from the same woman who has written that women shouldn't be astronauts and that rape culture on college campuses is all "inflated numbers" and "hysteria".
This latest crop of female anti-feminists - powerful, Washington-based organizations like IWF and Concerned Women for America - want to repeal the Violence Against Women Act and argue that pay inequity doesn't exist. These organizations, along with a handful of popularwriters and authors, want to convince women that it's men who are the underserved sex. They want to convince you that inequality is just a trade-off.
(Reuters) - A federal judge in New York has allowed a pregnancy discrimination case against a luxury retailer to go forward, in a decision that helps clarify the length of time that women who recently gave birth are still protected under pregnancy discrimination laws.The case involves Katherine Albin, a former clerk at a Thomas Pink clothing store in Manhattan, who alleged that she was turned down for a promotion to store manager because she had recently returned from maternity leave.In a lawsuit filed in June 2013, Albin alleged that she was rejected for the job, which went to an applicant with less experience and who was unlikely to become pregnant due to her age. Albin alleged violations of Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.The two sides have sparred over whether Albin was still a member of a "protected class" -- or one protected by particular antidiscrimination laws -- when she was passed over for the promotion about seven months after her child was born. In its motion to dismiss the case, LVMH Moet Hennessy Louis Vuitton, which owns Thomas Pink, argued that Albin did not fall within the protected pregnancy class because she gave birth to her child seven months before she ultimately quit the job after being passed over for promotion.U.S. District Judge Paul Oetken on Tuesday declined to grant LVMH's motion to dismiss, ruling that Albin had sufficiently shown she may have been protected by antidiscrimination laws because the event that she claimed triggered the discrimination -- her request to be considered for a promotion -- occurred less than four months after she gave birth. She was eventually turned down for the promotion three months later.Case law in the 2nd U.S. Circuit Court of Appeals suggests that the circuit has developed a "loose line" of four months from a child's birth that women can still be considered a protected class for pregnancy discrimination, Oetken wrote.
Tuesday, July 8, 2014
Just in case you really believed that Hobby Lobby was a narrow decision, here is ample evidence to the contrary one week after the decision.
SCOTUS granted a temporary injunction to Wheaton College exempting it from filing the form that allows the government to cover the birth control. See Dahlia Lithwick, Quick Change Justice; WSJ, Polarized Reaction to Wheaton College Injunction.
Eden Foods, makers of organic foods, claims exemption from covering all birth control medicines. Hobby Lobby Fallout
Religious entities seek exemption from the federal order banning employment discrimination for sex and sexual orientation by federal contractors. Citing Hobby Lobby Religious Groups Ask Obama for LGBT Exemptions
For more analysis of the opinion itself, see NYT, Between the Lines of the Contraception Decision.
Sunday, July 6, 2014
North Dakota’s law bans the practice of so-called sex-selection abortion, making it illegal to terminate a pregnancy based on the gender of the fetus—an issue that reproductive rights advocates have said is “solution in search of a problem that does not exist.”
The law would punish any physician who is caught performing an abortion
because of the gender of the fetus. Under the law, doctors are required to ask women seeking an abortion a series of questions to determine if the gender of the fetus is a factor in her decision. Women seeking an abortion because of “sex-selection” would face no penalties, while abortion providers could face a class 6 felony, which carries up to a $4,000 fine and two years in prison.
A recent report debunked significant misinformation that has been used to justify sex-selection abortion bans around the country, including North Dakota. “Lawmakers have relied on misinterpretations of narrow data and faulty assumptions about sex selection practices to enact sex-selective abortion bans in the United States,” said Sital Kalantry, clinical professor of law and director of the International Human Rights Clinic at the University of Chicago Law School, in a statement following the release of the report.
Meanwhile, in Indiana, two new laws went into effect.
Saturday, July 5, 2014
Of interesting note in these and other articles on Justice Sotomayor's dissent is the journalistic choice of words used to describe the decision: searing, fierce, outraged, scold, women get together
Tuesday, July 1, 2014
Some highlights on yesterday's Hobby Lobby case:
- SCOTUS Gets Hobby Lobby Horribly Wrong
- Several posts on Reproductive Rights Blog
- What Nuva Rings and Peyote Have in Common Today
- Why Today's Hobby Lobby Ruling Actually Hurts People of Faith
Some of my own thoughts:
1. This is a gender issue. Period.
- As Justice Ginsburg said: It's about "women's autonomous choice."
- The Court's distinction between contraception v. immunizations or blood transfusions is starkly sex-based. So its ok to discriminate against women, but not kids or Jehovah's Witnesses? There should be a challenge in there somewhere. I know, state action? Hybrid classification with other contraception covered.
- See Not That Anyone Cares, But Hobby Lobby
2. Good faith belief in other legal contexts usually requires some credible support. How can HL simply assert it has a religious belief that IUDs and morning after pills are abortive, when they are not? Elsewhere in the law--labor negotiations, putative spouse doctrine, termination of injunctions--good faith requires some factual basis upon which the party relied to form the good faith. Since religion has been used historically to discriminate against women, it is a very dangerous legal holding to give men carte blanche to excuse their sexism under the guise of religion without question.
3. Here's an interesting idea. Congress can amend RFRA to remove corporations from its protection. Lose the battle, but win the war. Senate Democrats Mull Response to Hobby Lobby Decision
Monday, June 30, 2014
1. Stop shopping at Hobby Lobby.
2. Stop working at Hobby Lobby.
3. Protest on the public way around Hobby Lobby stores. SCOTUS says you can. See McCullen.
4. Refuse, if an employer, to provide healthcare coverage for men's contraceptive health, V&V (vasectomy and Viagra).
5. Engage in a sex strike. Until your partner secures contraceptive healthcare coverage for you.
7. Travel back in time a century. You won't even notice the difference.
Thursday, June 26, 2014
In today’s other decision, McCullen v. Coakley, all nine justices concluded that Massachusetts’ abortion clinic buffer zone law violated the First Amendment. So here we have yet another opinion unanimous in the judgment. That makes 48 out of 71 decisions thus far this term, or 67.6 percent.
Writing for the Court, the Chief Justice concludes that the statute was content-neutral, and thus avoids strict scrutiny, but is not narrowly tailored because it burdens more speech than is necessary to advance the government’s interests in ensuring clinic access and public safety. Four justices (Scalia, Thomas, Kennedy, and Alito) concurred in the judgment would have gone further. The opinion is here.
I previously blogged about the case here.. Some observations on today's option:
1. It did seem to matter to the Court that this was legislation rather than a remedy. The opinion notes that the government did not seek "one single prosecution or injunction." Thus suggesting, as the Court has previously held in Madsen v. Women's Health Center (1994), that prophylactic injunctions to remedy particular instances of abortion protesting problems are ok.
2. The Court calls the protestors' speech "personal, caring, consensual conversation" that is just trying to "help" the women. How is intimidating, harassing, inflammatory, confrontational personal assault caring and helpful? The patients and employees might call these "fighting words." Such a characterization perpetuates the paternalistic and protectionist rhetoric of the Gonzales v. Carhart (2007) abortion decision to help women too emotionally fragile and incompetent to exercise their own autonomy. What was Ginsberg thinking in signing on to this opinion?
Tuesday, June 24, 2014
Samuel Wolfe Calhoun (Washington & Lee), has posted Justice Lewis F. Powell's Baffling Vote in Roe v. Wade, 71 W&L Law Rev. 925 (2014):
This article explores Justice Powell’s vote with the majority in Roe v. Wade. The piece builds upon the unissued 1970 abortion opinion of Judge Henry J. Friendly, who, although personally pro-choice, concluded that the Fourteenth Amendment does not require abortion freedom. The article also presents research from the Powell Archives at Washington and Lee University School of Law. On its face, Powell’s Roe vote is perplexing due to its inconsistency with his stated philosophy of judicial restraint.
Calhoun quickly dismisses what seems to me to be the most pursuasive explanation: that Powell voted based on his own personal experience. As I noted in my recent article, Back to the Future of Regulating Abortion Rights in the First Term , 29 Wis. J. L, Gender & Soc'y 47, 70 (2014), that's how Powell himself explained it.
When the conservative Justice Powell was later asked why he supported abortion, he answered based on personal experience rather than constitutional theory. Linda Greenhouse, Lewis Powell, Crucial Centrist Justice, Dies at 90, N.Y. TIMES, Aug. 26, 1998, at A1; David Westin, Eulogy: Lewis Powell, TIME, Sept. 7, 1998. He told the story of a young, black messenger at his old law firm in Richmond, Virginia who was terrified that he would be arrested for the death of his girlfriend, for whom he had helped get an illegal abortion from a “back-alley butcher.” Greenhouse, supra. Powell helped negotiate with the city prosecutor and no charges were ever brought. Id. Powell gained an appreciation for the practical implications of the legal issue of abortion and its impact of people of different races and economic class. Id.
This is familiar as a basic precept of feminist legal theory--that realities and personal experiences do matter to the interpretation of law. And reminds me of the conclusion of a recent study that conservative judges vote for women's rights in discrimination cases when they have a daughter.
Tuesday, June 17, 2014
Yesterday, the Supreme Court in Susan B. Anthony List v. Driehaus unanimously allowed a pro-life group to challenge a state election law prohibiting lies in election speech. An analysis of the opinion is here: SCOTUS Opinion Analysis
Tuesday, June 10, 2014
Lisa Lucile Owens (Columbia, Sociology) has published Coerced Parenthood as Family Policy: Feminism, Moral Agency, and Men's "Right to Choose", 5 Alabama Civil Rgts & Civil Liberties J. 1 (2013).
Part of what makes human agency moral is the demand that individuals think through their choices and, to the extent that they are choices made freely and unilaterally, that they shoulder most if not all of the consequences that visit upon those choices. It is not uncommon for the state to intervene in this moral field, shifting to choice-bystanders or the entire society the consequences attracted by free and unilateral choices individuals make. However, counter-intuitively, sometimes this burden reallocation operates to discount the moral agency of the individual whose choice was free and unilateral. Indeed, in a world of subtle forms of domination, disrespect for the moral agency of certain groups sometimes takes the form of a privilege that is benign on the surface while profoundly undermining in its long term impact on those groups’ claims to equal moral agency. This article argues that there is an aspect of women’s reproductive privileges that undermine their equal moral agency. Unfortunately, this phenomenon of subjugation-through-rights-guarantees has escaped feminist analysis of reproductive rights.
This article focuses on one instance of this phenomenon. The Supreme Court has established and regulated a basic privacy right to reproductive choices. However, men are not currently given similar choices and are compelled to parent as an effect of state policy that gives women unilateral reproductive choices in several instances, women are deprived of full responsibility for the consequences of those choices and surrender a significant dimension of their moral agency to a type of disempowering paternalism. This article argues that, as a principle of equality, men and women should be given similar choices regarding their reproductive destinies and correspondingly face the consequences for their choices.