Monday, November 23, 2015
Paula Abrams (Lewis & Clark), The Bad Mother: Stigma, Abortion and Surrogacy, 43 J. Law, Medicine & Ethics (Summer 2015).
Why do certain decisions about reproduction engender social support, other decisions social disapproval? Surrogacy and abortion represent two different facets of procreative liberty, the right to reproduce and the right to avoid reproducing, but these different experiences may carry similar stigmatic harm, for both disrupt traditional expectations of the pregnant woman. This article examines how stigma attached to abortion and surrogacy reveals similar patterns of gender stereotyping. It argues that evidence of stigma is relevant to determining whether laws regulating abortion or surrogacy are based on impermissible stereotyping. Stigma evidence is probative in determining whether gender stereotypes influenced legislative purpose and in assessing the degree of harm imposed by a regulation
Tuesday, November 10, 2015
The Supreme Court granted cert last Friday in Little Sisters v. Burwell consolidating several cases raising religious objections to filing paperwork in order to trigger the religious exemption to providing employees with contraception as otherwise required by federal healthcare law.
- Supreme Court Grants Cert in Birth Control Mandate Challenge
- The Birth Control Wars Return to the Supreme Court
- The Little Sisters of the Poor Get Their Day at the Supreme Court
Prior to the grant, Caroline Corbin (Miami), explained the circuit split and the issues in Paperwork as a Substantial Religious Burden, Jurist
Hobby Lobby focused on for-profit companies because non-profit organizations were already exempt. Under Department of Health and Human Services regulations, religious non-profits need not include contraception in their health care plans. Instead once a religious non-profit declares its religious opposition, it can have its health care insurer or, if it is self-insured, a third party administrator, provide coverage instead. Indeed, the Hobby Lobby court pointed to this accommodation as a reason why the contraception mandate's application to religious for-profits was not narrowly tailored. If this accommodation worked for non-profits, the court reasoned, then why not for for-profits?
Nonetheless, some non-profits have complained that the religious accommodation itself violates their religious rights. They argue that filing the paperwork that grants them their exemption imposes a substantial burden on their religious practice. According to these religious non-profits, signing a two-page form or sending a letter facilitates the provision of contraception, thus making them complicit in sin.
Although multiple courts (including the US Court of Appeals for the Third Circuit [PDF], the US Court of Appeals for the Sixth Circuit [PDF], the US Court of Appeals for the Seventh Circuit and the US Court of Appeals for the DC Circuit [PDF]) have rejected this claim, the US Supreme Court has stayed these decisions. Mere days after writing in Hobby Lobby that the accommodation for non-profits "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty," the court granted an emergency injunction against that very alternative in Wheaton College v. Burwell [PDF]. In her Wheaton dissent, Justice Sotomayor lamented that "[t]hose who are bound by our decisions usually believe they can take us at our word. Not so today."
Setting aside the court's mixed messages, the non-profits' claim should fail. At the most basic level, it misunderstands how the contraception mandate works. The religious organizations believe that their written refusal triggers the provision of contraception. As a matter of law, they are wrong. Their paperwork does not cause contraception coverage. The Affordable Care Act, passed by a democratically-elected Congress, does.
Thursday, October 1, 2015
Joan Williams and Jessica Lee, It's Illegal, Yet It Happens All the Time, Chronicle of Higher Ed.
Why don’t we have more women in STEM fields? One reason is that students get hounded out of their college or graduate-school programs when they become pregnant. It’s against federal law, but it happens all the time.
One student told us she had a pregnancy-related disability that required her to go to the hospital at least twice a week. Exhausted but driven, she continued to produce quality work. Late in her pregnancy, the publishing deadline she was struggling to meet was accelerated by her department — it now fell right after her due date. Just months prior she had been celebrated as a rising star in her department, but now, she said, "I had to prove I was still worthy to even be in their program." If she didn’t meet the new deadline, she would lose the funding her family relied upon. After her baby was born, she was intimidated into finishing her degree in significantly less time than the average student in her department. The hostility and bias the student faced "traumatized me in so many ways," she said. "I wasn’t asking for accommodations, I wanted to be treated like everybody else, but I was the one who was punished."
A graduate student with a disability caused by childbirth was pursuing her degree full force after a lengthy struggle, only to be told by a faculty mentor, "You don’t have a disability, you just need to go home and be with your baby." Professors frequently make off-the-cuff statements — often written off as harmless — telling pregnant women or new mothers to stay home instead of pursuing their education. Plaintiffs’ lawyers love such direct evidence of gender discrimination.
And it’s not just professors who open their institutions to legal liability. Administrators do, too. A graduate student said she anticipated the birth of her child at the start of the academic year, so she asked to be able to record classes for the first week or two of the semester. The student-affairs dean told the student to withdraw for at least a semester, with no guarantee of readmission, informing her that all of the pregnant students at the institution in the past six years withdrew from the program — except one, who regretted her decision. This student, like many others, didn’t want to take leave at all.
The consequences of being forced out of your program can be grim. Many women need to keep working in their university-sponsored jobs to make ends meet. Yet those jobs are often unavailable to students while they are on leave, or aren’t offered back to them upon their return. On many campuses, being on leave or withdrawn status means losing that income, along with health insurance, loan deferment status, and even your university email address. Sometimes it means losing your housing, too.
Federal law requires that pregnant students must be reinstated following leave to their prior status, without penalty. Yet we hear over and over about women are penalized for their absence, or forced to reapply to their programs as if they had never been accepted.
Thursday, September 24, 2015
Dara Purvis (Penn State), The Rules of Maternity, on SSRN.
Abstract:This article examines a diverse body of laws and regulations speaking to reproductive rights, healthcare, criminal punishment of drug use, termination of parental rights, and more in order to unearth the rules of maternity: guidance provided both obliquely and explicitly by the law’s coercive power telling women both how and who should mother. Rule 1 begins in pregnancy, with the message that “your body is your child’s vessel.” Every choice that a pregnant woman makes becomes a source of potential harm to her child, and thus of potential punishment through both civil and criminal law. Rule 2 explains one way women should attempt to avoid such liability, by following the maxim that “doctor knows best.” To question medical authority or have preferences other than following doctor’s orders is to needlessly risk the health of a pregnancy or a child, and is evidence of bad mothering. After the child’s birth, the mother remains responsible for the people who enter a child’s life, leading to rule 3, “the buck stops with you.” Rule 4 provides examples of the tightropes that mothers must walk: be nurturing, but not too nurturing. Breastfeed, but not for too long. Be protective, but not overprotective. “Damned if you do, damned if you don’t.” Finally, the rules of maternity create an aspirational maternity, one that excludes women deemed undesirable as mothers, because of class, race, past actions, and so on. Rule 5 specifies that “only some women need apply” for motherhood; women who have already been judged as bad mothers should not be legally permitted to reproduce.
Tuesday, September 8, 2015
Robin West (Georgetown),Hobby Lobby, Birth Control and Our Ongoing Cultural Wars: Pleasure and Desire in the Crossfires
From the Abstract:
Both sides of the birth control debate agree that birth control artificially prevents or interrupts conception, allowing women to control their own fertility and allowing heterosexual men and women to enjoy unconstrained sexual liberty. However, the decision in Hobby Lobby omitted all discussion of this central function of birth control, and contained no mention of arguments for or against birth control that assume it.
This piece examines and criticizes the two major arguments opposing and supporting birth control on this understanding of its function and core social meaning: first the neo-natural lawyers’ argument against birth control advanced in a papal encyclical in the 1930’s and in contemporary law review articles by John Finnis, George Bradley, and Robert George, and second, the “sexual-libertarian” argument supporting the use of birth control, culled from Griswold, Eisenstadt, Lawrence and their advocates and supporters in the academy.
The focus of the piece is on the competing conceptions of heterosexual morality that underlie these two arguments. My central claim is that both sides fail to address women’s actual felt desires either for sex or pregnancy. Natural law advocates generally celebrate all non-contracepted marital sex regardless of women’s desires for either the sex or the pregnancy that is its foreseeable consequence. Likewise, sexual libertarians celebrate all consensual sex regardless of women’s desires.
This erasure of the relevance of women’s desire, or lack of desire, to the morality of heterosexual intercourse and pregnancy causes women harm, and is a condition of women’s subordination. The current legal clashes over birth control have marginalized the harms. This piece seeks to re-center them.
Thursday, August 13, 2015
Tuesday, August 11, 2015
Given today's headlines about defunding Planned Parenthood, I am appreciating reading the following biography of PP's founder, Margaret Sanger which I've had on my shelf for awhile. Jean Baker, Margaret Sanger: A Life of Passion. The book does a good job of providing historical and social context, legal nuance, as well as readable biography.
The National Women's Law Center explains the existing law of pharmacists' "right" to refuse to dispense contraception. Pharmacy Refusals 101
Refusal to Dispense Contraception are Increasing
- Reports of pharmacies refusing to fill prescriptions for birth control—or provide EC—have surfaced in at least twenty-five states across the nation, including: AZ, CA, DC, GA, IL, LA, MA, MI, MN, MO, MT, NH, NJ, NY, NC, OH, OK, OR, RI, TN, TX, VA, WA, WV, WI.
- These refusals to dispense prescription contraceptives or provide EC are based on personal beliefs, not on legitimate medical or professional concerns. The same pharmacies that refuse to dispense contraceptives because of personal beliefs often refuse to transfer a woman’s prescription or refer her to another pharmacy. These refusals can have devastating consequences for women’s health.
- Despite the fact one type of EC is available without a prescription, refusals based on personal beliefs are still a problem. Some stores prefer to keep non-prescription EC behind the counter or in locked cases, so individuals seeking it must interact with pharmacists or other pharmacy staff who may have personal beliefs against providing the drug.
The Legal Landscape: What Governs the Practice of Pharmacy?
- The laws governing pharmacies vary from state to state. Pharmacies must abide by state laws and regulations, which are written by the state legislature and the state Pharmacy Board.
- The laws and regulations in most states do not specifically speak to the issue of pharmacy refusals based on personal beliefs. States that provide general guidance about when pharmacies or pharmacists may refuse to dispense tend to limit the reasons for such a refusal to professional or medical considerations—such as potentially harmful contraindication, interactions with other drugs, improper dosage, and suspected drug abuse or misuse—as opposed to personal judgments.
- Many pharmacist associations that have considered this issue, including the American Pharmacists Association, have issued policies requiring that patient access to legally prescribed medications is not compromised—for example by either filling valid prescriptions or transferring them to another pharmacist who can. Although such policies are not legally binding, they encourage pharmacies to meet consumers’ needs.
Thursday, July 16, 2015
Women in Oregon will soon be able to receive birth control prescriptions from pharmacists, thanks to a new law signed by Gov. Kate Brown this week. Under the new rule, birth control can be obtained without the added burden of scheduling a doctor’s visit. The bill passed the state’s house in a 50-10 bipartisan vote.
To get birth control from a pharmacist, women over 18 will have to fill out a simple health questionnaire so that pharmacists can recommend the best contraceptive method for them. Those under 18 will need proof of a previous birth control prescription, but aren’t required to get a new one. The contraception will still be covered by the patient’s insurance.
State Rep. Knute Buehler (R) celebrated the bill in a press release, saying that his background as a medical professional informed his beliefs on access to contraception.
Tuesday, June 23, 2015
On Monday, the Fifth Circuit—one of the most conservative appeals courts in the country—rejected a challenge to the Affordable Care Act's contraceptive mandate in an opinion written by Judge Jerry E. Smith—one of the most conservative federal judges on the bench. The challenge, brought by nonprofit religious groups, claimed that the mandate violated the Religious Freedom Restoration Act (RFRA) by forcing these groups to sign a form that would eventually allow their employees to access contraception. In a concise, emphatic opinion, the court ruled that the mandate complies with RFRA. ***
The religious groups currently suing the government claim that the act of submitting this form constitutes a substantial burden on their religious exericse, in violation of RFRA. Signing the form, they argue, will set into motion a chain of events that ultimately allows their employees to gain access to contraception. The Third, Sixth, Seventh, and D.C. Circuits have already rejected this argument; the Fifth Circuit now joins their ranks. At the heart of the court's opinion is this remarkable passage:
Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.
Saturday, June 6, 2015
This week a bipartisan group of four senators introduced a bill, dubbed the Pregnant Workers Fairness Act. It borrows language from the Americans With Disabilities Act and seeks to strengthen and clarify the “reasonable accommodations” that employers must make for pregnant employees.
The bill in and of itself it significant. But it's also significant in another sense -- in that it marks a clear and public turn away from decades of feminist thinking about the absolute interchangeability of male and female workers.
Advocates say the bill is built around a series of modern and pragmatic ideas that will directly aid the estimated 250,000 women each year who ask their employers for reasonable pregnancy-related work accommodations connected to their pregnancies -- we’re talking bathroom breaks, time for doctor’s appointments, restrictions on lifting and/or a nearby water bottle to remain hydrated – and see those requests denied. (That quarter-million women each year figure, by the way, comes from a 2014 survey conducted by the National Partnership for Women and Families.) What’s worse, at least some of these women instead wind up losing their jobs and the health insurance benefits that come with them.
The new issue of the Hastings Women's Law Journal, summer 2015.
Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother by Rona Kaufman Kitchen
Medicaid as Coverture by Thomas E. Simmons
Mitigating the Employer's Exposure to Third-Party Claims of a Hostile Work Environment by John A. Pearce II and Ilya A. Lipin
Saturday, May 30, 2015
The Pregnant Workers Fairness Act (PWFA) would let pregnant workers continue to do their jobs and support their families by requiring employers to make the same sorts of accommodations for pregnancy, childbirth, and related medical conditions that they do for disabilities.
Tuesday, May 26, 2015
Deborah Brake, On NOT "Having it Both Ways" and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, 95 Boston U L. Rev. 995 (2015)
From the abstract:
This article . . . reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it - a warning Williams followed with an argument for the equal treatment approach. The Pregnancy Discrimination Act (PDA), which amended Title VII in 1978, largely tracks the equal treatment model, setting a floor tying the treatment of pregnant women to that of other workers with similar health-based work restrictions. The model’s greatest promise was that it would avoid the backlash that would otherwise ensue if Title VII required employers to treat pregnancy more favorably than they treated other medical conditions. Equal treatment proponents framed their preferred approach as taking the long view, ensuring that as the boats of other workers rose, so too would those of pregnant employees. In the intervening years, this cautious optimism has not panned out. This article explores what lies beneath judicial resistance to pregnancy discrimination claims, and considers the future of the PDA after the Supreme Court’s decision (which was issued shortly before this article went to press) in Young v. UPS. It wraps up with a look at the recent pregnancy discrimination scholarship, contending that the rift posited between pro-maternity and anti-stereotyping discourses might be breached by greater attention to fostering egalitarian masculinities in relation to caretaking.
Thursday, May 21, 2015
Jill Lepore, To Have and to Hold, New Yorker
This spring marks the fiftieth anniversary of the case that went forward instead: Griswold v. Connecticut. (“We became the footnote to the footnote,” Trubek told me.) In Griswold, decided in June, 1965, the Supreme Court ruled 7–2 that Connecticut’s ban on contraception was unconstitutional, not on the ground of a woman’s right to determine the timing and the number of her pregnancies but on the ground of a married couple’s right to privacy. “We deal with a right of privacy older than the Bill of Rights,” Justice William O. Douglas wrote in the majority opinion. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
Tuesday, April 21, 2015
(Reviewing Saru M. Matambanadzo (Tulane), The Fourth Trimester, 48 U. Mich. J.L. Reform, 117 (2014)).
In The Fourth Trimester, Saru Matambanadzo braids personal narratives of her own pregnancy and birthing experience with legal analysis and with concepts and research from nursing and midwifery to craft a rich and courageous critique of current employment law’s application to pregnant women and new mothers. Matambanadzo’s thesis is that the law erroneously treats pregnancy as a discrete nine-month timeframe when in fact the physical and emotional effects of pregnancy linger, extending “into the first three months after delivery, and sometimes beyond.” (P. 124). She also addresses the shortcomings of laws that protect against pregnancy discrimination more generally. The Fourth Trimester concretely illuminates the ways in which the limitations of the current framework of federal law disadvantage workers who become pregnant and give birth by, for example, failing to adequately support breastfeeding and to provide the time needed after birth for the mother-infant dyad to become less interdependent.
Tuesday, March 31, 2015
Prof. Nancy Dowd at the U of Florida had asked me to post this:
The Supreme Court Clinic of the University of Texas School of Law is planning to file an amicus brief in support of a cert petition in a family law/gender discrimination case and is seeking legal scholars to sign onto the brief as amici. The cert petition was filed on behalf of an unwed father who was prevented from objecting to the adoption of his newborn son. The father and the mother of the child were not married. Before the child was born the father filed a petition in state court seeking to establish paternity and also to establish custody, parent time, and child support. He also registered with Utah’s putative father registry with a sworn and notarized form, agreed to a court order of child support, and offered to assist the mother with her pregnancy-related expenses. Due to his lawyer’s oversight, unfortunately, he failed to timely file an affidavit attesting to his ability to provide for the child and setting forth his plans for care of the child, as required by Utah statute. Adoption proceedings were initiated when his son was three days old. When the adoptive parents notified the father of their intent to adopt his son without his consent, the father moved to intervene in the adoption proceeding. The adoptive couple opposed the father’s motion to intervene, based on the father’s failure to file the affidavit attesting to his ability to provide for the child and setting forth a plan for the child’s care. The court held that the father’s failure to file that affidavit left him with no rights at all regarding his three-day old son, and that this default could not be cured by a late filing. Accordingly, the father’s newborn child was placed for adoption over his objections, solely because he failed to file an affidavit, as required by state law, attesting that he was able and willing to take custody of the child and setting forth his plans for care of the child. Utah law requires unwed fathers, but not unwed mothers, to file such an affidavit before they can assert any claim to parental rights. The father challenged the affidavit requirement in state court on federal and state constitutional grounds, claiming that requiring unwed fathers but not unwed mothers to file such an affidavit was a violation of the Equal Protection Clause. He also raised a substantive due process challenge to the affidavit requirement. The district court rejected his claims and the Supreme Court of Utah affirmed. On the equal protection claim, the Utah Supreme Court acknowledged that requiring an unwed father, but not an unwed mother, to file an affidavit about future support plans is a sex-based classification triggering intermediate scrutiny, but applied a lower level of scrutiny because it found that the affidavit requirement was not particularly burdensome. Under this lower standard, the court held that the different treatment was constitutional because the affidavit requirement was a way to make unwed fathers demonstrate their commitment to the child’s best interests, while unwed mothers demonstrated such a commitment simply by carrying the child to term. According to the Utah Supreme Court, the affidavit requirement put the parents on “equal footing” regarding a demonstrated commitment to the wellbeing of the child. Professor Eugene Volokh of UCLA has filed a cert petition on behalf of the father, arguing that once an unwed father has made himself known, sought to establish his rights to the child, filed a petition for custody and an agreement to court ordered child support, imposing the additional requirement of an affidavit setting forth a care plan on the father but not the mother is a violation of the Equal Protection Clause. The University of Texas School of Law’s Supreme Court Clinic plans to file an amicus brief in support of the petition, urging the Court to grant the case. We are seeking family law scholars and gender discrimination law scholars to sign on to the brief as amici, urging the Court to grant cert. Amicus briefs filed at the cert stage are a very important tool for convincing the Court that the issues raised in the case are important and that the case warrants the Court’s attention. Our current plan is to file a brief outlining the demographic trend toward more out-of-wedlock births and thus the importance of the issue of the constitutional standard for gender-based differences in the treatment of unwed fathers and unwed mothers. We will then explain that this case raises two important issues that the Court has left open in its prior equal protection decisions about fathers and mother and that it tried unsuccessfully to resolve in Flores-Villar v. US several years ago. In particular, the case raises the questions of (1) the constitutionality of gender-based distinctions between unmarried mothers and unmarried fathers that do not help clarify paternity and (2) what “substantial connection to the child” means in the context of a newborn baby. More concretely, this case presents the very important issue whether a state can impose on the unmarried father of a newborn baby a burden to prove his willingness and ability to provide for a child even though he has diligently asserted his paternity and sought custody of the child, when it imposes no equivalent burden on the unmarried mother of the child. Finally, we will argue that the gender-based differences in this statutory scheme lack a rational basis because they rely on outmoded and inaccurate stereotypes about mothers and fathers. At this stage, we are looking for signatories to help refine and elaborate on these arguments. The sooner we have involved signatories, the better we can represent their views and promote their interests. The amicus brief is due on April 13, 2015, and the Clinic needs to give notice of its intent to file by this Friday, April 3, 2015 – and needs signatories by then. Anyone interested in being part of this effort can get more information (including an outline of the proposed brief) by emailing Clinic Director Lynn Blais at firstname.lastname@example.org, or calling her at 512-232-1334.
Monday, March 16, 2015
Marie Ashe (Suffolk) has uploaded a new paper about the ministerial exception and its relationship to the area of gender and law. The abstract:
The US Supreme Court’s Hosanna-Tabor opinion, defining a Constitutionally-rooted “ministerial exemption” of churches from the obligations of anti-discrimination laws, utilized an “absolutist” approach that has been contrasted with the “balancing” approach to the same issue taken by the European Court of Human Rights. Focusing on Hosanna-Tabor, this essay provides analysis of the implications of the case by identifying its location in – and its contribution to – the program of “religious privilege” that has been advanced the Supreme Court during the past 25 years. The essay documents relevant Constitutional case law and statutes; outlines the evolution of the “ministerial exemption;” and, points to losses of individual equality that are being accomplished concurrently with great expansions of “religious liberty” and with abandonment of meaningful “separationism” in the US. Accepting the critique of “absolutism,” the essay suggests, further, that Hosanna-Tabor and other recent work of the Court lack – but that resources extractable from US law of the “religious pluralism” period can provide – conceptual resources useful for protection of individuals’ equality and for minimizing “divisiveness based on religion.”
Friday, March 6, 2015
Friday, February 27, 2015
The South Korean Constitutional Court recently held that prohibitions against adultery were unconstitutional. From the NYT:
South Korea’s Constitutional Court on Thursday struck down a 62-year-old law that made adultery an offense punishable by up to two years in prison, citing the country’s changing sexual mores and a growing emphasis on individual rights.
By contrast, the U.S. Supreme Court has so far refused to make an analogous statement. Check out the Mother Jones article (a bit outdated, though) .