Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, March 24, 2017

Judicial Interactions at SCOTUS Oral Arguments are Highly Gendered

Tonja Jacobi & Dylan Schweers, Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments, 103 Virginia L. Rev. (forthcoming 2017).

This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.

For another report reaching a similar conclusion, see Study Shows Male Justices Interrupt Female Justices More During Oral Argument

March 24, 2017 in Courts, Gender, SCOTUS | Permalink | Comments (0)

Would Gorsuch Follow Supreme Court Precedent on Pregnancy Discrimination

Gillian Thomas, Would Gorsuch Follow Supreme Court Precedent Rejecting Discrimination?

A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.

 

Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.

 

Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.

 

There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.

 

In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”

 

A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.

 

In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.

For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016). 

March 24, 2017 in Constitutional, Judges, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, March 21, 2017

Following the Changes in the Supreme Court's Abortion Law

Mary Ziegler,  The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

 

March 21, 2017 in Abortion, Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Monday, March 20, 2017

EEOC Enforcement Guidance on Employer Questioning about Pregnancy

In light of the article Amid Charges By Former Law Student On Gender Equality, Former Clerks Defend Gorsuch, here's a summary by the Equal Employment Opportunity Commission on what the existing state of the law is (and which a future SCOTUS could change) regarding employer treatment based on existing or intended pregnancy.

Questions and Answers about the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues

These Questions and Answers address the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) originally released on July 14, 2014, and recently updated in light of the Supreme Court's decision in Young v. United Parcel Serv., Inc., --- U.S. ---, 135 S. Ct. 1338 (2015). The updated Guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.***

1. What workplace actions are prohibited under the PDA?

Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).***

3. May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?

Although Title VII does not prohibit employers from asking applicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. The EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Adverse decisions relating to hiring, assignments, or promotion, that are based on an employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.

March 20, 2017 in Constitutional, Pregnancy, SCOTUS | Permalink | Comments (0)

Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech

Petition for Certiorari, National Institute of Family & Life Advocates v. Becerra

QUESTION PRESENTED

The State of California enacted a law called the “Reproductive FACT Act.” The State admits its purpose is targeting “crisis pregnancy centers” based on their viewpoint that “discourag[es]” abortion. The Act forces pro-life religious licensed centers to post notices that encourage women to contact the State to receive information on free or low cost abortions. The Act also burdens pro-life religious unlicensed centers’ speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise. But the Act exempts most other licensed medical and unlicensed non-medical facilities, such as abortion providers, hospitals, and other healthcare facilities, as well as federal health care providers. The Ninth Circuit candidly admits that it upheld the Act amidst a “circuit split” with decisions by the Second and Fourth Circuits over how to scrutinize regulations of speech by medical professionals on controversial health issues. The ruling also conflicts with a recent decision by the Eleventh Circuit.

 

The question presented is: Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

The Ninth Circuit's decision below is here.

March 20, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Friday, March 17, 2017

Thinking through the Impact and Application of the Supreme Court's Decision in Whole Woman's Health

Mary Ziegler, The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

Abstract

The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

Abstract
The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

March 17, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Monday, March 13, 2017

Presentation: Lessons From Women Shortlisted for the US Supreme Court

Renee Knake presents, What Does it Mean to Be the First? Lessons from Women Shortlisted for the U.S. Supreme Court, with commentary by:

    Judge Vanessa Gilmore, U.S. District Court for the Southern District of Texas
    Diane Ralston, Chief Legal Officer, TechnipFMC plc
    Doris Rodriguez, Partner, Andrews Kurth Kenyon

March 13, 2017 in Conferences, SCOTUS | Permalink | Comments (0)

Friday, February 17, 2017

Examing Why Women Lawyers are Less than 20 Percent of Advocates in the US Supreme Court

Jennifer Mika, The Noteworthy Absence of Women Advocates at the US Supreme Court, 25 American J. Gender, Social Policy & Law 1 (2016)

Abstract:     

Arguing before the U.S. Supreme Court is considered one of the most prestigious accomplishments in a litigator’s career. However, during the last five terms, women consistently make up less than one fifth of this elite club. This article takes a closer look at the advocates that argued before the Supreme Court during the 2015-2016 term as well as those who appeared more than once in a given term over the past six years. It explores the possible causes of the deficit in women advocates including gender disparity in Supreme Court clerkship experience. It strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.

 

February 17, 2017 in SCOTUS, Women lawyers | Permalink | Comments (0)

Monday, February 13, 2017

Study Shows Male Justices Interrupt Female Justices More during Oral Agument

Adam Feldman & Rebecca Gill, Echoes from a Gendered Court: Examining the Justices' Interactions during Supreme Court Oral Arguments

Abstract:      

Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.

This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.

 

February 13, 2017 in Courts, Judges, SCOTUS | Permalink | Comments (0)

Tuesday, February 7, 2017

Justice Ginsburg on Law School, Motherhood, and Her Groundbreaking Cases

Ruth Bader Ginsburg on the Perspective that Comes with Motherhood

Ruth Bader Ginsburg spent a large portion of her legal career advocating for women’s rights and was appointed as the second female justice to the Supreme Court in 1993. In this animated interview, she describes attending law school with a 14-month-old baby at home. Ginsburg attributes some of her career successes to her husband’s flexibility and the experience of being a mother. “I think I had better balance, better sense of proportions of what matters,” she says. "I felt each part of my life gave me respite from the other.”

This interview was conducted by Ryan Park for his story "What Ruth Bader Ginsburg Taught Me About Being a Stay-at-Home Dad".

February 7, 2017 in Courts, Family, SCOTUS, Women lawyers | Permalink | Comments (0)

Thursday, February 2, 2017

Greenhouse & Siegel on Whole Woman's Health and the Future of Judicial Regulation of Abortion

Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L. Forum (2016)

Abstract:      1

In this essay we consider the implications of Whole Woman’s Health v. Hellerstedt for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the Supreme Court’s decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict.

In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health. The Court required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.

A crucial aspect of the Court’s decision in Whole Woman’s Health is the guidance it provides judges in determining the burdens and benefits to balance in the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s experience of exercising their constitutional rights. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health. In these and other ways, Whole Woman’s Health robustly reaffirms judicial protection for the abortion right.

 

February 2, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Tuesday, January 31, 2017

Shortlisted: The Stories of the Women Considered, but not Nominated, to the Supreme Court

Hannah Brenner & Renee Newman Knake, Shortlisted, UCLA Women's L.J. (forthcoming)

Abstract:     

Mildred Lillie fortunately had no children, as the New York Times noted in 1971, and even in her fifties, maintained “a bathing beauty figure.” Lillie was not, however, a swimsuit model. She was one of President Nixon’s possible nominees to the United States Supreme Court. Shortlisted tells the stories of nearly a dozen extraordinary women considered for the Court, but ultimately not nominated, before Justice Sandra Day O’Connor became the first in 1981. The public nature of the nomination process enables us to analyze the scrutiny of these women by the profession and media, and analogize to those similarly not selected, elected, or appointed to political office, corporate governance, the judiciary, law firm partnership, and other positions of power. We find that the stories of those women who did not attain these various power roles are as compelling as those who did. Our work builds upon and transcends previous scholarly work on the theory of the “leaking pipeline” — i.e. that women enter the profession in numbers equal to men but do not advance — and dispels the persistent myth that there is a dearth of sufficiently qualified women. The framework for this project, exploring decades of women shortlisted to the Court pre-O’Connor from Presidents Roosevelt to Reagan, allows gender bias to be viewed in a vibrant historical context and illuminates ideas for future advancement of women in law and beyond. Shortlisted explores the gendered experiences of this elite group of women — both professional and personal — and situates their stories within the context of gender, judging, and the legal profession. This project is one of first impression. We are the first scholars to identify and assess these women together in light of their shared experience of being shortlisted. Their individual and collective stories have largely gone untold. Until now

 

January 31, 2017 in Courts, SCOTUS, Women lawyers | Permalink | Comments (0)

Monday, January 9, 2017

Reconsidering the Remedy of Gender Quotas in the US

I have just published the essay Reconsidering the Remedy of Gender Quotas, Harv. J. Gender & Law (online) (Nov. 2016).  It takes on the question of the legality of instituting a more permanent, structural reform for gender equality through the judicial mechanism of quotas.

Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial Band-Aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding, resistant systemic sex discrimination.5 And the way to achieve this goal of gender parity might be quotas.

 

“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Canadian Prime Minister Justin Trudeau's cabinet decision of 50/50 shows.

 

A quota remedy would require gender parity—proportional representation of women in positions of power. The proportion would match the gender distribution of the general population; so women as about 51% of the population should constitute 51% of the managers, boards, CEOs, legislatures, and law firm partners, as well as STEM majors and law students. Judges too, would then be 51% women (although Justice Ruth Bader Ginsburg suggested she would not stop there, opining that the Supreme Court would have the right number of women justices “[w]hen there are nine.”).

 

This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representatives to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.

 

Gender quotas have been highlighted in several places recently, including:

    United Nations "Planet 50-50 by 2030" Campaign for Women's Rights

    United Nations Council

    The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"

    The ABA Rule mandating diverse CLE panels

    A lawsuit challenging the gender and minority quotas for the Texas State Bar Board

    Federal contracts to small business owners

 

 

January 9, 2017 in Business, Constitutional, Courts, International, SCOTUS | Permalink | Comments (0)

Wednesday, November 9, 2016

SCOTUS Hears Equal Protection Challenge to Different Citizenship Requirements for Child Born to Unwed Fathers v. Unwed Mothers

 The case set for oral argument today is Lynch v. Morales-Santana

QUESTIONS PRESENTED

Whether sections 301 and 309 of the Immigration and Nationality Act of 1952 violate the Fifth Amendment’s guarantee of equal protection by requiring unwed citizen fathers to satisfy substantially more burdensome physical presence requirements than unwed citizen mothers in order to transmit derivative citizenship to their foreign-born children.

 Whether the court of appeals properly remedied the equal protection violation by extending to unwed citizen fathers of foreign-born children the same rights available to similarly situated unwed citizen mothers.

Here is the Second Circuit's opinion below, finding an Equal Protection violation.

November 9, 2016 in Family, International, SCOTUS | Permalink | Comments (0)

Tuesday, September 20, 2016

Sister Wives Stars File Cert to Supreme Court

Celebrity Plural Family Case Appeal Filed With the Supreme Court

“Sister Wives” TV star Kody Brown is taking his case to Washington, as his attorneys have filed a last-ditch Supreme Court appeal in Brown’s “plural family” case.

 

George Washington University law professor Jonathan Turley filed a request for the high court to take Brown’s appeal. Since 2010, Brown and his four “Sister Wives” have starred in a reality show on the TLC network that documents their lifestyle in Utah and Nevada.

 

Brown has been in court trying to determine if there is a constitutional right to his plural family lifestyle. Brown is legally married to one woman and also “spiritually married” to three other women at the same time. Two years ago, Brown and his attorneys won a significant victory in a federal court in Utah.

 

Before that in 2011, Brown sued the state of Utah after episodes of “Sister Wives” were shown on TLC, and Utah County Attorney Jeff Buhman threatened to prosecute Brown under the state’s anti-polygamy laws. Brown and his family moved to Nevada in reaction to the threat from Buhman. Then, Buhman adopted policies that would exempt the Brown family from the Utah law.

 

A federal judge, Clark Waddoups, handed Brown’s cause a big victory when he struck down part of a Utah state law making it a crime to “cohabit with another person” if the partners weren’t legally married to each other. The state of Utah then appealed the decision to the U.S. Court of Appeals for the Tenth Circuit, which overturned the decision made by Waddoups. A three-judge federal appeals court panel ruled the case as “moot,” since Brown didn’t face prosecution from Utah County.

 

After failing to get the full Tenth Circuit bench to hear Brown’s appeal, Turley filed paperwork with the U.S. Supreme Court on Monday, arguing that the case was about Brown’s constitutional rights.

September 20, 2016 in Constitutional, Family, SCOTUS | Permalink | Comments (0)

Tuesday, July 12, 2016

From Standing With Planned Parenthood to Moving Forward

 Photo

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. 

July 12, 2016 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, July 6, 2016

Court Holds EEOC Met Obligation to Conciliate Sex Bias Claim

BNA, EEOC Met Obligation to Conciliate Sex Bias Claim  

The Equal Employment Opportunity Commission met its obligation to try to settle, or conciliate, a sex discrimination claim before suing a health-care provider, a federal district court in Maryland decided (EEOC v. Dimensions Healthcare Sys., 2016 BL 169980, D. Md., No 15-2342, 5/27/16 ).

 

After the EEOC sued alleging Dimensions Healthcare System denied a promotion to a female employee because of her sex, the company contended the agency hadn't adequately tried to conciliate the claim before the lawsuit. The EEOC didn't meet its pre-lawsuit obligations under Title VII of the 1964 Civil Rights Act, Dimensions argued.

 

Applying Mach Mining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (U.S. 2015) (82 DLR AA-1, 4/29/15), the district court said evidence that the EEOC invited Dimensions to “informally resolve” the sex bias claim, sent a conciliation proposal to the employer and informed Dimensions that conciliation had failed after two months had elapsed satisfied the agency's obligation.

 

“We are pleased that courts consistently apply” Mach Mining in a way “that recognizes the ‘expansive discretion' the [EEOC] has in the conciliation process, and that ensures the focus of commission litigation is on the merits of the case,” EEOC General Counsel P. David Lopez said in a June 1 e-mail to Bloomberg BNA.

July 6, 2016 in Equal Employment, SCOTUS | Permalink | Comments (0)

Tuesday, July 5, 2016

Books: Fair Labor Lawyer

Marlene Trestman, Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin (2016)

As a trailblazing attorney, Bessie Margolin lived a life of exceptional achievement. At a time when the legal profession consisted almost entirely of men, she earned the esteem of her colleagues and rose to become one of the most successful Supreme Court advocates of her era. Doing so, as Marlene Trestman demonstrates inFair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin(Louisiana State University Press, 2016), required overcoming not just the ingrained assumptions that men had towards professional women during that time but also the poverty of her early childhood and the loss of her mother when Margolin was only three years old. As Trestman reveals, Margolin exploited to the full the opportunities she was given as a ward of the Jewish Orphans Home in New Orleans, which provided her with a comfortable upbringing and a good education. From Newcomb College and Tulane University, Margolin went on to a fellowship at Yale University and a career in the federal government, which she began by participating in the defense of some of the most important laws to come out of President Franklin Roosevelt’s New Deal program and concluded by championing measures mandating equal pay and opposing age discrimination. And yet Trestman shows that for all of the sacrifices she made to establish a career for herself, Margolin did so on her own terms and in a way that many Americans can relate to today.

 

July 5, 2016 in Books, SCOTUS, Women lawyers | Permalink | Comments (0)

Wednesday, June 29, 2016

Commentary on the Voisine Case and Banning Guns for Serial Domestic Abusers

Slate, In Voisine SCOTUS Says Domestic Abusers Can't Have Guns. If Only Someone Would Enforce It.

From a prior post here on Gender Law Prof Blog, on Justice Thomas in Voisine oral argument, Justice Thomas Breaks 10-Year Silence to Question Federal Ban on Guns in Domestic Violence

On the interesting affiliation of Thomas and Sotomayor in the dissent, see Noah Feldman, When Opposites Converge Over Domestic Violence, Chicago Tribune.

What Thomas and Sotomayor share in common -- along with being the court's two members of racial minorities -- is a long-term concern with the overreach of federal criminal law.

 

Thomas's worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor's concern is more with the status of the individual defendant, who may be subject to long federal sentences.

 

June 29, 2016 in SCOTUS, Violence Against Women | Permalink | Comments (0)

Monday, June 13, 2016

SCOTUS Upholds Serial Offender Provisions of Tribal Domestic Violence Act

Justice Ruth Bader Ginsburg wrote the opinion for a unanimous Court in US v. Bryant holding that two convictions of domestic violence in tribal court without provision of counsel can be put together to constitute "serial offenses" which are felonies under federal law.

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders. Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084. Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings. 

The Court held that the use of the uncounseled convictions did not violate the defendant's Sixth Amendment or Fifth Amendment due process rights.

Justice Ginsburg spent much of the opening pages of the opinion detailing the problem of domestic violence against Native American women.

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner.  American Indian and Alaska Native women “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.” American Indian women experience battery “at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women,” and they “experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among Black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women.” As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence “often escalates in severity over time.” 

 Justice Thomas wrote a concurrence questioning the Court's precedents on federal tribal jurisdiction:

It is time that the Court reconsider these precedents. Until the Court ceases treating all Indian tribes as an undifferentiated mass, our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty. And, until the Court rejects the fiction that Congress possesses plenary power over Indian affairs, our precedents will continue to be based on the paternalistic theory that Congress must assume all encompassing control over the “remnants of a race” for its own good. 

 

 

June 13, 2016 in SCOTUS, Violence Against Women | Permalink | Comments (0)