Reproductive Rights Prof Blog

Call for Papers: Lavender Law 2013 Junior Scholars Forum

Lavender Law 2013, San Francisco, CA - August 22-24 - Invitation and Call for Papers:

Junior Scholars Forum

Dear Friends and Colleagues,

This year the Lavender Law® Conference & Career Fair will be held August 22-24, 2013 at the Marriott Marquis in San Francisco, CA. Lavender Law brings together the best and brightest legal minds in the lesbian, gay, bisexual, and transgender (LGBT) community.

To celebrate our community of scholars, Lavender Law® is hosting a Junior Scholars Forum again this year. If you are a junior law professor (teaching 6 years or fewer), or a recent law school graduate or fellow who is writing scholarship focusing on the nexus between the law, gender, and sexuality, we encourage you to submit a proposal for consideration. Proposals can be in the form of a full draft or in the form of an expanded abstract (approximately 1-2 pages in length).

If your proposal is accepted, you will be invited to present your work at the 2013 Lavender Law conference.

To submit a proposal for consideration, please email your submission to: scholars@lgbtbar.org, and cc: Courtney Joslin (cgjoslin@ucdavis.edu).

The deadline for submissions is June 15, 2013.

Linda Greenhouse and Reva Siegel on Roe, Perry, and Court-Caused Backlash

Linda Greenhouse (Yale Law School) and Reva Siegel (Yale Law School) have posted Backlash to the Future? From Roe to Perry on SSRN. Here is the abstract:

Does a judicial decision that vindicates minority rights inevitably give birth to a special kind of backlash, a more virulent reaction than legislation achieving the same result would produce? We examine this question with respect to Roe v. Wade, so often invoked as the paradigmatic case of court-caused backlash, and with the pending marriage cases in mind. As we have shown, conflict over abortion escalated before the Supreme Court ever ruled in Roe, driven by movements struggling over legislative reform and Republican Party efforts to recruit voters historically aligned with the Democratic Party. These and other features of the abortion conflict suggest that the Court's decision in Roe was not the abortion conflict's sole or even its principal cause.

When change through adjudication or legislation threatens the status quo, it can prompt counter-mobilization and "backlash." We do not doubt that adjudication can prompt backlash. But we do doubt that adjudication is distinctively more likely than legislation to prompt backlash and that the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement.

Opposition to Abortion and Marriage Equality No Longer Go Hand in Hand

The Washington Post - WonkBlog:  States are cracking down on abortion—and legalizing gay marriage. What gives?, by Sarah Kliff:

Tuesday marked for a watershed day for gay rights activists as the Supreme Court heard oral arguments on a case with the potential to legalize same-sex marriage across the country.

Across the country and 1,500 miles west of Washington, an equally notable event took place: North Dakota enacted the country’s most restrictive abortion law, barring all procedures after six weeks.

For decades, support (or opposition) for gay marriage and abortion went hand in hand. They were the line-in-the-sand “values” issues that sharply divided the political parties.

Not anymore. . . .

More Fretting About Roe v. Wade as Supreme Court Addresses Marriage Equality

Below, another article that assumes that Roe v. Wade nipped inevitable state reform in the bud and fueled the anti-choice movement.  As mentioned in Friday's post, it's far from clear that this is true. Reform had largely stopped by 1973, and those few reform laws that were enacted were not even as protective as the Roe decision.  (New York's pre-Roe reform law, for example, is still on the books, and it bars all but life-saving abortions after 24 weeks, regardless of viability and with no health exception. This is one of the reasons why the Reproductive Health Act, championed by Governor Cuomo, is needed.) And there are surely many conservative states -- including those now passing early abortion bans, like Arkansas and North Dakota -- that would never have liberalized their laws.  When a right is fundamental, it's the Supreme Court's job to ensure that it is protected nationwide and is not subject to the state in which a person resides.

The New York Times: Shadow of Roe v. Wade Looms Over Ruling on Gay Marriage, by Adam Liptak:

When the Supreme Court hears a pair of cases on same-sex marriage on Tuesday and Wednesday, the justices will be working in the shadow of a 40-year-old decision on another subject entirely: Roe v. Wade, the 1973 ruling that established a constitutional right to abortion. . . .

See also: The Los Angeles Times - LA Now: As Supreme Court considers gay marriage, abortion comparisons rise, by Robin Abcarian.

Comparing a Supreme Court Decision on Same-Sex Marriages to Roe v. Wade

The Economist - Democracy in America blog: A hard Roe to hoe, by J.F.:

TO WHAT extent does the debate over same-sex marriage resemble the debate over abortion? Both involve thorny, intersecting questions of religious freedom, personal liberty and sex. Both involve conflicting narratives and costs. The division between the two sides is wide, and like many debates fuelled by religious fervour; at times it risks becoming absolute. But not always: witness the conversion of Rob Portman, a conservative senator from Ohio, from gay-marriage opponent to supporter thanks to the coming-out of his son. Mr Portman came to realise that gay marriage represents not "a threat but a tribute to marriage, and a potential source of renewed strength for the institution." Indeed. . . .

___________________________________________

This author adopts the common (but, I think, questionable) position that Roe v. Wade "short-circuited a growing state-level trend toward liberalisation of abortion laws" and  "galvanised, perhaps even created, the pro-life movement."  For a different perspective, see Before (and After) Roe v. Wade: New Questions About Backlash, by Linda Greenhouse & Reva B. Siegel.

The Guardian Offers Timeline of "2012 War on Women"

The Guardian: The War on Women, by Heather Long:

2012 was a tough year for American females as various aspects of female health and reproduction repeatedly took center stage. Politicians and pundits, mainly Republican, made degrading and factually incorrect remarks about rape and contraception. But Democrats also left their mark with an ill-timed snipe at stay-at-home mom Ann Romney, reinvigorating the "mommy wars".

Here are the key moments in the 2012 War on Women . . . .

Federal Sex Ed Bill Discourages Gender Stereotyping and Exclusion of LGBT Students

The Hill - Healthwatch Blog: Sex ed bill nixes 'gender stereotypes', by Elise Viebeck:

A new sex education bill would give grants to programs that reject gender stereotypes and embrace LGBT students. 

The legislation from Rep. Barbara Lee (D-Calif.), Sen. Frank Lautenberg (D-N.J.) and 32 other Democrats encourages a "comprehensive" approach to sex ed. . . . 

UN Report Condemns Surgeries on Intersex Children

Feminist Majority Foundation: UN Condemns "Normalization" Surgeries of Intersex Children:

Last week the United Nations released a report condemning the practice of performing "normalization" surgeries on intersex children.

The Special Rapporteur on Torture (SRT) to the United Nation's Human Rights Council submitted a report to the General Assembly that addressed the practice of surgically altering children born with ambiguous genitalia.According to the report [PDF], "Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery, performed without their informed consent, or that of their parents, 'in an attempt to fix their sex', leaving them with permanent, irreversible infertility and causing severe mental suffering.". . .

Young Montana Voters, Including Republicans, Lean Left on Social Issues

The New York Times: Young, Liberal and Open to Big Government, by Sheryl Gay Stolberg:

MISSOULA, Mont. — This funky college town, nestled along two rivers where five mountain ranges converge, has long been a liberal pocket, an isolated speck of blue in a deeply red state. Now Montana is electing more politicians who lean that way, thanks to a different-minded generation of young voters animated by the recession and social issues. . . .

Here in Missoula, young people who voted for Mr. Obama last year said in interviews that they would be open to voting Republican, particularly if a candidate supports same-sex marriage. Young Republicans, too, hope their party will shift on that issue.

“The social issues are hard,” said Ashley Nerbovig, a 19-year-old who backed Mr. Romney. “It’s not realistic that you can be against gay marriage and abortion.” . . .

Swedish Court Overturns Law Forcing Sterilization On Transgender People Seeking a Legal Change of Sex

Time:  Transgender People in Sweden No Longer Face Forced Sterilization, by Rebecca Nelson:

Until late last week one of Europe’s most progressive nations had one of the continent’s most repressive policies on transgender people. Swedish law had required all transgender people to undergo sterilization if they want to legally change their sex. In a Dec. 19 decision, the Stockholm Administrative Court of Appeal overturned the law, declaring it unconstitutional. . . .

Courtney Joslin on Marriage, Biology, and Federal Benefits

Courtney G. Joslin (University of California, Davis – School of Law) has posted Marriage, Biology, and Federal Benefits on SSRN. Here is the abstract:

This Article approaches the topic of same-sex marriage from a novel perspective by scrutinizing the historical accuracy of primary defense proffered by same-sex marriage opponents – “responsible procreation.” In the context of challenges to Section 3 of DOMA, responsible procreation posits that the federal government’s historic purpose in extending marital benefits is to single out and specially support families with biologically-related children. Because same-sex couples cannot fulfill this long-standing purpose, it is permissible to deny them all federal marital rights and obligations. While advocates disagree about whether and to what extent DOMA furthers this alleged federal interest, to date, all sides have accepted this historical account.

This Article is the first to interrogate the accuracy of this account. To do so, the Article examines two of the largest and most important federal benefits programs – Social Security benefits and benefits for active and retired members of the U.S. military. This analysis demonstrates that Congress has not and does not condition the receipt of federal family-based benefits on biological parent-child relationships. To the contrary, Congress long has implicitly and explicitly extended such benefits to families with children known to be biologically unrelated to one or both of their parents. This Article thus reveals that responsible procreation is based on myth, not history and tradition.

Detailed Florida Department of Health Sex Survey Raises Concerns

HuffPost Miami:  Florida Mails 'Offensive' Sex Survey to Young Women, by Brittany Wallman:

If you thought your friends were nosy about your sex life, wait until you see what the state wants to know.

Florida's Department of Health is asking for intimate details of the sex lives of 4,100 young women, and offering $10 gift cards in return.

State officials said the unprecedented $45,000 survey will help them understand women's need for and approach to family-planning services. . . . 

Courts Address Gay "Conversion Therapy"

The New York Times: Gay ‘Conversion Therapy’ Faces Test in Courts, by Eric Eckholm:

Gay “conversion therapy,” which claims to help men overcome unwanted same-sex attractions but has been widely attacked as unscientific and harmful, is facing its first tests in the courtroom.

In New Jersey on Tuesday, four gay men who tried the therapy filed a civil suit against a prominent counseling group, charging it with deceptive practices under the state’s Consumer Fraud Act. . . .

Christian Conservatives See Need to Regroup Following Election

The New York Times: Christian Right Failed to Sway Voters on Issues, by Laurie Goodstein:

Christian conservatives, for more than two decades a pivotal force in American politics, are grappling with Election Day results that repudiated their influence and suggested that the cultural tide — especially on gay issues — has shifted against them.

They are reeling not only from the loss of the presidency, but from what many of them see as a rejection of their agenda. They lost fights againstsame-sex marriage in all four states where it was on the ballot, and saw anti-abortion-rights Senate candidates defeated and two states vote to legalize marijuana for recreational use. . . .

Robin Wilson on Religious Exemptions from Contraceptive and Other Mandates

Robin Fretwell Wilson (Washington & Lee University School of Law) has published The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State in the Boston College Law Review. Here is the abstract:

This Article examines, and responds to, a number of “sticking points” voiced by legislators about a qualified exemption for religious objectors that would permit them to step aside from facilitating same-sex marriages so long as no hardship will result. These concerns bear an uncanny resemblance to reasons why some believe the Obama administration should not yield further on the coverage mandate. This Article maintains that religious accommodations qualified by hardship to others can transform what could be a zero-sum proposition into one in which access and religious freedom can both be affirmed.

Conservative Institute Launches Campaign to Block Access to Contraception, Abortion, and Same-Sex Marriage

Hunter of Justice: Conservatives launch "religious liberty" state lobbying network, by Nan Hunter:

The Center for Ethics and Public Policy has announced a new project that will establish bipartisan "religious liberty" legislative caucuses in every state by the end of 2013. Their goal will be blocking access to contraceptives, abortion and same-sex marriage. The campaign is starting with Arizona, Colorado, Florida, Idaho, Kansas, Missouri, New Hampshire, Oklahoma, and Tennessee. The network is designed to produce an on-the-ground capacity for lobbying in every state legislature, as well as more efficient coordination of national strategies. . . . 

Elizabeth Emens Presents "Asexual Identity and Sexual Law" at Columbia University

Institute for Research on Women and Gender at Columbia University presents:

Feminist Interventions: Professor Elizabeth Emens: "Asexual Identity and Sexual Law" with respondent Elizabeth Povinelli, Professor of Anthropology

Wednesday, October 17 6:00 - 8:00pm

754 Schermerhorn Extension

New Study Reports on Abortion Rates by Age in Countries with Liberal Abortion Laws

Guttmacher Institute – press release: Survey of Countries with Liberal Abortion Laws Finds Abortions Concentrated Among Women in their 20s, by Jessica Malter: 

Decline in American Teen Abortion Rate Puts United States on Par With Some Industrialized Counterparts, but More Progress Is Needed

A new study of countries with liberal abortion laws finds that abortion is more common among women in their 20s than among women of other ages, according to "Legal Abortion Levels and Trends by Woman’s Age at Termination," by Gilda Sedgh et al. of the Guttmacher Institute. A large body of research has shown that this group often wants to postpone childbearing, which would interrupt their ability to work or complete their schooling; in addition, many young adult women have yet to establish stable partner relationships. The current study found that recent declines in the teen abortion rate in the United States (now at 20 abortions per 1,000 women aged 15–19) have put the United States on par for the first time with several other industrialized countries, including England and Wales, Scotland, Sweden and New Zealand. This marks a considerable change from the mid-1990s, when the U.S. teen abortion rate was substantially higher than that of any other industrialized nation. . . .

Book Review of Naomi Wolf's "Vagina, A New Biography"

The New York Times:  Upstairs, Downstairs (book review of ‘Vagina: A New Biography,’ by Naomi Wolf), by Toni Bentley:

Sit back and relax, will you? Naomi Wolf has got her orgasm back. Yep. I know you were worried. We were all worried. I mean, to lose one’s orgasm at a time like this, what with Syria undergoing mass civilian murder and Romney closing in on Obama, it is really enough to put a liberated gal’s thong in a knot.

But Wolf didn’t just get back one of those little clitoral thingamajigs that Masters and Johnson so laboriously put back on the map after Freud had brushed them aside. Or rather inside, where he felt they belonged. She has reclaimed the Great Big Cosmic I-Am-a-Gorgeous-Goddess (Feminist-Goddess, that is) kind. Phew!

“Vagina: A New Biography” should have been an important book. A very important book. . . .

Reva Siegel on Dignity and Sexuality

Reva Siegel (Yale Law School) has posted Dignity and Sexuality: Claims on Dignity in Transnational Debates Over Abortion and Same-Sex Marriage on SSRN. Here is the abstract:

Dignity’s meaning is famously contested. This essay explores competing claims on dignity in late twentieth-century debates over abortion and in the first decisions on the constitutionality of abortion legislation that these debates prompted. Advocates and judges appealed to dignity to vindicate autonomy, to vindicate equality, and to express respect for the value of life itself. Appeals to these distinct conceptions of dignity are now appearing in debates over the regulation of same-sex relations. Analyzed with attention to competing claims on dignity, we can see that in the debate over same-sex relations, as in the debate over abortion, a crucial question recurs: Do laws that restrict non-procreative sexuality violate or vindicate human dignity? Agonists who hold fundamentally different views about sexuality share an allegiance to dignity, enough to fight for the authority to establish dignity’s meaning in debates over sexual freedom. Today, as in the 1970s, dignity’s meaning is being forged in cross-borders conflict over dignity’s sex.