On Thursday, a federal appellate court heard arguments concerning the rights of transgender student-athletes.
Thursday, October 6, 2022
Daiquiri Steele, Enduring Exclusion, 120 Michigan L. Rev. (2022)
Economic justice has long been a part of the civil rights agenda, and minimum labor standards statutes play a crucial role in eradicating the exploitation and subordination of historically marginalized workers. While statutes establishing labor standards are characterized as “universal,” their effect has been anything but universal. Racial and ethnic minorities, women, and those at the intersection experience disproportionate violations of labor standards laws concerning minimum wage, overtime, and occupational safety and health.
Through legislative maneuvering dating back to the New Deal era, Congress carved out many female workers and workers of color from core protections of minimum labor standards legislation. Due to the vigorous advocacy of civil rights groups, amendments to these statutes expanded coverage, making these statutes more inclusive of marginalized workers. Nevertheless, the exclusionary legacy of these New Deal era-laws lingers today. Black, Latinx, and female workers are more likely to be retaliated against for asserting rights or reporting employer misconduct pursuant to these statutes.
Tracing the racial and gendered origins of exemptions to labor standards statutes from the early twentieth century to the present, this Article argues that, despite expanded coverage, female workers and workers of color remain largely excluded from “universal” workplace protections. Although anti-worker forces previously sought to thwart creation of legal rights for marginalized workers, contemporary anti-worker campaigns seek to gut marginalized workers’ protections through actual and threatened retaliation. Examination of the traditional rationales for employer retaliation reveals that the retaliation disparity is incongruent with these conventional motivations. This Article argues that securing compliance with both minimum labor standards and anti-retaliation reform should be integral parts of the civil rights agenda.
MeToo's Landmark Yet Flawed Impact on Dispute Resolution in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
Imre Szalai, #MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Northwestern Journal of Law and Social Policy, Forthcoming
On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Amendment”) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the “FAA”), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. In a nutshell, the Amendment generally invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, and the Amendment thereby allows victims to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can have an impact on access to justice and shape how certain disputes are resolved.
While the goals of the Amendment are certainly laudable, the Amendment unfortunately suffers from several problems. Among other issues, the Amendment is poorly drafted, with at least three different interpretations concerning the scope of the Amendment, and it is uncertain whether the Amendment applies in the labor setting with collective bargaining agreements. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. The Amendment also raises several deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment and suggests future reforms for arbitration law.
Wednesday, October 5, 2022
India’s Supreme Court ruled on Thursday that all women, regardless of marital status, can obtain abortions up to 24 weeks into their pregnancies.
Previously, under India’s abortion law, married women could have abortions up to 24 weeks into their pregnancies, but single women were limited to 20 weeks. On Thursday, the court extended the 24-week period to all women.
The judgment was cheered by reproductive rights activists, who said the court had ensured that the law does not discriminate and expands the right to safe and legal abortions to single women.
“Now, all the rights that married women have, single women will also have,” said Aparna Chandra, an associate professor of law at the National Law School of India, who works on reproductive justice. In its judgment, the court “breaks away from the stigma that is attached to single women getting pregnant,” she said.
Abortion has been legal in India since 1971 under the Medical Termination Pregnancy Act. In 2021, the law was amended to allow certain categories of women -- including married women who were divorced or widowed, minors, rape victims or mentally ill women -- to obtain abortions up to 24 weeks, raising it from the previous 20 weeks. But the changes did not include single women, causing many to question why the law differentiated on the basis of marital status.
Donna Coker, Restorative Approaches to Intimate Partner Violence and Sexual Harm, Ohio State Journal on Dispute Resolution, Vol. 36, No. 5, 2021
The last several years have seen a dramatic increased interest in the U.S. for the use of Restorative Justice (RJ) responses to intimate partner violence (IPV) and sexual harm. This change is most apparent in sectors of the mainstream feminist anti-violence movement and is reflected (unevenly) in public policies. I have described this shift as a “reimagined movement to end gender violence.” This reimagining project encompasses not only a less carceral response to harm, but a greater focus on changes in the social conditions that create and maintain violence. It is focused on economic and racial justice, on better responses to trauma, and on violence interruption that relies less on the state and more on community. Additional changes in the RJ movement and the anti-mass incarceration movement have converged to create a moment of opportunity for significantly transforming responses to IPV and sexual harm. These movements and policy trends provide an opportunity for less punitive and non-carceral responses to IPV and sexual harm, including RJ, and simultaneously for RJ responses that are intentionally gender- and race-conscious, attending to both individual and system change.
The most common understanding of RJ practice is that in response to a specific harm, the stakeholders affected come together address the harm. The harm or injustice sought to be addressed may be interpersonal and regard recent events or it may be a historical harm or involve institutional responsibility. For cases involving contemporary harm, the common conception of RJ is a process that involves what I have termed matched dialogue—that is, a dialogue that, at a minimum, includes the person(s) who caused harm and the person(s) they harmed.
While matched dialogue describes a significant amount of RJ programming, it is an incomplete description. There are practices and programs centered on responses to specific contemporary harms that do not involve matched dialogue and there are restorative practices that are not centered on a response to harm, but rather on community-building, prevention, education, and empowerment.
I provide an overview of this broader understanding of restorative justice as it relates to responses to and prevention of IPV and sexual harm. I include descriptions of three distinct processes and describe some of the benefits of matched dialogue restorative responses to IPV and sexual harm, concluding with some cautions. I also describe the growing number of RJ programs that are community-based prevention, education, and community building.
Tuesday, October 4, 2022
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On Sept. 22, nine days after being sworn in as congressman, Ryan, D-Gardiner, introduced the “Protecting Reproductive Freedom Act.”
The bill would pre-empt state laws that prohibit women from accessing abortion medication through telehealth and would require a report to Congress on additional ways to expand access to reproductive health care.
“A woman’s right to choose is one of this country’s foundational freedoms, and there is no place for government interference in these private medical decisions, yet extremist state lawmakers are restricting access to FDA-approved abortion medication and even threatening to open Americans’ mail to stop the delivery of doctor-prescribed healthcare services,” Ryan said in a press release announcing the measure. “This legislation would ensure that women across the country can access this safe and effective medical treatment.”***
Since January, legislators in at least 20 states have proposed bills that would restrict or ban access to those abortion pills, which were approved more than two decades ago by the U.S. Food and Drug Administration, as well as bills that would require women to obtain those medications from a doctor in person
SCOTUS Case on Animal Welfare Could Implicate State Power to Ban Abortion Pills Under the Dormant Commerce Clause
In October, the Supreme Court will hear oral argument in National Pork Producers Council (NPPC) v. Ross—a challenge by the pork industry to a California law that was adopted by referendum in 2018. Proposition 12 sets minimum welfare standards for the pigs raised for meat sold in California. Nearly all pork products sold in California come from pigs raised in other states. Thus, the plaintiffs—representing pig farmers, butchers, and the pork industry nationwide—argue that California is unconstitutionally regulating the interstate market.
The Constitution assigns to Congress the power to regulate interstate commerce, and the Court has long held that even when Congress does not exercise that power—i.e., when the commerce power remains “dormant”—states may not take certain measures to regulate interstate. However, the lower court held that Prop 12 is not the kind of measure that the dormant Commerce Clause forbids.
The chief evil at which dormant Commerce Clause precedents aim is discrimination. States should not engage in trade wars with one another by erecting protectionist barriers against out-of-state competition.***The plaintiffs do, however, raise two other sorts of dormant Commerce Clause claim. First, they invoke the principle that even a non-discriminatory state law will be held invalid if its out-of-state burdens are clearly excessive relative to its in-state benefits. Second, they contend that Prop 12 is essentially an extraterritorial regulation. Just as Iowa could not forbid the recreational use of marijuana in California, so California may not tell farmers in Iowa and other states how to treat their pigs.***
[A]lthough the dormant Commerce Clause might not forbid states from banning importation of abortion pills from out of state, here the Commerce Clause does not lie dormant. Congress exercised its power to regulate the movement of medications in interstate commerce when it enacted the Food, Drugs, and Cosmetics Act. In so doing, Congress delegated to the Food and Drug Administration (FDA) the power to approve drugs. While states may still regulate the practice of medicine, there is pretty good reason to think that FDA approval of abortion pills pre-empts (that is, displaces and nullifies) state laws restricting their sale or use. By contrast, the plaintiffs in NPPC do not contend that any current federal statute pre-empts Prop 12.
Lauren Gilbert, To Procreate or not to Procreate: A Right to Self-Determination, Human Flourishing: The End of Law, Forthcoming
Real stories of pregnant women, past and present, shed light on how our laws have evolved to ensure greater recognition of a woman’s fundamental right to reproductive and family autonomy. Today, these rights are in jeopardy. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Center overturning the abortion right frames the issue in terms of the states’ interest in protecting human life; yet the implications for women’s health and human dignity are ignored. I look at several case studies implicating reproductive rights from 1924 to now. I then address Dobbs, concluding that the decision, by focusing on 1868 when women were excluded from the political process, disregards developments in women’s rights in the 20th century, defines fundamental rights too narrowly and ignores evidence of animus towards women seeking to control their reproductive destinies.
In Part I, I briefly review the common law history and treatment of unwed motherhood. In Part II, I recount some less well-known but illuminating details of the family history of Carrie Buck, who was forcibly sterilized in Virginia after the Supreme Court’s 1927 decision in Buck v. Bell. In Part III, I discuss the case of Anna Buck, who, to preserve her place in her community, hid her pregnancy and gave her baby, the bastard daughter of my great-grandfather, up for adoption. In Part IV, I tell my own story of single motherhood and the choices I made, including my own decision to have an abortion while I was living in Costa Rica, where abortions were illegal. In Part V, I discuss the Dobbs decision, and how its formalistic due process and equal protection analyses are compartmentalized so as to read out of existence any potential violations of a pregnant woman’s rights. I conclude that Dobbs is fundamentally flawed because, by focusing on 1868, a time when women were excluded from the political process, it disregards developments in women’s rights in the 20th century, defines the fundamental rights at stake too narrowly and, in finding no equal protection violation, ignores the evidence of animus towards women who seek to control their reproductive destinies.
Monday, October 3, 2022
Amanda Levendowski has posted a forthcoming article, Defragging Feminist Cyberlaw, on SSRN. The article is forthcoming in volume 37 of the Berkeley Tech. L. J. in 2023. The abstract explains:
In 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which creates tension with feminist values. Cyberlaw simply hasn’t been understood that way—until now.
In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how the feminist values of consent, accessibility, and safety shape cyberspace and the laws that govern it. Consent impacts copyright law and fair use, the DMCA, criminal laws, and free speech. The copyright doctrine of fair use allows other people to use copyrighted works without consent under certain conditions—and without concern for the desires of photographic subjects. The DMCA was enacted to prevent accessing others’ content without consent, which can include the distribute of nonconsensual intimate imagery. The latter issue has also encouraged scholars to call for new criminal laws combating consentless invasions of privacy and dignity. Two other laws, the ADA and the FOSTA/SESTA amendments to Communications Decency Act (CDA) Section 230, influence web accessibility. Plaintiff lawyers made web accessibility for disabled people an urgent legal issue by strategically suing corporations with inaccessible websites. But technological access is not the only hurdle for an accessible cyberspace. After the enactment of the FOSTA/SESTA amendments to CDA 230, sex workers found themselves increasingly isolated from the Internet due to overaggressive content moderation policies adopted by interactive service providers, a trend that bears out with other marginalized communities as well. And safety influences privacy law and the CFAA. Technologically tracking abortion doctors and pregnant people exposes those people to increased risks of harassment by both anti-abortion activists and police. Computers are used to spread hateful messages or fantasize about hurting women, but the CFAA cannot always be used to respond—often for the better. This Article concludes that feminist cyberlaw is a new term, but feminism has always been foundational to making sense of cyberlaw.
Thomson Reuters has published its 2022 volume of Women and the Law.
Women and the Law provides timely coverage of the major areas surrounding litigation of women’s rights. It collects the best legal research from top legal scholars in the past year and examines legal issues under current law as relevant to those practicing in the field.
The Table of Contents revealing the selected 2022 scholarship is available here.
This volume marks a transition to a new editorial model. Professor Tracy A. Thomas, of this blog, brilliantly edited this series from 2011 to 2021. The entire community of Women and the Law readers, authors, and editors extends its deepest gratitude to Professor Thomas for her leadership and commitment to advancing the impact of scholarship on women and the law. Professor Thomas’s last volume highlighted the centenary of the Nineteenth Amendment, which granted some, but not all, women the right to vote in the United States. This volume marks the start of the next one hundred years, asking the critical question: Where is the field of Women and the Law now and what trajectories is it following?
This volume pivoted to a collaborative approach to identifying the key articles. Daniela Kraiem (American University), Aníbal Rosario Lebrón (Rutgers University), and Jamie R. Abrams (American University) carried the series forward as Lead Editors. The Lead Editors worked collaborative with an Editorial Board that included Swethaa Ballakrishnen (University of California, Irvine); Nancy Chi Cantalupo (Wayne State University); April Dawson (North Carolina Central University); Elizabeth Kukura (Drexel University); and Stu Marvel (Emory Law).
Elizabeth Kukura has posted her essay, Punishing Maternal Ambivalence, on SSRN. The work is published in 90 Fordham Law Review 2909 (2022). The abstract previews:
There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into parents. These rituals and experiences are culturally salient, confirming that the participants are conforming to societal expectations about preparation and fitness for parenthood.But the transition from not being a parent to being a parent can take many different forms and embody different types of social meaning for the people involved. For some women, becoming a parent is much more fraught than the cultural narrative outlined here because they feel ambivalent about being a parent or about adding an additional child to their families. Maternal ambivalence has important, usually negative, social meaning and, increasingly, also legal significance for the mothers, children, and families involved. But the experience of ambivalence is usually invisible— something individual women feel privately and will perhaps share with trusted friends or a therapist, but which is not considered appropriate to discuss more publicly. The cloak of silence shielding these feelings from public awareness reflects the social stigma that attaches to maternal ambivalence, leading to emotional and psychological harm for some women who feel ambivalent about their pregnancies. The strength of this stigma enables feelings of ambivalence to be weaponized against pregnant and parenting women, sanctioning them for their deviance from social stereotypes regarding who is a “good” mother. This Essay explores the punishment of maternal ambivalence, drawing on three case studies to illustrate the strength of the stigma that attaches to such feelings. In these cases, the stigma of ambivalence turns such feelings into a weapon for disciplining women who fall short of societal expectations for mothers. These women (and others like them) are marked by social disadvantage, either because they are women of color in a racist society or because they are economically marginal, relying on low-wage jobs or an abusive husband in order to survive. Their race and class status may contribute to their ambivalence, making them reluctant to have a child whose basic needs they may not be able to satisfy. Such statuses also mark them for scrutiny and criminal sanction in a way that reflects not only gendered stereotypes but also racialized and class-based stereotypes about parental fitness and about who is deserving of society’s compassion and empathy.
Wednesday, September 28, 2022
Jennifer Drobac & Mark Russell, Unmasking Sexual Harassment: The Empirical Evidence for a New Approach
17 N.Y.U. J.L. & BUS. 315-390 (2021)
If moral outrage were enough, 50 years of antidiscrimination law and two full years of #MeToo should have led to the rapid remediation and elimination of sexual harassment by corporate decisionmakers. However, moral condemnation apparently is not enough, so this Article urges a multifaceted approach that combines (to start) research, financial analysis, disclosure, preventative cultural change, and remediation (if still needed). Through disclosure, it suggests a tactic that combines the goals of social entrepreneurship and profit maximization. Estimates suggest that sexual harassment costs U.S. business millions, if not billions, annually. However, most stock exchange-listed companies avoid financial disclosure or other reporting of sexual harassment claims. The onus for the invocation of Title VII and other antidiscrimination protections falls upon the victims and targets of abuse. Our research and empirical evidence demonstrate that corporations need to make changes to improve the proverbial bottom line. The disclosures that companies do make lack useful information for users of financial reports. Further, a high number of perpetrators of corporate sexual harassment are those with power—key executives and Chief Executive Officers (CEOs). Further, a number of non-disclosures of sexual harassment indicate poor management and culture at companies. Our results are consistent with companies that use arbitration and non-disclosure agreements (NDAs) to conceal sexual harassment. Our research supports a new SEC reporting requirement for all publicly traded companies (and a best practices approach for all organizations). Arguably, corporations would save much more by getting ahead of sexual harassment cases, disclosing problems, and avoiding expensive Title VII and shareholder derivative lawsuits. The evidence and common sense call for additional prophylactic action.
Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence
Benjamin C. Carpenter, Sperm is Still Cheap: Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence, Yale Journal of Law & Feminism, forthcoming 2022
Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their ex-wives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground—one party’s interests must yield to the other. To date, appellate courts in one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in nineteen cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 125 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.
Tuesday, September 27, 2022
Vivian Rotenstein & Valerie Hans, Gentlewomen of the Jury, Michigan Journal of Gender & Law, Forthcoming 2023
This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.” Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service. Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles. We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases. We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury. After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service. Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.
Monday, September 26, 2022
Wednesday is International Safe Abortion Day. The Center for Reproductive Rights has an updated map on the world's abortion laws:
The World Abortion Laws Map is the definitive record of the legal status of abortion in countries across the globe. Since 1998, the Center for Reproductive Rights has produced this map as a resource for advocates, government officials, and civil society organizations working to advance abortion rights as human rights for women and girls* around the globe. The map categorizes the legal status of abortion on a continuum from severe restrictiveness to relative liberality. It is updated in real time, reflecting changes in national laws so human rights advocates can monitor how countries are protecting—or denying—reproductive rights around the world.
The site includes a very useful infographic visually depicting 25 years of progress with nearly 50 countries liberalizing their abortion laws over time. It also includes a summary of recent developments in abortion law and policy.
Friday, September 23, 2022
The notion that the selflessness and tenderness babies require is uniquely ingrained in the biology of women, ready to go at the flip of a switch, is a relatively modern — and pernicious — one. It was constructed over decades by men selling an image of what a mother should be, diverting our attention from what she actually is and calling it science.
It keeps us from talking about what it really means to become a parent, and it has emboldened policymakers in the United States, generation after generation, to refuse new parents, and especially mothers, the support they need.
New research on the parental brain makes clear that the idea of maternal instinct as something innate, automatic and distinctly female is a myth, one that has stuck despite the best efforts of feminists to debunk it from the moment it entered public discourse.
To understand just how urgently we need to rewrite the story of motherhood, how very fundamental and necessary this research is, it's important to know how we got stuck with the old telling of it.
Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, Stanford L. Rev. (forthcoming)
For many Americans, Dobbs v. Jackson Women’s Health Organization signaled the end of things once thought secure: the constitutional right to reproductive autonomy, a vision of women as equal citizens, and the belief that the Supreme Court can rise above politics to protect cherished liberties.
To many anti-abortion groups, however, Dobbs was just the beginning. Merely permitting states to prohibit abortion was never the endgame; their goal has always been a nationwide ban. One path for accomplishing it runs through Congress in the form of a federal statutory ban. A second runs back through the Court in the form of constitutional fetal personhood, or the argument that an unborn fetus is a “person” whose life states would be compelled to protect under the Fourteenth Amendment.
In this Article, I examine the legal future of both pathways in light of the Dobbs majority’s own historical analysis. With respect to a federal abortion ban, many have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. I thus consider a different possibility: even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. For as Dobbs admits, every single state at the founding permitted abortion before quickening, at roughly 16-18 weeks of pregnancy. Dobbs’s own history and tradition test thus plausibly suggests a surprising result: a federal abortion ban may violate the Fifth Amendment Due Process Clause.
With respect to fetal personhood, Dobbs concedes that even as of the Fourteenth Amendment’s enactment in 1868, some states continued to permit abortion early in pregnancy. In truth, Dobbs severely undercounts that number: as many as 21 states, not the 9 Dobbs suggests, permitted pre-quickening abortion. This casts doubt on the fetal personhood argument because it shows that when the Amendment was ratified, most states did not understand unborn fetuses to be “persons” with respect to the precise question at hand. To recognize fetal personhood would require one to conclude that a majority of states were violating the very amendment they’d just ratified.
Thursday, September 22, 2022
Ohio Court Grants TRO Blocking Six Week Abortion Ban on Grounds of State's Health Care Freedom Amendment
I've been writing an essay for the Journal of Law, Medicine & Ethics on how state so-called Health Care Freedom Acts and Amendments enacted as symbolic protests to the individual insurance mandate of the federal Affordable Care Act provide an arguable basis for a recognized state right to abortion. The essay was a lot harder to write before last week, when the Ohio court rule on these grounds.
A Hamilton County judge overseeing a lawsuit challenging Ohio’s “heartbeat” abortion ban plans to issue a second order temporarily blocking the law, according to a lawyer involved in the case.
Judge Christian A. Jenkins, a Democrat, last week issued what’s called a temporary restraining order, pausing the law from being enforced for 14 days while he deals with arguments in the case.***
Once the second order comes, Ohio abortion clinics will be able to provide abortions up until 22 weeks from a woman’s last menstrual period at least through Oct. 12. That would extend the pause until after an Oct. 7 hearing Jenkins has scheduled for a more permanent order blocking the law while both sides argue their case.***
Jenkins has indicated he plans to rule in favor of abortion advocates, agreeing with their arguments that equal-protection guarantees contained in Ohio’s constitution covers the right to obtain an abortion. He noted a 1993 decision from a state appellate court that found the Ohio Constitution confers greater abortion rights than the U.S. Constitution, including a broad scope of the meaning of “liberty.”
The full opinion is here: Preterm Cleveland v. Yost (Ohio C.C.P. Sept. 14, 2022) (TRO Decision)
No great stretch is required to find that Ohio law recognizes a fundamental right to privacy, procreation, bodily integrity and freedom of choice in health care decision making. In 2011, the Ohio Constitution was amended by popular referendum to adopt the Health Care Freedom Amendment (Article I, Section 21) (“HCFA”). The plain language of subsections B and C of the HCFA is simple and clear: (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance. (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.
The State Defendants argue that the HCFA was intended by its drafters to provide a legal basis for Ohio and Ohioans to undermine or avoid the federal Affordable Care Act, not to outlaw health care regulation in Ohio. They point to the language in subsection (D) providing in pertinent part that “[t]his section does not . . . affect any laws calculated to deter fraud or punish wrongdoing in the health care industry” to suggest that the Amendment does not render health care regulations unconstitutional. But this misses the point – as a result of the HCFA, the Ohio Constitution contains a direct recognition of the fundamental nature of the right to freedom in health care decisions.
The fact that no one has yet challenged any existing health care regulations under the HCFA does not negate the import of its plain language.10 The HCFA does not define “health care,” but the use of the disjunctive “or” renders the term separate and distinct from the purported target of the amendment – health insurance. Abortion, whether procedural or medication, clearly constitutes health care within the ordinary meaning of that term. Moreover, the drafters could have excluded existing and future regulation of the health care profession, or even abortion specifically, but they did not.
Rather, the exception in subsection D is limited to fraud and the nebulous term, “wrongdoing,” without providing any definitional or interpretive guidance. Wrongdoing is defined as “illegal or improper conduct.” Black’s Law Dictionary 1932 (11th Ed.2019). At the time of the HCFA’s adoption in 2011, abortion had been constitutionally protected as the law of the land for nearly 40 years, and could hardly be considered “wrongdoing.” Finally, S.B. 23 was adopted years after the HCFA such that the General Assembly was presumably aware of its provisions recognizing a fundamental constitutional right to choice in healthcare decisions.
This Court cannot simply ignore part of Ohio’s Constitution because the Ohio Attorney General asserts it is not germane to this case. Nor must the Court defer to the General Assembly on questions of law such as those presented in this case, for “’[i]t is emphatically the province and duty of the judicial department to say what the law is.’ Our function here is to determine whether the act transcends the limits of legislative power.” Adams v. DeWine, __ Ohio St. 3d __, 2022-Ohio-89, ¶ 28 (rejecting Congressional district plan adopted by General Assembly in contravention of Ohio Constitutional amendment enacted by popular referendum); citing Marbury v. Madison, 5 U.S. 137, 177, 2 L. Ed. 60 (1803).
The HCFA represents an express constitutional acknowledgement of the fundamental nature of the right to freedom and privacy in health care decision making. Read together with other applicable sections of the Ohio Constitution, a clear and consistent recognition the fundamental nature of this right under Ohio law emerges. See e.g. Planned Parenthood Southwest Ohio Region v. Ohio Dept. of Health, Hamilton C.P. No. A 2100870, p. 6 (Jan. 31, 2022) (“Deprivation of reproductive autonomy falls squarely within the meaning of an injury done to one’s person under the Ohio Constitution”), citing Stone v. City of Stow, 64 Ohio St. 3d 156, 160-163, 593 N.E.2d 294 (1992). Accordingly, this Court recognizes a fundamental right to abortion under Ohio’s Constitution.