Wednesday, June 29, 2022

Ohio Lawsuit Filed to Enjoin 6 Week Abortion Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care

Lawsuit Filed Against Ohio Abortion Ban After Roe v. Wade Ruling

Just days after the United States Supreme Court overturned Roe v. Wade in a historic decision, multiple groups have come together to file a lawsuit in the Ohio Supreme Court “seeking to block the state’s six-week ban on abortion and to restore and further protect Ohioans’ reproductive rights secured by the Ohio Constitution.”

Their lawsuit comes after a federal judge in Ohio granted the state’s request to allow the previously blocked six-week abortion ban – also known as the “heartbeat bill” – to take effect. The suit argues the bill “radically restricts access to abortion in Ohio by lowering the gestational age limit from 22 weeks to approximately six weeks, with very limited exceptions.”

The Complaint is here: Download Complaint, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

See also: Download Memo in Support of Writ, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

To add some additional information:

1.  There is original jurisdiction in the Ohio Supreme Court for "extraordinary writs" like mandamus when there is no adequate remedy at law.  It is an unusual option, but that is the argument the provider plaintiffs are making here. saying there is a need for a definitive, state-wide ruling on this emergency motion.

2.  Ohio may be different in interpretation of its state due process ("due course of law") clause because it also now has a "Freedom to Choose Health Care" constitutional provision.  Ohio Const. Art. I.21.  This freedom of health care provision was passed by initiative in 2011 in response to the federal Affordable Healthcare Act as an "anti-Obamacare" action.

 

 

June 29, 2022 in Abortion, Constitutional, Courts, Pregnancy, Reproductive Rights | Permalink | Comments (0)

The Theory of Constitutional Memory and its Silencing of Women's Voices and Citizenship

Reva Siegel, The Politics of Constitutional Memory, 20 Georgetown J. Law & Public Policy 19 (2022)

Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law.

 

This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law.

 

To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents.

 

But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

June 29, 2022 in Constitutional, Family, Legal History, Theory | Permalink | Comments (0)

Historians Weigh in on All That is Wrong with the Legal History of the SCT's Abortion Decision

Patricia, The Dobbs Decision Looks to History to Rescind Roe

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Reva Siegel, The Trump Court Limited Women’s Rights Using 19th-century Standards

But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.***

Justice Alito claims that tying the meaning of the Fourteenth Amendment’s liberty guarantee to America’s “history and traditions” prevents the justices from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to 'liberty,’” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Here he echoes the late Justice Antonin Scalia, who wrote, in “Originalism: The Lesser Evil,” that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But Dobbs shows why both of these claims are wrong. A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty largely with reference to laws enacted in mid-19th-century America. During that period — conveniently enough — there was a campaign to ban abortion across the nation. (Alito includes an appendix enumerating many of these state statutes.) But consider what else was part of this period’s “history and traditions”: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tether the meaning of the Fourteenth Amendment’s liberty guarantee to laws enacted by men with such a cramped view of women’s rights? The move is unprecedented.

Jill Hasday, On Roe, Alito Cites a Judge who Treated Women as Witches and Property

There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.

Alito reports that [Judge] Hale “described abortion of a quick child who died in the womb as a ‘great crime’ ” while glossing over the key part of that passage. Hale wrote that abortion was a crime “if a woman be quick or great with child.” Note the “if.”

Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.

Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.

June 29, 2022 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, June 28, 2022

Ohio Statutory Framework of Abortion Laws After Dobbs

Download Summary: Ohio Statutory Framework for Abortion Laws After Dobbs (as of 6-27-2022)

 

OHIO ABORTION STATUTORY FRAMEWORK POST-DOBBS

I.  Ohio Laws on the Books That Have Been Enjoined or Not Enforced Under Roe

Telemedicine & Medical Abortions:  Only a physician can provide abortion-inducing drugs, physician must be physically present at administration of initial dose, exceptions for self-managed by woman and legal delivery. O.R.C. §§ 2919.123, 2919.124(B).  New 2021 version preliminarily enjoined by Planned Parenthood Sw. Ohio v. Ohio Dep’t of Health, No. A 2101148 (Hamilton Cty, Ohio, C.C.P. Apr. 20, 2021).  Earlier version enjoined for 12 years, limited to as-applied injunction, mooted on motion by Federal Drug Agency.  See Planned Parenthood of Sw. Ohio v. Dewine, 931 F.3d 530 (6th Cir. 2019), cert. denied, 141 S.Ct. 189 (2020).

Limitation of Backup Physician: Prohibits physicians affiliated with state institutions from being backup providers. Preliminarily enjoined, Women’s Med Dayton v. Vanderhoff, No. A2200704  (Ohio C.C.P. Apr. 15, 2022), second preliminary injunction granted (June 17, 2022).

“Dismemberment Feticide”: Prohibits D&E and D&X procedures, except to preserve life or physical health of mother. O.R.C. § 2919.15 (2019). Partially enjoined to permit D&E procedures before 18 weeks.  Planned Parenthood Sw. Ohio Region v. Yost, 375 F.Supp.3d 848 (S.D. Ohio 2019), reconsideration denied, 2020 WL 40143 (2020). 

Fetal Burial Law: Requires cremation or internment of fetal remains. O.R.C. § 3726.02 (2021), preliminarily enjoined by Planned Parenthood Sw. Ohio Region v. Ohio Dep't of Health, No. A2100870 (Ohio C.C.P. Jan. 31, 2022). 

Municipal Ban: A municipal ordinance in the City of Lebanon bans all abortions and those who “aid or abet,” but city stipulated it would not enforce after being sued by ACLU.  Ohio's Only Sanctuary City Chooses Not to Enforce Abortion Ban, Fox19News (May 26, 2022); Nat'l Assoc. Social Workers v. City of Lebanon, No. 1:22-cv-258 (S.D. Ohio May 11, 2022).

II. Ohio Abortion Regulations Currently In Effect That Have Criminal Penalties

Fetal “Heartbeat Protection Act”: O.R.C. § 2919.195(A), enjoined by Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796 (S.D. Ohio July 3, 2019), injunction dissolved (S.D. Ohio June 24, 2022).  The law had not been structured as a trigger law, but operated as one when the district court dissolved the injunction upon emergency motion of the state immediately following the Dobbs decision and the law went into effect. Litigation continues in the case. The law prohibits abortion when a “fetal heartbeat has been detected” (5-6 weeks) except to prevent death or “serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.”

*6/29/22: Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care (includes complaint and memorandum)

20 Week Ban:  O.R.C. § 2919.201(A) prohibits abortion after twenty weeks post-fertilization (22 weeks), except to prevent death or serious physical impairment. An earlier law prohibits abortion after “viability” and requires viability testing at 20 weeks. O.R.C. §§ 2919.17, 2919.18.

“Abortion Manslaughter”:  First degree felony if purposely takes life or “fails to take measures” to “preserve the health or life” of “child born by attempted abortion who is alive when removed from the uterus.” O.R.C. § 2919.13 (eff. Mar. 23, 2022).

Minor Parental Notification or Judicial Bypass: O.R.C. §§ 2919.121, 2151.85, upheld in large part by Cincinnati Women’s Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006) (overturning limit on one judicial petition per pregnancy).

Down Syndrome Ban:  Ohio prohibits abortions if provider has knowledge of woman’s reasons related to Down syndrome of the fetus. O.R.C. § 2919.10(B) (2018).  The U.S. Court of Appeals for the Sixth Circuit (en banc), reversed a preliminary injunction enjoining the Ohio Down syndrome law, finding that there was no likelihood of success on the merits that this was an unconstitutional undue burden.  Preterm-Cleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021).  However, in a subsequent decision, the Sixth Circuit declared a similar Tennessee Down syndrome law unconstitutional on grounds of void for vagueness and expressly noted that the Ohio decision had not address the vagueness issue. Memphis Center for Reproductive Health v. Slatery, 114 F.4th 409, 428-34 (6th Cir. 2021).

“Partial Birth Feticide”: O.R.C. § 2919.151(B) prohibits “partial birth procedure” of late term abortion when fetus is viable unless necessary to safe life or health of woman.

Woman’s Immunity: “Abortion” defined to include “purposeful termination” by “the pregnant woman herself.”  O.R.C. § 2919.11.  Exemption for Down syndrome prosecution.  O.R.C. § 2919.10(F).  Immunity for women for all bans passed, O.R.C. § 2919.198, enjoined in Yost, but injunction dissolved (S.D. Ohio June 24, 2022).

III.       Ohio’s Current Civil Framework Regulating Abortion

Many criminal prohibitions also carry civil liabilities for compensatory damages, exemplary damages, and attorney’s fees. E.g., O.R.C. §§ 2919.201; 2919.10; 2307.54.  Several permit the father to bring a civil action. E.g., O.R.C. § 2307.54 (20-week ban).

Other provider requirements are: (1) physician reporting, O.R.C. §§ 2919.171, 2919.101, 2919.202, 3701.79; (2) mandatory twenty-four-hour waiting period, O.R.C. § 2317.56; (3) counseling, O.R.C. § 2317.56; (4) determine fetal heartbeat. O.R.C. § 2919.191 (eff. 6/24/22).

IV.  Ohio’s Fetal Personhood Laws

“Intentionally aborted fetuses” are not considered “persons.” O.R.C. § 2901.01(B).

Fetal personhood law proposed in the Human Life Protection Act to define “unborn child” from the date of fertilization.  OH HB 598 (proposed Rev. O.R.C. § 2904.02(E)). The Act would also impose a total ban on all surgical and medical abortions, except as necessary to “prevent death” or “a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant individual.” OH SB 123 (introduced 3/2021); OH HB 598 (introduced 3/2022); see generally Ohio Policy Evaluation Network (tracking Ohio abortion laws and legislation).

 

See also Ohio Democratic Lawmakers Propose a Constitutional Amendment to Protect Abortion Rights (Joint Resolution requiring 3/5 vote of legislators to place on ballot for vote) (May 17, 2022)

 

June 28, 2022 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Texas District and County Attorneys' Explanation of Current State Abortion Law After Dobbs

Texas District & County Attorneys Association, Interim Summary: Abortion-Related Crimes After Dobbs

New criminal offense under HB 1280

The gist of new Chapter 170A is §170A.002 (Prohibited Abortion; Exceptions), which prohibits knowingly performing, inducing, or attempting an abortion at any time after fertilization. A violation of that section is a second-degree felony under §170A.004 (Criminal Offense) unless the unborn child dies, in which case it is a first-degree felony.

 

Other things to know about this new crime:

  • “Abortion” includes surgical and non-surgical means, such as drugs/medicine (which now account for more than half of all elective abortions). The term would appear to include “selective reductions” performed as a part of some IVF treatments, but it does not include contraception, ectopic pregnancy removals, and other surgical acts listed in the definition of that term (§170A.001(1)).
  • Nothing in Chapter 170A can be used to impose criminal, civil, or administrative liability upon a pregnant woman upon whom an abortion is performed (§170A.003).
  • Doctors have defenses for performing an abortion to save the expectant mother from death or severe injury and for any medical treatment that results in an accidental fetal death (§170A.002).

 

This new criminal offense will apply to conduct occurring on or after the 30th day after Dobbs finally overrules Roe. Note that this is *not* 30 days from today; the Court’s opinion was released today, but not it’s final judgment or mandate. The Attorney General’s Office issued a legal advisory today noting this remaining contingency, along with a (speculative) comment that some abortion-related crimes may be prosecutable immediately. (More on that below.) Regardless of an such opinion, though, any criminal, civil, or administrative action brought under the new law is likely to involve litigation over the effective date of §170A.002 due to its unusual (unprecedented?) trigger mechanism.

 

New civil fines (and complications)

Chapter 170A also includes new §170A.005 (Civil Penalty) creating a civil penalty of not less than $100,000 for each violation of §170A.002. If this sends up a double jeopardy red flag for you, congratulations—you are probably recalling the admonition from Dep’t of Revenue of Montana v. Ranch, 511 U.S. 767 (1994), in which SCOTUS held that a defendant already convicted and punished for a criminal offense cannot have a non-remedial civil penalty imposed against him for the same offense in a separate proceeding due to the Fifth Amendment’s Double Jeopardy Clause. And the reverse is also true: If a defendant fully pays a civil fine, then any subsequent criminal prosecution is barred by double jeopardy. See, Ex parte Ward, 964 S.W.2d 617, 627 (Tex. Crim. App. 1998).

 

While the Double Jeopardy Clause does not prohibit the initial filing of concurrent criminal and civil actions, a conviction in the former or a full payment in the latter will foreclose the other option. Interestingly, the civil enforcement provision of §170A.005 requires the attorney general (OAG) to file a civil action to recover this civil fine. By requiring OAG to pursue a minimum six-figure civil penalty for the same conduct that potentially incurs a felony sentence of imprisonment and a criminal fine, the legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion “trigger law” crime if any of those civil fines are collected by OAG.

June 28, 2022 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, June 27, 2022

What's Next, Now that the Choice of Abortion is no Longer a Federal Constitutional Right

Updated 6/29/22

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            Trigger Laws:

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

                        Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to Trigger Laws: 

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

            FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            Telemedicine

            Validity of State Travel Bans:

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Lauren Van Schilfgaarde, Aila Hoss, Sarah Deer, Ann Tweedy, Stacy Leeds, The Indian Country Abortion Safe Haven Fallacy

            Other Constitutional Liberties: contraception, marriage, LGBTQ

State Legislation:

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

           See generally:

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

            Fetal Personhood:

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Election issue

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            Contraception: double layer contraception

Plan B:

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

            Period Tracking Apps:

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Women's Medical Care: 

Physicians Face Confusion and Fear in Post-Roe World

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies paying travel expenses:

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Know Your Rights & Information:  Abortion Finder Org Site ("The pink book" of where to access providers).

            Rebecca Traister, The Necessity of Hope:

It means doing the thing that people have always done on the arduous path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity.  The prison abolitionist Mariame Kaba reminds us that “hope is a discipline.” It is also a political strategy and a survival mechanism. As Kaba has said, “It’s less about ‘how you feel’ and more about the practice of making a decision every day that you’re still gonna put one foot in front of the other, that you’re still going to get up in the morning. And you’re still going to struggle … It’s work to be hopeful.”

June 27, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 24, 2022

The SCOTUS Joint Dissent in Abortion Case Calls Out Women's Loss of Citizenship

A joint dissent by Justices Breyer, Sotomayor and Kagan in Dobbs v. Jackson Women's Health Organization is expressive in its attack on the philosophical and physical harms to women from the Court's reversal of the fifty-year right of women to choose whether or not to bear a child in choosing an abortion. 

For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.***

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reason able limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.***

We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.

***

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

The dissent finds it clear that other constitutional rights of liberty interests are now threatened:

And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. ***

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” position, as JUSTICE KAVANAUGH tries to argue.

June 24, 2022 in Abortion, Constitutional, Judges, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

US Supreme Court Overrules Constitutional Right to Choose an Abortion

The US Supreme Court expressly overruled the 50-year old constitutional right for women to choose an abortion. Dobbs v. Jackson Women's Health Organization.

The vote is 5-4 to overturn Roe/Casey, with the majority opinion by J. Alito, joined by Thomas, Gorsuch, Kavanaugh and Barrett.  Roberts concurs only in the judgment of upholding the 15-week ban, but not in overruling Roe.  The dissent is Breyer, Sotomayer, and Kagan.

In my first quick look, the majority opinion is not much different from the leaked draft opinion.

Thomas in his concurrence of one calls for revisiting Griswold, Lawrence, and Obergefell, meaning to challenge the constitutional rights to marital privacy, contraception, sexual intimacy and conduct, and same-sex marriage.

Kavanaugh in concurrence says the Constitution calls for neutrality, and not taking sides between the pregnant woman's interest and the fetal life, which he says Roe did.  He footnotes a Rehnquist dissent that says exceptions to protect the life of the woman are constitutionally required.  He emphasizes that the decision doesn't prohibit abortion, but allows for legislative action.  He responds to Thomas and says nothing in the opinion calls into question the constitutional rights to contraception or LGBTQ rights because abortion is different.  And, in veiled reference to harmonize the Court's recent decision in Bruen on the Second Amendment, he says in a footnote that the relevant historical evidence for the abortion decision is at the time the 14th Amendment was enacted in 1868 when two-thirds of the states criminalized abortion.

Roberts concurs only to uphold the judgment.  He overturns the viability standard from Roe, but does not overrule the right to abortion completely.

A joint dissent by Justices Breyer, Sotomayor, and Kagan is explicit in noting the philosophical and physical harms to women from the decision:

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. 

See Gender & the Law Prof Blog, The Joint Dissent in SCOTUS Abortion Case Calls Out Women's Loss of Citizenship

June 24, 2022 in Abortion, Constitutional, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

President Biden's Proposes New Administrative Rules on Title IX for Campus Sexual Assault and LGBTQ Protections

Chronicle, Here's How Title IX Could Change Under Biden's Proposed Rule

The U.S. Education Department on Thursday released its proposed Title IX regulations, which would reverse many Trump-era policies and restore the pro-victim approach championed by the Obama administration.

 

Specifically, the rule would:

  • Enshrine protections for sexual orientation and gender identity, as well as “sex stereotypes, sex characteristics, [and] pregnancy or related conditions.”
  • Permit, but no longer require, live hearings and cross examination in Title IX investigations.
  • Expand the definition of sexual harassment.
  • Clarify the protections students, faculty, and staff have from retaliation by their institution.
  • Require colleges to confront off-campus conduct that “creates or contributes to a hostile environment.”
  • Require certain campus employees to notify the Title IX office of possible sex discrimination, a return to broader mandatory-reporting requirements. If an incident involves students, anyone with “teaching” or “advising” responsibilities — in other words, most faculty members — must report it. Some professors have criticized mandatory reporting, saying it harms the trust they’ve built with their students.
  • Require all other faculty and staff members to provide students with the contact information of the campus Title IX coordinator, unless they’re designated as confidential resources.

 

The changes would once again upend how colleges handle sexual-misconduct complaints. Experts who work with colleges say campus officials are exhausted by more than a decade of political Ping-Pong over Title IX, as the three most-recent presidential administrations have switched up rules and guidance, and colleges have rushed to comply.

Sweeping Title IX Would Shield Trans Students, Assault Survivors

On the 50th anniversary of Title IX, the Biden administration proposed sweeping changes to the landmark law that would bar schools, colleges and universities from discriminating against transgender students, as the battle over transgender rights moves to the front lines of the culture war.

 

The proposal would also amend the rules that govern how educational institutions investigate and resolve claims of sexual assault and sexual harassment. Over concerns that people were being wrongfully punished, President Donald Trump’s education secretary, Betsy DeVos, revised the rules to make them more accommodating to the accused. Critics assailed the changes, saying they would discourage sexual assault survivors from coming forward to report assaults or harassment.

 

Our goal is to give full effect to the law’s reach and to deliver on its promise to protect all students from sex-based harassment and discrimination,” Education Secretary Miguel Cardona said. “Every student deserves to learn free from discrimination and harassment, regardless of their sex, sexual orientation or gender identity.”

June 24, 2022 in Education, Legal History, LGBT | Permalink | Comments (0)

Scottish Bill Would Pardon Thousands of Women Convicted and Executed as Witches

Thousands of Witches Could be Posthumously Pardoned in Scotland

Thousands of people were convicted of practicing witchcraft in Scotland in a hunt that spanned nearly two centuries — and the majority of those sentenced to death and executed were women. Many were also tortured.

 

Now, a bill proposed in the Scottish Parliament is trying to set the record straight, said Natalie Don, a Scottish lawmaker who introduced the proposal. It could allow for posthumous pardons to thousands of women who faced convictions hundreds of years ago.

 

The pardons would ensure they are “recognized as victims of a miscarriage of justice and are no longer recorded in history as criminals,” Don said Thursday in a video.

 

Calls for legal pardons for “witches” or “necromancers” have gathered pace in Scotland, where the country’s most senior politician, First Minister Nicola Sturgeon, issued a formal apology in March to those vilified under the Witchcraft Act. The act, which was in effect from 1563 to 1736, made practicing witchcraft punishable by death.

 
“It was injustice on a colossal scale, driven at least in part by misogyny,” Sturgeon said on International Women’s Day. “They were accused and killed because they were poor, different, vulnerable or in many cases just because they were women.”

June 24, 2022 in International, Legal History, Legislation | Permalink | Comments (0)

Developing a Theory of Institutional Betrayals as Actionable Sex Discrimination under Title IX

Emily Suski, Institutional Betrayals As Sex Discrimination, 107 Iowa L. Rev. (2022)  

Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe than those resulting from the original sexual harassment. Further, schools do not passively cause institutional betrayals; they impose them in three affirmative ways: Schools punish students for their sexual harassment, blame them for it, and communicate an automatic, default disbelief of students’ harassment.

Because Title IX’s statutory mandate is broad—it prohibits sex discrimination without limitation—courts could recognize as sex discrimination the institutional betrayals that schools impose on students because of their status as survivors of sexual harassment. None of the three extant judicially created forms of sex discrimination under Title IX, however, has the capacity to meaningfully do so. When schools impose institutional betrayals, therefore, courts find that they do not violate Title IX.

To remedy this jurisprudential failing, this Article develops a theory of institutional betrayals as a new form of sex discrimination under Title IX. Drawing on empirical research on institutional betrayals, this theory contends that when schools impose institutional betrayals, they knowingly injure students because they have suffered gender-based harm. This Article also offers a framework for evaluating this new type of sex discrimination that would compel courts to assess institutional betrayals as sex discrimination. With such changes, Title IX jurisprudence would not only effectively recognize institutional betrayals as sex discrimination but also remedy their harms and better fulfill Title IX’s protective purpose.

June 24, 2022 in Education, Theory | Permalink | Comments (0)

Thursday, June 23, 2022

Unequal Representation of Women in Clinical Research

Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021

Abstract:

This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.

Introduction:

The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.

On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.


However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.

These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials. 

June 23, 2022 in Healthcare, Legal History, Pregnancy, Race, Science | Permalink | Comments (0)

Study Shows Female Scientists Don't Get the Authorship Credit They Deserve

Female Scientists Don't Get the Credit They Deserve. A Study Proves It

Female scientists are “significantly less likely” than men to be credited as authors on scholarly articles or named on patents to which they contribute — a systemic exclusion that probably has negative impacts on female scientists’ careers, according to a new study published in the journal Nature.

 

The study, published Wednesday, found that female scientists are 13 percent less likely than men to be named as authors on articles and 58 percent less likely than men to be named on patents, even while controlling for factors including job title, field, team and days worked. As the study’s authors write, the findings suggest that women’s contributions to science continue to be underestimated, 70 years after the British chemist Rosalind Franklin was denied credit for her role in the discovery of the structure of DNA.

 

“These are pretty big gaps, and they’re incredibly persistent,” said co-author Britta Glennon, assistant professor of management at the University of Pennsylvania’s Wharton School of Business.***

 

The findings — which come from an extensive data set and were confirmed by a survey and follow-up interviews — both partially explain and probably contribute to the underrepresentation of women in science, Glennon said: “If you’re seeing that you’re not getting credit for the work that you do, or even that your senior female colleagues aren’t getting credit for the work that they do, that’s pretty discouraging — so I think we would all be very surprised if there weren’t a significant impact on careers.”

June 23, 2022 in Scholarship, Science | Permalink | Comments (0)

The Legal History and Original Drafter and Advocate of Title IX, Edith Green

Wash Post, The True Mother of Title IX. And Why it Matters Now More than Ever

June 23 marks 50 years since Title IX, which prohibits sex discrimination in education, was signed into law. The anniversary has sparked discussion of Rep. Patsy Takemoto Mink (D-Hawaii) — the first woman of color elected to Congress in 1964, for whom Title IX was renamed in 2002. In fact, the media often refers to Mink as the "mother” of Title IX.

 

But while Mink strongly defended Title IX and focused on bringing about equality under the law in her 24 years in the House, she did not actually write the bill or introduce it into Congress. Rep. Edith Green (D-Ore.) wrote Title IX and worked tirelessly on Capitol Hill to pass this landmark legislation that has improved the lives of millions of women and girls over the past half-century.

 

Today, as conservative activists and politicians work to ban the teaching of certain concepts and history related to sex and race, it is important to insist on historical accuracy in our political discussions and remembrances. Mink more fully embraced the feminist and political ideals embedded in Title IX than did Green. But the true story of Green’s involvement reminds us that progress doesn’t only come from the political leaders you’d expect.

 

Green was well-poised to take on legislation like Title IX by the early 1970s. Before tackling sex discrimination in education, she led an eight-year battle to pass the Equal Pay Act of 1963 — the first legislation of its kind, even if limited in scope by today’s standards. After 15 years in the House, Green became chair of the subcommittee on higher education. She authored or influenced nearly every education bill during her tenure in the House, earning her the nickname “Mrs. Education.”

 

Green was a champion of sex equality and educational reform, but she seemed to have at least one blind spot on race. By February 1970, when she introduced the first iteration of Title IX, Green was a vocal opponent of court-ordered busing to racially integrate schools. Although Green didn’t see herself as racist, her argument that busing decisions should be left to local control was a favorite of anti-integrationists. Critics alternately referred to her as “the liberal racist,” “the sweetheart of the Southerners” and “the Nixon Democrat.”

June 23, 2022 in Education, Legal History, Legislation, Sports | Permalink | Comments (0)

Monday, June 20, 2022

Feminism's Problematic Connection with Celebrity Culture

Susan Faludi, Op-ed, NYT, Feminism Made a Faustian Bargain with Celebrity Culture. Now Its Paying the Price

 

The ruination of Roe and the humiliation of Ms. Heard have been cast as cosmic convergence, evidence of a larger forced retreat on women’s progress. “Johnny Depp’s legal victory and the death of Roe v. Wade are part of the same toxic cultural movement,” a Vox article asserted. “These examples may seem disparate, but there’s an important through line,” a USA Today reporter wrote, citing academics who linked the Alito draft opinion, the Depphead mobbing and, for good measure, the “public consumption” of cleavage at the Met Gala (held the same night the Supreme Court draft leaked): “This is backlash.”

 

Backlash it may be. Even so, putting the pillorying of Ms. Heard in the same backlash-deplorables basket as the death rattle of Roe is a mistake. Lost in the frenzy of amalgamation lies a crucial distinction. There’s a through line, all right. Both are verdicts on the recent fraught course of feminism. But one tells the story of how we got here; the other where we’re headed. How did modern feminism lose Roe v. Wade? An answer lies in Depp v. Heard.***

 

Using celebrity and hashtag feminism is a perilous way to pursue women’s advancement because it falls victim so easily to its own tools and methods. In Ms. Heard’s case, her ex-husband turned #MeToo’s strategy against itself. Mr. Depp claimed victimization because he’s a money-generating personality — he could be de-famed because he’s famous. And his massive (and vicious) fan mobilization on social media (nearly 20 billion views for #JusticeForJohnnyDepp on TikTok by June 2) was overwhelming, even by #MeToo standards. By contrast, #JusticeForAmberHeard had about 80 million views on TikTok in the same period.

 

Celebrity representation of feminism is a double-edged sword. If an individual embodies the principle, the principle can be disproved by dethroning the individual. In that way, Ms. Heard became both avatar and casualty of celebrity feminism. When she took the stand, she brought the modern incarnation of the women’s movement into the dock, too, and mobilized those who would see it brought down. If an ambassador for women’s rights wasn’t credible, Ms. Heard’s mob of haters was quick to conclude, then the movement wasn’t, either. No need to fret over those legions of unfamous women who may now think twice before reporting domestic violence.

Coupling the fortunes of feminism to celebrity might have been worth it if it had led to meaningful political victories. But such victories are hard to achieve through marketing campaigns alone, as the right wing understands.

June 20, 2022 in Gender, Media, Pop Culture, Theory | Permalink | Comments (0)

Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman's Reflections as a Law Professor

Angelique Eaglewoman, Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman’s Reflections as a Law Professor, 51 Southwestern U. L. Rev. (2022)

This Essay is a reflection from my perspective as a Dakota woman law professor on my fifth law school faculty. In the illuminating work of Meera Deo, light is shone on the experience of women of color legal academics. "Unequal Profession: Race and Gender in Legal Academia" is a book that should be required reading at every law school. As women of color are faculty members in every law school in the United States, the research, analysis, and recommendations tailored to the experience of women of color law faculty should be a priority topic in those same law schools. As a Native American woman law professor, my experience and journey in legal academia resonate with many of the topics in this important work.

In Part I of this Essay, the necessity of trailblazing is discussed due to the lack of Native American women in the legal academy. Issues around visibility, ethnic fraud, and tribal sovereignty will be discussed. Part II will explore the challenges identified in "Unequal Profession" through a raceXgender framework and provide a personal perspective on dealing with such challenges. The themes of invisibility and lack of respect experienced as a Native American woman law professor will be discussed. The final section in Part III will provide insight into the motivation to stay the course and continue to make space in legal academia. In living a purposeful life, there is a choice to be a law professor as a Native woman with the goal of holding the door open for more Native American faculty, law students, and legal administrators to walk through.

June 20, 2022 in Education, Law schools, Religion, Women lawyers | Permalink | Comments (0)

The Controversial Origins of Father's Day and its Connection with Women's Child Custody Rights

Wash Post, Father's Day Once was Highly Political--and Could Become So Again

Sonora Smart Dodd, whose father raised her and her siblings after their mother died in childbirth, was inspired to propose the holiday in 1910 after attending a church service honoring mothers. Even so, while federal law enshrined the second Sunday in May as Mother’s Day in 1914, it took another half-century for fathers to receive similar recognition, first with Lyndon B. Johnson issuing a presidential proclamation in 1966 and then with Congress enacting an official holiday in 1972.

 

For decades, there was less political will to honor fathers, especially because many men regarded the holiday as “silly.” Such thinking continues to this day, as some men celebrate being fathers by using the holiday as a ticket to spend a day at the golf course, enjoying hours on “their” day away from their children.

 

This understanding of Father’s Day, though, misses the ways in which Americans have used the holiday as a political vehicle. In the latter decades of the 20th century, Father’s Day was a key battleground regarding parental rights and responsibilities for activists radicalized by the nation’s rapidly shifting familial landscape. At the root of this politicization of Father’s Day — maybe surprisingly — was the history of divorce.***

 

Enter Father's Day.  As some feminists came to view child support enforcement as a key women’s issue, they turned to the new holiday as an opportunity to publicize their cause. In 1971, a group of women and children from the Association for Children Deprived of Support (ACDS) picketed the home of California assemblyman, and potential gubernatorial candidate, Robert Moretti on Father’s Day to press him to champion child-support reforms.

 

Several years later, in 1975, NOW chapters in Tulsa, Pittsburgh and Hartford, Conn., all participated in “Father’s Day Actions.” The Tulsa protesters promised, in a news release, that “Fathers who are not paying child support can expect that their names and the amounts they are in arrears will be announced” and publicly “displayed by mothers, children and concerned NOW members.” The Hartford women, for their part, laid a wreath at the door of the Superior Court of Connecticut to “mourn the loss of paternal responsibility by all the fathers involved in divorce, separation, and enforcement.”

 

Some divorced fathers, however, had their own political agenda for Father’s Day.

 

Fathers’ rights advocates objected to being used as “wallets” and claimed that their ex-wives purposely kept them from seeing their children in violation of visitation orders. In 1971, the National Council for Family Preservation — one of several failed attempts by fathers’ rights advocate Richard F. Doyle to form a robust national organization like NOW — urged its member groups to hold protests on the Saturday before Father’s Day, noting that fathers might “want to be elsewhere with their children on Sunday.” In a news release, Doyle called for the recognition of the “stupid and cruel divorce laws and practices that have made this holiday a mockery for countless fathers and children.”

June 20, 2022 in Family, Gender, Legal History, Masculinities, Pop Culture | Permalink | Comments (0)

Friday, June 17, 2022

Jewish Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms

Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms 

But a lawsuit filed last week by a South Florida synagogue challenges new legislation in the state banning most abortions after 15 weeks, saying it violates the State Constitution’s right to privacy and freedom of religion. In Jewish law, the suit argues, “abortion is required if necessary to protect the health, mental or physical well-being of the woman.”

 

The lawsuit, filed by Congregation L’Dor Va-Dor, a progressive synagogue in Palm Beach County not affiliated with a broader denomination, may face an uphill climb in court. But it is a reminder that abortion poses religious issues beyond those of the Christian right. And it suggests potential legal issues that could surface at a time when Roe seems likely to be overturned, and the Supreme Court has been aggressively open to a wider role for religion in public and political life.

 

Florida’s state law limiting abortions, signed by Gov. Ron DeSantis in April, goes into effect July 1. In banning abortions after 15 weeks, it does not make exceptions for cases of incest, rape or human trafficking. It does, however, allow for abortions if the mother’s life is endangered or if two doctors determine that the fetus has a fatal abnormality. The law was challenged earlier this month by the American Civil Liberties Union of Florida on behalf of a group of abortion providers and abortion rights organizations.***

See also South Florida Synagogue Sues Over Florida's New 15-Week Abortion Ban

 

Deeply-rooted Jewish teachings indicate that abortion is permissible — and even required — if a mother’s life is in danger, said Jewish leaders from across the ideological spectrum. In Jewish thought, it is also widely accepted that as long as a fetus is in the womb, it has “potential,” but not full, personhood, said Michal Raucher, an assistant professor of Jewish Studies at Rutgers University.

June 17, 2022 in Abortion, Constitutional, Religion, Reproductive Rights | Permalink | Comments (0)

Iowa SCT Rules No State Constitutional Right to Abortion

Iowa Supreme Court Says Abortion Protections Not Guaranteed Under State Constitution

The Iowa Supreme Court on Friday overruled a 2018 decision that said the right to abortion was protected under the state constitution.

 

That decision — coupled with the potential overturn by the U.S. Supreme Court of Roe v. Wade, the 1973 decision that established a nationwide right to abortion — would give Iowa lawmakers significantly more freedom to pass and enforce restrictive abortion laws.

 

The Iowa Supreme Court's reversal came in a fractured decision that reverses a lower court's decision to block a 2020 law that put in place 24-hour waiting period before an abortion. The majority opinion said the Supreme Court's previous ruling establishing a constitutional right to an abortion "insufficiently recognizes that future human lives are at stake.”

 

The ruling sends the case back to the lower court for reconsideration.

June 17, 2022 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Fourth Circuit En Banc Holds Charter School's Dress Code of Skirts for Girls is Gender Discrimination under Equal Protection and Maybe Title IX

Peltier v. Charter Day School, No. 20-1001 (4th Cir. June 14, 2022)

Charter Day School (CDS),1 a public charter school in North Carolina, requires female students to wear skirts to school based on the view that girls are “fragile vessels” deserving of “gentle” treatment by boys (the skirts requirement). The plaintiffs argue that this sex-based classification grounded on gender stereotypes violates the Equal Protection Clause of the Fourteenth Amendment, and subjects them to discrimination and denial of the full benefits of their education in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX).

 

In response, despite CDS’ status as a public school under North Carolina law, CDS and its management company disavow accountability under the Equal Protection Clause by maintaining that they are not state actors. These entities also assert that Title IX, the federal statute designed to root out gender discrimination in schools, categorially does not apply to dress codes.

 

Upon our review, we affirm the district court’s entry of summary judgment for the plaintiffs on their Equal Protection claim against CDS, and the court’s judgment in favor of the management company on that claim. We also vacate the court’s summary judgment award in favor of all defendants on the plaintiffs’ Title IX claim and remand for further proceedings on that claim.***

 

As part of this educational philosophy [traditional education as it was 50 years ago], CDS has implemented a dress code to “instill discipline and keep order” among students. Among other requirements, all students must wear a unisex polo shirt and closed-toe shoes; “[e]xcessive or radical haircuts and colors” are prohibited; and boys are forbidden from wearing jewelry. Female students are required to wear a “skirt,” “jumper,” or “skort.” In contrast, boys must wear shorts or pants. All students are required to comply with the dress code unless they have physical education class, when they wear unisex physical education uniforms, or an exception is made for a field trip or other special event. A student’s failure to comply with the dress code requirements may result in disciplinary action, including notification of the student’s parent, removal from class to comply with the dress code, or expulsion, though no student has been expelled for violating the dress code.

 

In 2015, plaintiff Bonnie Peltier, the mother of a female kindergarten student at CDS, informed Mitchell that she objected to the skirts requirement. Mitchell responded to Peltier in support of the policy, stating: "The Trustees, parents, and other community supporters were determined to preserve chivalry and respect among young women and men in this school of choice. For example, young men were to hold the door open for the young  ladies and to carry an umbrella, should it be needed. Ma’am and sir were to be the preferred forms of address." There was felt to be a need to restore, and then preserve, traditional regard for peers. Mitchell later elaborated that chivalry is “a code of conduct where women are treated, they’re regarded as a fragile vessel that men are supposed to take care of and honor.” Mitchell further explained that, in implementing the skirts requirement, CDS sought to “treat[] [girls] courteously and more gently than boys.”

 

In support of their summary judgment motion, the plaintiffs submitted evidence of the tangible and intangible harms they suffer based on the skirts requirement. One plaintiff testified that the skirts requirement conveys the school’s view that girls “simply weren’t worth as much as boys,” and that “girls are not in fact equal to boys.” Another plaintiff stated that the skirts requirement “sends the message that girls should be less active than boys and that they are more delicate than boys,” with the result that boys “feel empowered” and “in a position of power over girls.”

 

The plaintiffs also described the impact of the skirts requirement on their ability to participate in school activities. On one occasion, when a first-grade female student wore shorts to school due to a misunderstanding of the dress code, she was removed from class and was required to spend the day in the school’s office. The plaintiffs also explained that they avoid numerous physical activities, including climbing, using the swings, and playing soccer, except for days on which they are permitted to wear their unisex physical education uniforms. The plaintiffs further testified that they cannot participate comfortably in school emergency drills that require students to crawl and kneel on the floor, fearing that boys will tease them or look up their skirts. Both parties presented evidence from expert witnesses regarding the effects that the skirts requirement and gender stereotypes have on female students.

See also In "Skirts Only" Case, 4th Circuit Says Innovation Great, Inequality Ain't, Reuters

Deep in the thicket of a new en banc decision from 4th U.S. Circuit Court of Appeals on the constitutionality of a charter school’s “skirts-only” dress code for girls, there’s a nuanced legal debate about whether public charter schools can be sued under the Equal Protection Clause of the 14th Amendment.

 

In a 10-6 decision in Peltier v. Charter Day School Inc, the 4th Circuit majority determined that under North Carolina’s statutory framework for public charter schools, the schools are state actors — and therefore bound by the Equal Protection Clause — when it comes to setting and enforcing educational policies. The judges in the majority found that Charter Day School’s dress code, which requires girls to wear skirts, skorts or dresses, is unconstitutional because it serves no educational purpose but was adopted, according to statements from school officials, to telegraph the message that girls are “fragile vessels” who require boys' protection, rather than equal treatment.

 

That message “blatantly perpetuates harmful gender stereotypes ... with potentially devastating consequences for young girls,” wrote Judge Barbara Keenan for the majority. “If CDS wishes to continue engaging in this discriminatory practice, CDS must do so as a private school without the sanction of the state or this court.”

 

But six 4th Circuit judges said it's not at all clear that the Charter Day School is a state actor. In particular, wrote Judge Marvin Quattlebaum in the court's primary dissent, there's a strong argument that North Carolina did not compel Charter Day to adopt its dress code, so the policy cannot be considered a state action

 

June 17, 2022 in Constitutional, Education, Gender | Permalink | Comments (0)