Gender and the Law Blog

SCOTUS Decision Freezing Title IX Rules Made a Huge Mess

The case is Department of Education v. Louisiana, 603 U.S. ___ (Aug. 16, 2024)

Newsweek, Supreme Court Made a "Hugh Mess" With Title IX Ruling

The Supreme Court's recent ruling on transgender rights in education is a giant mess that has left everyone confused, a legal analyst has said.

Steve Vladeck, a law professor at Georgetown University in Washington, D.C, wrote that the court's ruling on a pair of emergency applicants raises more questions than it answers.

The controversy involves the federal civil rights legislation, Title IX, which was introduced in 1972 to end discrimination against women in education.

The Biden administration introduced a "final rule for Title IX," which would use those protections to end "sex stereotypes, sexual orientation, gender identity, and sex characteristics."

It has been met with fierce opposition in many conservative states, where parents argue it will lead to transgender students in women's toilets and women's sports teams.

In two lawsuits—Department of Education v. Louisiana and Cardona v. Tennessee—lower federal courts temporarily blocked the entirety of the new rules while the cases play out in appeals court.

The Supreme Court agreed to hear an emergency case from the Department of Education, which is seeking to lift those lower court emergency injunctions.

In a 5-4 majority decision on Friday, the Supreme Court declined a Department of Education emergency request to reinstate portions of the new rules that are not related to gender identity and sexual orientation, with the majority writing that they were not given "a sufficient basis to disturb the lower courts' interim conclusions."

Conservative Neil Gorsuch joined liberal Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson in dissent, arguing that the gender identity and sexual orientation rules should be paused during the appeals because they are related to alleged "injuries" suffered by the states, but the rest of the new rules should resume.

Writing in his Supreme Court blog, One First, Vladeck explained that he wanted to focus on Friday's Department of Education v. Louisiana case because "it was literally the only ruling that the Court handed down last week and because it's both a big deal and a huge mess."

Vladeck's problem with the ruling is that it freezes all of Biden's new rules on Title IX, the vast majority of which has nothing to do with transgender rights.

"The rule does lots of other things … many of which have nothing whatsoever to do with gender identity," he wrote.

Rethinking Law and Literature to Define Narrative Justice for MeToo and Other Fields

Geeta Tewari, MeToo: Rethinking Law and Literature to Define Narrative Justice, 102 Oregon L. Rev. 489 (2024) 

The law and literature movement is transforming into something new. This Article will discuss what that newness is, how it came about, and the different shapes it takes to provide the legal community with a platform to contribute to a working definition for narrative justice. Creatively, technologically, and economically, public institutions and legal culture are rethinking the value of voice and story. With concrete examples of innovations and social movements, this Article will demonstrate how both action and inaction have propelled us as a society toward urgency in defining and claiming narrative justice. The Introduction canvasses U.S. case law to discuss patterns of narrative incorporation—or the concerning lack thereof. Recently, we have seen a new growth in this field: an emphasis by activists, artists, and academics, among others internationally, on applying voice, story, and journey to present conflicts and problems. The next Part discusses the critical points where public and private institutions, as well as individual citizens, have catalyzed to birth a new field of narrative justice. Specifically, I discuss the #MeToo movement, as well as cities’ work, community, individual empowerment, recent interdisciplinary legal scholarship, and teaching models, which are all analyzed for their inclusion of narrative. City government “storytellers” and the action of the #MeToo movement are two rich examples of law and literature’s expansion to activism through narrative justice. Finally, in Part IV, I dissect the lack of narrative presently in corporate law and the growing legal field of environmental, social, and governance advising, which should include the concept of narrative justice. This Article concludes with a proposal for a working definition and function of narrative justice, based on the examples reviewed herein as they relate to each other, the precipitating field of law and literature, and the need for updated terminology and pedagogy to further advance the practice of law as a moral, ethical, and just profession.

Intersectionality and Women's Participation in Peace Negotiations

Jenna Sapiano, Gina Heathcote & Xianan Jin, Intersectionality and Women's Participation in Peace Negotiations, forthcoming International Affairs (2024) 

The Women, Peace and Security resolutions have consistently called for women’s increased participation at all levels in institutions and mechanisms for preventing, managing and resolving conflict. Despite a long history of feminist interventions to disrupt categories of gender as a stagnant, ahistorical or geographically consistent structure, rationales for women’s inclusion continue to rest on problematic narratives and assumptions. We draw on twenty-nine interviews with practitioners whom we asked to speak about their experiences in peace negotiations and the expectations placed on women involved in these processes. The problematic narratives and assumptions we identify on the basis of these interviews and academic literature have the effect of diminishing women’s agency and, thus, their ability to participate in peace negotiations on their terms. Women contribute positively to the durability of peace and the inclusion of gender provisions in agreements. Still, when women’s identities are constructed as one-dimensional, the benefits of women’s inclusion remain paradoxically a cause for celebration and a partial gain. In this article, we apply theories of intersectionality, informed by Black and African feminisms, to expose women’s subject positions that may be made invisible because of assumptions that continue to be associated with calls for women’s participation in peace negotiations.

Women Kicked Off Plane for Wearing Crop Tops

Sexist Flight Attendant Boots Female Passengers Over Crop Tops

Two female passengers have accused a Spirit Airlines flight attendant of sexism after he allegedly kicked them off a plane for their choice of dress, as seen in a viral Instagram video.

“It’s just humiliating having to be escorted and treated like a criminal just because we were wearing crop tops,” one of the flyers, named Tara, told the Daily Mail while detailing the alleged blouse arrest.

She and her friend Teresa were flying from Los Angeles to New Orleans to celebrate the former’s birthday when the crewmember singled them out.***

According to the airline’s contract of carriage, a passenger may be asked to vacate the aircraft if “inadequately clothed” or if their attire “is lewd, obscene, or offensive in nature.”

Spirit Airlines Passengers Claimed They Were Kicked Off Plane by Male Flight Attendant for Wearing Crop Tops

Georgia Court Invalidates Abortion Ban but State Supreme Court Reinstates Ban During Appeal

“Women are not some piece of collectively owned community property the disposition of which is decided by majority vote,” said Judge Robert McBurney, writing for the majority. “Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights to liberty and privacy.”  

CCR, Georgia's Six-Week Abortion Ban Ruled Unconstitutional

A Georgia state court ruled on September 30 that the state’s six-week abortion ban is unconstitutional and abortion is protected under the Georgia constitution’s fundamental right to privacy. The ruling by the Superior Court of Fulton County permanently blocked the ban, which prohibits abortion before many know they’re pregnant.***

The ruling in SisterSong v. State of Georgia allows Georgians to once again access abortion care in the state beyond the earliest weeks of pregnancy. 

In its ruling, the court held that:

• The state constitution’s strong protection of the fundamental right to privacy prohibits political interference with an individual’s abortion decision before viability.
• The exclusion of mental health from the ban’s narrow medical emergency exception violates equal protection.
• Another provision of the law giving district attorneys broad access to the medical records of abortion patients also violates Georgians’ right to privacy.

The ruling comes just weeks after ProPublica reported stories linking the tragic and preventable deaths of two Georgia women, Candi Miller and Amber Nicole Thurman, to Georgia’s abortion ban.

CCR, Georgia Supreme Court Reinstates Abortion Ban

The 19th, Supreme Court of Georgia Rules to Reinstate the State’s Six-Week Abortion Ban

Teaching Reproductive Justice

The journal Radical Teacher, A Socialist, Feminist, and Anti-Racist Journal on the Theory and Practice of Teaching, has published volume 129 on Teaching Reproductive Justice.  The issue is summarized as follows: 

This issue explores a breadth of teaching reproductive issues. Essays topics range from transnational classes in menstrual health education to the history of herbal abortifacients to networks providing education for self-administered abortion via mifepristone/misoprostol to drawing upon pro-abortion movements in Latin America for lessons in resisting the consequences of Dobbs, and beyond. These essays represent just a fraction of the radical teaching that is going on in the US and internationally. 

Here is a link to all of the articles in the volume: https://radicalteacher.library.pitt.edu/ojs/radicalteacher/issue/view/37. Sarah E. Chinn and Kimberly Mutcherson edited this volume. 

New Book by Pamela Laufer-Ukeles on "Families, Relational Attachments, and the Law of Collaborative Family-Making"

Pamela Laufer-Ukeles has published a new book with Routledge titled "Families, Relational Attachments, and the Law of Collaborative Family-Making." Available here. 

This book points to a crisis at the heart of modern family law’s treatment of “collaborative family-making”: gamete contributions, surrogate motherhood, adoption, functional parenthood, foster care, and kin caregiving. Born of inequality and anchored by exclusivity and secrecy, the dominant legal framework governing collaborative family-making focuses on the acquisition of collaborative services by legal and intended parents without expecting or fostering any lasting bonds between them. This acquisitional framework is starkly disconnected from empirical accounts of the lived experience of collaborations, which demonstrate complex and ongoing relational attachments that extend beyond a transactional moment. At the intersection of law and sociology, the book challenges the law to account for relational realities that fail to conform to neat legal categories of parent and stranger, asking: How should the law reflect the complex interconnections between families and family-making collaborators? Should collaborators be treated as legal strangers? Who is impacted by the lack of legal status possessed by family-making collaborators? Who benefits and who loses? Ultimately, this is a work of optimism that seeks to facilitate family-making collaborations in more ethical ways by insisting that family law recognize and support family-making collaborators. It introduces a bold new legal framework of interconnection and guides the reader in implementing practical legal and contractual changes that promote human dignity, uphold children’s right to identity, and support ongoing relational attachments with adults who are fundamental to children’s lives. The volume provides deep and accessible insight into families and family law for legal practitioners, academics, students, and laypersons interested in family-making collaboration.

Report on "The Legal Assault on Pregnant People's Personhood"

Pregnancy Justice has published a new report in September 2024 on "The Legal Assault on Pregnant People's Personhood." This report is packed with valuable information and state law surveys. Here are its recommendations excerpted: 

Undoing the harms of the fetal personhood movement will require a comprehensive strategy, including significant federal and state legal and policy reforms, as well as vigilance in tracking and responding to emerging policy proposals and legislative bills.

 

Repeal Fetal Personhood Laws and Constitutional Amendments:

 

We must repeal existing fetal personhood laws and policies and reject any new measures that establish or reinforce fetal personhood. Instead, legislative efforts must prioritize the needs and rights of pregnant people. To that end, any bills designed to support pregnant people’s access to healthcare or alleviate financial burdens associated with pregnancy should explicitly avoid defining embryos and fetuses as people with independent rights. * * * Additionally, we must counter proposals that classify fetuses or embryos as tax-deductible dependents—thus broadening legal recognition of fetal personhood—with alternative language that focuses on the actual and expanding needs of people during pregnancy. Navigating the delicate balance between advocating for pregnant people’s rights and access to resources and rejecting fetal personhood will reinforce support for pregnant people without undermining their broader legal protections.

 

Reject and Repeal Personhood Measures That Criminalize Pregnant and Postpartum People:

 

In addition to fighting fetal personhood in civil laws and constitutional amendments, we must develop and advocate for legislation that explicitly rejects fetal personhood in criminal law and prevents criminalization of pregnancy. Criminal codes should clearly state that fetuses are not people to prevent their misuse in criminal cases. State codes should also include explicit immunities protecting people from prosecution for pregnancy-related charges. Rejecting personhood ensures ambiguous legal language cannot be exploited to prosecute pregnant people unfairly.We must also reject measures that could criminalize pregnancy, such as statutes that fail to distinguish a fetus from a person in cases involving charges like abuse of a corpse.

 

Foreclose Tort Claims Against Pregnant and Postpartum People:

 

Tort claims against pregnant and postpartum people should be foreclosed, while their rights are directly supported. Laws could allow claims for pregnancy loss framed around the emotional loss of potential parenthood, without invoking fetal personhood or labeling such losses as “wrongful deaths.” To that end, legislation must clearly differentiate between a person and a fetus to avoid conflating the two in legal interpretations. * * * 

 

Connect Fetal Personhood to Threats to Maternal Health:

 

Fetal personhood opens the door to pregnancy criminalization, erodes trust between patients, and promotes the denial of emergency obstetric care and abortion care. These fetal personhood promoting policies directly imperil maternal and infant health outcomes. Until fetal personhood is decisively rejected, the nation will not see meaningful improvements in its maternal health crisis.

 

Connect Fetal Personhood to Threats to Democracy:

 

The surveillance and criminalization of women and people with the capacity for pregnancy under the doctrine of fetal personhood diminishes the ability of half the population to participate in public and civic life. Subjecting pregnant people (and potentially anyone with the capacity for pregnancy) to heightened surveillance and criminal consequences, including incarceration, creates a climate that limits their freedom of movement, expression, and engagement in society. These recommendations underscore the need to center the lives of pregnant and postpartum people, safeguard their rights, and prevent the erosion of hardwon legal protections. 

CFP Symposium, Women's Leadership in Law and Politics

Call for Proposals

Women’s Leadership in Law and Politics

Scholars Virtual Symposium

Sponsored by The Center for Constitutional Law & The Bliss Institute of Applied Politics at the University of Akron

Friday, February 21, 2025

The Center for Constitutional Law at Akron Law and The Bliss Institute of Applied Politics seek proposals for a Scholars Virtual Symposium to be held on Friday, February 21, 2025. Akron’s Center for Constitutional Law is one of four national centers established by Congress in 1986 for the bicentennial of the U.S. Constitution to support legal research and public education on issues of constitutional import. Past presenters at the Center have included Justice Sandra Day O’Connor, Justice Arthur Goldberg, Professor Reva Siegel, Professor Lawrence Solum, Professor Maggie Blackhawk, Professor Katie Eyer, Professor Harold Koh, Professor Kate Masur, Professor Julie Suk, and Professor Paula Monopoli, among many others. The Bliss Institute of Applied Politics is a bipartisan research, teaching and experiential learning institute dedicated to increasing understanding of the political process with special emphasis on political parties, grassroots activity, and civility and ethics.

The 2025 Scholars Symposium highlights questions of women’s leadership in law and politics. Recent events have brought heightened visibility to women’s political and leadership. Vice-President Kamala Harris became the presidential candidate. Women Justices reached a critical mass on the U.S. Supreme Court, constituting now four of nine Justices. Women’s grassroots initiatives and activism brought reproductive rights to the national agenda through state voting referenda in the wake of Dobbs. This symposium brings together scholars from disciplines including law, politics, history, and gender studies to explore the contours of what women’s political and legal leadership looks like. It will discuss trends, barriers, limitations, and impacts of women’s leadership.

Suggested topics for this symposium may include, but are in no way limited to:

• Why women’s representation in political and lawmaking institutions matters
• Barriers to women’s political and legal leadership
• Women judges – trends, history, and impact
• Women as political candidates
• Bias in women’s leadership – gender, racial, ethnicity bias, and DEI
• Personal attacks on women in leadership from AI, social media, and harassment
• The Hillary Factor – the antagonism to women candidates and the assumption women can’t win
• The Kamala Factor – undervaluing women’s power
• Grassroots women’s groups, g. Moms for Liberty, Red Wine & USA, MeToo
• Proportional Representation Reform, g. Alaska, Congress’s Fair Representation Act, international
• Comparative international women’s leadership in law, courts, and politics
• Women’s leadership in legal practice – firms, partners, MDL, arbitration, experts, judges
• Women’s political equality as seen in constitutional jurisprudence, including Dobbs
• Pipelines to women’s legal and political leadership
• Women as constitution makers (19th Amendment, ERA, global constitutions)

The symposium aims to ignite dialogue and discussion among scholars ruminating on these important issues. The price of admission, so to speak, is a short discussion paper to be published in the written symposium in the Spring 2025 edition of the Center for Constitutional Law’s open-access journal, ConLawNOW (also indexed in Westlaw, Lexis, and Hein). Papers should be about 3,000 to 5,000 words (5-10 published pages). These may be derivative works of longer works or books published elsewhere.

Those interested in participating in the 2025 Constitutional Law Scholars Symposium should send an abstract, title, and CV to Professor Tracy Thomas, Director of the Center for Constitutional Law at Akron, at [email protected]. Abstracts are welcomed beginning now, and should be submitted by December 1, 2024. 

Susan Ayres on "A Crazy Quilt: Infanticide in the United States"

Susan Ayres posted a book chapter on SSRN titled "A Crazy Quilt: Infanticide in the United States." The chapter is from the larger project, 100 Years of the Infanticide Act: Legacy, Impact and Future Directions (Karen Brennan and Emma Milne, eds., Bloomsbury Publishing, 2023). The abstract is here: 

This chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust and irrational approach that ignores women’s vulnerabilities and fails to acknowledge the patterned nature of these cases.

Online Talk Featuring Khiara M. Bridges on "Expecting Inequity: Race, Class, and Reproductive Justice"

See the below announcement of an online program hosted by The Gibson-Banks Center for Race and the Law and the Law & Health Care Program at University of Maryland Carey School of Law. The event features Khiara M. Bridges, Professor of Law, UC Berkeley School of Law, speaking about "Expecting Inequity: Race, Class, and Reproductive Justice." The link to register is here. 

Professor Bridges has written many articles concerning race, class, reproductive rights, and the intersection of the three. Her scholarship has appeared in the Harvard Law Review, Stanford Law Review, the Columbia Law Review, the California Law Review, the NYU Law Review, and the Virginia Law Review, among others. She is also the author of three books: Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization (2011), The Poverty of Privacy Rights (2017), and Critical Race Theory: A Primer (2019). She is a coeditor of a reproductive justice book series that is published under the imprint of the University of California Press. She is currently writing her forthcoming book, Expecting Inequity: Race, Class, and Reproductive Justice.

This event is free, but registration is required. You will receive information on how to access the event in a separate email 48 hours before the webinar begins. If you have questions, please contact Gehan Girguis at [email protected]. This event will be recorded.

Feminist Legal Theory CRN Law & Society CFP

Monday, October 7th is the deadline to submit a proposal for the Law & Society Annual Meeting content affiliated with the Feminist Legal Theory Collaborative Research Network. Please send any questions, comments, or ideas for events to the CRN email address: [email protected]. Submit a form here. If you are submitting an individual proposal, after Section 4 in the form go to the bottom of the section and hit next and on Section 9 hit submit to finalize your submission. If you are submitting a multi-authored paper or if you are submitting one of the other format types, after Section 4 in the form only complete the appropriate section for you and on Section 9 hit submit to finalize your submission. The Planning Committee especially welcomes the following: 

The following non-exhaustive list is intended to provide examples of topic areas, and not to limit scholarly and creative engagement of feminist legal theory within the conference themes:

• Present-day Inequalities Legacies of Slavery and Colonialism

• Consequences of Neoliberal Economic and Social Policies

• Health & Environmental Crises such as HIV/AIDS, Covid 19, Monkeypox, Climate Change, Natural Disasters

• Military, Police, and Other Pervasive Violence against Marginalized People

• Access to Justice & Legal Empowerment Issues & Approaches

• Inequalities related to Reproduction and Reproductive Technologies

• Immigration & Displacement

• LGTBQ+ Discrimination

• Unequal and Separate Treatment of Children

• Legal Education & Inequality

• Discrimination based on Marriage & Family Formation

• State Criminalizing Practices predicated on Gender

• Feminization of Poverty

• Perspectives on Exploitation & Resistance Movements

• Transnational/International/Comparative Feminist Critiques

• Feminism and Legal History

We especially welcome proposals that would permit us to collaborate with other CRNs and that are multidisciplinary in approach. We strongly encourage colleagues from the Global South, indigenous colleagues, and colleagues from various minority groups to submit proposals.

 

Gendering the New International Norms on Artificial Intelligence and Emerging Technologies

Rangita de Silva de Alwis, Gendering the New International Norms on Artificial Intelligence and Emerging Technologies  

A flurry of landmark international digital rules is soon to make its debut in the international law arena. At the Summit of the Future, in September 2024, the Secretary General plans to announce the Digital Global Compact 2023, an ambitious vision to close the various digital divides and to fast track progress toward the United Nations (UN) Sustainable Development Goals.  In March of 2024, the UN General Assembly adopted the first ever UN General Assembly Resolution on Artificial Intelligence (AI) for Sustainable Development.  Five months later, in August of 2024, the United Nations approved the draft of a global cybercrimes treaty; this historic draft agreement, coined the United Nations Convention Against Cybercrime, will go before the UN General Assembly in this upcoming fall.  

Last year, ahead of the 2023 Summit of the Future, the Secretary General introduced his Agenda for Peace, committing to “Transforming the gendered power dynamics in peace and security.”  In line with his vision, together, these new and evolving frameworks provide the first history-making normative landscape for new technologies at the global level. This Article critically examines the role of gender in these burgeoning frameworks as pivotal to elements in a rapidly changing digital ecosystem. While the current normative foci overlook important aspects of gender equality, they also elide the rise of ChatGPT and other Generative AI and their impact on gender. The primacy of gender equal participation in digital and cybersecurity governance should be a pillar of the new global digital order. 

The Impact of Dobbs on Employment Law and Women Workers

Laura T. Kessler, Reproductive Justice at Work: Employment Law After Dobbs v. Jackson Women’s Health Organization, 109 Cornell L. Rev. (2024)  

In June 2022, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts.  Experts across fields have explored the decision's effects on health, economic security, medical privacy, the patient-physician relationship, access to assisted reproduction, marriage equality and other LGBT+ rights, constitutional sex equality, disability rights, and medical research. Less attention has been given to the impact of Dobbs on employment law and women workers. To fill this gap, this Article examines the post-Dobbs landscape in which workers' reproductive experiences and capacities may be used to justify employment discrimination.

Part I provides the sociomedical and legal landscape upon which this Article’s arguments rest.  Specifically, Part I.A. demonstrates that common reproductive health experiences such as abortion, infertility, and miscarriage are often indistinguishable, as the symptoms and treatments for these conditions significantly overlap.  Given this overlap, after Dobbs, all of these reproductive health events are becoming more complicated (and potentially dangerous) medically and uncertain legally. Part I.B. provides a brief overview of four major federal employment statutes relevant to workers’ reproductive freedom and reproductive lives—the Pregnancy Discrimination Act of 1978 (PDA),  the Americans with Disabilities Act of 1990 (ADA),  the Pregnant Workers Fairness Act of 2022 (PWFA),  and Family and Medical Leave Act of 1993 (FMLA).  My emphasis is on how (with the exception of the PWFA, which is new), federal courts have significantly undermined federal protections for workers affected by common reproductive health conditions despite Congress’s broad remedial purposes in passing federal employment statutes and the EEOC’s loyal interpretations of them.

Part II goes on to examine more closely some of the judicially imposed gaps that render federal employment statutes particularly ineffective in addressing workers’ reproductive lives.  In particular, Part II examines the weak or nonexistent medical privacy and antiretaliation protections provided by federal antidiscrimination and family leave laws, largely due to constraining lower court interpretations.  It also examines the mismatch between the culture of secrecy surrounding workers’ common reproductive health experiences such as abortion, infertility, pregnancy, and miscarriage and federal employment statutes and legal doctrines that require workers to share private health information as a precondition to receiving legal protections.  As Part II argues, the criminalization of abortion in the wake of Dobbs is likely to exacerbate these legal and cultural conditions that render federal employment law particularly ineffective in this realm.

Part III turns to solutions, inviting introspection and regulatory shifts to include the full spectrum of a person's reproductive life in mainstream employment law. Among other reforms, Part III examines the recently-passed Pregnant Workers Fairness Act (PWFA), a new federal law providing a basic right to reasonable workplace accommodations for pregnancy and related medical conditions. The PWFA is a significant victory for pregnant workers and women's rights.  But, as Part III argues, in some significant respects, the PWFA does not go far enough, because it does not sufficiently shore up privacy and antiretaliation protections that workers need to meaningfully access reasonable accommodations in a legal landscape where abortion is a crime and even a miscarriage or failed IVF cycle may be prosecuted as an abortion. Therefore, as Part III argues, enhanced medical privacy and antiretaliation protections in all of our federal employment statutes are required.  Without such protections, the entire legal regime of substantive protections from sex and disability discrimination at work will be severely weakened for women workers post-Dobbs.  Finally, Part III argues that it is time for a national paid sick leave law in the United States.  Such a law is also necessary to address the unique vulnerabilities of women workers in a post-Dobbs world.

ND Federal District Court Holds Catholic Employers Do Not Have to Follow EEOC Rule to Accommodate Workers for IVF or Abortion

Judge Rules Catholic Employers Can Now Deny Workers Time Off For Abortion or IVF 

More than 8,000 Catholic employers across the country will not be required to provide accommodations for workers needing abortion or fertility care following a ruling in North Dakota. 

The Pregnant Workers Fairness Act took effect in June 2023, granting workers — many of them low-wage women — protections if they needed time off from work for pregnancy-related conditions. Earlier this year, the Equal Employment Opportunity Commission, which enforces the law, released rules that broadly defined pregnancy-related conditions to include anything from morning sickness to an abortion or fertility care. Under the rules, workers could request time off to get an abortion or for an IVF procedure, for example, and employers must work in good faith to provide the accommodation. 

But the Catholic Benefits Association and the Diocese of Bismarck sued the EEOC this summer, arguing that a broad interpretation of the law that included abortion and fertility protections would be violating Catholic employers’ religious freedom. 

The EEOC, the complaint said, “hijacked this statute and demanded that Catholic and other employers affirmatively accommodate abortion and immoral fertility treatments.”  

The EEOC rules don’t require employers to pay for the care, just to provide time off to allow workers to seek it. 

The Eighth Circuit, where North Dakota is located, is also hearing a case challenging the entirety of the EEOC Accommodation Rule issued pursuant to the Pregnancy Fairness Act. See Gender Law Blog, Eighth Circuit First to Consider EEOC Rule Including Abortion-Related Worker Accommodations.

Lots going on in North Dakota these days. See also North Dakota Abortion Ban Overturned as Vague and Violating Women's Fundamental Rights To Choice and Medical Freedom

The History of the Gendered Term "Congressman" and its Neutral Alternative "Representative"

You Should Call House Members "Representatives"

For most of the nation’s history, members of the U.S. House of Representatives have been addressed as “Congressman” or “Congresswoman.” By contrast, a senator is referred to as, well, “Senator.”

These gendered terms for House members dominate in journalism, everyday conversation and among members of Congress.

The name Congress refers to the entire national legislature, composed of the House of Representatives and the Senate. Gender identity aside, Congressman and Congresswoman are fundamentally inaccurate terms.

In the Constitution, Congress refers to the legislative branch as a whole. When discussing the membership of Congress, the Constitution uses “Representatives” and “Senators,” but also “Members” in reference to both. “Congressman” is nowhere in that founding document.

One of the foremost scholars of Congress, the late Richard Fenno, wrote, “a House member’s designation, as prescribed in the U.S. Constitution, is not Congressman, it is Representative.”

As a scholar of Congress and particularly the Senate, I am interested in the differences between the two chambers and how that affects American politics. In my investigation of the origins and evolution of congressman and congresswoman, I combed the records of colonial and state legislatures, as well as records related to the country’s founding and newspapers from the end of the 1700s to the mid-1900s.

Even if the current era were not one of justified sensitivity to gender neutrality and diversity, these two terms for House members are not just dated, they are wrong. Representative is the correct but rarely used term.

North Dakota Abortion Ban Overturned as Vague and Violating Women's Fundamental Rights To Choice and Medical Freedom

Washington Post, Judge Overturns North Dakota's Near-Total Abortion Ban

A North Dakota judge struck down the state’s near-total ban on abortion Thursday, saying the state constitution gives women a “fundamental right to choose abortion” before fetal viability. Restrictions on the right is “a violation on medical freedom,” he ruled.

State District Judge Bruce Romanick declared the law, enacted by the legislature last year, “unconstitutionally void for vagueness.” The statute made the procedure illegal in all cases except rape or incest when the woman has been pregnant for less than six weeks or when the pregnancy poses a serious physical health threat. Doctors and other health care professionals found to be in violation of the law could be charged with a felony — and then face up to five years in prison and a maximum fine of $10,000.

In the conservative state, where lawmakers have twice passed bans that courts subsequently ruled against, the victory for abortion rights supporters was a bittersweet one. North Dakota no longer has any abortion clinics; its onetime sole provider and plaintiff in the lawsuit, the Red River Women’s Clinic, moved from Fargo to Moorhead, Minn., in 2022.

IVF After Dobbs, and Statutory Distinctions of Pregnancy Versus External Embryos

Kerry Lynn Macintosh, Dobbs, Abortion Laws, and in Vitro Fertilization, 26 J. Health Care Law & Policy (2023)  

Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion. The Supreme Court distinguished abortion from other constitutionally-protected conduct on the ground that abortion destroys potential life. Given that outcome and rationale, it is timely to review the legal status of in vitro fertilization (IVF), a medical procedure in which human embryos are often lost and multiple fetuses sometimes reduced. This Article canvasses abortion laws and finds that most do not reach IVF and related practices. However, legislatures may enact future laws that ban or restrict IVF in order to protect embryos and fetuses. Thus, this Article evaluates the constitutionality of such laws after Dobbs. It concludes that bans on IVF are unconstitutional as applied to individuals who cannot procreate coitally. However, courts may uphold laws that restrict IVF-related practices that endanger or kill embryos or fetuses.

Eighth Circuit First to Consider EEOC Rule Including Abortion-Related Worker Accommodations

Bloomberg, First Appeals Court to Mull EEOC Abortion Accommodation Rule

• 17 states to argue on appeal for injunction on pregnancy rule
• US Supreme Court’s Loper Bright decision likely to be raised

The EEOC’s inclusion of abortion-related worker accommodations in a pregnancy anti-bias rule will encounter a significant test at the US Court of Appeals for the Eighth Circuit as it reviews a challenge from red state attorneys general.

The 17 state AGs will urge the circuit judges on Tuesday to reverse a district court’s decision that they lacked standing to bring their suit. They seek to block and vacate the US Equal Employment Opportunity Commission’s April final rule under the Pregnant Workers Fairness Act.

The Eighth Circuit will be the first appellate court to hear oral arguments on the regulation as the EEOC’s enforcement of the PWFA has faced conflicting fates in challenges filed by Republican states, as well as some anti-abortion Catholic groups, across the country. An Eighth Circuit decision to allow a pause on the regulation’s enforcement would be a blow to the agency’s rulemaking authority, and could impede on abortion-related workplace accommodations like employee leave.

Report on "Deepening the Divide: Abortion Bans Further Harm Immigrant Communities"

A new fact sheet has been published on the harms of abortion bans to immigrant communities. This report was authored by Lucie Arvallo, Hannah Liu, Suma Setty, Priya Pandey, Salen Andrews, National Latina Institute for Reproductive Justice, and the Center for Law and Social Policy. The introduction is excerpted here: 

Im/migrants, especially those who are undocumented and those in mixed-status families, are particularly vulnerable to the harmful impacts of abortion bans due to the barriers they face in accessing health care and the increased risk of criminalization based on immigration status. These barriers and risks include arbitrary Customs and Border Protection (CBP) checkpoints, a five-year waiting period for legal permanent residents to enroll in public health insurance programs, agreements between local law enforcement and federal immigration authorities, and increasing anti-immigrant state policies. Individuals in immigration detention face additional threats to their reproductive health and overall well-being, including medically unnecessary gynecological procedures like forced hysterectomies and denial of abortion care. This fact sheet highlights how Dobbs compounded pre-existing barriers to abortion care for im/migrants. We propose a set of concrete recommendations for Congress and the administration to support im/migrant access to abortion.