Update Jan. 24, 8:56 p.m. PT: The New York Senate passed the telemedicine abortion provider shield bill on Jan. 24, sending the legislation to the Assembly, the lower house of the state legislature. After it passes through this chamber, it heads to Gov. Kathy Hochul (D) for her signature.
On Jan. 9, New York state Senator Shelly B. Mayer (D) introduced legislation that would allow licensed clinicians in New York to provide telemedicine abortion services to patients located in states banning or severely restricting medication abortion. The bill passed out of committee on Jan. 17 and will soon be introduced in the Assembly by Member Karina Reyes (D). If passed, New York would become the second state after Massachusetts to pass a shield law extending to telemedicine abortion providers serving out-of-state patients.
“S1066 makes it clear that New York State will not be complicit in other states’ reckless attempts to punish providing, receiving, and helping others get the abortion care they need,” said Donna Lieberman, executive director of the New York Civil Liberties Union. “As forced pregnancy states attempt to criminalize pregnant people across the country, New York must find every legal pathway possible to protect those who provide and seek care from retribution and expand abortion access for all.”
When the Supreme Court overturned Roe v. Wade and the constitutional right to abortion in June, it declared that it was sending the issue back to the “people and their elected representatives.” But the fight has largely moved to a different set of supreme courts and constitutions: those in the states.
On a single day this month, South Carolina’s highest court handed down its ruling that the right to privacy in the State Constitution includes a right to abortion, a decision that overturned the state’s six-week abortion ban. Within hours, Idaho’s highest court ruled in the opposite direction, saying that state’s Constitution did not protect abortion rights; the ban there would stand.
Those divergent decisions displayed how volatile and patchwork the fight over abortion rights will be over the next months, as abortion rights advocates and opponents push and pull over state constitutions.
For abortion rights groups, state constitutions are a critical part of a strategy to overturn bans that have cut off access to abortion in a wide swath of the country. Those documents provide much longer and more generous enumerations of rights than the United States Constitution, and history is full of examples of state courts using them to lead the way to establish broad rights — as well as to strike down restrictions on abortion. They offer a way around gerrymandered state legislatures that are pushing stricter laws.
Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.
This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion.
Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.
Kate Redburn has published Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1962-86, Law & History Rev. 1 (2023). The abstract provides:
Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.
The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.
During the 1980s, the wage gap between white women and white men in the US declined by approximately 1 percentage point per year. In the decades since, the rate of gender wage convergence has stalled to less than one-third of its previous value. An outstanding puzzle in economics is “why did gender wage convergence in the US stall?” Using an event study design that exploits the timing of state and federal family-leave policies, we show that the introduction of the policies can explain 94% of the reduction in the rate of gender wage convergence that is unaccounted for after controlling for changes in observable characteristics of workers. If gender wage convergence had continued at the pre-family leave rate, wage parity between white women and white men would have been achieved as early as 2017.
The article concludes:
[U]sing the introduction of family-leave policies, we explain 94% of the stagnation in gender wage convergence that is unaccounted for after controlling for changes in observable characteristics between men and women. A key lesson from our work is that legally-mandated labor market flexibility can have the unintended effect of stymieing gender wage convergence, notwithstanding the increasing evidence that flexibility which arises endogenously in the labor market through technological innovation, or from firms changing their own policies, can lead to reduced gender wage gaps * * * .
The evidence that we provide on the impact of leave policies on gender wage convergence in the US contributes to a growing literature documenting negative impacts of leave policies on gender wage equality in Europe and other OECD countries * * *. Because the leave offered in the US is less generous that what is offered in peer countries, our results suggests an important role for economists to consider what features of family-leave policy design can soften the equity-efficiency trade-off arising from the introduction of family-leave policies. We leave this work to future studies by other scholars having answered the question: “why did gender wage convergence in the United States stall?”
The FDA published a draft guidance proposing revisions to its blood donation requirements, materials, questionnaires, and procedures to eliminate categorical exclusions against men who have had sex with men in the past three months, instead moving to gender-neutral individual assessments.
The restrictions on donating blood date back to the early days of the AIDS epidemic and were designed to protect the blood supply from HIV. Originally, gay and bisexual men were completely prohibited from donating blood. Over time, the FDA relaxed the lifetime ban, but still kept in place some limits.
* * *
The new proposed policy would eliminate the time-based restrictions on men who have sex with men (and their female partners) and instead screen potential donors' eligibility based on a series of questions that assess their HIV risk, regardless of gender. Anyone taking medications to treat or prevent HIV, including PrEP, would not be eligible.
The FDA stated the following:
We, FDA, are issuing this draft guidance to receive comments on revised recommendations for evaluating donor eligibility using individual risk-based questions. This draft guidance, when finalized will provide you, blood establishments that collect blood or blood components, including Source Plasma, with FDA’s revised donor deferral recommendations for individuals with increased risk for transmitting human immunodeficiency virus (HIV) infection. We are also recommending that you make corresponding revisions to your donor educational materials, donor history questionnaires and accompanying materials, along with revisions to your donor requalification and product management procedures. This guidance, when finalized, will supersede the guidance entitled, “Revised Recommendations for Reducing the Risk of Human Immunodeficiency Virus Transmission by Blood and Blood Products” dated April 2020, updated August 2020 (April 2020 guidance). The recommendations contained in this draft guidance, when finalized, will apply to the collection of blood and blood components, including Source Plasma.
Comments may be submitted online regarding the draft guidance.
Is there an intergenerational gap in decision-making among female judges? Do female judges from United States Supreme Court Justice Ruth Bader Ginsburg’s generation hold a different orientation to law and policy as compared to judges from younger generations? Reviewing different theoretical perspectives regarding gender and judging, we examine the significance of intergenerational change among female judges whose political coming-of-age occurred at different historical intervals. We explore how this change informs decisional outcomes in the U.S. courts of appeals. To designate a temporal marker of intergenerational change, we use Betty Friedan’s publication of The Feminine Mystique in 1963. Our analysis indicates that despite the traditionalistic culture in which they grew up, female judges who came of age prior to publication of The Feminine Mystique voted with significantly higher progressive inclinations compared to female judges who came of age after the book’s emergence. We explore the implications of this finding for judicial decision-making.
The lack of female CEOs and the persistent gender pay gap, especially at higher income levels, have become popular topics both in academics and society. Most studies focus on the differences between males and females that perpetuate this "glass ceiling," while few look at within-gender traits that can help mitigate its effects. In this paper, I use novel measures of CEO and CFO vocal masculinity and language complexity to gain insight into how these individual-level traits influence executive status and compensation both within and across genders. I find that vocal masculinity, within females, positively impacts their likelihood of becoming a CEO while the opposite is true for males. When it comes to communication, CEOs speak with greater complexity than CFOs while both female CEOs and CFOs use more complex language and speak longer during earnings calls than their male counterparts. Differences in CEO-CFO language complexity are greater at low entrenchment firms while differences in masculinity are greater at high entrenchment firms. Additionally, while boards with greater female representation hire more female CEOs, they surprisingly seem to place a greater emphasis on female masculinity, while male masculinity plays a larger role at firms with male-dominated boards. Finally, for both male and female CEOs, compensation is positively related to masculinity, while increased language complexity only matters for females. These results help provide insight into the determinants of CEO status and compensation and may help explain how boards view and reward perceived competency across genders.
The Colorado baker who won a partial U.S. Supreme Court victory after refusing to make a gay couple’s wedding cake because of his Christian faith lost an appeal Thursday in his latest legal fight, involving his rejection of a request for a birthday cake celebrating a gender transition.
The Colorado Court of Appeals ruled that that the cake Autumn Scardina requested from Jack Phillips and Masterpiece Cakeshop, which was to be pink with blue frosting, is not a form of speech.
It also found that the state law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners' right to practice or express their religion.
Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips' shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female. ***
“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” said the court, which also rejected procedural arguments from Phillips.
Phillips, who is represented by Alliance Defending Freedom, maintains that the cakes he creates are a form of speech and plans to appeal.
Article 133 of the Uniform Code of Military Justice—the penal code for the armed forces—makes it a crime for an officer to do anything that is “unbecoming an officer and a gentleman.” This Article argues that Congress should modernize the statute to acknowledge the contributions of servicewomen to the officers’ corps and the unequal treatment they had to endure in order to serve their country by making the offense gender neutral. Given that Congress is poised to overhaul the military justice system, there is no reason why this relic should not be addressed.
Progress has been made in the last century toward reducing gender bias in society at large and in the workplace specifically. The negative impact gender differentiation has on women’s careers, however, is not gone. Differential treatment and biases have moved from explicit to more implicit. These biases are rooted in decades of modeling and stereotyping women as communal and men as agentic, thereby casting women as caregivers and men as leaders. The stereotyping influences women’s professional lives by tainting both supervisors’ and employees’ decisions. The differentiation starts already in hiring decisions, which include decisions on who to hire, at what rank, and how much to pay. Once women are hired, the bias continues in task allocation and performance evaluation, which determine immediate compensation and subsequent promotions. Thus, women’s career progressions are made more complicated throughout their entire participation in the workforce. The multifaceted nature of the problem suggests that only a holistic approach can significantly reduce gender bias.
This chapter, a contribution to an edited volume on "International Sexual and Reproductive Rights Lawfare," analyzes the evolution of lesbian and gay rights litigation before the European Court of Human Rights (ECtHR). Between 2010 and 2020, the ECtHR issued fifty-seven merits judgments involving a broad array of sexual orientation issues—a sharp expansion from the number of such decisions in earlier periods. The growing number of cases reflects the fact that sexual orientation rights have become increasingly contested across Europe. We explain the reasons for this trend and predict that recent ECtHR judgments concerning same-sex partnerships and asylum are poised to further exacerbate these contestations.
In addition, we offer insights into the research questions identified in the Introduction to the edited volume. We emphasize the strategic decisions of actors who turn to the ECtHR as a sympathetic venue for expanding lesbian and gay rights across Europe and, separately, to provide a bulwark against repression by some states. We identify the political and social factors that push these cases to the Court and the doctrines it applies when adjudicating these disputes. We then discuss the nation-level protections that ECtHR litigation has historically engendered and how recent cases have increased the risk of noncompliance with ECtHR judgments concerning sexual orientation rights. Finally, we investigate whether the Court can maintain its legitimacy and avoid politicizing sexual orientation rights cases in light of the growing contestations over those rights across Europe.
A company that makes an abortion pill filed a lawsuit Wednesday morning challenging the constitutionality of a state ban on the medication, one in what is expected to be a wave of cases arguing that the federal Food and Drug Administration’s approval of the pill takes precedence over such restrictive state laws.
The case was filed in federal court in West Virginia by GenBioPro, one of two American manufacturers of mifepristone, the first pill used in the two-drug medication abortion regimen. A ruling in favor of the company could compel other states that have banned abortion to allow the pills to be prescribed, dispensed and sold, according to legal experts. If the courts reject the company’s arguments, some legal scholars say the decision could open the door for states to ban or restrict other approved drugs, such as Covid vaccines or morning-after pills.
The case is one of a number of lawsuits testing legal arguments in the aftermath of the Supreme Court’s ruling last June overturning the federal right to abortion. Also on Wednesday, an obstetrician-gynecologist sued officials in North Carolina, which still allows abortion, challenging the state’s requirements for using mifepristone because they go beyond F.D.A. regulations on the drug. In November, abortion opponents filed a lawsuit challenging the F.D.A.’s approval of mifepristone nearly 23 years ago and asked that the courts order the agency to stop allowing the use of the drug and the second drug, misoprostol, for abortion.
An Injustice Watch investigation found that the department has denied hundreds of U visa certification requests from undocumented crime victims this year, many of them at odds with federal certification standards and some that appeared to violate state law.
Two Chicago police sergeants, Brandon Ternand and John Poulos, issued most of the denials reviewed by Injustice Watch. Both sergeants have fatally shot civilians and had serious questions raised by investigators about their credibility. Both also faced termination, but in 2018 the Chicago Police Board allowed them to keep their jobs. The city has paid out more than $3 million in settlements and judgments relating to the two sergeants.
Police watchdogs said the decision to designate Ternand and Poulos as U visa certifiers raises questions about CPD’s selection process for the job.
* * *
[A]fter Injustice Watch started reporting this story and following weeks of complaints from immigration attorneys to officials in Mayor Lori Lightfoot’s office, sources said that CPD said it would revise its policies on U visa certifications. The most significant change will require the department’s Office of Legal Affairs to review all denials as well as handle appeals of previously denied requests.
The City Council is also considering calling for hearings on this issue seeking more transparency.
In this study, we consider whether the 1960s and 1970s legalization of abortion in the United States led to improvements in maternal health. Our findings suggest that legal abortion reduced non-white abortion-related mortality by 30-60% and non-white maternal mortality by 30-40%. In the first year after the passage of legal abortion, this percentage decline translates into 41 non-white maternal deaths averted in early-legal states and 113 non-white maternal deaths averted nationally. To ground the magnitude of the deaths averted in present-day maternal deaths, a total of 299 non-white women died from maternal causes of death in 2019, despite a broader classification of maternal deaths today. * * * [T]he estimated decline in maternal mortality represents the "tip of the iceberg" in terms of the health effects of legal abortion * * *.
In an era where Roe v. Wade no longer determines abortion laws in the United States, we conclude with two facts worth considering for policy today. First, during the period of our study, legal abortion acts primarily through lower abortion-related deaths, rather than a change in pregnancy-related risk factors. The importance of abortion-related maternal mortality indicates that eliminating unsafe and illegal abortion was likely the main driver of mortality declines discovered in this study. Second, legal abortion appears most important for non-white women, and also has the largest impact in counties with lower levels of income, educational attainment, and healthcare resources. Put together, the impact of legal abortion shows marked heterogeneous impacts by race and socioeconomic status, where legal abortion appears most important for less advantaged groups.
Still, based on these observed facts, the maternal mortality impacts of a post-Roe v. Wade legal landscape are unclear. A number of factors are different today than in the 1970s. Most notably, the availability of medical abortion, which can be prescribed through telemedicine appointments, sent through the mail, and safely administered at home * * * Instead, we conclude by emphasizing the importance of legal abortion for non-white maternal health during the period of initial legalization. Today, in the U.S., non-Hispanic black women already suffer three times the maternal mortality of white women * * * , and if there is a health impact of legal abortion restrictions, it will likely be for this group.
Orion Rummler writing for The 19th documents the harms that trans people face when misgendered after death.
Without updated identity documents, such as a driver’s license or other government-issued I.D., trans people are likely to be misgendered and have the wrong name on their death certificates — in spite of their lived experience, gender expression or physical transition. That acute loss of self weighs heavily on the minds of many trans people, especially those with unsupportive families or those without resources to change their documentation.
* * *
The paperwork, policies and software used to record death vary from state to state. Without state or federal requirements to gather LGBTQ+ data after death, crucial choices on the remembrance of deceased transgender people are left in the hands of individual funeral directors, medical examiners and death investigators working within a convoluted and underfunded system.
The article profiles a recent study out of Portland concluding:
Of the 47 trans and nonbinary people who died from 2011 to 2021 that researchers could find, more than half had their genders marked incorrectly on their death certificates. That number was small — 29 trans people over that 10-year period were misgendered on their death certificates.But the time-consuming manner that researchers had to use to prove even that sliver of information underlines the key problem: For Oregon and most other states, there is no formal record of someone’s gender identity after death at all.
The article recommends legal changes to avoid what the Portland study co-authors described powerfully as the "nonconsensual detransitioning after death.” "Lawmakers should create policy to ensure transgender people can be recognized as their true selves after death if they lack updated identity documents, * * * especially since the process of obtaining those documents can be difficult in some states."
This chapter locates debates over abortion in equal protection and in an evolving understanding of women’s citizenship. Sex discrimination law has grown from the time of Roe to Dobbs; and sex equality arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. As we show, evolving understandings of women’s citizenship have implications for how the state protects new life. The labor of lifegiving is no longer to be coerced or extracted by law—as states enforcing the law of gender status historically assumed it could be. Equal protection commitments give rise to an anti-carceral presumption in regulating abortion. As state laws inside and outside the abortion context attest: States that respect women as equal citizens do not turn, as a matter of first resort, to measures that rely on coercion and control when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions strips women of agency, forces them to continue pregnancies and become mothers against their will, and perpetuates the forms of inequality that are the central concern of sex-based equal protection law. To opt for the maximally coercive approach—forced pregnancy and childbirth—when there are alternative means for enabling families to flourish is neither constitutional nor plausibly characterized as promoting life.
Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers choose litigation strategies, craft arguments, and present their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.
This Article focuses upon a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are a crucial source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “Old boys’ networks.”
For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than 15,000 matters and 2,700 attorneys were collected as the basis for a massive network.
Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interacts with gender—women’s positions within the network differs by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: From working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.
The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.
This article calls into question the abundance of academic writing that criticizes, as inconsistent with equality principles, the constitutional law of parenthood. Some of this criticism, concerned with gender stereotypes, argues that the current doctrine’s preferential treatment of gestational mothers inexcusably discriminates against fathers. Other critics focus on how the Supreme Court’s approach to gestational investment excludes same sex partners from parental rights. Both of these critiques argue that the work of gestation has been overvalued. They both endorse a kind of gestational erasure, but they differ sharply on where they root the essence of parenthood. Those concerned about equal treatment for fathers root parenthood in genetics. Those concerned about equal treatment for same sex partners root parenthood in parental investment. This article highlights the tension between these positions and challenges those willing to erase the relevance of gestation at both a normative and practical level. It explains how discounting the relevance of gestation will have serious consequences for the law of abortion, adoption and custody, placing already vulnerable women at more risk of being controlled by men they want to escape. Further, this article argues that the current constitutional doctrine, which recognizes the salience of gestation, necessarily incorporates what LGBTQ advocates argue must be incorporated into decisions about parenthood: parental investment. What is inconsistent with LGBTQ equality in parenthood is not a regime that recognizes gestational investment, but one that reifies the genetic essentialism on which the gender-stereotype critique relies.
The Republican-controlled Missouri House of Representatives used its session’s opening day Wednesday to tighten the dress code for female legislators, while leaving the men’s dress code alone.
The changes were spearheaded by state Rep. Ann Kelley (R), a co-sponsor who was among the Republicans seeking to require women to wear a blazer when in the chamber. She was met by swift opposition from Democrats who called it “ridiculous.”
The state House eventually approved a modified version of Kelley’s proposal, which allows for cardigans as well as jackets, but still requires women’s arms to be concealed. Missouri Democrats tore into Republicans for pushing the new restrictions on what women in the chamber could wear. ***
While previous rules said that “dresses or skirts or slacks worn with a blazer or sweater and appropriate dress shoes or boots” were allowed to be worn by female lawmakers, Kelley, one of the co-sponsors of H.R. 11, said Wednesday that women needed to wear jackets on the floor as “it is essential to always maintain a formal and professional atmosphere.”