Friday, September 17, 2021
Deborah Jones Merritt and Kyle P. McEntee, Gender Equity in Law School Enrollment: An Elusive Goal, 69 Journal of Legal Education 1, 102 (2021).
This article addresses the somewhat hidden gender inequity in law school enrollment. Although the percentage of students self-identifying as female has reached over fifty percent in nationwide aggregated law school enrollment statistics, this number obscures the fact that law schools have not yet achieved greater gender equity.
Professor Merritt and Director McEntee utilize a variety of weighing measures to conclude that “[w]omen are still less likely than men to apply to law school, less likely to gain admission when they do apply, and less likely to attend the most prestigious schools after admission.” The authors delve into the common reasons that deter students from applying for law school and note that key concerns, such as expense and confidence of successful completion, are felt more acutely by women than by men. Thus, women are applying for law school at a lower rate than their similarly situated male counterparts. At the institutional level, law schools tend to place greater emphasis on LSAT scores rather than college grades, even though statistically the former favors male candidates while the latter favors female candidates. These, and other factors, lead to an underrepresentation of female admittees at laws schools generally ranked higher in the US News system, and an overrepresentation in those generally ranked lower. This perpetuates the inequity into legal practice, as “[h]ighly ranked schools open employment doors that, as a practical matter, are not available to graduates of lower-ranking schools” and attending them increases the likelihood of finding a practicing position in the legal profession more broadly.
The authors conclude by discussing various steps an institution can take to address these gender inequities and asserts the importance of doing so. “Assuring full equity for women in law school enrollment is the first step toward achieving full gender equity throughout the legal profession.”
Thursday, September 16, 2021
In the case of personal identity, I am drawn to default pronouns that don’t assume others’ gender. Instead of assuming someone’s gender identity based on how they look or dress or act, it is more appropriate to refer to them as “they” until I know better. And whenever possible, it is important to create early opportunities to learn their chosen pronouns, which has become standard practice in academic and other settings.
Starting with the inclusive default “they” is less likely to cause offense than using harmful stereotypes to guess at someone’s pronouns. In grade school, one of my children was advised to adopt a similar strategy to address female teachers as “Ms.” until the teacher said that they prefer “Miss” or “Mrs.” Non-identification is a much less costly default than misidentification.
Some people harp on how difficult it is to make this kind of linguistic change. But broadly adopting the singular “they” can actually reduce a speaker’s cognitive load. Years ago, my parents told me they liked “Ms.” because they no longer had to presume whether a woman was married or not. Calling people “they” by default similarly relieves the speaker of having to guess at someone’s gender. More importantly, it has the advantage of reducing gender-related assumptions that listeners might make. And it has the crucial benefit of more respectfully addressing people with nonbinary identities. Just as all-gender bathrooms make life easier for transgender people, using the singular “they” default, until told otherwise, affirms linguistic space in the classroom for people who do not exclusively identify as men or women.
Wednesday, September 15, 2021
The California State Legislature this week approved a measure that would make the state the first to outlaw stealthing, the act of removing a condom during sex without a partner’s consent.
The bill, which was approved unanimously on Tuesday, awaits the signature of Gov. Gavin Newsom, a Democrat, who has until Oct. 10 to sign it into law. A spokesman for the governor said his office did not comment on pending bills.
If approved, the measure would amend the state’s civil definition of sexual battery and make stealthing a civil offense, meaning victims could sue their assailants for damages.***
Ms. Garcia, a Democrat, said that she had tried to pass legislation criminalizing stealthing since 2017, when a Yale University study brought widespread attention to it. But she ran into considerable opposition.
The bill that was approved this week that would make stealthing a civil offense “is a good first step,” Ms. Garcia said. She said she hoped it would lay the groundwork to eventually add stealthing to the state’s criminal code.
A study published in the National Library of Medicine in 2019 reported that 12 percent of women said that they had been a victim of stealthing. Another study that year found that 10 percent of men admitted to removing their condom during intercourse without their partner’s consent.
Alexandra Brodsky, who wrote the 2017 Yale study and is the author of “Sexual Justice,” a book that addresses various forms of institutional response to sexual harassment and assault, said that the measure approved this week could bring “political and personal power” to victims. She said that it would remove any ambiguity surrounding stealthing — which tends to begin with the consensual act of sex — by defining it as illegal.
Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.
It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.
After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.
To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.
h/t Larry Solum
American colleges and universities now enroll roughly six women for every four men. This is the largest female-male gender gap in the history of higher education, and it’s getting wider. Last year, U.S. colleges enrolled 1.5 million fewer students than five years ago, The Wall Street Journal recently reported. Men accounted for more than 70 percent of the decline.
The statistics are stunning. But education experts and historians aren’t remotely surprised. Women in the United States have earned more bachelor’s degrees than men every year since the mid-1980s—every year, in other words, that I’ve been alive. This particular gender gap hasn’t been breaking news for about 40 years. But the imbalance reveals a genuine shift in how men participate in education, the economy, and society. The world has changed dramatically, but the ideology of masculinity isn’t changing fast enough to keep up.
For decades, American women have been told that the path to independence and empowerment flows through school. Although they are still playing catch-up in the labor force, and leadership positions such as chief executive and senator are still dominated by men, women have barnstormed into colleges. That is the very definition of progress. In poorer countries, where women are broadly subjugated or otherwise lack access to regular schooling, girls enjoy no educational advantage whatsoever.
Tuesday, September 14, 2021
By: Leslie Culver
Published in: Journal of Legal Education, Volume 69, Number 1 (Autumn 2019)
In this essay, I argue that viewing legal writing as a mode of gender sidelining uncovers the urgency for law schools to provide unitary tenure for legal writing programs across all law schools. I recognize that many legal writing faculty are employed under ABA Standard 405(c),4 a seemingly second-best option to traditional tenure tracks. As Professor Kathy Stanchi comments, however, while Standard 405(c) offers some respite from “job insecurity, intellectual disparagement, and pay inequity,” it ultimately serves as an “institutionalized bar to professional advancement divorced from any reasonable measure of merit.” This essay takes Stanchi’s framing of 405(c) as an irrational categorical exclusion of tenure despite meritorious performance, and extends her reasoning as further evidence of gender sidelining.
Well-established research, from both the ABA and legal scholars, demonstrates the longstanding marginalization and inequitable status of legal writing faculty within the academy. As evidence of this inequity, there has been a rise in conversion of legal writing programs to tenure-track positions. And this rise toward parity is the only systemic gesture that can combat the gendered barrier of white males who dominate the legal academy.
. . .
I recognize that the inequality facing legal writing faculty is not novel. However, as this essay suggests, a gender sidelining framework demonstrates the need for a creative resolve that is bigger than any single community. To start, the legal writing community can take steps toward elevating our discipline by providing fundamental training for practitioners and adjuncts seeking to become full-time legal writing faculty.14 For example, prospective faculty need training on how to effectively deliver job talks that both elevate the discipline of legal writing and inform the traditional podium faculty as to the pedagogy and the interdisciplinary and integral foundations of legal writing across other first-year courses. Further, junior faculty would benefit from education on the need for and the value of professional development by way of conference participation, scholarship, and organizational participation in the legal writing community and more.
By: Danielle Conway
Forthcoming in: 13.1 Ala. C.R. & C.L. L. Rev. 1 (forthcoming 2022)
America is at an unprecedented time with self-determination for Black women, and this phase of the movement is reverberating throughout this nation and around the world. There is no confusion for those who identify as Black women that this movement is perpetual, dating back to the enslavement of Black people in America by act and by law. One need only look to the intersecting crises of 2020 to discern the reality of Black women’s — and by extension the Black community and by further extension individuals and groups marginalized, subordinated, and oppressed by white patriarchy — perpetual struggle for civil and human rights.
To appreciate the genealogy of this perpetual struggle for civil and human rights, it is instructive to look back on the 100th Anniversary of the 19th Amendment and to be immersed in the stories and the legacies of Black women suffragists to gain insights about modern contestations against limiting the franchise. In the forming of this nation, Black women were intentionally excluded and erased from conceptions of humanity. This exclusion and erasure of Black women’s voices and contributions from the annals of social, political, and economic movements throughout history, such as abolitionist and women’s suffrage movements, tarnish the legitimacy of our democratic institutions, our laws, and our collective progress toward equality.
This article centers Black women’s lived experiences in the struggle for universal suffrage while also leading and supporting their communities in the fight against racial inequality and oppression. By making the sojourn through history using the lens of Black women, an opening is created to understand the perpetuation of racial injustice and oppression through the practices of withholding citizenship and the franchise. It also offers a window into the expertise and resilience of Black women in building and maintaining relationships, alliances, and coalitions to press for the larger vision of universal suffrage, even when their putative partners choose self-interest over the collective. The purpose of highlighting the duality of the movement is to contribute to the literature that seeks to reveal how Black women and their lived experiences with racism and oppression during the women’s suffrage movement up through and after the ratification of the 19th Amendment can inform today’s efforts at successful coalition building to support modern movements against injustice and inequality.
As Seen through the Eye of the Camera: A Portrayal of How Cultural Changes, Societal Shifts, and the Fight for Gender Equality Transformed the Law of Divorce
By: Taylor Simpson-Wood
Published in: 42 Women's Rts. L. Rep. 1 (2020).
This article explores how changing societal forces and cultural mores have configured to mold the law of divorce from the turn of the Twentieth Century though the rise of no-fault divorce in 1970. It highlights that, irrespective of the varying, contemporaneous views of divorce of different eras, there is one common theme which runs beneath and unites the six decades, gender inequality. To illustrate this premise, it employs representative films for each covered time period to paint a picture of the cultural influences and forces that gave rise to that era’s perspective about divorce as it strove to make a better society.
Specifically, the essay traces the key components of film censorship implemented via the Hays Code in the 1930s and explores how divorce was transformed post-Code from being an anathema to an accepted, if not expected, part of mainstream American life. It also confronts the continuing myth that the 1950s constituted the golden age of the American family. The “ideal” family portrayed each evening on the television was not a documentary and, despite cinematic representations of life during the 1950s, the era was a time of great stress for both spouses. Husbands faced the specter of becoming an “organization man,” while many homemakers were suffering from “the problem that has no name.” The rise of new social mores is often a counter-reaction to those of the immediately preceding time period. This was certainly the case in the 1960s, when the rejection of the values of the 1950s led to a psychological shift resulting in the birth of a new “divorce culture” premised on the idea that when a spouse is unfulfilled due to an unsatisfying the marital relationship, divorce is not only justified, but paves the road to self-realization.
Monday, September 13, 2021
Goldburn Maynard, Jr. has posted his recent work Black Queers in Everyday Life on SSRN. This publication is forthcoming in 30 Tulane J. Law & Sex 129 (2021). The abstract previews:
I am using my Black queer identity as a starting point to consider the weaknesses I see in everyday conceptions of intersectionality. Do those who have been educated in the principles of intersectionality and who mean well apply them in online and personal conversations? Recent experiences have shown me that there is a disconnect, wherein even those individuals who know better will double-down on reified, essentialist notions of blackness that exclude the concerns of Black women, queer individuals, and other Black intersectional identities. Zero-sum perspectives are valued over coalitional appeals.
Maynard urges readers to think more critically about applying authentic and holistic commitments to intersectionality.
To what extent are we pushing our students and ourselves to interrogate their own privileges? More work needs to be done to figure this out, since stakes are so high. A lot of the potential interventions and solutions depend on what the reasons are for the resistance to intersectionality principles. A place to start is to explore some possible explanations for the phenomenon: (1) gaps in our teaching of intersectionality (e.g., not providing enough or the most illustrative examples); (2) a mismatch between the theory and some perceived reality that at times you do have to choose between identities (3) some resistance to theory in general because of its association with intellectuals and academia; (4) an almost inevitable reproduction of hierarchy that should be expected; and/or (5) real fears about the loosening of the Black coalition and its implications. I hope we move forward on this because microaggressions within minority communities are that much more painful and traumatic for the individual to recover from.
ABA Webinar Today on Women's Rights, Cultural Heritage Preservation, and Economic Relief in Afghanistan
This panel of experts considers the urgency for women’s rights, cultural heritage preservation, and economic relief in Afghanistan. As of 2020, approximately 90% of Afghans lived below the poverty level of $2 per day, according to the US Congressional Research Service. At the same time, minerals generate just $1 billion in Afghanistan per year. Analysts estimate that 30% to 40% of returns are siphoned off by corruption as well as by warlords and the Taliban, which has presided over small mining projects. The World Bank warned that the economy remains "shaped by fragility and aid dependence.” Additionally, this panel explores how climate change has served as a threat multiplier for conflict and regional instability. Despite these obstacles, experts share insights on how to move beyond the current situation to harness potential for female education, women’s economic empowerment, and cultural heritage preservation. Information will be shared on how to assist those impacted directly through ABA and ABA partner institutions.
Jennifer M. Miller and Susan Rensing have published Integrating National Violent Death Reporting System Data into Maternal Mortality Review Committees in the Journal of Women's Health. The abstract explains that:
With the Maternal Mortality Review Information Application (MMRIA) data system, the Centers for Disease Control and Prevention (CDC), alongside Maternal Mortality Review Committees (MMRCs), are developing comprehensive and uniform data collection to eradicate preventable maternal deaths. However, MMRIA is primarily focused on pregnancy-related deaths, and not pregnancy-associated deaths. Currently, the National Violent Death Reporting System Restricted Access Data (NVDRS-RAD) on pregnancy-associated homicides and suicides are not included in MMRIA and by extension the work of most MMRCs. This study examined the NVDRS-RAD data from 2014 to 2017 and argues that the data for pregnancy-associated maternal deaths should be integrated into the work of MMRCs. * * *
Their findings indicate that:
pregnancy and the postpartum period show increased risk for homicide and suicide. Pregnant women were found to be five times more likely to die by homicide than their nonpregnant peers who died by violent means. The relationships between periods of pregnancy and manner of death were all found to be significantly associated although the association was weak.
Friday, September 10, 2021
Rachel Lopez, Unentitled: The Power of Designation in the Legal Academy, 73 RUTGERS L. REV. 923 (2021).
Social constructs, like titles, have the power to “confer or diminish status.” This is especially true in the legal academy. This essay highlights “how titles perpetuate stereotypes and entrench existing racial and gender hierarchies in the legal academy, although they appear race- and gender-neutral.” Titles in the legal academy create and exacerbate hierarchies within our educational system, such as those between clinical and doctrinal professors. “Clinical and legal writing professors usually are not on the tenure-track. They are paid less and have less of a role in faculty governance.” Those same hierarchies, in turn, have a disproportionate impact on women, especially women of color, who statistically are overrepresented in clinical/nontenure-track positions and underrepresented in doctrinal/tenure-track positions. Even when those from underrepresented backgrounds gain the titles of the much-coveted highest hierarchical tier, they are often “unentitled” by students and colleagues. That is, they consistently experience students and colleagues referring to them by first name for example, rather than by title, while still referring to the those from less marginalized backgrounds as “Doctor” or “Professor.”
While discouraging, the essay suggests a number of solutions. Some are institutional, like providing one egalitarian title to all who teach the law. “[P]rofessor of law. Period.” Even if a university is not willing to go that far, more law schools are adopting a “unitary track, or at the very least provid[ing] a tenure-track option for all teaching positions.” Perhaps your institution is not willing to make either, or a similar, structural change. There are still things you as an individual can do. Interrupting the bias when you observe it is key. The author relates a story wherein a new Vice Provost introduced a female professor of color to some of his old colleagues, but referred to her by first name in the email and his colleagues by their titles. One of the colleagues on the email, however, immediately corrected the error in his response by referring to the professor by title. A simple, “Dr. Jackson, it is a pleasure to meet you,” went a long way to interrupting bias in that instance. It is not just in the large institutional shifts that we can make a difference, though those are indisputably important, it is in the little moments as well.
Wednesday, September 8, 2021
Texas Judge Grants Temporary Injunction to Stay Lawsuit by Texas Right to Life under New 6-Week Abortion Ban
A Texas state judge on Friday temporarily blocked an anti-abortion group from enforcing Texas's new 6-week abortion ban against Planned Parenthood, handing a narrow legal victory to abortion rights advocates.
Judge Maya Guerra Gamble's (D) ruling does not invalidate the new law but rather halts Texas Right to Life and its associates from suing abortion providers and workers at Planned Parenthood clinics under the statute, S.B. 8, that took effect Wednesday.
“The Court finds that S.B. 8 creates a probable, irreparable, and imminent injury in the interim for which plaintiffs and their physicians, staff and patients throughout Texas have no adequate remedy at law if plaintiffs, their physicians, and staff are subjected to private enforcement lawsuits against them under S.B. 8,” Gamble wrote.***
Judge Gamble’s temporary restraining order is due to expire in two weeks, but her Friday order also announced a Sept. 13 hearing which could lead to the pause on the anti-abortion group’s enforcement authority being extended.
1. FACE - federal Freedom of Access to Clinic Entrances Act
U.S. Attorney General Merrick Garland said Monday that the Justice Department will protect people trying to obtain or provide abortions in Texas, in the wake of the state's new restrictive abortion law.
Senate Bill 8 — often called the "heartbeat bill" by supporters — effectively bans abortions after six weeks, well before many people even know they are pregnant. Physicians who specialize in reproductive health say the term “fetal heartbeat” used in the legislation is misleading because there is no cardiovascular system or a functional heart six weeks into pregnancy.
Garland said his department will urgently explore all options to challenge the law. In the meantime, he said it will continue to protect the rights of people seeking access to abortion under the Freedom of Access to Clinic Entrances (FACE) Act of 1994.
The FACE Act prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services. It also prohibits intentional property damage of a facility providing reproductive health services.
“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack. We have reached out to U.S. Attorneys’ Offices and FBI field offices in Texas and across the country to discuss our enforcement authorities," the statement explained.
"The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now," it added.
2. Use the Ku Klux Klan Act to charge those who act "under color of state law" to deprive women of their constitutional rights.
Some abortion-rights supporters say the answer is for the Department of Justice to prosecute private citizens who sue to enforce the law, which bans abortions after a fetal heartbeat is detected, the Washington Post reports.
The law authorizes private citizens to file the suits against abortion providers and others who knowingly help pregnant women violate the law, which effectively bans abortions after about six weeks of pregnancy.
In a letter, Democratic members of the House Judiciary Committee on Tuesday encouraged Garland to fight the law with legal action “up to and including the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law.”***
In a Washington Post op-ed, Laurence Tribe, a professor emeritus at Harvard Law School, explained how the DOJ could initiate criminal prosecutions using a law intended to battle the Ku Klux Klan.
The department could rely on Section 242 of the federal criminal code, which makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges or immunities secured or protected by the Constitution or laws of the United States.” The private citizens who sue under the Texas law are acting “under color of law,” and they are violating the constitutional right to abortion, he said.
Tribe said the DOJ could also rely on Section 241 of the federal criminal code, which makes it an even more serious crime for “two or more persons” to agree to “oppress, threaten or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Purely private vigilantes acting in concert with others could be prosecuted under this section, he said.
Tribe also suggested a third course of action: The DOJ could seek a court order blocking enforcement of the Texas law under the All Writs Act, which allows federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions.”
The Women's Health Protection Act in the House provides that a "health care provider has a statutory right under this Act to provide abortion services, and may provide abortion services, and that provider’s patient has a corresponding right to receive such services," "without any of the following limitations or requirement" like the typical restrictions on abortion in many states.
Congressional Democrats reintroduced legislation on Tuesday that would protect abortion access around the country, even if Roe v. Wade were weakened or overturned.
The Women’s Health Protection Act, if passed, would guarantee the right for health care professionals to provide abortion care and their patients to receive care, without restrictions and bans that impede access.
Specifically, it would prohibit state and federal lawmakers from imposing several limits on abortion care, including mandatory ultrasounds, waiting periods, admitting privileges requirements, and limits on medication abortion.
The bill was first introduced in 2013 and has been reintroduced in every congressional session since. However, it has never received a vote in either chamber.
The bill is led by Sens. Richard Blumenthal of Connecticut and Tammy Baldwin of Wisconsin, along with Reps. Judy Chu, D-Calif., Lois Frankel, D-Fla., Ayanna Pressley D-Mass., and Veronica Escobar D-Texas.
The renewed effort comes in the wake of the U.S. Supreme Court’s decision last month to take up Mississippi’s controversial ban on most abortions after 15 weeks of pregnancy along with a rise in anti-abortion legislation being enacted in various states.
“With the Supreme Court set to consider a direct attack on Roe and as emboldened and extremist lawmakers viciously attack women’s reproductive rights in statehouses across the nation, the Women’s Health Protection Act has never been more urgent or more necessary,” Blumenthal said. “These demagogic and draconian laws hurt women and families as they make personal and difficult medical decisions."
Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion
Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion. President Biden has called on Congress to act. House Speaker Nancy Pelosi has similarly called for action. And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021. It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment.
The Supreme Court too, has periodically suggested this option. For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).
Except that it might not be that easy. The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare. Congress must rely on a source of power specifically articulated in the Constitution.
Here are some options under the Supreme Court’s existing precedent. It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.
- Commerce Clause
Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act. Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.” There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).
The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case. In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause. It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance. Inactivity, the Court said, was not economic activity.
The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock. Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”
The Commerce Clause power also requires that a regulate activity be “economic.” This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity. “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison. While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity. The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.
The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power. The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause. Abortion services is an economic activity. It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.
The abortion context also seems more clearly interstate. With bans and restrictions on abortion, patients travel out of state to other providers. They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality. If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard. Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court. It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.
- Section 5 of the Fourteenth Amendment
A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment. This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws.
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion. But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary. Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court.
That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law. FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors. If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.
However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way. Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison.
Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs. In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality. The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct. In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished. It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation. In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.
The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right. This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt). These are rights that would not necessarily be struck down if Roe is overturned. There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion. There might also be an argument to connect to the provider’s right to work or profession.
A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination. Hibbs provides good precedential support here. In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process. See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).
- The Necessary and Proper Clause
Congress has also cited the Necessary and Proper Clause for authority to legislate abortion. The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case. The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.
- The Taxing Power
Following Sebelius, Congress could structure the abortion legislation as a tax. In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power. The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.
A Roe tax might tax the states which impose bans or regulations on abortion. That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.
- The Ninth Amendment
Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion. That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause. Another possible source of recognizing the right is the Ninth Amendment. In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution. A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment. See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020). The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.
 Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with Boerne. See Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote). See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).
Tuesday, September 7, 2021
By: Greer Donley and Jill Wieber Lens
Forthcoming in: Boston College Law Review, Vol. 62, Forthcoming
Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale — the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling in cases of life-limiting fetal conditions. This Article discusses the paternalism and traditional gender stereotypes underlying these newer abortion restrictions and uses empirical studies to discredit the woman-protective rationale justifying them. The Article also suggests a radical, new response to claims that women need protection from second-trimester abortion: the embrace of second-trimester abortion “danger-talk.” First introduced in medical literature by abortion providers, danger-talk refers to the uncomfortable truths about abortion that supporters often avoid. These topics include the nature of second-trimester abortion procedures and the emotional complexity that can especially accompany second-trimester abortion. This Article advocates for greater openness about these topics, arguing that silence only capitulates the narrative of second-trimester abortion to those opposing abortion rights. The Article envisions second-trimester abortion care that better recognizes these realities and provides women with more choices that might make second-trimester abortion easier, including alternative procedures and the option of memory-making to process difficult emotions, like grief. Finally, this Article argues that more transparency about these difficult subjects will help rebut the woman-protective rationale used to justify second-trimester abortion restrictions.
By: Alexandra Holmstrom-Smith
Published in: University of Pennsylvania Journal of Law and Social Change, Volume 24, Number 3 (2021)
The COVID-19 pandemic has thrown the global surrogacy industry into chaos, stranding surrogates,infants, and their caretakers across the world from the intended parents. As surrogates and staff are left caring for infants that are strangers to them by law, the emotional toll of commercial surrogacy is more visible than ever before. In this article, I argue that this moment is ripe for reconsidering our laissez faire approach to for-profit reproduction. When the Baby M case hit the news in 1988, it set off a chorus of alarm among feminists (and others). Many states subsequently passed laws banning commercial surrogacy. Yet in the years since then, the dominant feminist position has quietly shifted. Surrogacy is now seen as a choice, one that expands women’s possibilities both as workers and as mothers. Surrogacy is also seen as an LGBT rights issue, as it provides a way for gay men to have children that are genetically related to them. However, the issues of gender, race, and exploitation that inflamed feminists in the1980s and 1990s are no less relevant today. As renewed concern with economic justice has made a resurgence on the national stage, I argue that it is time for socialist-feminist perspectives on surrogacy to reemerge. Eschewing freedom of contract as an illusory freedom that serves the ruling class, such a politics would demand social policy that limits commodification and promotes reproductive justice and freedom for all, not just the wealthy few.
Friday, September 3, 2021
Liane Jackson, How Pandemic Practice Left Lawyer-moms Facing Burnout, ABA Journal, August/September Issue (2021).
This article explores the pandemic’s effect on the “participation gap in the labor market” between women and men, and posits that “hard-won gains are disappearing,” “the gap is widening,” and experts posit that the effects “will be felt in the legal industry for years to come.”
It will come as no surprise that “women are America’s default social safety net” and have therefore “taken on the lion’s share of pandemic parenting,” as numerous studies have already shown. This is due to a number of social pressures and norms, which this article addresses. Of particular note is the “idealized version of intensive motherhood” which sets a standard by which “women are expected to sacrifice their careers, their well-being, their sleep, [and] their mental health for the good of their children.” Competing with this social construct, is another equally pervasive standard to which female lawyers are held “of total commitment . . . this ideal worker norm that says you’re supposed to sacrifice everything for your job.” It is no wonder, in this zero sum game, that increased drinking, stress, desire to leave the profession, and mental health issues are being reported in higher percentages of women than men as a result of a pandemic which left parents with few childcare options and a lead role in their children’s education. “The pandemic has disproportionately affected women and minority attorneys, with female lawyers of color feeling increased isolation and stress.”
So what can we do to alleviate the disadvantage experienced by female attorneys as we begin to return from pandemic-induced remote work environments? Liane Jackson argues that flexible work options need to be accompanied by a genuine commitment to not allowing those options to come with a conscious or unconscious institutional/advancement penalty. This requires a “recognizing that family has a value, households have a value and people have a value outside the workplace.” To do otherwise will “continue to threaten retention rates.” We must be intentional as we begin to emerge from this pandemic to not penalize female attorneys whose "productivity" (as traditionally measured) may have fallen below that of male counterparts due to the unequal sharing of pandemic pressures discussed above. Employers should focus on retention and advancement standards that are equitable to female attorneys who continue to be marginalized by disparate and competing social pressures. “Women are still being marginalized, and they don’t always have the power base to fight back.” We must do better.
Thursday, September 2, 2021
The Texas abortion ban that went into effect 9/2/21 after the Supreme Court refused to stay the act in Whole Women's Health v. Jackson, has several unusual provisions not only for abortion rights, but for enforcement of constitutional rights generally. The full text is here.
1. This is a fetal heartbeat law. (not exactly a "six-week ban").
Sec.171.204.PROHIBITED ABORTION OF UNBORN CHILD WITH DETECTABLE FETAL HEARTBEAT; EFFECT. (a)Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.
2. There is an exception for "medical emergency."
Sec.171.205.EXCEPTION FOR MEDICAL EMERGENCY; RECORDS. (a)Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.
3. A woman cannot be sued or "prosecuted" for having the abortion.
Sec. 171.206. (b) This subchapter may not be construed to: (1) authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter
4. But those who "aid and abet" the woman or the physician are liable.
knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter
5. It provides solely for private enforcement by private civil action. No state or government actor can enforce the law.
Sec.171.207.LIMITATIONS ON PUBLIC ENFORCEMENT. (a)Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.
Sec.171.208.CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action
Except not a sexual perpetrator:
a civil action under this section may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest
6. Remedies that may be awarded to the person suing to stop the abortion are an injunction, statutory damages, and attorneys' fees.
If a claimant prevails in an action brought under this section, the court shall award: (1)injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter; (2)statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and (3) costs and attorney's fees.
7. Tries to limit the defendant's (provider or accomplice) ability and standing to assert the constitutional right of the woman.
Notwithstanding any other law, the following are not a defense to an action brought under this section: (1) ignorance or mistake of law; (2)a defendant's belief that the requirements of this subchapter are unconstitutional or were unconstitutional;
Sec.171.209.CIVIL LIABILITY: UNDUE BURDEN DEFENSE LIMITATIONS. (a)A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless: (1)the United States Supreme Court holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal constitutional law; or (2)the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court.
See also Wash Post, What to Know about the Texas Abortion Law
Strict Scrutiny Podcast, Emergency Podcast on Texas Abortion Law