Wednesday, September 28, 2022
Jennifer Drobac & Mark Russell, Unmasking Sexual Harassment: The Empirical Evidence for a New Approach
17 N.Y.U. J.L. & BUS. 315-390 (2021)
If moral outrage were enough, 50 years of antidiscrimination law and two full years of #MeToo should have led to the rapid remediation and elimination of sexual harassment by corporate decisionmakers. However, moral condemnation apparently is not enough, so this Article urges a multifaceted approach that combines (to start) research, financial analysis, disclosure, preventative cultural change, and remediation (if still needed). Through disclosure, it suggests a tactic that combines the goals of social entrepreneurship and profit maximization. Estimates suggest that sexual harassment costs U.S. business millions, if not billions, annually. However, most stock exchange-listed companies avoid financial disclosure or other reporting of sexual harassment claims. The onus for the invocation of Title VII and other antidiscrimination protections falls upon the victims and targets of abuse. Our research and empirical evidence demonstrate that corporations need to make changes to improve the proverbial bottom line. The disclosures that companies do make lack useful information for users of financial reports. Further, a high number of perpetrators of corporate sexual harassment are those with power—key executives and Chief Executive Officers (CEOs). Further, a number of non-disclosures of sexual harassment indicate poor management and culture at companies. Our results are consistent with companies that use arbitration and non-disclosure agreements (NDAs) to conceal sexual harassment. Our research supports a new SEC reporting requirement for all publicly traded companies (and a best practices approach for all organizations). Arguably, corporations would save much more by getting ahead of sexual harassment cases, disclosing problems, and avoiding expensive Title VII and shareholder derivative lawsuits. The evidence and common sense call for additional prophylactic action.
Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence
Benjamin C. Carpenter, Sperm is Still Cheap: Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence, Yale Journal of Law & Feminism, forthcoming 2022
Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their ex-wives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground—one party’s interests must yield to the other. To date, appellate courts in one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in nineteen cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 125 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.
Tuesday, September 27, 2022
Vivian Rotenstein & Valerie Hans, Gentlewomen of the Jury, Michigan Journal of Gender & Law, Forthcoming 2023
This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.” Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service. Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles. We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases. We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury. After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service. Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.
Monday, September 26, 2022
Wednesday is International Safe Abortion Day. The Center for Reproductive Rights has an updated map on the world's abortion laws:
The World Abortion Laws Map is the definitive record of the legal status of abortion in countries across the globe. Since 1998, the Center for Reproductive Rights has produced this map as a resource for advocates, government officials, and civil society organizations working to advance abortion rights as human rights for women and girls* around the globe. The map categorizes the legal status of abortion on a continuum from severe restrictiveness to relative liberality. It is updated in real time, reflecting changes in national laws so human rights advocates can monitor how countries are protecting—or denying—reproductive rights around the world.
The site includes a very useful infographic visually depicting 25 years of progress with nearly 50 countries liberalizing their abortion laws over time. It also includes a summary of recent developments in abortion law and policy.
Friday, September 23, 2022
The notion that the selflessness and tenderness babies require is uniquely ingrained in the biology of women, ready to go at the flip of a switch, is a relatively modern — and pernicious — one. It was constructed over decades by men selling an image of what a mother should be, diverting our attention from what she actually is and calling it science.
It keeps us from talking about what it really means to become a parent, and it has emboldened policymakers in the United States, generation after generation, to refuse new parents, and especially mothers, the support they need.
New research on the parental brain makes clear that the idea of maternal instinct as something innate, automatic and distinctly female is a myth, one that has stuck despite the best efforts of feminists to debunk it from the moment it entered public discourse.
To understand just how urgently we need to rewrite the story of motherhood, how very fundamental and necessary this research is, it's important to know how we got stuck with the old telling of it.
Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, Stanford L. Rev. (forthcoming)
For many Americans, Dobbs v. Jackson Women’s Health Organization signaled the end of things once thought secure: the constitutional right to reproductive autonomy, a vision of women as equal citizens, and the belief that the Supreme Court can rise above politics to protect cherished liberties.
To many anti-abortion groups, however, Dobbs was just the beginning. Merely permitting states to prohibit abortion was never the endgame; their goal has always been a nationwide ban. One path for accomplishing it runs through Congress in the form of a federal statutory ban. A second runs back through the Court in the form of constitutional fetal personhood, or the argument that an unborn fetus is a “person” whose life states would be compelled to protect under the Fourteenth Amendment.
In this Article, I examine the legal future of both pathways in light of the Dobbs majority’s own historical analysis. With respect to a federal abortion ban, many have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. I thus consider a different possibility: even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. For as Dobbs admits, every single state at the founding permitted abortion before quickening, at roughly 16-18 weeks of pregnancy. Dobbs’s own history and tradition test thus plausibly suggests a surprising result: a federal abortion ban may violate the Fifth Amendment Due Process Clause.
With respect to fetal personhood, Dobbs concedes that even as of the Fourteenth Amendment’s enactment in 1868, some states continued to permit abortion early in pregnancy. In truth, Dobbs severely undercounts that number: as many as 21 states, not the 9 Dobbs suggests, permitted pre-quickening abortion. This casts doubt on the fetal personhood argument because it shows that when the Amendment was ratified, most states did not understand unborn fetuses to be “persons” with respect to the precise question at hand. To recognize fetal personhood would require one to conclude that a majority of states were violating the very amendment they’d just ratified.
Thursday, September 22, 2022
Ohio Court Grants TRO Blocking Six Week Abortion Ban on Grounds of State's Health Care Freedom Amendment
I've been writing an essay for the Journal of Law, Medicine & Ethics on how state so-called Health Care Freedom Acts and Amendments enacted as symbolic protests to the individual insurance mandate of the federal Affordable Care Act provide an arguable basis for a recognized state right to abortion. The essay was a lot harder to write before last week, when the Ohio court rule on these grounds.
A Hamilton County judge overseeing a lawsuit challenging Ohio’s “heartbeat” abortion ban plans to issue a second order temporarily blocking the law, according to a lawyer involved in the case.
Judge Christian A. Jenkins, a Democrat, last week issued what’s called a temporary restraining order, pausing the law from being enforced for 14 days while he deals with arguments in the case.***
Once the second order comes, Ohio abortion clinics will be able to provide abortions up until 22 weeks from a woman’s last menstrual period at least through Oct. 12. That would extend the pause until after an Oct. 7 hearing Jenkins has scheduled for a more permanent order blocking the law while both sides argue their case.***
Jenkins has indicated he plans to rule in favor of abortion advocates, agreeing with their arguments that equal-protection guarantees contained in Ohio’s constitution covers the right to obtain an abortion. He noted a 1993 decision from a state appellate court that found the Ohio Constitution confers greater abortion rights than the U.S. Constitution, including a broad scope of the meaning of “liberty.”
The full opinion is here: Preterm Cleveland v. Yost (Ohio C.C.P. Sept. 14, 2022) (TRO Decision)
No great stretch is required to find that Ohio law recognizes a fundamental right to privacy, procreation, bodily integrity and freedom of choice in health care decision making. In 2011, the Ohio Constitution was amended by popular referendum to adopt the Health Care Freedom Amendment (Article I, Section 21) (“HCFA”). The plain language of subsections B and C of the HCFA is simple and clear: (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance. (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.
The State Defendants argue that the HCFA was intended by its drafters to provide a legal basis for Ohio and Ohioans to undermine or avoid the federal Affordable Care Act, not to outlaw health care regulation in Ohio. They point to the language in subsection (D) providing in pertinent part that “[t]his section does not . . . affect any laws calculated to deter fraud or punish wrongdoing in the health care industry” to suggest that the Amendment does not render health care regulations unconstitutional. But this misses the point – as a result of the HCFA, the Ohio Constitution contains a direct recognition of the fundamental nature of the right to freedom in health care decisions.
The fact that no one has yet challenged any existing health care regulations under the HCFA does not negate the import of its plain language.10 The HCFA does not define “health care,” but the use of the disjunctive “or” renders the term separate and distinct from the purported target of the amendment – health insurance. Abortion, whether procedural or medication, clearly constitutes health care within the ordinary meaning of that term. Moreover, the drafters could have excluded existing and future regulation of the health care profession, or even abortion specifically, but they did not.
Rather, the exception in subsection D is limited to fraud and the nebulous term, “wrongdoing,” without providing any definitional or interpretive guidance. Wrongdoing is defined as “illegal or improper conduct.” Black’s Law Dictionary 1932 (11th Ed.2019). At the time of the HCFA’s adoption in 2011, abortion had been constitutionally protected as the law of the land for nearly 40 years, and could hardly be considered “wrongdoing.” Finally, S.B. 23 was adopted years after the HCFA such that the General Assembly was presumably aware of its provisions recognizing a fundamental constitutional right to choice in healthcare decisions.
This Court cannot simply ignore part of Ohio’s Constitution because the Ohio Attorney General asserts it is not germane to this case. Nor must the Court defer to the General Assembly on questions of law such as those presented in this case, for “’[i]t is emphatically the province and duty of the judicial department to say what the law is.’ Our function here is to determine whether the act transcends the limits of legislative power.” Adams v. DeWine, __ Ohio St. 3d __, 2022-Ohio-89, ¶ 28 (rejecting Congressional district plan adopted by General Assembly in contravention of Ohio Constitutional amendment enacted by popular referendum); citing Marbury v. Madison, 5 U.S. 137, 177, 2 L. Ed. 60 (1803).
The HCFA represents an express constitutional acknowledgement of the fundamental nature of the right to freedom and privacy in health care decision making. Read together with other applicable sections of the Ohio Constitution, a clear and consistent recognition the fundamental nature of this right under Ohio law emerges. See e.g. Planned Parenthood Southwest Ohio Region v. Ohio Dept. of Health, Hamilton C.P. No. A 2100870, p. 6 (Jan. 31, 2022) (“Deprivation of reproductive autonomy falls squarely within the meaning of an injury done to one’s person under the Ohio Constitution”), citing Stone v. City of Stow, 64 Ohio St. 3d 156, 160-163, 593 N.E.2d 294 (1992). Accordingly, this Court recognizes a fundamental right to abortion under Ohio’s Constitution.
The planning committee for the Feminist Legal Theory Collaborative Research Network has issued a Call for Papers for the 2023 Law & Society Annual Meeting.
The Call for Papers and instructions are here.
You can submit your proposal here.
This year's planning committee is co-chaired by Aníbal Rosario Lebrón (Co-Chair) and Liz Kukura (Co-Chair). It includes Cyra Choudhury, Elizabeth MacDowell, Naomi Mezey, Nausica Palazzo, Yanira Reyes Gil, and Yiran Zhang.
Wednesday, September 21, 2022
A trial against two Purdue administrators for suspending a student after she made sexual assault allegations, which Purdue determined to be false, starts Monday.
The student, called Nancy Roe in court documents, claims in the federal lawsuit that Purdue’s sexual assault investigation procedure is gender discriminatory because it suspends students who don’t prove assault allegations to Purdue’s standards.
Purdue is also accused of violating the Fourteenth Amendment Due Process and Equal Protection clauses by reportedly not giving Roe any prior notice or an opportunity to respond before suspending her in 2017, the pretrial order reads.
In the second day of testimony in a former student’s federal lawsuit against Purdue – Crux of the case: Did Purdue retaliate against her when it suspended her for two years after investigating her sexual assault claim, while having the person she accused write a 10-page term paper on consent as punishment for recording their dorm room encounter? – the word of the day was “incapacitated.”
Things hinged on Purdue’s determination that Nancy Roe – as the then-19-year-old student is identified in court documents – might have been intoxicated, but she wasn’t incapacitated when a fraternity member walked her to her residence hall on the Monday night of Grand Prix week in 2017 and wound up having sex with her.
On Tuesday, Purdue Dean of Students Katie Sermersheim said on the witness stand in a federal courtroom in Hammond that she stood by determination that the student lied about the incident, dragging another student into an investigation over something consensual.
In a related case brought by the accused man in the incident, Justice Amy Coney Barrett (pre-SCOTUS), wrote the opinion flagging Title IX for its potential "male bias." See Understanding Judge Barrett's Opinion in Doe v. Purdue
The case is here: Doe v. Purdue
Purdue students John and Jane had consensual sexual intercourse 15-20 times. Jane’s behavior became erratic. Jane attempted suicide. Weeks later, John reported Jane’s suicide attempt to an advisor. Jane was upset and distanced herself from John. Months later, during Sexual Assault Awareness Month, Jane alleged that while sleeping with John, she woke to him groping her over her clothes. Jane says she reprimanded John. John then purportedly confessed that he had digitally penetrated her while she was sleeping weeks earlier. Jane told the university that John had gone through her underwear drawer, chased her through a hallway while joking about tasering her, gone to her room unannounced, and lost his temper in front of her. Purdue pursued Jane’s allegations although Jane did not file a formal complaint. John was suspended from Navy ROTC, banned from buildings where Jane had classes and from his dining hall. John submitted a denial, noting that after the alleged incidents, Jane texted him over the holidays, sent his family cookies, and invited him to her room. Investigators neither gave him a copy of the report nor shared its contents. Moments before his committee appearance, he learned that it falsely claimed that he had confessed and failed to describe Jane’s suicide attempt. Jane neither appeared nor submitted a written statement. The panel refused John permission to present witnesses. John was found guilty by a preponderance of the evidence. Purdue suspended him for a year and imposed conditions on his readmission. The ROTC program terminated his scholarship. John sued, asserting Purdue used flawed procedures and violated Title IX by imposing a punishment infected by sex bias. A magistrate dismissed. The Seventh Circuit reversed. John adequately alleged violations of both the Fourteenth Amendment and Title IX
Tuesday, September 20, 2022
One of these women was Martha Albertson Fineman, who in the early 1980s launched the Feminism and Legal Theory Project at University of Wisconsin Law School. For decades, the project has brought together scholars and activists from the U.S. and abroad to explore the most pressing contemporary legal issues affecting women. In multiple-day sessions, organized around specific, evolving sets of issues, feminists presented working papers and debated women’s legal rights. Fineman recorded and preserved these groundbreaking conversations, as well as the working papers and other written material prepared for these sessions.
Fineman is now struggling to convince librarians more accustomed to collecting individuals’ or organizations’ papers of the importance of this historic trove of audio, visual and written materials documenting the collective development of feminist concepts, aspirations and theory.***
For close to four decades, Fineman’s Feminism and Legal Theory Project has hosted hundreds of conversations where feminist thinkers from across the United States and world have shaped and explored a wide range of concepts relating to women’s position within law and society. Those conversations delved into the “public nature of private violence,” the legal regulation of motherhood, feminism’s reception in the media, the relevance of economics to feminist thought, the complexities of sexuality, conflicting children’s and parental rights, the origins and implications of dependency and vulnerability, and the extent and nature of social responsibility.
“Feminism teaches us that the best ideas come from working together in inclusive, supportive groups,” said Fineman. “Feminism has grown through consciousness raising and the sharing of experience. The best ideas and the best politics emerge from collective engagements and processes.”***
“In the Feminism and Legal Theory Project, we created what I called ‘uncomfortable conversations’—events where people who shared values, but disagreed about strategies and implementation, could talk,” said Fineman. “If there were areas of disagreement around collective objectives, you could talk about them and work through them hopefully in a constructive manner. That’s how actual progress can be made.”***
Fineman recorded all of these conversations—a treasure trove of close to four decades of feminist intellectual history. But she is now struggling to find a home for this invaluable archive of the first generation of feminist legal thinkers.
“History has something to teach us. If we don’t collect the history and preserve it, then it can’t teach us,” said Fineman.***
After speaking with people at women’s history archives, Fineman is concerned about how decisions to preserve women’s history are made. “Who makes the determination about what and who in the past matters? How and why they make such decisions ultimately shapes what will constitute women’s or feminist history,” said Fineman. “An important piece of feminist history is at risk of being lost or isolated and sidelined.
Call for Book Chapters:
Nineteenth- and Twentieth-Century Women and Conflicts of Law:
Global Perspectives, 1815-Present
EXTENDED DEADLINE AND BROADENED FOCUS
We invite chapter submission for inclusion in an edited collection on Nineteenth- and Twentieth-Century Women and Conflicts of Law.
The volume discusses the consequences for women when law systems clashed--between independent nations, colonizers and colonized, majority and minority religions, or between secular and religious laws. The nineteenth and twentieth centuries saw industrial nations draw more and more of the globe into the orbit of their law systems, and these were also the centuries in which women contested their legal positions vigorously. Thus, this period offers an ideal forum for studying the effects of legal differences across the globe. Conflicts of law were inevitable whenever people crossed borders, converted to different religions, or married/divorced someone of a different class, religion, or locality. Women were often harmed by conflicts of law, but this was not inevitable. In other words, these clashes offered both a challenge and an opportunity.
This volume has no geographical limitations; we welcome proposals from historians of all parts of the world. The most important factor for selection will be the authors’ ability to highlight women’s experiences when law systems clashed. Possible topics include, but are not limited to, the following:
- Conflicts between criminal and civil law
- Conflicts over differing national laws of marriage, divorce, and child custody
- Women in imperial law systems
- The interaction between gender and other factors such as race, class, and sexual orientation in the law courts
- Conflict between secular and religious courts
- The consequences of the lack of legal recognition for lesbian and transgender families
- The regulation and criminalization of sex work across national borders
- Women as actors in the international legal community
- Feminist efforts to eliminate women’s disabilities caused by conflicts of law
- Disputes over nationality, dual nationality, and statelessness in peace and war
The proposed schedule is as follows:
January 15, 2023 – Proposals due; these should be of no more than 300 words, accompanied by a one-page C.V.
February 15, 2023 – Authors receive notice of editorial decision.
November 15, 2023 – Full manuscripts due to the editor. Manuscripts should be standard length for journal articles, approximately 7,500-8,500 words (including notes).
Those interested in contributing should direct all correspondence to the volume editor, Dr. Ginger Frost at: email@example.com
Montana Adopts New Administrative Rule that Restricts Changes to Birth Certificates for Transgender People
Transgender people born in Montana will no longer be able to change the sex listed on their birth certificate to accurately reflect their identity under a new state rule that is among the most restrictive in the country, according to transgender rights groups.
Under the rule, which took effect on Saturday, transgender people may change the sex listed on their birth certificate only if it was recorded incorrectly as a result of a clerical error or if the person’s sex was “misidentified” on the original certificate and they can prove it through DNA or other scientific testing.
“This has made it virtually impossible for trans folks to amend the gender marker on their birth certificate,” said Alex Rate, legal director of the American Civil Liberties Union of Montana.
Tennessee, Oklahoma and West Virginia are the only other states that do not currently issue corrected birth certificates for transgender people, according to the National Center for Transgender Equality.
The International Research Conference Aims and Objectives
The International Research Conference is a federated organization dedicated to bringing together a significant number of diverse scholarly events for presentation within the conference program. Events will run over a span of time during the conference depending on the number and length of the presentations. With its high quality, it provides an exceptional value for students, academics and industry researchers.
International Conference on Feminist Legal Theory, Gender and Law aims to bring together leading academic scientists, researchers and research scholars to exchange and share their experiences and research results on all aspects of Feminist Legal Theory, Gender and Law. It also provides a premier interdisciplinary platform for researchers, practitioners and educators to present and discuss the most recent innovations, trends, and concerns as well as practical challenges encountered and solutions adopted in the fields of Feminist Legal Theory, Gender and Law.
Call for Contributions
Prospective authors are kindly encouraged to contribute to and help shape the conference through submissions of their research abstracts, papers and e-posters. Also, high quality research contributions describing original and unpublished results of conceptual, constructive, empirical, experimental, or theoretical work in all areas of Feminist Legal Theory, Gender and Law are cordially invited for presentation at the conference. The conference solicits contributions of abstracts, papers and e-posters that address themes and topics of the conference, including figures, tables and references of novel research materials.
Monday, September 19, 2022
SisterSong hosted its annual conference, "Let's Talk About Sex." Tina Vasquez, writing for Prism, authored an article Reproductive Justice has the blueprint for post-Roe America, but are we ready for it? describing the conference proceedings from her first-hand accounts. The writing in this summary is impactful in describing both the content, the spirit, and the energy of the conference.
The conference theme was “Our Blueprint for a Body Revolution,” and when SisterSong executive director Monica Simpson greeted the crowd during the kick-off plenary to Beyoncé’s “Break My Soul,” the message was clear. Any attendees who came to Texas looking to dissect the fall of Roe would quickly learn they were at the wrong conference.
During one morning plenary, Oriaku Njoku, the National Network of Abortion Funds’ new executive director, shared what was essentially a love letter to abortion funds, describing them as a series of autonomous organizations that provide mutual aid. In other words, they simply provide what communities need.
“Roe was the floor,” Njoku said. “And when the floor is rooted in heteropatriarchy and white supremacy, you have to tear the whole damn house down and build again on land fortified by the reproductive justice framework.”
* * *
One of the most moving things at LTAS was one of its most quiet offerings: a conference room transformed into the home of a person who self-managed their abortion. Created by Abortion On Our Own Terms, the “Stigma Free Zone” was an exhibit that guided attendees through what a self-managed abortion can really be like in a safe, supported, and private space. Children’s items littered the entry point to remind us that most people who have abortions are already parents. Strewn about the cozy and welcoming apartment were comfortable clothes, a teapot, a heating pad, and snacks, illustrating all of the things a person would need to feel nourished.
* * *
Even a few minutes at LTAS makes one thing abundantly clear: Young women of color—and young Black women specifically—fuel the reproductive justice movement. Young people from across the country flocked to the conference, excited to learn strategies for talking to their families about sexual and reproductive health and for organizing their communities and college campuses. West Texas’ abortion fund, the West Fund, traveled to Dallas with a group of teenagers. One of them told me it was her first time leaving El Paso and that the conference opened up her world. * * * In other words, young people are the experts, and we have a lot to learn from them about demanding more and better.
The American Medical Association, in response to a letter from Senator Warren, wrote a formal letter to the United States Senate on state abortion restrictions dated September 9th. Key excerpts emphasized compromised patient care, vague and complicated state laws, and the importance of doctor-patient decision-making.
While AMA policy recognizes that our members’ individual views on abortion are determined by their own values and beliefs, we firmly and unequivocally support patients’ access to the full spectrum of reproductive health care options, including abortion, as a right. Our policies are the result of a democratic process in which physicians representing every state and national specialty medical society come together in our House of Delegates. In alignment with our long-held position that the termination of a pregnancy is a medical matter between the patient and physician, subject only to the physician’s clinical judgment, the patient’s informed consent, and access to appropriate facilities, the AMA opposes any government or any other third-party interference that compromises or criminalizes patient access to safe, evidence-based medical care. Unfortunately, patient care is being compromised now, patients are suffering from lack of access to necessary care, and some are at risk of dying due to delayed care in the context of termination of ectopic pregnancies or patients experiencing intrauterine infections, pre-eclampsia, malignancies, or hemorrhage during pregnancy.
* * *
Physicians have been placed in an impossible situation—trying to meet their ethical duties to place patient health and well-being first, while attempting to comply with vague, restrictive, complex, and conflicting state laws that interfere in the practice of medicine and jeopardize the health of patients.
* * *
The foundation of the patient-physician relationship relies upon honest, open communication and trust, which is undermined by substituting lawmakers’ views for a physician’s expert medical judgment. It is each physician’s ethical responsibility to help his or her patients choose the optimal course of treatment through shared decision-making that is fully informed by evidence-based medical science and definitively shaped by patient autonomy. Anything less puts patients at risk and undermines both the practice of medicine and our nation’s health. The AMA Code of Medical Ethics states that “The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.” The AMA opposes any effort to undermine the basic medical principle that clinical assessments, such as viability of a pregnancy and safety of the pregnant person, are determinations to be made only by health care professionals with their patients.
Jack Balkin has posted Abortion and Partisan Entrenchment on SSRN in draft format. The abstract states:
In overturning Roe v. Wade, The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization achieved a long-sought victory of the Republican Party. Dobbs is part of a larger conservative constitutional revolution. This revolution has been achieved through a strategy of partisan entrenchment, in which political parties, led by Presidents, stock the courts with jurists allied with the party's commitments of ideology and interest.
Over time, partisan entrenchment by both parties can keep the Supreme Court's ideological center roughly aligned with the center of national public opinion. But this alignment need not occur, and the Court's current constitutional revolution reflects this fact. Moreover, if the country is highly polarized, as it is now, there is even less reason to think that the ideological center of the Supreme Court will have much relationship to the center of public opinion. It is far more likely to reflect the center of elite opinion in whichever major party currently controls the Court.
Although Republicans dominated Supreme Court appointments between 1969 to 2020, Roe v. Wade survived for half a century. This was partly due to luck. But another important reason is that members of the conservative legal movement did not constitute a majority of the Court until 2018. Once that happened, Roe's demise became almost certain. Entrenchment of movement-identified legal conservatives, and not simply Republicans, was the key to overturning Roe.
Once the conservative legal movement has achieved most of its central goals, however, it may lose cohesion, as the country faces new issues and the Republican Party continues to evolve into a Trumpist party. Different parts of the conservative legal movement may find themselves increasingly at odds. New issues will emerge for which the conservative legal movement was not organized. These new issues may create fractures among Court’s conservative majority.
Moreover, Roe's demise has created new problems for the Republican Party. Party coalitions affect the exercise of judicial review--that is the point of partisan entrenchment--but the exercise of judicial review also affects party coalitions. Judicial review can make it easier for a political party to maintain its base of voters; or, conversely, judicial review can create openings for a party’s opponents to pick off its voters and split its coalition.
Roe v. Wade made the modern Republican Party possible. Staunchly pro-life voters could join with voters who supported some abortion rights but voted Republican for other reasons. The latter could vote Republican because no matter how much Republican politicians catered to pro-life voters, Roe kept them from banning abortion completely. Dobbs made abortion prohibition possible and highly salient, and placed different parts of the Republican coalition in tension with each other. To keep their coalition together, Republican politicians may now try to change the subject. But the party's most avidly pro-life voters, who dominate primary contests, may not let them. Although the long-term electoral result is not foreordained, Dobbs has created opportunities for opposition politicians to shrink and fracture the Republican coalition.
Politicians always act in the shadow of other institutional features of the American constitutional system, including judicial review. The Court’s decisions affect political coalitions, but that is because of decisions made by political actors over whom they have no control. Supreme Court decisions may make or break political coalitions, but not as the Justices either understand or intend.
Friday, September 16, 2022
Results of a study of 225 publicized abortion cases in US newspapers from 1820 to 1860; with attention to married women who comprise a small fraction of the set.
From the conclusion:
My search for married women exercising reproductive choice produces glimpses of such women—in Luceba Parker’s and Mme Restell’s rooms and in Horatio Storer’s fevered brain. A series of inferences lend support to the trend. We know the birth rate was falling in this period, first and fastest in New England; some, maybe most of that was due to contraception, equally shunned by Storer. We know that missed menstrual periods were common and were thought to require treatment, including uterine penetration. My newspapers stories show that some doctors were willing to perform abortions, so similar to menstrual regulation techniques. And we know that early pregnancy was hard to detect and hard to prove. When done successfully and discretely, an abortion left few clues. Finally, there had to be some degree of activity by married women for Storer’s outsized claims to seem plausible.
What I am most struck by now, after having amassed all this material, are the crucial differences between then and now. In both eras, legal doors are closing. But back then, those new laws were rarely enforced. Few were prosecuted; fewer still convicted. It is clearly a very different world today, one shaped by powerful tools of surveillance, modern regulatory bureaucracy, unyielding religious beliefs, and determined enforcement.
Elizabeth Katz, Kyle Rozema & Sarath Sanga, Women in U.S. Law Schools, 1948-2021
We study the progress of women’s representation and achievement in law schools. To do this, we assemble a new dataset on the number of women and men students, faculty, and deans at all ABA-approved U.S. law schools from 1948 to the present. These data enable us to study many unexplored features of women’s progress in law schools for the first time, including the process by which women initially gained access to each law school, the variance in women’s experiences across law schools, the relationship between women’s representation and student achievement, and the extent to which women occupy lower status faculty and deanship positions. We contextualize our findings by situating them within the vast qualitative literature on women’s experiences in law schools and the legal profession.
Thursday, September 15, 2022
Jodi Lazare & Kelsey Warr, A Gender-Based Approach to Historical Child Support: Comment on Colucci v Colucci. Canadian Journal of Family Law 2022
In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law. The comment argues that in changing the applicable framework, the Court has endorsed a gendered approach to historical child support law that responds to many of the concerns that flowed from DBS.
Drawing on the text of the decision, as well as relevant case law and scholarship, we outline the theoretical foundations for the changes brought by Colucci, as well as their practical implications. We suggest that in clarifying child support as the right of the child, decreasing the emphasis on certainty for payors, and stressing the necessity of financial disclosure, the Court has feminized the law of historical child support. We explain how, using that feminist lens, Colucci modifies the framework for adjudicating historical child support claims, by creating a presumption in favour of an award in the presence of a change of income, softening the three-year time limit of so-called retroactivity, and repositioning and reconceptualizing the DBS factors which now inform how far back a historical child support award should go. In fleshing out and analyzing these changes, we consider the ways in which Colucci may better serve to promote substantive gender equality in historical child support law by responding to women and children’s lived realities.