Gender and the Law Blog

The Critical Mass Theory of Women in Leadership as a New Model of Empowerment

Rangita de Silva de Alwis, The Critical Mass Theory of Women in Leadership: What Next?" 

This paper looks at how at the national level, a shift from a primarily equal opportunity model to equal empowerment model creates a new shift in women’s leadership paradigm. This paper posits that the new General Recommendation 40 of the Convention on the Elimination of Discrimination against Women (CEDAW) brings us close to full gender parity in leadership in public and private as the next generation model on gender equality. Further, this Article analyzes critical mass theory, namely how a representative critical mass in the political, business, and public leadership spheres can lead to critical acts, furthering representation for women on the legislative arena. This reveals a move from descriptive to substantive representation of women in public life. Although critical mass is not the same as gender parity, it can lead towards parity and equality. When the number of women in a given field reaches a critical mass, it helps to shrink tokenism, and marginalization and elevates the role model effect of women’s leadership. In the final analysis, the paper argues that 25 years after the Beijing Platform of Action established the 30 percent critical mass for women’s leadership, full gender equality in leadership is the unfinished business of our time.

The CEDAW Concluding Observation 40 is built on the human rights framework of CEDAW's Article 4 on substantive equality that helps accelerate women’s participation in decision-making and addresses a historic legacy of gender discrimination. Premised on the model of equality of result, “Temporary Special Measures” as enshrined in Article 4 of the CEDAW move away from a formal sex equality model which treats women and men as similarly situated. Despite its intentions, the formal equality model often does not produce equal results. The effects of such a legacy of discrimination are manifest in the numerous gender stereotypes that subordinate women. It is therefore necessary that gender equality paradigms go further than gender neutrality concepts that reinforce structural barriers to women’s equality. A second model, the substantive equality model, takes a different stance in attempting to remedy the effects of past discrimination by demanding that policies and laws take into account such gender differences in order to avoid unequal results. Examples of the substantive equality model include CEDAW’s Temporary Special Measures for women which are often designed to boost women’s participation in historically male dominated fields. Toward the advancement of CEDAW’s goal of equality in decision making, General Recommendation 40 of the CEDAW, underscores what was argued by David Rothkopf former, editor of Foreign Policy, that “the underrepresentation of women in positions of power is proof not so much that men still dominate the top of the pyramid as it is of a system of the most egregious, widespread, pernicious, destructive pattern of human rights abuses in the history of civilization."

As a coda, while writing this article, in September of 2023, India passed historic legislation, mandating one-third of seats in the lower house and state legislative assemblies for female candidates. As the largest democracy in the world, this is indeed a significant milestone in ongoing efforts to enhance the representation of women in political systems. After 27 years since the Bill was introduced, the passage of the Bill provides momentum to the role of the critical mass theory in women’s leadership.

Ohio's Reproductive Freedom Amendment Takes Effect, but the Fight Over Access Continues

Ohio's Abortion Protections Take Effect, but the Fight Over Access Continues

One month after Ohioans voted to protect abortion access, the constitutional amendment goes into effect Thursday — and while Republican leaders have mostly backed off plans to undermine the amendment in the near term, proposed legislation and pending litigation could still determine the scope of access. 

In the November elections, about 57 percent of Ohioans voted to approve Issue 1, which enshrined the right to abortion until the point of fetal viability, as well as access to contraception, miscarriage care and fertility treatment in Ohio’s Constitution. In Ohio, as of Thursday, abortion is legal up to 22 weeks, which has been the case since the state’s six-week ban was put on hold by the courts in September 2022.***

The GOP push to block Issue 1 started when Republicans put a separate measure onto August ballots that would have raised the threshold to pass citizen-offered constitutional amendments, including Issue 1; Ohioans soundly rejected that effort. Within hours of the November vote, Republican Senate President Matt Huffman told reporters it was the “beginning of a revolving door of ballot campaigns to repeal or replace” it,  perhaps with another amendment that would implement a 15-week abortion ban. Then, far-right state Rep. Jennifer Gross, who represents an exurban district outside Cincinnati, announced an effort to strip the judiciary of its jurisdiction over the abortion amendment as an end-run around courts inclined to uphold the state constitution.

Other Republicans in the state have rejected proposals that would ignore the will of Ohio’s voters — but some still expressed their openness to other ways to restrict abortion. Gov. Mike DeWine, for example, said that once Issue 1 took effect, voter sentiment may change and open the door to a different amendment or new abortion laws.***

Ohio still has many abortion laws on the books that weren’t automatically nullified by Issue 1. Some, like the six-week abortion ban that was already put on hold by courts before the amendment passed, are currently being litigated — the Ohio Supreme Court has asked both sides of the case to submit briefs Thursday on Issue 1’s impact on the so-called heartbeat ban. A 20-week ban passed in 2016 — interpreted as allowing abortion up to 21 weeks and 6 days — is still in place, as is a 2019 prohibition on dilation and extraction, an abortion method most commonly used in the second trimester of pregnancy. Another law prohibits doctors from performing abortions requested due to a Down syndrome diagnosis for the fetus. A 2013 law that led to multiple clinic closures requires all abortion clinics to have transfer agreements with private hospitals.

Nina Kohn, et. al. on Fixing America's Nursing Home Crisis

Nina A. Kohn, Adrianna Duggan, Justin Cole, and Nada Aljassar have posted "Using What We Have: How Existing Legal Authorities Can Help Fix America's Nursing Home Crisis" on SSRN. This work-in-progress is forthcoming in the William and Mary Law Review (2023/2024). The nursing home crisis disproportionately affects women in several ways, according to BizWomen: "Women account for nearly 90 percent of nursing home and assisted living employees, including nurses, aides, technicians and housekeepers/custodians. They also make up the majority of nursing home residents at nearly 70 percent, in part because women tend to live longer than men." Kohn et. al.'s abstract is excerpted here:     

The COVID-19 pandemic exposed systemic quality-of-care problems in American nursing homes as well as the deadly consequences of a regulatory system that has enabled nursing homes to divert funds needed for care to profit. Policy experts have responded by urging regulators to improve nursing-home oversight practices and by calling for new regulatory and statutory authority to increase accountability. These calls, however, have been met with sharp political headwinds. This Article suggests a path around the political impasse. Specifically, it identifies and explores four opportunities to leverage existing statutory schemes to create stronger incentives for nursing homes to provide high-quality care. It then explores how politics, administrative complexity, and ageism have come together to prevent this existing authority from being used to its full potential. It concludes by situating the current regulatory failure to hold nursing homes accountable in the context of a larger discussion about the costs of federalism in the health care arena.

ABA Program on "Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns"

The ABA is hosting a program on "Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns." The event is from 2 p.m. - 3:30 EST on December 8th. 

The Asian Pacific Institute on Gender-Based Violence and the American Bar Association Commission on Domestic & Sexual Violence cordially invite legal service providers and advocates supporting survivors and victims of domestic violence and sexual assault to join us for a panel discussion on Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns.

 

This panel discussion is designed for legal services providers to address the challenges and promising practices in providing language access to victims of domestic and sexual violence who are limited English proficient or use different modes of communication, including those who speak indigenous languages. The panel will explore the unique considerations and approaches required based on the geographic location of the providers, focusing on rural, urban, and border towns. By sharing experiences and expertise, participants will gain valuable insights to improve their language access services and support for these vulnerable populations.

Register here. 

Afsharipour and Jennejohn on "Gender and the Social Structure of Exclusion in U.S. Corporate Law"

Afra Afsharipour and Matthew Jennejohn have published "Gender and the Social Structure of Exclusion in U.S. Corporate Law" in volume 90.7 of the University of Chicago Law Review. The article abstract is excerpted here: 

 

Prior qualitative research suggests that [professional] networks are an important source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “old boys’ networks.”

For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than fifteen thousand matters and two thousand seven hundred attorneys were collected as the basis for a massive network.

Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interact with gender—women’s positions within the network differ by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: from working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.

Rachel Arnow-Richman on "Beyond the Glass Ceiling: Panes of Equity Partnership"

Rachel Arnow-Richman has posted Beyond the Glass Ceiling: Panes of Equity Partnership on SSRN. This article is forthcoming in the Florida International University Law Review. The abstract is excerpted here:

This Article . . . explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a cluster of equal pay cases brought by women partners . . . against elite firms. [I]t reveals how the same unspoken beliefs that underlie the law firm glass ceiling operate above it, placing women partners at the bottom of a new compensation hierarchy centered on origination credit. Due to historical allocations, a culture of deference toward male rainmakers, and implicitly biased attorney development and evaluation practices, origination operates as a form of “legacy credit” that locks in preexisting entitlements favoring male partners. Despite this, gender equity in law practice has been framed principally as a professional value, not a legal imperative. Women v. BigLaw and the unprecedented use of the court system by women lawyers reveals, however, that partnership pay practices pose a liability risk to firms. This new reality may incent structural change in ways that attention to gender equity as a managerial and professional goal could not.

Aya Gruber Publishes "A Tale of Two Me Toos"

Aya Gruber has published A Tale of Two Me Toos in volume 2023 of the Illinois Law Review. The abstract is excerpted here: 

What is #MeToo’s legacy? The conventional account currently being indelibly forged into our collective memory is that #MeToo was an unconditional progressive victory. It was a reckoning of the disempowered against the powerful that profoundly challenged sexist culture. This Article complicates and even counters that narrative by shining a light on #MeToo’s dark side, namely, its carceral and neoliberal messages and policy reforms. Although today’s George-Floyd-mindful feminists often describe #MeToo as having nothing to do with criminal law, the reality is that the movement featured familiar tough-on-crime discourses, passionately called for more criminal law and prosecutorial power, and, in fact, produced several new carceral laws and policies. Yet, just hours after famous actor Alyssa Milano sent the tweet heard around the world, Black Twitter revealed that Me Too already existed: Tarana Burke’s “me too movement.” This Me Too centered on survivors’ material and emotional needs, focused on young women of color living in socioeconomic precarity, and embraced noncriminal “transformative justice.” Milano’s #MeToo, by contrast, incorporated popular narratives of criminality, bolstered the legitimacy of the penal state, and relied on traditional notions of sex and gender. And it was Milano’s that became the Me Too. This Article contrasts the two Me Toos to critique the individualistic and punitive #MeToo movement that is and mourn the intersectional and restorative Me Too movement that could have been. #MeToo’s emphasis on sensational stories and social media derived evidence of “epidemics” effectively cut off debate, enabling carceral reforms to pass at a dizzying pace. This Article is the first to catalogue, describe, and examine the actual criminal laws and policies erected in #MeToo’s name. Even a surface analysis of these reforms reveals that, contrary to advocates’ claims, they do not just close “loopholes.” Instead, each new or broadened criminal law raises troubling issues of civil liberties, defendants’ rights, and state power, and each portends to sweep in people—including women—who bear little resemblance to the unrepentant monstrous offenders featured in #MeToo discourse.

Where Things Stand on Opposition to Implementation of Ohio's New Reproductive Freedom Constitutional Amendment

Julie Carr Smyth & Christine Fernando, AP, Voters Back Abortion Rights, but Opponents Won't Relent.

As voters in state after state affirm their support for abortion rights, opponents are acting with escalating defiance toward the democratic processes and institutions they perceive as aligned against their cause.

Certain Republican elected officials and anti-abortion activists around the country have responded to losses at the ballot box by challenging election results, refusing to bring state laws into line with voter-backed changes, moving to strip state courts of their power to consider abortion-related laws and challenging the citizen-led ballot initiative process itself.

“We.Are.Not.Done.,” Ohio state Rep. Jennifer Gross declared on the social media platform X two days after voters enshrined the right to abortion in the state constitution earlier this month. She and 25 other Republican lawmakers vowed to block the amendment from reversing Ohio’s existing abortion restrictions.

A strong majority of Ohio voters passed the amendment, by roughly 57% to 43%. In response, the group of lawmakers said in a joint statement: “We will do everything in our power to prevent our laws from being removed based upon perception of intent.”

Gross joined three fellow Republicans to go even further, proposing legislation to prevent Ohio courts from interpreting any cases related to the abortion-rights amendment, known as Issue 1. Similar efforts have emerged in six other states since state courts became the new abortion battleground after the Dobbs decision on June 24, 2022, that overturned Roe v. Wade.

Douglas Keith, senior counsel to the Brennan Center for Justice’s Judiciary Program, said abortion politics prompted successful efforts to limit the power of state courts in Montana and Utah and unsuccessful legislation in Alaska and Kansas. Such bills are attempts to dismantle the government’s system of checks and balances, he said.

See also The Fight for Abortion Access in Ohio Isn't Over and Analysis: OH Legislature Threatens Jurisdiction Stripping to Prevent Enforcement of New Constitutional Amendment

 

Ohio Senate Leader Says After Issue 1 Vote, Abortion Won't be Back on the Ballot Soon

The Republican leader of the Ohio Senate says he doesn’t want an abortion amendment to change parts of Issue 1 passed by voters earlier this month to go before voters soon.

On Election Night, Senate President Matt Huffman (R-Lima) issued a statement saying he thinks there would be a “revolving door of ballot campaigns to repeal or replace Issue 1.” But Huffman said that doesn’t mean he wants to see another abortion amendment on the ballot right away.

“I don’t think there, certainly, should be anything on the ballot, certainly in '24 and we will have to see about that going forward," Huffman said.

Ohio's 2024 primary is in March, and the contests for the Republican nominations for president and U.S. Senate are likely to bring out GOP voters. But Huffman said, "I didn't say anything about putting something on the ballot in March."

Abortion also played a key role in the August special election, in which voters rejected a proposal to require 60% voter approval to pass future constitutional amendments. The abortion and reproductive rights amendment passed with just under 57%.

House Speaker Jason Stephens (R-Kitts Hill) and Gov. Mike DeWine, who both strongly opposed Issue 1, have also said an abortion issue shouldn’t be on the ballot next year.

 

Ohio's Top Court to Consider How Issue 1 Affects Six-Week Abortion Ban                                                                                   

The Ohio Supreme Court, which has been considering a technical question about the state's ban on abortion after six weeks, asked the parties involved in the lawsuit to file written arguments on the impact of a constitutional amendment approved by voters last week.

    

Reviewing Clarke's Sex Discrimination Formalism

Leah Litman, Toggle Boggle, JOTWELL, reviewing Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023).

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).

Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.

These differences are not just academic. They help clarify some of what is happening in recent decisions

A People's Tribunal to End Obstetric Violence and Obstetric Racism

Continuing the success of the Birth Justice Tribunal held in October, the next Birth Justice Tribunal will be held on December 1 in Memphis. Interested parties can participate by zoom by registering here. This event brings together speakers to describe their experiences of mistreatment in pregnancy and childbirth. The presence of others lends further impact and solidarity. Learn more about birth justice work at Elephant Circle's helpful resource page. The Birth Rights Bar Association is another helpful resource. 

Legal Challenge to Tennessee's Aggravated Prostitution Law

OUTMemphis sued Tennessee challenging its existing aggravated prostitution law on statutory and constitutional grounds. Read the full complaint here. The preliminary statement is excerpted here.

2.Unlike Prostitution, which is a misdemeanor, Aggravated Prostitution is a felony that requires lifetime registration as a “violent sex offender” pursuant to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (“TN-SORA”). This drastic difference in treatment turns solely on HIV status and is so unmoored from medical facts as to punish sexual encounters that pose no risk of HIV transmission.

 

3.While Aggravated Prostitution and its related registration requirements completely fail to protect public health, the laws immeasurably harm those they target. Jane Does 1–4 are transgender and cisgender women living with HIV, who were convicted of Aggravated Prostitution and must register as “sexual offenders” or “violent sexual offenders” for the rest of their lives under TN-SORA. They are joined as Plaintiffs in this matter by OUTMemphis, a non-profit organization that provides the LGBTQ+ community, including people convicted of Aggravated Prostitution or at risk of being charged with Aggravated Prostitution, with support with housing, employment, healthcare, and other needs. Together, Plaintiffs sue to end Tennessee’s irrational, discriminatory, and cruel and unusual treatment of people living with HIV.

 

4.HIV has long been recognized as a disability under the Americans with Disabilities Act of 1990 (“ADA”). The ADA prohibits discrimination by state government entities by reason of a person’s disability. Defendants are explicitly violating this guarantee by subjecting people living with HIV who are convicted of engaging in sex work to dramatically increased criminal liability and lifetime registration as “violent” sex offenders—solely by virtue of their disability. This discrimination is imposed without any case-by-case, individualized assessment of any threat to public health. The Aggravated Prostitution law does not specifically target sexual behavior that can transmit HIV. Nor does it account for the fact that either partner to a sexual interaction can mitigate or entirely eliminate the risk of transmission of HIV. Given the actual science of HIV, Jane Does 1–4 and others convicted of Aggravated Prostitution need not and did not pose a threat to anyone’s health or safety.

 

5.As Congress recognized in passing the ADA, “society tend[s] to isolate and segregate individuals with disabilities.” For this reason, the very purpose of the ADA is to address ongoing discrimination against individuals with disabilities in critical areas like employment and housing. Subjecting people to lifetime sex offender registration because of their HIV status directly frustrates these goals. Under TN-SORA, Plaintiffs are effectively barred from many employment opportunities, housing options, and public spaces as well as family and community life: they are, for example, forbidden from working, living, or even spending short amounts of time within 1,000 feet of a school, playground, park, or other area where children gather. For Jane Does 1–4, who live in large cities like Memphis, finding work and housing outside these vast and ever-changing registry “Exclusion Zones” is nearly impossible.

 

6.The restrictions are particularly disruptive of family relationships, even though such relationships are critical to successful community reintegration and are known to reduce recidivism. Jane Does 1–4 cannot be alone with their nieces, nephews, or grandchildren, and are forbidden, for example, from watching their grandchildren perform in a school play or sporting event. This is so even though their convictions have nothing to do with the abuse of children.

 

7.Along with being unlawful, Tennessee’s criminalization of disability status is counterproductive as a means of addressing HIV. The scientific consensus is that HIV-criminalization laws do not reduce the prevalence of HIV. Rather, by criminalizing knowledge of one’s HIV status, Tennessee disincentivizes at-risk individuals from seeking testing and erodes the trust in medical professionals that is needed to successfully access treatment and limit transmission.

 

8.There are many other chronic and manageable infectious conditions prevalent in Tennessee, but none are subject to such draconian and counterproductive punishment. That individuals living with HIV are treated so differently can only be understood as a remnant of the profoundly prejudiced early response to the AIDS epidemic, and the continuing marginalization of the Black cisgender and transgender women who have borne the brunt of the Aggravated Prostitution and related registry requirements. Indeed, in 2022, a Black woman in Tennessee was 290 times more likely to be on the sex offender registry for an HIV-related conviction than a white man. 

 

9.While many states across the country have reformed their discriminatory and scientifically unsound HIV-specific criminal laws in recent years, Tennessee has continuously increased the penalties for Aggravated Prostitution through amendments to its registry scheme retroactively applied to Plaintiffs. Today, Tennessee’s Aggravated Prostitution statute is the only law in the nation that treats people living with HIV who engage in any sex work, even risk-free encounters, as “violent sex offenders” subjected to lifetime registration. 10.Counterproductive and harmful, Aggravated Prostitution and its related requirements under TN-SORA violate the ADA, equal protection, substantive due process, the Eighth Amendment, and the prohibition against ex post facto laws, and must be struck down.

Analysis: Ohio Legislature Threatens Jurisdiction Stripping to Prevent Enforcement of New Constitutional Right to Reproductive Freedom

In November, people in Ohio passed an initiative for Reproductive Freedom of abortion, contraception, and reproductive rights by 57%. The initiative was proposed by a public petition process, where pro-choice supporters from the medical profession led the petition signing campaign to get the amendment on the ballot.

Maneuvers to Defeat Reproductive Freedom Amendment

The Ohio legislature and executive, Republican controlled, tried many maneuvers to defeat this amendment. The legislature added an August special election to change the standard for passing a constitutional amendment by initiative from 50% to 60%. After prohibiting special August elections the year before. The voters rejected that change in the one-hundred year standard by 57%. Then the Secretary of State “summarized” the actual language of the amendment in ways that suggested abortion would be freely allowed any time (while the amendment expressly says prohibitions are allowed after fetal viability) and changed fetus to “unborn child.” One poll showed this impacted 5% of the voters, particularly men and conservative women in the middle, who would have withdrawn their support based on the language. Then the Attorney General issued an “explanation” of the amendment that called it an extreme law that established a new level of “exclusive scrutiny” under the constitution never before seen. Even though the amendment is a reasonable restoration of the prior balance of Roe and state law drawn at viability and applying strict scrutiny. The Governor advocated strongly against the amendment, calling it extreme and jeopardizing parents’ rights over minors’ abortions. See Jessica Bulman-Pozen & Miriam Seifter The Right to Amend State Constitutions, Yale L.J. Forum (Nov. 10, 2023) (discussing larger trend of  maneuvers to block the right to amend). 

After the passage of amendment, the Governor announced he accepted the results of the election and recognized the amendment. “He said along with the rest of Ohioans, the state will wait to see how the constitutional amendment is applied.” “I always said that all of at least can be up to the courts," DeWine said. "So these things will have to play out in the court of law. So we will we'll see how they how they play out and what the courts decide."

Repeal or Replace

There have been some hints of new amendments to be quickly proposed to “repeal or replace” the 2023 Amendment. Reproductive Freedom Wins in Ohio. But That's Not the End of the Story.  Ohio has no regulatory limits on new amendments, unlike some states that have laws prohibiting these types of immediate proposals. Seven states have limits on repeat measures, typically temporal restrictions that prevent similar measures within 2 to 3 years.

Ohio has some precedent on this type of repeal. Ohio’s constitution originally banned gambling. But in 1973, voters approved a state lottery. Between 1973-2009, four initiatives failed to approve casinos, with one barely passing in 2009.

A similar back and forth happened with women’s presidential suffrage in 1917. Presidential suffrage was a partial suffrage measure granting women the right to vote in presidential elections. The legislature passed a bill authorizing presidential suffrage. But opponents, most from the liquor industry fearing women voters would vote for prohibition, quickly put together an initiative to repeal the law. Women suffragists led by attorney and later Judge Florence Allen challenged the petition signatures as fraudulent. But the amendment was placed on the ballot and strongly passed, thus overturning women’s limited suffrage. See Tracy Thomas, The Jurisprudence of the First Woman Judge, 27 William & Mary J. Race, Gender & Social Justice J. 293, 316-17 (2001).

Threats of Jurisdiction Stripping

However, the legislature has not. A significant minority of legislators issued a statement saying they intend to strip courts of jurisdiction to hear cases about the amendment. See Ohio GOP Lost on Issue 1. Now Some Want to Strip Power Over Abortion Laws from the Courts. “Jurisdiction” is a court’s power or authority to consider a case. What this proposal does is prevent courts from enforcing the amendment by injunction and by declaring laws in contravention of the Reproductive Freedom Amendment unconstitutional. Because these legislators have indicated they will not recognize or enforce this right.

The Ohio legislative group issued a statement saying it would pass a bill saying that the state courts and/or Supreme Court could not hear cases about reproductive rights and/or would limit enforcement remedies like injunctions and contempt it could award. “The draft proposal from Rep. Jennifer Gross (R-West Chester) said state lawmakers would have exclusive authority over implementing Issue 1, with all jurisdiction withdrawn from local and state courts. It also would order the immediate dismissal of lawsuits, and violations by judges would be impeachable offenses.” Id.

 "It's even more extreme than I expected. A better title would be the Issue 1 Non-Implementation Act," said Steven Steinglass, dean emeritus at the Cleveland State College of Law and wrote the best known book on Ohio’s constitution.

Steinglass said the draft proposal violates the state's constitution in several ways. He said it goes against the new reproductive rights amendment, it violates the constitutional role given to the judiciary to interpret constitutional issues and goes against principles of separation of powers. He said it violates due process at the state and federal level, and he also said it arguably violates equal protection laws.

"So it seems to me that legally it really is and should be a non-starter," Steinglass said. Id.

 The Unconstitutionality of Jurisdiction Stripping

Jurisdiction stripping is a political tool from conservative playbooks to limit judicial action on social issues. In the 1980s, federal Congress members proposed bills to remove or limit the power of the U.S. Supreme Court to adjudicate issues of abortion, desegregation busing, and school prayer. Four bills were introduced in 1981 specifically to limit jurisdiction over abortion in opposition to Roe v. Wade. Chief Justice Roberts, then working as a lawyer in the Senate, did the research endorsing this approach. (And recently, liberals have grabbed on to jurisdiction stripping as a court-reform strategy to limit the impact of the current Supreme Court).

Jurisdiction stripping assumes that the legislature has power to dictate the jurisdiction of the courts, and thus has the power to limit that jurisdiction. At the federal level, this is Congress’ power under Article III of the Constitution to create the appellate jurisdiction of the U.S. Supreme Court with exceptions and its power over the lower courts.

However, jurisdiction stripping is blatantly unconstitutional conduct. It violates separation of powers, one of the key principles of the U.S. Constitution establishing three branches of government with checks and balances on each. Eliminating jurisdiction from courts over targeted controversial issues encroaches on the legislature’s power to interpret the law and check the excesses of the legislature. It threatens the rule of law itself if the dialogue with the judicial branch is strangled and legislatures are unaccountable to constitutional rights.

The potential power of jurisdiction stripping is also different whether a statutory or constitutional right is at issue. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 U.C. Davis L. Rev. 673 (2001). There is some support for the argument that legislatures can remove or limit jurisdiction or remedies for statutory rights, because they created those very statutory rights and could eliminate those rights completely. Id. at 696. However, constitutional rights are superior paramount rights that are not created by the legislature. The legislature cannot eliminate or change that constitutional right short of subsequent constitutional amendment. Without the power to change the right, there is no power to change the procedure, remedy, or jurisdiction over that right.

The History of the Politics of the Legal Standard of History and Tradition

Mary Ziegler, The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition, Yale L. J. (2023)

To hear the Supreme Court tell it, the end of abortion rights will begin a new era of judicial neutrality. In Dobbs v. Jackson Women’s Health Organization, the majority reasoned that by adopting an approach to unenumerated rights rooted in history and tradition, the Court could “guard against the natural human tendency to confuse what [the Fourteenth] Amendment protects with our own ardent views about the liberty that Americans should enjoy.”1

Understanding what the Court means by neutrality—and how the majority defines its relationship to history and tradition—has high stakes for unenumerated but fundamental rights housed in substantive due process jurisprudence. In Dobbs, for example, Justice Thomas’s concurrence suggested that a commitment to judicial neutrality requires the Court to jettison its substantive due process jurisprudence, since the doctrine itself “exalts judges at the expense of the People from whom they derive authority.”2 The dissenters in Dobbs likewise indicated that what the Court means by history and tradition will decide the future of rights to same-sex marriage, contraception, and intimacy.3 “Either the mass of the majority’s opinion is hypocrisy,” the dissenters reasoned, “or additional constitutional rights are under threat.”4

Perhaps most centrally, the Court staked its claim to the legitimacy of Dobbs—and other decisions that will implement its history-and-tradition method—on the neutrality such an approach ostensibly delivers.5 The Dobbs majority flagged the recognition of unenumerated rights as a particularly fraught exercise, one that makes it easy to fall prey to the kind of “freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.”6 The Court should guard against this abandonment of neutrality, the Dobbs majority explained, by focusing on “the history and tradition that map the essential components of our liberty.”7 Justice Kavanaugh likewise promised in concurrence that the Court can maintain judicial neutrality in the area of unenumerated rights by adhering to an approach centered on history and tradition.8

How the Supreme Court's History and Tradition Test Threatens Women's Rights and Safety

Melissa Murray & Kate Shaw, The Conservative Supreme Court Vision That Means Inequality for Women

But even if the court upholds the challenged law, it seems unlikely that it will address the broader issue at the heart of this case: whether and how a long-distant past constrains present-day policymakers, and particularly the impact of such an interpretive approach on women.

The court made clear its commitment to a history-and-tradition-bound method of constitutional interpretation in June 2022 when it announced its decisions in the gun-regulation case New York State Rifle and Pistol Association v. Bruen as well as in the case that overruled Roe v. Wade, Dobbs v. Jackson Women’s Health Organization.***

The requirement that present-day gun laws resemble gun laws of the distant past prioritizes history and tradition in much the same way the Dobbs court looked to the historic regulation of abortion, pregnancy and birth to support the view that the Constitution did not protect a right to abortion.

In this regard, Rahimi is not only a sequel to Bruen, but also a sequel to Dobbs. Rahimi has little to do with abortion rights, but as Solicitor General Elizabeth Prelogar noted in her stirring defense of the gun law on Tuesday, the court’s decision will have real consequences for women’s safety, as well as the safety of police officers who respond to domestic violence calls and the broader public. The court may seem poised to uphold the law, but the conservative justices did not appear interested in revisiting the history-and-tradition test announced in Bruen.

Only Justices Elena Kagan and Ketanji Brown Jackson appeared openly skeptical of the test. In one remarkable back-and-forth with attorneys for both sides, Justice Jackson, who was not a member of the court when Bruen and Dobbs were decided, said that she was “trying to understand if there’s a flaw in the history-and-traditions kind of framework to the extent that when we’re looking at history and tradition, we’re not considering the history and tradition of all of the people but only some of the people.”

Prabha Kotiswaran on "Laws of Social Reproduction"

Prabha Kotiswaran has published Laws of Social Reproduction in volume 19 of the Annual Review of Law and Social Sciences. The abstract states: 

Feminists have long demonstrated the invisibility of women’s reproductive labor, performed in bearing and raising children, maintaining households, and socially sustaining male labor. Every wave of feminist struggle from the late nineteenth century onward has actively queried the inequalities that characterize women’s performance of such work, variously referred to as unpaid domestic and care work, domestic labor, or care work. Robust traditions of scholarship on women’s unpaid work animate various disciplines, often spilling into political struggles for adequate recognition of this work. As the pandemic has rendered visible once again the reproductive labor of women the world over, this article offers an overview of social reproduction theory, feminist legal theorizations of reproductive labor, and how we might recuperate a rich tradition of theorizing on social reproduction to develop a materialist approach to law’s regulation of reproductive labor across the marriage-market spectrum with a view to social and economic justice.

CFP First Annual West Coast Sexuality, Gender and the Law Conference

First Annual West Coast Sexuality, Gender and the Law Conference
Loyola Law School, Los Angeles, California
March 22-23, 2024

Call for Papers

Abstract Submission Deadline: December 15, 2023

We are pleased to announce the first annual West Coast Sexuality, Gender and the Law Conference on March 22-23 in Los Angeles. Loyola Law School will serve as the conference host.

As political and legal attacks against LGBTQ people are once again on the rise, as are other legal and political efforts to shape and reassert normative views of gender and the family, this Conference seeks to bring together scholars exploring issues of sexuality, gender, and the law. The goal of the Conference is to provide attendees with detailed, constructive feedback on their work in a supportive, collegial environment, and to build community among scholars working on these issues (especially those on the West Coast). Scholars at all levels of seniority are encouraged. We also encourage submissions at different stages of progress, from early drafts (incubators) to more developed forms (a work-in-progress session).

The Conference will consist of approximately 4-5 panels over the course of one and a half days. Participants will be expected to attend all panels and to read and be prepared to discuss all assigned papers.

There is no conference or registration fee. Participants will be responsible for the costs of their own flight, other transportation, and hotel arrangements (we are working on reserving a block of hotel rooms for the conference). Breakfast, lunch, and refreshments will be provided at the conference.

To preserve an intimate and supportive character, we can accommodate only 45 participants, Although we will try to fulfill all requests, if space is limited, some preference will be given to West Coast-based scholars.

To apply, please submit an abstract of no more than 500 words, as well as a CV, here by December 15, 2023. Submissions will be vetted by the organizing committee (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with the other papers in a collaborative dialogue. In addition, priority will be given to scholars based on the West Coast.

Participants will be notified of their selection by the beginning of January 2024. Drafts of papers will be due approximately two weeks prior to the Conference.

We look forward to your submissions and participation. Questions can be directed to the organizing committee members at [email protected].

Thank you!
Courtney Cahill, UC Irvine School of Law
Courtney Joslin, UC Davis School of Law
Yvonne (Yvette) Lindgren, UC College of Law San Francisco (visiting)
Kaipo Matsumura, Loyola Law School, Los Angeles
Brian Soucek, UC Davis School of Law

Reproductive Freedom Wins in Ohio, but That's Not the End of the Story

Ohio's Reproductive Freedom Amendment enshrining in the state constitution the protection of an individual's choice of abortion and contraception won at the polls yesterday 56% to 43%. See Ohio Votes Continues a Winning Streak for Abortion Rights, NY Times.

However, that is not the end of the story.

Repeal and Replace

State legislators State legislators have already claimed they will be moving to "repeal and replace" the amendment. This is a legal reality of the state constitutional amendment process. The legislature or public initiatives can continue to put amendments on the ballot.  These could be replacements, for example proposing a narrower law of 15 weeks with certain exceptions-- the approach advocated by the Virginia Republican Governor. Or these could be outright appeals seeking a redo on the amendment that just passed. Whether this is an effective political strategy is another question. 

There is some Ohio precedent for this repeal and replace, though not exactly on point. Women's suffrage fell at the vicissitudes of repeat amendments.  A constitutional amendment proposed by the legislature failed in 1912. A constitutional amendment proposed by popular initiative failed worse in 1914. Then the legislature passed limited suffrage of presidential suffrage, to vote in presidential elections, in 1916. But a public initiative put the repeal of that law on the ballot and it passed, thus ending limited women's suffrage. Another example of repeal and replace was Prohibition, which failed at the state level many times, then passed, then was repealed from the state constitution many years later.

Still, the state constitutional amendment for reproductive right is the best approach that can be used at the state level after Dobbs. It is more stable than a court opinion, which can be appealed or changed based on the distinctions of specific cases. The amendment is also more stable than a statutory law, which can be changed by a subsequent legislature. But it is not as guaranteed as a federal constitutional right, which theoretically is not up for reconsideration each term -- but which proved that it too was not impossible to change. 

Federal Oversight

The Ohio reproductive freedom amendment could also be threatened by a federal law restricting abortion. This might be Congress' proposed 15 week ban. Federal law preempts state law in the same field, as we saw with the federal health insurance mandate and state constitutional amendments rejecting that mandate. Opponents did try to "repeal and replace" the health insurance law. A preemption abortion federal rule might also come from a fetal personhood decision by the Supreme Court, a move advocated by pro-life groups that would likely ban most abortions. Of course, a federal law from Congress could also be protective of reproductive freedom, which would control over any restriction passed by a state. 

Ongoing Litigation

Given the movement to repeal and replace, the ongoing litigation in the challenge to Ohio's 6 week abortion ban might continue to be relevant. In Preterm Cleveland v. Yost, a trial court held that Ohio's Constitution already protects abortion. The court cited the Ohio Constitution's liberty guarantees, due process, equality, and its unique Health Care Freedom Amendment (passed by voters challenging Federal Health Insurance in 2011) as synergistically protective of this choice. The case is pending in the Ohio Supreme Court on procedural challenges to the government's ability to file an interlocutory appeal and on standing of whether the providers are the proper parties to litigate. So maybe the case is not moot and will, or should, not be dismissed.

Recent Appointments: Women are Improving the Federal Bench

 

Women Are Improving the Federal Bench: Milestones and Historic Firsts, Ms.

The professional and demographic diversity these judges bring to our federal courts matters. Our diverse nation needs judges who reflect and represent all of us. And we know this: Demographic and professional diversity on our courts has been shown to increase public trust in the judiciary and improve judicial decision-making. More diverse courts include the perspectives of communities who have been traditionally excluded from seats of power in the judiciary’s formal and informal decision-making, and judges from different demographic and legal backgrounds infuse more viewpoints into judges’ deliberations. Diverse courts help communities trust that judicial decisions are fair and do not favor a select few like the wealthy and powerful.

French President Moves to Enshrine Right to Abortion in Constitution

Macron Moves to Add Abortion to France's Constitution, Reacting to US, Wash. Post

President Emmanuel Macron on Friday submitted language for an amendment that would make France the first country to enshrine a right to abortion in its constitution.

Macron has declared on social media that by next year “the right of women to choose abortion will become irreversible.”

The push comes in direct response to the restriction of abortion rights in the United States.

Abortion in France has not been similarly under threat. The French public overwhelmingly supports abortion rights. Abortion is legal for any reason through the 14th week of pregnancy and fully covered by the country’s health insurance system.

But after the U.S. Supreme Court’s Dobbs ruling that overturned Roe v. Wade last year and allowed states to outlaw abortion, French women clamored to further protect their right.

In many countries, abortion is protected by law, not court decision

“The Dobbs case was very shocking in France,” said Mathilde Philip-Gay, a law professor at Jean Moulin Lyon 3 University. “A movement was born just after the case, and women asked Parliament to act and especially to change the constitution.” She noted that polls in the summer of 2022 showed that about 80 percent of the population supported abortion rights and a similar percentage was in favor of adding a right to abortion to the constitution.

Tarek Z. Ismail on "Family Policing and the Fourth Amendment"

Tarik Z. Ismail has published Family Policing and the Fourth Amendment in volume 111 of the California Law Review (2023). The article includes numerous threads about the regulation of Black mothers, including vignettes revealing the regulation of race and gender woven throughout the scholarship. The abstract is excerpted here.  

Each year, Child Protective Services (CPS) investigates over one million families. Every CPS investigation includes a thorough, room-by-room search of the family home, designed to uncover evidence of maltreatment. Most seek evidence of poverty-related allegations of neglect; few ever substantiate the allegations. Despite what in many cities amounts to dozens of daily home invasions by government agents, the most remarkable feature of CPS home searches is how uncommon it has been for courts to clarify their legal parameters. More surprising than the relative dearth of case law and scholarship on the subject is the conclusion some courts have reached that these investigations are outside the familiar rules regulating law enforcement searches of homes.

 

This Article examines how CPS home searches have escaped meaningful Fourth Amendment scrutiny for the past fifty years, despite their explicitly suspicion-based, investigative design. The few courts examining CPS home searches have distinguished them from traditional police investigations. These courts have situated CPS home searches within the “administrative search doctrine”—a confusing web of Fourth Amendment exceptions that the Supreme Court created in the late 1960s for non-law enforcement searches. But when they were created in the 1970s, CPS agencies assumed policing powers initially held by traditional law enforcement—including the powers to investigate maltreatment and to remove children. The co-emergence of the administrative search doctrine and CPS as a new investigative agency with old policing powers resulted in half a century of unnecessary confusion.

 

This Article seeks to resolve that confusion. It provides a brief description of the statutorily required CPS home search, an overview of its legal framework, and a critical analysis of the consequences of CPS searches on the families who experience them. The Article then situates the emergence of the CPS home search within the contemporary Fourth Amendment doctrinal edifice. It analyzes how a government agency conducting millions of suspicion-based home searches could slip through the cracks and demonstrates how none of the administrative search exceptions apply. Finally, the Article suggests a path forward through universal application of traditional Fourth Amendment principles. In so doing, the Article highlights CPS’s unique coercive power, related to—but wholly distinct from—the criminal police. It sets the stage for engagement based on support, not coercion.