Gender and the Law Blog

Ageism and Senior Women

Alan Gutterman, Ageism and Older Women,  

According to estimates based on data compiled and analyzed by the World Bank, the global population of women aged 65 and over as of 2020 was 397 million (an increase of 106 million from a decade earlier), representing 55% of the total global population of persons aged 65 and over (722 million) and 10.35% of the world’s total female population (compared to 8.5% a decade earlier). In 2009, the UN projected that the number of older women living in less developed regions would increase by 600 million within the period 2010 to 2050. When just five years is added to the definition of “older women” the size of the group becomes even more impressive, with data showing that the global population of women age 60+ was 605 million as of 2020 and is expected to reach 1.14 billion by 2050.

The World Health Organization has called the “feminization of aging” one of the central challenges to be addressed by its program of “active aging”, noting that while women have the advantage in length of life, they are more likely than men to experience domestic violence and discrimination in access to education, income, food, meaningful work, health care, inheritances, social security measures and political power, and thus more likely than men to be poor and to suffer disabilities in older age. The UN Independent Expert on the Enjoyment of All Human Rights by Older Persons has observed that the combination of ageism and sexism has a unique and aggravating effect on discrimination and inequality which leads to older women being disproportionately affected by some health conditions, including depression, and suffering from the impact of gender inequalities in older age that manifest in multiple aspects, including legal status, access and control of property and land, access to credit, and inheritance rights.

There is no international treaty or convention that specifically covers the human rights of older persons, but older women have been called out for special attention in various human rights instruments and declarations. Of course, older women are entitled to all of the rights enshrined in the UN Convention on the Elimination of Discrimination against Women, which are applicable to all stages of a woman’s life, and the UN Committee on the Elimination of Discrimination against Women has argued that full development and advancement of women, including the enjoyment of human rights by older women, can only be achieved through a “life-cycle approach that recognizes and addresses the different stages of women’s lives −from childhood through adolescence, adulthood and old age−“, since the cumulative impact of those stages is so readily apparent when assessing the lives and needs of older women from a human rights perspective.

This work discusses ageism and gender and realization of the human rights of older women and covers a range of subjects including legal and policy frameworks; health; housing; work; education and lifelong learning; participation in political and decision-making processes; poverty, economic empowerment and property rights; participation in community activities; gender stereotyping and ageist myths; caregiving and families; abuse, violence and neglect; access to justice; emergencies; older women as members of various vulnerable sub-groups (e.g., rural older women, refugees and older lesbian, bisexual, transgender and intersex women); intergenerational solidarity; and the role of businesses and entrepreneurs in the realization of the human rights of older women.

Exploring the Pay Gap in Large Law Firms and the Role of High-Profile Litigation in Facilitating Pay Equity

Rachel S. Arnow-Richman, Beyond the Glass Ceiling: Panes of Equity Partnership, Fla. Int'l U. L. Rev. (2023 Forthcoming)

This Article, prepared for a “micro-symposium” on Professor Kerri Stone’s monograph Panes of the Glass Ceiling (2022), 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 late 2010s against elite firms. Using Stone’s work as a lens, it 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.

Finding a Constructive and Fair Way to Frame the Rhetoric of Rape

Kathryn Stanchi, The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz, International Journal for the Semiotics of Law (Forthcoming)

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change.

This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Ohio Supreme Court Considers Procedural Issues in Appeal of Decision Striking Down Six-Week Abortion Ban

Some of my thoughts on the pending procedural appeal in the case declaring Ohio's six-week abortion ban unconstitutional are included in Eric Heisig, Abortion Case Pits Ohio Against Doctors Suing to Treat Patients, Bloomberg.

For more details and history of this case, go to Court News Ohio, Oral Argument Previews.  Oral arguments are Wednesday, Sept. 27 and are livestreamed by the Court.

In other Ohio news, the Supreme Court upheld the secretary of state's revision of the proposed ballot language for the pro-choice constitutional amendment, changing the word "fetus" to "unborn child."  See Ohio Abortion Rights Activists Suffer Blow in Suit Over Referendum Language.  

Reconciling Domestic Violence Protections and the Second Amendment

Natalie Nanasi, Reconciling Domestic Violence Protections and the Second Amendment, Wake Forest L. Rev. (forthcoming)  

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which the Supreme Court will review in the 2023-24 term, highlights the unworkability of the Bruen test. Women’s rights were virtually nonexistent when the Second Amendment was ratified. Domestic violence was tolerated, and it was not until nearly 200 years later that protective order statutes were enacted across the United States. Looking to the past to justify modern-day gun safety laws gravely threatens women’s rights and safety.

But Bruen does not require such a narrow reading. Significant historical and legal precedent exists for disarming dangerous persons, and those who have had protective orders entered against them undoubtedly fall into that category. This article’s feminist critique of Bruen demonstrates why its holding is deeply problematic, but it also shows that it is possible to both hew to Second Amendment jurisprudence and protect survivors of intimate partner violence.

Milan Markovic on "Charging Abortion"

Milan Markovic has posted Charging Abortion on SSRN. The article is forthcoming in the Fordham Law Review. The abstract is excerpted here. 

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in anti-abortion states have pledged to not enforce anti-abortion laws whereas others are targeting even out-of-state providers. This post-Dobbs reality wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, but prevailing ethical rules and standards do not allow them to disregard laws that they regard as unjust. Nevertheless, since prosecutors do not have unlimited resources, and abortion cases are complex and sensitive, they should use their discretion to focus only on cases where abortion care endangers women and in instances of coercion, as they did pre-Roe. Extraterritorial applications of anti-abortion law are constitutionally suspect and are unlikely to further the public interest.

Abortion is one of the most contentious issues in American life. In a morally pluralistic society, prosecutors must strive for neutrality in the abortion wars by relying on professional standards to guide their charging discretion rather than following public opinion and the dictates of individual conscience.

California Attorney General Sues "Crisis Pregnancy Centers"

California has sued "crisis pregnancy centers" alleging violations of consumer protection laws. The complaint is available here. The core claims are excerpted here: 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in acts or practices that constitute violations of Business and Professions Code section 17500 et seq., by making or causing to be made untrue or misleading statements with the intent to induce members of the public to undergo [Abortion Pill Reversal] APR. Defendants’ untrue and misleading representations include, but are not limited to, the following:

 

a. that APR can “reverse” a medication abortion, as well as an “effective” process that “has been shown to increase the chances of allowing the pregnancy to continue,” and that APR has a 64-68% success rate, even though no credible scientific evidence supports these claims;

 

b. that APR may be effective after a 72-hour window following administration of mifepristone by encouraging pregnant people to contact them “even if more than 72 hours have passed,” even though no credible scientific evidence supports this claim;

 

c. that the rate of birth defects following APR “is less or equal to the rate in the general population,” even though no credible scientific evidence supports these claims;

 

d. that “thousands of lives” have been saved via APR, even though no credible evidence supports this claim;

 

e. that APR may be effective following administration of misoprostol and methotrexate, even though no credible scientific evidence supports this claim; and

 

f. that APR can cause only non-life-threatening side effects, when in fact APR can cause severe, life-threatening bleeding. 

 

Defendants knew or should have known that these statements were misleading.

 

* * * 

 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in unlawful, unfair, and/or fraudulent acts or practices, which constitute unfair competition within the meaning of section 17200 of the Business and Professions Code.

 

Widiss on "The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America"

Deborah A. Widiss has published The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America on SSRN. The article is forthcoming in the Employee Rights and Employment Policy Journal in 2023. The abstract is excerpted here: 

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

Personal Responsibility Laws after Covid and Dobbs, Doubling Down on Privacy

Susan Frelich Appleton & Laura Rosenbury, Reflections on “Personal Responsibility” after COVID and Dobbs: Doubling Down on Privacy, 72 WASH. U. J.L. & POL’Y 129 (2023)

This essay uses lenses of gender, race, marriage, and work to trace understandings of “personal responsibility” in laws, policies, and conversations about public support in the United States over three time periods: (I) the pre-COVID era, from the beginning of the American “welfare state” through the start of the Trump administration; (II) the pandemic years; and (III) the present post-pandemic period. We sought to explore the possibility that COVID and the assistance programs it inspired might have reshaped the notion of personal responsibility and unsettled assumptions about privacy and dependency. In fact, a mixed picture emerges. On the one hand, the Supreme Court has rejected longstanding constitutional protection for abortion, and campaigns for “parental rights” have gained traction in several states. On the other hand, innovative forms of public support for families have appeared at state and local levels. In developing these conclusions, we highlight familiar challenges to the public/private divide while also exposing new cracks in doctrine that purports to distinguish intentional discrimination from disparate impact and to protect negative but not positive rights.

Conference on Gender, Health and the Constitution at The Center for Constitutional

A terrific program we have coming.  Register now at this link:  2023 Conference Registration

New Study Disputes Conventional Wisdom on Gender Gap in Negotiations

Michael Conklin, Is It Really a Man's World? Using Real-Life Negotiations to Reframe the Negotiation Gender, S.L.U L. J. (forthcoming)

Abstract:

This first-of-its-kind study utilizes a dataset of over 1,000 negotiations from the television show Pawn Stars to analyze the role gender plays in negotiations. The results call into question commonly accepted beliefs about the negotiation gender gap. For example, most studies on the negotiation gender gap consist of hypothetical negotiations in which participants do not experience the real-life consequences of their negotiated outcomes. As the findings of this study attest, drawing conclusions about real-world negotiations from such hypothetical negotiations is problematic. By using a dataset of real-world negotiations, this study provides a valuable framework from which to analyze negotiations and gender bias. The far-reaching ramifications of this study call into question the use of hypotheticals in negotiation studies, proposed solutions to the gender pay gap, how people negotiate differently depending on the gender of their opponents, and negotiation advice specifically offered to women. The methodology for this study allows for further analysis into how men and women negotiate in a real-world setting, such as willingness to walk away from the negotiation, use of a counteroffer rather than accepting a first offer, use of objective language, and implementing cognitive anchoring through an extreme initial offer. Additionally, this study analyzes an aspect of gender discrimination research that is often overlooked—the possibility of counterbalancing gender biases that produce seemingly gender-neutral results. Finally, the findings of this study help rebut the notion that the gender pay gap is simply the result of men’s superior negotiation ability and proclivity to engage in the practice.

Conclusion:

The primary finding of this research—that seller gender was not a factor in negotiated outcome—elicits discussion predominantly for how counterintuitive it was. The existing literature on negotiations and gender strongly support the conclusion that, on average, women receive worse outcomes than men.***

While not always approaching statistical significance, it is a notable finding of the present research that men acted in accordance with negotiation best practices better than women in every metric measured. They were more willing to walk away from the negotiation, more likely to use objective language in their offer, more likely to counteroffer, and more likely to implement an extreme initial offer. Nevertheless, the men did not receive any better negotiated outcomes than the women.***

The gender negotiation gap is widely cited as a leading cause for the gender pay gap. But unfortunately for women, explanations for the gender pay gap likely go beyond just differences in negotiation propensity and ability. Even if female new hires did negotiate with the same frequency and techniques as men, there is evidence to suggest they would nevertheless receive disproportionately unequal outcomes. As previously discussed, women find themselves in a double bind when negotiating because female traits can be viewed as poor negotiation strategy but adopting masculine traits can result in being punished for violating gender norms. Also previously discussed, just the expectation that women are not skilled negotiators may result in more of an unwillingness to offer concessions to them during a negotiation, thus resulting in suboptimal negotiating results compared to their male counterparts.

 

Book Review, Julie Suk, After Misogyny: Lessons from Comparative Constitutionalism

Linda McClain, Care Work, Gender Equality, and Abortion: Lessons from Comparative Constitutionalism, JOTWELL, reviewing Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It.

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment also includes a sense that transformative political and constitutional change are necessary but difficult because (as Suk and Kate Shaw recently noted) Americans have “lost the habit and muscle memory of seeking formal constitutional change” —and because of problems like polarization, gerrymandering, and restrictions on voting. Drawing on her expertise in comparative constitutional law and gender equality, Suk offers “comparative lessons” from feminist lawmaking and constitutionalism elsewhere to help move the U.S. to a democratic constitutionalism that is post-patriarchy and post-misogyny. (Pp. 212-14.) In this review, I explore some of those lessons concerning governmental commitments to supporting care and gender equality and to fostering reproductive justice.

Trans Animus Under an Equal Protection Analysis

Scott Skinner-Thompson, Trans Animus, Boston College L.Rev. (forthcoming)  

Anti-transgender legislation is sweeping the nation with devastating consequences for trans lives. Each piece of legislation is generally challenged in isolation and conceptualized under the Equal Protection Clause as involving either impermissible sex classifications or classifications against transgender people. These frames are accurate but insufficient to fully capture the scope and harm of the laws on trans lives. These all-encompassing laws must be unequivocally identified for what they are: a product of animus violating the Equal Protection Clause. Through its detailed analysis of these laws and their legislative history, this Article demonstrates that animus is evident from the laws’ overbreadth, underinclusiveness, fabricated or pretextual government interests, and direct legislative statements of animus. As this Article contends as its central thesis, framing the anti-trans legislation as rooted in animus toward transgender people may help lead to greater—and more efficient—litigation success, but will also avoid the pitfalls of Equal Protection suspect classification doctrine which essentializes and forces identities into rigid, exclusionary boxes. Drawing from principles of restorative and transitional justice, the animus framing also has the potential, perhaps counterintuitively, to lead to greater social healing of the fissures being created by the culture war aimed at transgender people.

Abortion Law as Protection Narrative

Lolita Buckner Inniss has published Abortion Law as Protection Narrative in volume 101 of the Oregon Law Review (2023). Here is the abstract: 

Is there value in exploring centuries-old legal historical accounts in the assessment of contemporary legal matters? If the decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization is any example, the answer is decidedly yes. In Dobbs, the Court relied upon understandings about abortion and fundamental rights that dated back to the early United States. That reliance, however, fails to address the ways that abortion law narratives have consistently been structured: most such narratives center on the idea of protection, in one form or another. Dobbs also fails to acknowledge that the notion of protection is contingent and contested. This Article centers on a key protection narrative in the history of United States abortion law: the case of the Reverend Ammi Rogers, a popular but unconventional Yale-educated Episcopalian minister. In 1820 Rogers was accused of engaging in nonmarital sex with Asenath Smith, impregnating her, and providing her with an abortion. In telling the story of Rogers’ sensational case, this Article urges analyzing the case as a protection narrative: a story whose goal is to promote the erection of defenses against attack, invasion, or injury or other loss. This Article concludes by asserting that contemporary protection narratives surrounding abortion, such as those seen in the opinion of Dobbs v. Jackson Women’s Health Organization, are still as much a part of the modern legal (and political) landscape as those protection narratives that helped to give birth to the earliest codified abortion law in the United States.

 

I. India Thusi Reviews Maybell Romero's "Ruined"

I. India Thusi has published a review of Maybell Romero's article, Ruined, 111 Geo. L.J. 237 (2022). Thusi's review is titled Un-Marking Rape Victims. Thusi writes: 

[Romero's] vulnerability in this piece is laudable, but her positionality as someone who has experienced the trauma of rape makes her especially qualified to assess how a rape victim might experience judges marking them as ruined. And labeling someone as ruined is a marking. Ruined means “the physical destruction or disintegration of something or the state of disintegrating or being destroyed.” Ruined reflects a permanence. A complete destruction of the person. It is an irrevocable status, and when the highest authority within a courtroom – the judge – labels a victim ruined, it is a permanent marking of the person’s disintegration. Romero experienced the harm of this labeling as she sat in courtrooms listening to judges repeatedly mark rape victims ruined. She was able to identify the issues with this labelling because of her subjective position in society, and she is using the tools of the law, which include legal scholarship, to address this harm that might otherwise have gone unnoticed.

* * * 

Romero’s piece invites judges to embrace a language that rejects a narrative that reduces rape victims to the permanent status of ruination. Given the legal history of rape, the direct harm that might flow from labeling someone permanently destroyed, and Maybell’s personal account of how she experienced the use of the term, I am persuaded that judges should avoid this term. I hope others in the legal academy are similarly moved by this remarkable article.

Romero's full article is available here. 

Center for Reproductive Rights Files Three Suits on Behalf of Pregnant Women Denied Abortion Care

The Center for Reproductive Rights filed three more suits last week on behalf of patients denied abortions while facing grave medical conditions. Here are the CRR's summaries of the cases and links to the complaints:  

Idaho—Brought on behalf of four women denied abortion care, two physicians and the Idaho Academy of Family Physicians (IAFP), Adkins v. State of Idaho challenges the limited scope of the medical exceptions to Idaho’s two abortion bans. The medical exception to Idaho’s near-total ban permits abortion only to prevent death, and its six-week ban—with “vigilante”-style civil liability provisions—similarly has a narrow medical exception. Clarifying the laws’ exceptions would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify and expand the exceptions under the two bans to ensure physicians can provide abortion care to preserve a pregnant person’s health and for cases of fatal fetal diagnoses. The case was filed in Idaho state court.

Tennessee—Brought on behalf of three women denied abortion care and two physicians, Blackmon v. State of Tennessee challenges the limited scope of the “emergent medical condition” exception to Tennessee’s total abortion ban. Such clarification would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify that the law’s exception permits abortion for cases of fatal fetal diagnoses. The case was filed in Tennessee state court.

Oklahoma—In this action, the Center filed a complaint against Oklahoma Children’s Hospital, alleging it violated the Emergency Medical Treatment and Active Labor Act (EMTALA) when it denied medically indicated abortion care to a woman suffering a life-threatening pregnancy complication. The complaint under EMTALA—a federal law requiring hospital emergency departments to provide “stabilizing treatment,” which can include abortion care—was filed with the U.S. Department of Health and Human Services (HHS).

Analyzing the New Federal Pregnant Workers Fairness Act

Deborah Widiss, The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America, Employee Rgts & Employment Policy J (2023)  

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

An Analysis of the Heightened Procedural Protections for Title IX Campus Sexual Misconduct Cases

Kelly Behre, The Irony of Title IX: Exploring How Colleges Implement Credibility Discounts Against Student Victims of Gender-Based Violence In Campus Misconduct Case," 103 Boston U. L. Rev. Online 109 (2023)

On May 6, 2020, the U.S. Department of Education released new Title IX regulations requiring colleges to provide expanded due process rights for student respondents in campus misconduct cases involving sexual assault, dating violence, and stalking. A little over a year earlier, a California appellate court also expanded rights to student respondents in sexual misconduct cases, indicating that the trend is not limited to one particular presidential administration.2 To those unfamiliar with typical campus adjudication procedures, many of the new rights federal and state law afford respondents in campus misconduct cases involving gender-based violence might seem intuitive. The right to retained counsel, the right to a live hearing following an investigation, the right to cross-examine all witnesses, and the right to appeal are all common in U.S. criminal and civil law systems. But when placed within the context of campus misconduct procedures, the normalization of these protections for only one class of student respondents requires interrogation. The expanded due process rights do not apply to all students responding to campus misconduct violations; they do not even apply to all students responding to violations that could also constitute crimes or result in expulsion or suspension from college. The new rights only protect students responding to campus misconduct violations that involve gender-based violence, and the resulting harms of the additional procedures only burden student victims of gender-based violence.

This article provides specific examples of campus misconduct procedures demonstrating how colleges may provide heightened procedural protections to student respondents and heightened burdens to student complainants in gender-based violence cases that diverge from their adjudication procedures for other forms of misconduct on the same campus. Part I provides a brief overview of the current legal landscape for campus adjudications involving gender-based violence. Part II employs two hypothetical fact patterns to identify specific differences between the procedural protections campuses provide students responding to a complaint of physical assault against another student generally and the protections provided to students responding to a complaint of physical assault against a current or former dating partner. Part III addresses how heightened procedural protections for student respondents cause additional harms for student complainants in campus cases involving gender-based violence. Part IV explores the role that credibility discounting of victims of gender-based violence plays in the creation of heightened procedural protections for respondents in campus misconduct cases involving gender-based violence. It further suggests that any future changes to Title IX policy involving campus misconduct procedures should include an analysis comparing the rights and protections colleges afford respondents in gender-based violence adjudications to all other respondents in campus misconduct adjudications.

The Supreme Court's Rhetoric of Motherhood

Lucy Williams, Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood, 102 N.C. L. Rev. (forthcoming 2024)  

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language.

My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently.

These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

The Biden Administration Asks the Supreme Court to Intervene in Mifepristone Litigation

The Department of Justice petitioned the U.S. Supreme Court to intervene in the Fifth Circuit's decision in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine. Here are key excerpts: 

The Fifth Circuit’s decision warrants this Court’s review because it would impose an unprecedented and profoundly disruptive result: Neither respondents nor the courts below identified any prior decision abrogating FDA’s approval of a drug or limiting a drug’s availability based on a disagreement with the agency’s judgment about safety or effectiveness much less doing so at the behest of plaintiffs with such an attenuated claim of standing and imminent harm.

In taking that step here, the Fifth Circuit countermanded a scientific judgment FDA has maintained across multiple administrations; imposed unnecessary restrictions on the distribution of a drug that has been safely used by millions of Americans over more than two decades; and upset reliance interests in a healthcare system that depends on the availability of mifepristone as an alternative to surgical abortion for women who choose to lawfully terminate their early pregnancies. At earlier stages of this case, hundreds of amici filed briefs underscoring the harmful consequences of the lower

courts’ decisions.

 

Beyond those destabilizing practical consequences, the Fifth Circuit’s decision also warrants this Court’s review because of its serious legal errors.  

For a full summary of the case, check out this coverage at SCOTUS.blog.