Tuesday, May 24, 2022

How the Right to Birth Control Could be Undone by the SCOTUS Abortion Decision

Melissa Murray, Op-ed, How the Right to Birth Control Could be Undone, NY Times

The leaked draft opinion of the Supreme Court’s decision overturning Roe v. Wade has prompted a flurry of debate about the fate of other so-called unenumerated rights — rights that are not explicitly outlined in the Constitution — including the right to access contraception.

According to some commentators, claims that the right to contraception could be on the chopping block are little more than hyperbolic “catastrophizing” that cannot be taken seriously. Prominent constitutional law scholars also have insisted that such claims are little more than baseless fearmongering, and The Wall Street Journal’s editorial page insisted that liberal fears about overruling rights to contraception and same-sex marriage are little more than an “implausible parade of horribles.”

Such high-level minimizing is not surprising. To understand whether the right to access contraception, like the right to abortion, could be overturned, it’s necessary to pick up on clues in Justice Samuel Alito’s draft opinion.***

But the same could be said of other unenumerated rights, including, and especially, contraception. Nowhere does the Constitution speak of a right to contraception — the Constitution does not even explicitly mention women. And as many conservatives have noted, the American legal landscape was littered with prohibitions on contraception right up until the court invalidated Connecticut’s ban on contraception in 1965’s Griswold v. Connecticut.

Justice Alito himself has already set in motion the means for challenging the right to contraception. In 2014’s Burwell v. Hobby Lobby, the family that owns the craft store company objected on religious grounds to the Affordable Care Act’s contraceptive mandate, which required employers to provide employees with insurance coverage for contraception. Specifically, Hobby Lobby balked at providing its employees with insurance plans that would cover IUDs and emergency contraceptives, like Plan B, based on the unsubstantiated claim that such contraceptives are abortifacients. The court, in an opinion written by Justice Alito, ruled for Hobby Lobby.

May 24, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

The Equal Protection Arguments in the Dobbs Abortion Case

Featured on the Legal Theory Blog is Reva Siegel, Serena Mayeri & Melissa Murray, On Equal Protection and the Dobbs Draft, on their article Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Columbia J. Gender & Law (forthcoming).

In the leaked draft of Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito dismissed the Equal Protection Clause as an alternative ground of the abortion right, citing an amicus brief in which we advanced that argument. In dicta, Justice Alito claimed that precedents foreclosed the brief’s arguments (pp. 10-11).

 

Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.

 

This Essay, written before Justice Alito’s draft leaked, explains the brief’s equal protection arguments for abortion rights, and shows how these equality-based arguments open up crucial conversations that extend far beyond abortion.***

 

Equality challenges to abortion bans preceded Roe, and will continue long after Dobbs v. Jackson Women’s Health Organization, however the Court rules in that case. In this Essay we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause.

May 24, 2022 in Abortion, Constitutional, Legal History, SCOTUS, Theory | Permalink | Comments (0)

Monday, May 23, 2022

Exploring State Laws of Pregnant Workers Fairness Acts and Reasonable Accommodations

Deborah Widiss, Pregnant Workers Fairness Acts: Advancing a Progressive Policy in Both Red and Blue America, Nevada L.J. (forthcoming)

 Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to work safely through a pregnancy. Federal law does not explicitly address this need. However, in the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divides in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay, written for a symposium on using state legislation to advance civil rights, offers the first relatively-detailed case study of this remarkably effective campaign.

Advocates have generated bipartisan support by highlighting that the laws, generally known as Pregnant Workers Fairness Acts, simultaneously advance numerous distinct policy objectives. Lack of accommodations for pregnancy is a major barrier to women’s equality that disproportionately disadvantages poor and working-class women of color. Addressing this need is also a pro-family policy that promotes maternal and infant health and reduces liability risk to employers. These various frames help sell the policy to lawmakers across the political spectrum.

The state-level success has also been the result of effective partnerships between national organizations and state and local groups. Additionally, the Essay shows how the state legislative campaign has been reinforced by litigation in federal courts, advocacy to federal agencies and Congress, and worker organizing. Finally, the Essay explores how state-level organizing—even unsuccessful state campaigns—has bolstered support for analogous federal legislation.

May 23, 2022 in Equal Employment, Legislation, Pregnancy, Reproductive Rights, Workplace | Permalink | Comments (0)

Decriminalizing Domestic Violence in the Context of Housing and Nuisance Law

Siya Hedge, "I Am Not a Nuisance": Decriminalizing Domestic Violence Across New York's Civil Housing & Criminal Justice Systems, 29 Georgetown J. on Poverty, Law & Policy (2021)

  This Article examines how the treatment of domestic violence in New York’s civil and criminal legal systems places survivors and alleged abusers at risk of homelessness—on the one hand, it has been underplayed as a ‘bothersome’ nuisance offense to landlords, while also serving as a basis for state-sanctioned evictions through the issuance of Orders of Protection. Section I incorporates client anecdotes to display how this issue has affected Bronx tenants during the pandemic, explaining theoretical re-framings of domestic violence and providing context on how domestic violence rates in New York City have affected the homelessness epidemic. Section II conducts a deeper dive into nuisance doctrine and the ways that New York tenants affected by domestic violence are entangled in civil judicial and administrative housing disputes. Section III discusses domestic violence prosecutions in criminal courts and the pitfalls that Orders of Protection present in curtailing alleged abusers’ housing rights. Section IV offers policy recommendations to combat the impacts of local nuisance laws and Orders of Protection on survivors and alleged abusers, further acknowledging the importance of transformative justice as an advocacy method to decriminalize domestic violence across the civil and criminal legal spectrum.

May 23, 2022 in Violence Against Women | Permalink | Comments (0)

Free Exercise Arguments for the Right to Abortion

Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, 29 U.C.L.A. Women's Law J. (2022) 

The popular narrative of the relationship between religion and reproductive rights equates religious belief with opposition to abortion and the exercise of conscience with refraining from the provision of abortion care. The presumption that faith inevitably conflicts with support for reproductive rights is a chapter in a larger story—created and reinforced both legally and culturally —that links religious liberty to conservative views about sex, sexuality, and reproduction.

This Article demonstrates that this typical abortion tale, while well-worn, is one-sided. It traces the history of the claim that restrictions on abortion violate either the Free Exercise Clause or the Religious Freedom Restoration Act (RFRA). This claim asserts that laws that explicitly ban or curtail access to abortion burden pregnant people’s ability to make reproductive decisions that are guided by their sincerely held religious beliefs or burden healthcare providers’ ability to provide abortion care as dictated by their religious beliefs. This Article argues that recovering this lost history reveals a dual erasure: erasure of the fact that faith motivates or even requires people to provide or obtain abortions and erasure of the decades-long legal claim, present from the outset of the first sustained effort to challenge the constitutionality of laws criminalizing abortion in the late 1960s, that protecting the right to abortion is actually more consistent with religious-liberty principles than restricting it. There is a rich tradition of the clergy, the women’s movement, and religious organizations fusing free-exercise arguments with arguments about economic justice, dignity, and pregnant people’s ability to make choices about their lives and families.

The historic and normative groundwork laid in this Article illuminates what are now largely invisible concerns with curtailing not only abortion access but also reproductive healthcare access broadly and creates a more holistic, complete account of what it means to protect religious freedom in the reproductive-rights context.

May 23, 2022 in Abortion, Constitutional, Reproductive Rights, Theory | Permalink | Comments (0)

Friday, May 20, 2022

More on the History of Abortion as Different than Presented by Justice Alito in the Draft Dobbs Opinion

Wash Post, Abortion in the Founders" Era

Justice Samuel A. Alito Jr. calls himself an originalist, someone who thinks the Constitution should be interpreted only by how it would have been understood by the Founders when they wrote it. So it’s no surprise that his draft opinion overturning Roe v. Wade is full of history.

 
At least seven times, Alito cited Sir Matthew Hale, a 17th-century jurist who didn’t think marital rape was possible because wives were the property of their husbands, and who sentenced at least two women to die for witchcraft. Alito also cited a legal text from 1250 by Henry de Bracton that, in another section, says women are inferior to men, and that they sometimes give birth to literal monsters.

 

Alito confined his exploration of the past to legal history and English common law. But to assess how the Founders would view abortion rights, it’s necessary to paint a fuller picture of what abortion was actually like in the time of the Founders.

 

In the 18th-century United States and England, abortion was common enough that there were slang terms for it, like “taking the cold,” “taking the trade” and “bringing down the flowers.”It was less-effective and more dangerous than it is now; women seeking abortions often died from infected wounds or poisons. And it was generally unregulated, except for a few instances in England and one in colonial Maryland mentioned by Alito in the draft opinion.

 

In the late-18th and early-19th centuries, no states had laws against any form of abortion, though Alito averred that “manuals for justices of the peace printed in the colonies in the 18th century” sometimes "repeated Hale’s and [William] Blackstone’s statements that anyone who prescribed medication ‘unlawfully to destroy the child’ would be guilty of murder if the woman died.”

NPR, For Ben Franklin, Abortion Was Simple Arithmetic

NPR's Emily Feng speaks with Molly Farrell from The Ohio State University on why Ben Franklin included instructions for at-home abortions in his reference book, The American Instructor.***

 

So I thought, OK, how do you solve the problem of a missed period? And it says this is a common complaint among unmarried women that they miss their period. And then it starts to prescribe basically all of the best-known herbal abortifacients and contraceptives that were circulating at the time. It's just sort of a greatest hits of what 18th-century herbalists would have given a woman who wanted to end a pregnancy early in her pregnancy. And that's what, by the way, this abortifacient recipe would really be for was really early. It talks about, like, make sure you start to take it a week before you expect to be out of order. So take it before you've even missed that period, and it will be most effective. So it's very explicit, very detailed, also very accurate for the time in terms of what was known at the time for how to end a pregnancy pretty early on.

 

And then at the end, it just really comes out swinging and lets you know this is definitely related to sex 'cause it says, you know, also women - you know, in order to prevent this complaint at the end - so prevention for next time - don't long for pretty fellows or any other trash whatsoever.

See also Molly Farrell, Ben Franklin Put an Abortion Recipe in his Math Textbook

May 20, 2022 in Abortion, Legal History | Permalink | Comments (0)

Why the Dobbs Leaked Draft Opinion is Doctrinally Unsound

Nancy Marcus, Yes, Alito, There is a Right to Privacy: Why the Dobbs Leaked Draft Opinion is Doctrinally Unsound, 13 ConLawNOW 101 (2022)

The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe, but had instead been criminalized in a number of states. Under the apparent premise that conduct once criminalized cannot subsequently be constitutionally protected as a fundamental right. Second, the opinion is grounded in an interpretation of substantive due process that only recognizes Fourteenth Amendment protections for unenumerated rights when the specific conduct-framed right for which protection is sought be deeply rooted in history

May 20, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Sojourner Truth Monument Revealed for Akron

The Sojourner Truth Project Committee plans to build a 10,000-square-foot plaza that will welcome visitors coming into Akron. (Courtesy of GPD Group )

Sojourner Truth Committee Reveals Akron Monument Designs

AKRON, Ohio — As the anniversary nears of Sojourner Truth’s celebrated “Ain’t I a Woman” speech in Akron, a dedicated group of women is at work bringing a years-long dream to fruition — a tribute as memorable and powerful as the life and work of the slave-turned-suffragette, built on the site where she made history.

 

In less than two years, the Sojourner Truth Project Committee plans to build a 10,000-square-foot plaza that will welcome visitors coming into Akron from the north, with the word “TRUTH” clearly visible on entry. Near the plaza’s center will be a sculpture of Sojourner Truth seated on an Impala lily, a petal design radiating outward from her feet, and her right hand extended in welcome.

 

“Truth is such a big word. It’s so bold and so concrete. What it stands for is unwavering,” said Summit County Metro Parks’ landscape architect Dion Harris, who the committee commissioned to design the plaza.

 

Truth was a powerful voice for women’s rights, especially women of color. An emancipated New-York slave born Isabella Baumfree, she changed her name in 1843 before crisscrossing the nation to speak against slavery and for women’s rights.

 

On May 29, 1851 during an Ohio Women’s Rights Convention, the steps of the Old Stone Church on High Street served as Truth’s platform. She was not invited, nor was she asked to speak, but her speech that day is remembered as a voice for all women.

 

Although the steps are long gone, the power of Truth’s speech remains, rendering it one of the most important women’s rights speeches on record in the U.S.

 

Harris researched Truth’s life and work to infuse that meaning into the design, he said. The impala lily is the national flower of Ghana, Truth’s ancestry on her father’s side.

May 20, 2022 in Legal History, Pop Culture, Race | Permalink | Comments (0)

Thursday, May 19, 2022

Finding a New Home for the Abortion Right Under the Ninth Amendment

The original constitutional location for the right to abortion was identified as the Ninth Amendment by the trial court in Roe v. Wade building on the lead opinions in Griswold.   Worth another look.

Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).

This essay advocates locating the foundation of the constitutional right to an abortion in the Ninth Amendment. Using the Ninth Amendment to recognize the right to an abortion, this article argues, is a better path than using the Fourteenth Amendment because it takes the determination of whether an abortion is a protected right outside the moral realm. The analysis under the Fourteenth Amendment of whether a right is “deeply rooted in the tradition” of the United States inevitably stirs a debate about whether the public considers abortion morally acceptable. In recognizing the right to an abortion under the Ninth Amendment, no such analysis is necessary. The text of the Ninth Amendment allows the U.S. Supreme Court to recognize this protected right without an inquiry into historical tradition. Instead, the Court can use natural law principles, as contemplated by the Founders, to recognize that private conduct is worthy of constitutional protection and acknowledge that the Ninth Amendment affords these rights to the people.

May 19, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

The Cramped Parameters of "Liberty" in the Leaked Draft Dobbs Opinion

David Gans, The Framers Were Big Fans of Liberty, Unlike Samuel Alito

Alito’s opinion suggests that liberty is to be feared, not celebrated as a core feature of our constitutional heritage. “Liberty,” he insists, is a “capacious term” that could have hundreds of possible meanings, and he worries that the judiciary will engage in “freewheeling judicial policymaking” in the guise of protecting liberty. He insists that the Supreme Court should be extremely loath “to recognize rights not mentioned in the Constitution” for fear that the Supreme Court will “usurp authority that the Constitution entrusts to the people’s elected representatives.” Because liberty could mean anything, in his view, it means almost nothing.***

 

According to Alito, only the most overwhelming, centuries-old historical evidence—essentially the sort of historical grounding that rights in the Bill of Rights can point to—could possibly justify the protection of an unenumerated fundamental right. The right to abortion recognized in Roe v. Wade, he argues, spectacularly fails this test; extending his reasoning, so might the right of people of different races, or of the same sex, to marry—protected in Loving v. Virginia and Obergefell v. Hodges—and the right to use contraceptives protected by Griswold v. Connecticut, as others have pointed out. Alito’s opinion bulldozes a century of case law protecting fundamental rights to bodily integrity and marriage, and the right to decide for one’s own self whether, when, and with whom to form a family.

 

What fundamental rights have the kind of historical backing Alito seems to demand? What other fundamental rights can claim a historical lineage equivalent to rights in the Bill of Rights? Few, if any, would seem to measure up to the strict standard Alito lays out. That is not a bug, but a feature, of Alito’s approach. To Alito’s way of thinking, many of the rights we cherish as part of our heritage of liberty are not rights at all.

 

As future Supreme Court Justice James Iredell aptly observed, “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.” The Ninth Amendment, which provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” codifies that essential idea.

 

Alito’s basic move defies the Constitution. He disparages the idea that we have fundamental rights that are basic to bodily integrity, human dignity, and equal citizenship, simply because they are not mentioned in the text. He flouts the rule of construction the Ninth Amendment prescribes.

May 19, 2022 in Abortion, Constitutional, SCOTUS, Theory | Permalink | Comments (0)

Republicans Introduce "Women's Bill of Rights" to "Protect" Biological Sex Differences in Law

Republicans Introduce Women's Bill of Rights to Protect Accomplishments, Ensure Safety of Biological Females

Republicans are introducing a "Women's Bill of Rights" in order to enshrine into law protections for females based on their biological sex.

 

Rep. Debbie Lesko, R-Ariz., is leading lawmakers on the Republican Study Committee (RSC), the largest group of conservative lawmakers on the Hill, in formally introducing the legislation Thursday morning. 

 

"I am proud to introduce the Women’s Bill of Rights to affirm the importance of acknowledging women and their unique and distinguishing characteristics and contributions to our nation. As the Left continues to erase women, we must fight for women and their place in our society. Whether it’s keeping the word "mother" in written law, or ensuring women’s domestic violence shelters do not have to accept biological men, we must stand up for women," Lesko told Fox News Digital.

 

The bill states that the Women's Bill of Rights is necessary to establish in order to "reaffirm legal protections afforded to women under Federal law" due to that face that males and females have unique biological differences, which increases as they age.

 

The lawmakers' bill says that due to biological differences, only females are able to "get pregnant, give birth, breastfeed children." In addition, males are larger and possess greater strength than females due to biology. The text also states that females are subjected to more specific forms of violence, including sexual violence....

 

"This common-sense document will help codify our common understanding and the reality we all know of the words ‘female,’ ‘woman,’ and ‘sex’, and I am proud to support it," Rep. Miller added.

 

The legislation clarifies, "for purposes of Federal law, a person’s ‘sex’ means his or her biological sex (either male or female) at birth" and the term "mother" means "parents of female sex and ‘father’ is defined as parent of the male sex." It continues: "there are important reasons to distinguish between the sexes with respect to athletics, prisons, domestic violence shelters, restrooms, and other areas, particularly where biology, safety, and privacy are implicated."

May 19, 2022 in Gender, Legislation, LGBT | Permalink | Comments (0)

Monday, May 16, 2022

A Mourning Mom Identifies Cause of SIDS

Scary Mommy tells a powerful story of how a grieving mother and scientist has identified the cause of Sudden Infant Death Syndrome. The findings were published in the June 2022 publication of The Lancet. The publication provides the following contextual summary of the research: 

Evidence before this study

Despite the effectiveness of public health campaigns in reducing the incidence of Sudden Infant Death Syndrome (SIDS), SIDS remains the major cause of infant death in western countries. The “triple risk model” hypothesises that SIDS deaths result from coincident occurrence of a vulnerable infant, a critical developmental period, and an exogenous stressor. Despite intensive research, identification of any specific vulnerability prior to the sudden death has remained elusive. And, while autonomic dysfunction has long been considered a candidate for this vulnerability, studies have been hampered by reliance on post-mortem samples.

Added value of this study

We found that Butyrylcholinesterase Activity, measured in dried blood spots taken 2-3 days after birth, was significantly lower in babies who subsequently died of SIDS compared to living controls and other Non-SIDS infant deaths. This study identifies a biochemical marker that differentiates SIDS infants from control cases and those dying from other causes, prior to their death. We postulate that this decreased activity of Butyrylcholineserase represents an autonomic cholinergic dysfunction and therefore an inherent vulnerability of the SIDS infants.

Implications of all the available evidence

This finding represents the possibility for the identification of infants at risk for SIDS infants prior to death and opens new avenues for future research into specific
interventions.

These findings have implications for the patchwork of state laws governing SIDS throughout the country. 

 

 

May 16, 2022 in Family, Healthcare, Science | Permalink | Comments (0)

Trauma as Inclusion

Raquel E. Aldana, Patrick Marius Koga, Thomas O’Donnell, Alea Skwara, and Caroline Perris have posted a forthcoming article, Trauma as Inclusion, on SSRN. The article is forthcoming in Summer 2022 in the Tennessee Law Review.  It "brings together a historian and law, public health, psychiatry, psychology, and neuroscience faculty and researchers to document how trauma is understood across disciplines and how it has developed in U.S. immigration law largely to exclude but increasingly to include migrants whose lives have been uprooted or otherwise impacted by borders." It describes, for example, how refugee and asylum law "largely fail to protect individuals and groups facing persecution by private actors, such as women and LGBTQIA+ individuals, even when private violence has become indistinguishable from state sponsored persecution." It then explores how the Violence Against Women Act has more potential for a model of "trauma as inclusion": 

Unfortunately, several obstacles, including evidentiary barriers impede the full potential of the VAWA self-petition process. Proving trauma for domestic violence victims is difficult, even in cases involving physical abuse, given the barriers to reporting. Moreover, when the alleged hardship is based on “extreme cruelty,” an immigrant’s narrative alone can be deemed insufficient to establish eligibility. For immigrants who can afford it, sometimes psychological evaluations can help document psychological trauma that is not otherwise documentable. However, even these types of evidence may not help overcome the Western clinical conceptualizations of trauma that undermine the lived experiences of more resilient women, especially when one considers the different ways that victims respond to trauma. Worse yet, these types of psychological evaluations can be used against immigrants to deny relief, such as when documented depression and suicidal thoughts trigger mental health grounds of inadmissibility.

May 16, 2022 in Human trafficking, Legal History, Legislation, Theory, Violence Against Women | Permalink | Comments (0)

Infant Formula Crisis

The infant formula crisis continues in the United States as covered by Reuters and numerous media outlets. Here's a look at the cities in which supplies are the most depleted from Bloomberg. Consumer safety groups and pediatricians are warning consumers not to try to make products at home. Attention is focused on what the government can do to offer support. Reuters previews: 

The U.S. Food & Drug Administration (FDA) will announce new steps in the coming days regarding importing certain infant formula products from abroad, the White House said, and Biden has asked the Federal Trade Commission (FTC) to probe reports of predatory conduct such as price gouging.

The House will also hold a hearing on the crisis  on May 25.  

The Atlantic Monthly does a deep dive on what is behind the shortage and the role of law and policy. 

FDA regulation of formula is so stringent that most of the stuff that comes out of Europe is illegal to buy here due to technicalities like labeling requirements. Nevertheless, one study found that many European formulas meet the FDA nutritional guidelines—and, in some ways, might even be better than American formula, because the European Union bans certain sugars, such as corn syrup, and requires formulas to have a higher share of lactose. * * * 

U.S. policy also restricts the importation of formula that does meet FDA requirements. At high volumes, the tax on formula imports can exceed 17 percent. And under President Donald Trump, the U.S. entered into a new North American trade agreement that actively discourages formula imports from our largest trading partner, Canada.

America’s formula policy warps the industry in one more way. The Department of Agriculture has a special group called WIC—short for Special Supplemental Nutrition Program for Women, Infants, and Children—that provides a variety of services to pregnant and breastfeeding women and their young children. It is also the largest purchaser of infant formula in the United States, awarding contracts to a small number of approved formula companies.  As a result, the U.S. baby formula industry is minuscule, by design. A 2011 analysis by USDA reported that three companies accounted for practically all U.S. formula sales: Abbott, Mead Johnson, and Gerber.

 

May 16, 2022 in Family, Healthcare | Permalink | Comments (0)

Thursday, May 12, 2022

More Reliance on Witch Trial-esque Precedent in the Draft Dobbs Opinion and the Case of Eleanor Beare

In the draft Dobbs opinion (p.17), Justice Alito writing for the majority to overturn Roe v. Wade and Casey, features as precedent the 1732 English case of Eleanor Beare.  He uses this case to bolster his point that abortion was a crime "dating all the way back to the 13th century."   

Alito says:

In 1732, for example, Eleanor Beare was convicted of "destroying the Foetus in the Womb" of another woman and "there-by causing her to miscarry." For that crime and another "misdemeanor" Beare was sentenced to two days in the pillory and three years' imprisonment.

The authority he cites to is 2 Gentleman's Magazine 931 (Aug. 1732).  The citation and case are in Dellapenna, Dispelling the Myths of Abortion, a book heavily relied on as the key authority for Alito's history.  Dellapenna is a retired law professor with an expertise in water rights turned anti-abortion advocate.  Alito excoriates the Roe majority for its "unsupportable" reliance on the work of Cyril Means, a pro-choice supporter who Alito says provided work "the guise of impartial scholarship while advancing the proper ideological goals."  Op. at 27.  Yet Alito does precisely that here, just selecting an advocate from the anti-abortion side.

Online sources provide a a summary of the trial and what appears to be a transcript of The Tryal of Eleanor Beare of Derby, England.  Authenticity is certainly a question as to these sources, but they match quotes used by Alito in his opinion.  The trial summary is from The Newgate Calendar, a popular literary book of the 18th and 19th century editorializing and moralizing about legal cases.  

Like the Salem witch trials, the proceedings including hearsay, finger pointing by neighbors and former friends, and lack of counsel for the defendant.  Eleanor, apparently a midwife and the wife of a "labourer," is asked by three clients to assist in an abortion, and in another case healing a wife who took poison from another.  The first charge of homicide seems to carry the case and sentence, as Beare is alleged to have helped a man she met at a bar poison the wife he hated.  No allegation of pregnancy or abortion in that charge.  Beare, cross-examining herself, says wasn't I just helping you save your wife whom you had poisoned with poison you got from a Mary Tecmans?   

Eleanor is punished for these misdemeanors by sentence of standing in the pillory in the marketplace--the stockade of arms and head in the town square--where members of the community pummeled her with eggs, turnips, stones, "and any other filth they could collect." Annals of Crime in the Midland Circuit, or Biographies  of Noted Criminals (1859).  "She knelt down, and begged mercy of the still outrageous mob."  Id.  "Stones were thrown, which wounded her to such a degree, that her blood streamed down the pillory." Id.  This "somewhat appeased the resentment" of the crowd, and she was returned to jail. Id.

May 12, 2022 in Abortion, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Relying on the Precedent of Witch Trials in the Draft Dobbs Abortion Opinion

Justice Alito resurrects the ghosts of witch trials past in the draft opinion in Dobbs.  He relies on the authority of Lord Hale, infamous English jurist who hanged women as witches, created the marital rape exception, and crafted the jury instruction to warn against believing women in rape allegations.  He also features the Salem-esque trial of Eleanor Beare and her punishment by pummeling with eggs and turnips in the town square.  More on Eleanor in part 2 of this post.

Ken Armstrong, Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge With Long-Discredited Views on Rape

When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.

 

The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.

 

Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards. *** 

 

Hale became Lord Chief Justice of England in 1671.***

 

Courts have long leaned on precedents established by old cases and the scholarship of legal authorities from centuries gone by. But what happens when you trace citations back to their ancient source? In Hale’s case, you sometimes find a man conceiving precepts out of thin air. Other times it was the opposite, as he clung to notions that were already becoming anachronistic in the last half of the 17th century.

 

Consider the marital rape exemption. In “Pleas of the Crown,” Hale wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” So, according to Hale, marriage, for a woman, amounts to contractual forfeit, in which she loses legal protection or recourse should her husband sexually assault her.

 

Hale’s pronouncement became the accepted common law and served as foundation in the United States for immunizing a husband accused of raping his wife. And where did Hale’s pronouncement come from? What did he base it upon? Who knows? “Hale appears to have been the first to articulate what later would become an accepted legal principle, that a husband cannot be charged with raping his wife,” according to a footnote in one law review article. Another law review article, titled “The Marital Rape Exemption: Evolution to Extinction,” called Hale’s pronouncement “an unsupported, extrajudicial statement” lacking in authority.

 

Starting in the 1970s, states began to abandon the marital rape exemption, in whole or in part.***

 

In “Pleas of the Crown,” Hale called rape a “most detestable crime.” Then, in words quoted many times since, he wrote, “It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

 

Hale evoked the fear of the false accuser — and made for that fear a legal frame, which lasted for more than 300 years. In weighing the evidence in cases of alleged rape, jurors (all men, in Hale’s time and for long after) needed to consider a series of factors, Hale wrote. Did the woman cry out? Did she try to flee? Was she of “good fame” or “evil fame”? Was she supported by others? Did she make immediate complaint afterward?

 

Hale’s words and formulation became a standard feature of criminal trials in the United States, with jurors instructed by judges to be especially wary of allegations of rape.***

 

Then there was Hale’s role in what today is synonymous with the perversion of justice: witch trials.

 

In 1662, Hale presided at a jury trial in Bury St. Edmunds in which two women, Amy Denny and Rose Cullender, were accused of being witches. In a book on this case, “A Trial of Witches,” authors Ivan Bunn and Gilbert Geis wrote that by 1662, “belief in witches was in retreat in England.” Hale, however, was not part of that retreat. He believed witches were real. “Hale represented not a mainstream position but rather one rapidly becoming anachronistic,” Bunn and Geis wrote.

 

What’s more, Hale instructed the jurors that witches were real. 

 

May 12, 2022 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

What SNL Got Right About Alito's Leaked Opinion

Slate, What Saturday Night Live Got Right About Alito's Leaked Draft Opinion

Just days after Politico published the leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health OrganizationSaturday Night Live opened with its own comedic analysis of the Supreme Court decision purportedly overturning Roe v. Wade. “Justice Samuel Alito explains that no woman has a right to an abortion, and, in fact, abortion is a crime,” a narrator explains, before highlighting several excerpts from the draft citing 13th century common law on punishments for ending a pregnancy after the “quickening” of a “foetus.”

 

The opening sketch then takes viewers back in time to dramatize the “profound moment of moral clarity” that Alito seems to believe should be the basis of our abortion laws in 2022. British actor Benedict Cumberbatch, in a mock medieval pageboy haircut, comes to a “revelation” about the need to criminalize abortion in an age of constant plague, disastrous hygiene, witch obsession, and flat-earth maps. The sketch brilliantly demonstrates the absurdity of reading a 21st century Constitution in light of a legal and scientific history most Americans would not embrace today.

 

The SNL skit posed an obvious question: Why would it make sense to rely upon 13th century law to decide something so important to half the population of the United States? It’s a question best answered by constitutional law scholars like myself. We all know Alito’s interpretive move—it’s called originalism or textualism—and it is full of theoretical complexity. For the most part, this is legal inside baseball. So why this lesson on originalism on SNL? And why now?

 

Because Alito’s leaked opinion in Dobbs was a bombshell. It takes up some of the most extreme rhetoric of the anti-abortion movement while citing, as SNL points out, centuries-old and outdated legal ideas. And so when people sat down to read the opinion, even the comedy writers at SNL saw what ordinarily the public pays no attention to: the absurdity of a constitutional methodology called originalism at work. 

May 12, 2022 in Abortion, Constitutional, Pop Culture, Reproductive Rights, SCOTUS, Theory | Permalink | Comments (0)

The New Jane Crow and the Impact of Denying Reproductive Choice on Women of Color

Michele Goodwin, The New Jane Crow, The Atlantic

With the Supreme Court poised to overturn Roe v. Wade, abortion access for tens of millions of women and girls across the nation may soon be a matter of the past. For many women of means, who can travel and pay for child care, the loss of Roe will be disruptive. For many poor women—particularly poor women of color—the loss will be deadly. This is the coming of the new Jane Crow.

 

Certain aspects of the era of the new Jane Crow are already predictable. First, high rates of maternal mortality will persist, and Black and brown women will disproportionately experience the blow and brunt of these deaths. Medicaid will not be expanded in anti-abortion states, nor will welfare benefits increase to meet families’ needs.

 

Second, states will turn to civil and criminal punishments of women and girls who seek abortions through medication or by traveling out of state. Even now, before Roe has fallen, lawmakers are working on such legislation. Third, just as the Jim Crow era sanctioned racism and racial profiling, the Jane Crow era will be marked by greater surveillance of pregnant women and the curation of laws, practices, and policies to justify stalking, watching, and policing women’s bodies. That is our near future.

 

Already today, we know how dangerous pregnancy and delivery can be. An American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion—a fact the Supreme Court itself acknowledged in Whole Woman’s Health v. Hellerstedt just six years ago. In Louisiana, giving birth is roughly 57 times more dangerous for women than having an abortion. For Black women, the risk of death is especially dire—and especially in states eager to ban abortions. For example, according to the Mississippi Department of Health’s most recent investigation of maternal health and mortality, Black women accounted for “nearly 80% of pregnancy-related cardiac deaths” in that state; they also suffered from far greater rates of gestational diabetes, sepsis, and hemorrhaging. Black women in Mississippi are 118 times more likely to die from giving birth than from having an abortion. To be Black and pregnant in America is a deadly combination.

 

Some of this devastation is the result of the anti-abortion movement itself, and in particular its white, male champions in statehouses across the South. These legislatures have targeted abortion providers for decades, stripping them of their ability to provide essential health-care services for poor women, including pap smears, cancer screenings, and contraception. Their efforts have contributed to the United States being the deadliest country in the developed world to be pregnant.

 

Surely Justice Samuel Alito and the four justices who, according to Politico, voted to sign on to his draft opinion are aware of this. But do they find such data relevant? Seemingly not, as the draft opinion barely acknowledges maternal deaths—and does so only in reference to 1973, not 2022.

May 12, 2022 in Abortion, Constitutional, Pregnancy, Race, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, May 9, 2022

N.J. Bill Proposes Remote School Accommodations for Students with Menstrual Disorders

The New Jersey Assembly has proposed a bill allowing students experiencing a menstrual disorder to attend school remotely.  The summary of the bill explains how the bill works and why it is important: 

This bill permits a student enrolled in a school district to attend school through virtual or remote means while experiencing symptoms of a menstrual disorder. The student's parent or guardian will submit a written request for accommodation no later than the start of the school day the accommodation is required.  Under the bill, menstrual disorders include, but are not limited to, dysmenorrhea, endometriosis, menorrhea, and polycystic ovarian syndrome.

 

     A parent or guardian will provide medical documentation, as required by the principal of the school in which the student is enrolled, to prove the student meets the requirements for virtual or remote instruction related to menstrual disorders.  Under the bill, a day of virtual or remote instruction will be considered the equivalent of a full day of school attendance for the purposes of meeting State and local graduation requirements or the awarding of course credit.

 

     Also under the bill, the Commissioner of Education, in consultation with the Commissioner of Health, will provide school districts with criteria for defining an excused absence from school related to a menstrual disorder.

 

     Menstrual disorders, and the pain and discomfort associated with them, are often cited as the reason menstruating students miss school days.  Menstrual disorders are also fairly common; one in five menstruating students experience menorrhagia, and nearly 70 percent of menstruating students experience dysmenorrhea.  Students who attend class while experiencing a menstrual disorder often report classroom performance or concentration being negatively affected.  Additionally, nearly one third of students who menstruate report missing at least one day of school while experiencing menstruation.

May 9, 2022 in Education, Legislation, Reproductive Rights | Permalink | Comments (0)

The Depp-Heard Trial and its Effects on the #MeToo Movement

WTOP News in the D.C. area reported on The searing testimony of the Depp-Heard trial and its effect on #MeToo in a podcast. I shared commentary on the case following prior writings about the increasing complexity of defamation suits in the #MeToo era. The podcast is summarized here: 

The defamation suit turned spectacle between Amber Heard and Johnny Depp has attracted nearly 10 million views so far. But there will be nothing to watch until May 16 as the trial goes on break after both Depp and Heard delivered searing accounts of their abuse and violence. WTOP’s John Domen summarizes what we’ve missed from the Fairfax County courtroom. And then, Professor of Law at the University of Louisville Jamie Abrams provides a legal perspective on the trial’s significance, how it’s impacting the #MeToo movement and society’s understanding of domestic violence.

May 9, 2022 in Courts, Violence Against Women | Permalink | Comments (0)