Decades of advances on women’s rights are being wound back and the world is now hundreds of years away from achieving gender equality, according to the United Nations.
Monday, March 20, 2023
Transcript of Abortion Pill Hearing Hearing Released
NPR has posted the full transcript of the Texas hearing Judge Matthew Kacsmaryk held last Wednesday in the Alliance for Hippocratic Medicine v. FDA case challenging the agency's 2000 approval of mifepristone.
Jessica Valenti, the author of "Abortion Every Day" has an excellent explainer of the lawsuit and its implications (authored by researcher Grace Haley). The explainer outlines the anti-abortion strategy, the bio of Judge Kacsmaryk, the groups behind the litigation, and the possible outcomes of the case.
March 20, 2023 in Abortion, Courts, Healthcare, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)
Urgent Appeal and Call to Action Sent to U.N. Explaining how U.S. Anti-Abortion Legislation Violates International Law
A coalition of groups, including Human Rights Watch, Pregnancy Justice, the National Birth Equity Collaborative, Physicians for Human Rights, Amnesty International, and the Global Justice Center, have authored a letter to United Nations mandate holders. The letter issues an urgent appeal and call to action:
By overturning the established constitutional protection for access to abortion and through the passage of state laws, the US is in violation of its obligations under international human rights law, codified in a number of human rights treaties to which it is a party or a signatory. These human rights obligations include, but are not limited to, the rights to: life; health; privacy; liberty and security of person; to be free from torture and other cruel, inhuman, or degrading treatment or punishment; freedom of thought, conscience, and religion or belief; equality and non-discrimination; and to seek, receive, and impart information.
The signatories call on the UN mandate holders to take up their calls to action, which include communicating with the US regarding the human rights violations, requesting a visit to the US, convening a virtual stakeholder meeting with US civil society, calls for the US to comply with its obligations under international law, and calls for private companies to take a number of actions to protect reproductive rights.
The full 53-page appeal is available here. It outlines all of the ways that women's health and lives are threatened by the Dobbs decision. The letter is signed by dozens of organizations and individuals. It is a great, comprehensive resource for advocates.
March 20, 2023 in Abortion, Healthcare, International, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)
CDC Report Reveals Stark Rises in Maternal Mortality Rates
The CDC has published a report on maternal mortality rates in 2021. Authored by Donna Hoyert of the Division of Vital Statistics and based on data from the National Vital Statistics System, the report concludes:
In 2021, 1,205 women died of maternal causes in the United States compared with 861 in 2020 and 754 in 2019. The maternal mortality rate for 2021 was 32.9 deaths per 100,000 live births, compared with a rate of 23.8 in 2020 and 20.1 in 2019. In 2021, the maternal mortality rate for non-Hispanic Black (subsequently, Black) women was 69.9 deaths per 100,000 live births, 2.6 times the rate for non-Hispanic White (subsequently, White) women (26.6). Rates for Black women were significantly higher than rates for White and Hispanic women. The increases from 2020 to 2021 for all race and Hispanic-origin groups were significant. Rates increased with maternal age. Rates in 2021 were 20.4 deaths per 100,000 live births for women under age 25, 31.3 for those aged 25–39, and 138.5 for those aged 40 and over. The rate for women aged 40 and over was 6.8 times higher than the rate for women under age 25. Differences in the rates between age groups were statistically significant. The increases in the rates between 2020 and 2021 for each of these age groups were statistically significant.
The full report with tables and figures is here.
To learn more about proposed and adopted federal legislation benefitting women, children, and families, check out the Maternal & Child Health Bill Tracker managed by the Association of Maternal & Child Health Programs.
March 20, 2023 in Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)
Friday, March 17, 2023
The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963-86
Kate Redburn, Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86, Law & History Review, 1-45 (2023).
Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.
The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.
Full text: https://www.doi.org/10.1017/S0738248022000384
March 17, 2023 in Constitutional, Legal History, LGBT | Permalink | Comments (0)
Gendered Interruptions at Supreme Court Oral Argument and the Role of the Chief Judge
Tonja Jacobi & Matthew Sag, Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice, 103 Boston U. Law Review (2023)
Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices has improved in recent years, and whether the structural change in argument has helped. It shows that interruptions went down during the pandemic but have resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for the first time in years it no longer shows any gender disparity. Thus, the structural change to oral argument has had mixed results.
The problem of gendered interruptions at Supreme Court oral argument has led to calls for the Chief Justice to take a more active role at oral argument. This Article also addresses whether and how Chief Justice Roberts has responded to this call. It shows that the Chief has been intervening more, not in response to the increasing number of interruptions, but in response to the gender disparity growing more severe. Further, he has directed his interventions at supporting those most interrupted, disrupting those making the most interruptions, and, significantly, using his interventions to recognize and combat interruptions of the female Justices. When it comes to interruptions at the Court, the Chief Justice is no longer simply the first among equals but has a new role, as a referee, attempting to address a social and institutional problem.
March 17, 2023 in Courts, Gender, Judges, SCOTUS, Women lawyers | Permalink | Comments (0)
ND Supreme Court Blocks Abortion Ban
N Dakota Supreme Court Blocks Abortion Ban: Says Constitution Protects Procedure
North Dakota’s Supreme Court upheld a lower court’s decision to block a ban on abortions in the state, and said the state Constitution protects abortion rights in some situations.
The ruling means abortion in the state remains legal until nearly 22 weeks after a women’s last period, while the case proceeds in a lower court.
Though the state Supreme Court’s decision is not the final word on the matter, it is notable for its analysis of the state Constitution. The court went beyond the narrow question it was asked: whether the lower court judge had overstepped his power in blocking the ban.
In a majority opinion, the ruling said that judge was within his rights but added that the state Constitution protects “the right to enjoy and defend life and a right to pursue and obtain safety,” which includes the right of a pregnant woman to “obtain an abortion to preserve her life or her health.” ***
So far, two state Supreme Courts have made final decisions, and they were split: South Carolina ruled abortion was included in its constitutional protections; Idaho ruled its Constitution did not protect the procedure.
March 17, 2023 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)
Wednesday, March 15, 2023
Transforming Legal Determinations of Sex from Biology to Gender Identity
Noa Ben-Asher, Transforming Legal Sex, NC L. Rev (forthcoming)
Legal Sex in the U.S. is in the final stages of a dramatic transformation. This Article begins by charting this transformation. By “legal sex” this Article refers to various instances in which legal authorities engage in defining an individual’s sex, either directly or indirectly. Until around mid-twentieth century, legal sex was mostly understood as immutable sexual difference between males and females that is biologically determined prior to birth. Groundbreaking scientific and medical theories in the 1950s introduced gender identity as a new way to describe an internal sense of being male or female. Since then, in slow steps, this concept has been integrated into various areas of law and policy. Today, the overwhelming trend in U.S. law is toward defining legal sex as gender identity, defined as “an individual’s own internal sense of whether they are a man, a woman, or nonbinary.” While there is not one coherent definition of sex across all areas of law, this Article observes that the trend across these legal domains, including sex reclassification laws, antidiscrimination laws, and family laws, is clear: the legal system is shifting towards gender identity as the primary indicator of legal sex.
This Article demonstrates why it is urgent to name and evaluate this phenomenon. As of 2023, lawmakers and politicians, as part of the ongoing “culture wars,” have introduced and passed hundreds of bills and policies that target transgender children and adults by undermining the centrality of gender identity as a core characteristic of legal sex. These laws and policies limit access of transgender individuals to locker rooms, restrooms, sports, gender affirming care, and antidiscrimination protections. They all reject the primacy of gender identity and call instead for narrow notions of immutable “biological sex” that is fixed at birth. This Article situates the current backlash against transgender people as an attempt to roll back laws, policies, and societal norms that view gender identity as the primary indicator of sex. The Article proposes that feminists, advocates on behalf of transgender people, and allies engage current debates about gender identity and transgender rights not only through the lens of medical science and the liberal principles of equality, liberty, and autonomy, but in addition, by insisting on the moral desirability of future generations of transgender people.
March 15, 2023 in Gender, LGBT | Permalink | Comments (0)
Ohio Supreme Court to Review Procedural Issues Related to Abortion Challenge
Ohio Supreme Court to Review Legal Questions on Abortion, Not Whether Constitution Protects It
The Ohio Supreme Court agreed to review a couple of legal questions about whether abortion clinics can challenge the state's ban on most abortions, but not the underlying question of whether the Ohio Constitution creates a right to abortion.
In a 4-3 decision, justices on Tuesday decided to review two legal questions:
- Whether the Ohio attorney general can appeal orders preliminarily blocking state laws.
- Whether abortion clinics can challenge the state’s 2019 ban on most abortions on behalf of clients.
The Ohio Supreme Court will not review whether the Ohio Constitution creates a right to abortion. Three Republican justices, Chief Justice Sharon Kennedy, Justice Pat DeWine and sitting Judge Matthew Byrne, wanted the court to review that issue, too. The three Democratic justices dissented.
March 15, 2023 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)
Transgender Students and the First Amendment
Dara Purvis, Transgender Students and the First Amendment, Boston U. Law Review (forthcoming)
Suppose that a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally consistent with the sex they were assigned at birth. The student’s parents protest, arguing that their child’s clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing discussion of gender identity as lewd and obscene.
This Article is the first analysis to map out and counter both obscenity and material disruption as justifications to limit gender identity speech. Although not all clothing choices by students are symbolic speech, gender presentation is the type of intentional and cognizable message that is protected under the First Amendment. Comprehensive examination of student speech cases demonstrates that current attempts to define gender identity as an inappropriately sexualized topic for children are inconsistent with existing law. Finally, the Article illustrates for the first time how schools can create a heckler’s veto by teaching students that the speech of transgender students is abnormal. The Article proposes an analytical revision that takes the schools’ role into account, reconciles the conflict between the heckler’s veto doctrine and Tinker’s material disruption test, and strengthens protection of all controversial student speech.
March 15, 2023 in Constitutional, Education, LGBT | Permalink | Comments (0)
Tuesday, March 14, 2023
Ireland Announces Referendum for Constitutional Amendment for Gender Equality
Taoiseach and Minister O’Gorman announce holding of referendum on gender equality
The Taoiseach said:
For too long, women and girls have carried a disproportionate share of caring responsibilities, been discriminated against at home and in the workplace, objectified or lived in fear of domestic or gender-based violence.
"I am pleased to announce that the government plans to hold a Referendum this November to amend our Constitution to enshrine gender equality and to remove the outmoded reference to ‘women in the home’, in line with the recommendations of the Citizens Assembly on Gender Equality.
h/t Prof. Julie Suk
March 14, 2023 in Constitutional, Family, Gender, International, Legislation | Permalink | Comments (0)
New Book Her Honor: Stories of Challenge and Triumph from Women Judges
Lauren Stiller Rikleen ed., Her Honor: Stories of Challenge & Triumph from Women Judges (2023)
At a time when surveys reveal declining trust in our courts, this book offers reasons for hope and even pride. Her Honor features a collection of personal stories by and about some of the country's most respected female judges. Each chapter author openly shares nuanced stories of challenges and successes, including the inequality, bias, and other barriers they faced and overcame in their lives.
The 25 judges featured in Her Honor are from all levels of the state and federal courts, including Chief Judges and two Supreme Court Justices. Their moving stories will be all too recognizable by women who may currently be experiencing similar challenges and biases in their own careers.
Her Honor also demonstrates how the best of our judges share a passion for ensuring an accessible and fair system of justice, without a political agenda. They reveal a deep compassion for humanity along with an abiding respect for the law, respecting precedent but acting with courage if the law offers a way forward.
All the judges in this book have lived lives of deep influence. The stories shared will extend that influence further and inspire future generations to persevere in their careers during even the most difficult time
March 14, 2023 in Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)
Symposium on Dobbs and The Future of Reproductive Rights
Our Center for Constitutional Law at Akron has published the first part of its symposium on "The Future of Reproductive Rights" in the journal ConLawNOW.
Concrete Reliance on Stare Decisis in a Post-Dobbs World, Michael Gentithes
Perilous Private Enforcement Strategies: From Posses and Citizen's Arrest to Texas Heartbeat Statutes, Jennifer A. Brobst
Foreign Law in Dobbs: The Need for a Principled Framework, Sital Kalantry
Situating Dobbs, Paula Monopoli
Big, Bad Roe, B. Jessie Hill
Embryo is Not a Person: Rejecting Prenatal Personhood for a More Complex View of Prenatal Life, Cynthia Soohoo
Additional papers forthcoming.
March 14, 2023 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)
Monday, March 13, 2023
Etienne C. Toussaint on "The Purpose of Legal Education"
Etienne C. Toussaint has posted forthcoming work on SSRN titled The Purpose of Legal Education. This article is to be published in Volume 111 of the California Law Review (2023). The abstract previews:
When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop antiracist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with so
This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.
March 13, 2023 in Education, Law schools, Legal History, Race, Theory | Permalink | Comments (0)
International Center for Research on Women Publishes Feminist Foreign Policy Index
The International Center for Research on Women (ICRW) has published a Feminist Foreign Policy Index. Published by Foteini Papagioti, the Index is "a new tool developed to assess countries’ progress toward a feminist foreign policy (FFP)." It is intended as a guidance tool for policy makers "to facilitate comparison and knowledge sharing.":
This Index lays out an expansive vision for FFP that addresses some of the structural drivers of gender inequality. It evaluates commitments to global peace and security; official development assistance for gender equality; migration for employment; labor protections; economic justice; political representation and institutional frameworks; and a gender-just climate response. It is premised on the idea that, together, the priority areas outlined here can lead to transformative change at the multilateral and domestic level with knock-on effects for the other priority areas in the Index.
Click here to access the Feminist Foreign Policy Index tool.
The ICRW makes several recommendations after its publication of this tool. Here are a few of the recommendation related to law:
A significant investment in peace and human security, reducing the diversion of financial resources to militarization and arms proliferation and strengthening the ratification and implementation of foundational disarmament treaties and protocols.
* * *
A rights-based approach to migration, both tackling its underlying structural causes and identifying gender-sensitive policies and approaches to facilitate safe and orderly migration. These include strengthening the participation and leadership of migrant women, repealing discriminatory laws and restrictions on migration, strengthening legal protections and access to remedies and adopting non-discriminatory family reunification schemes and residency regulations.
The ratification of fundamental labor standards, with a special focus on ILO Convention 190 on violence and harassment in the world of work, and, more broadly, an interrogation of current economic, trade and labor practices that may be contributing to inequalities, including gender inequality, in global value chains.
* * *
Ratification of CEDAW and increasing women’s meaningful representation at all levels of decision-making and leadership in all of the priority areas outlined in this Index.
March 13, 2023 in International | Permalink | Comments (0)
Virginia Judge Cites 19th Century Slavery Law in Holding Frozen Embryos are Chattel
Judge Richard Gardiner, a Fairfax County Circuit Court Judge, has made national headlines by ruling that frozen embryos are legal chattel.
The preliminary opinion by a Fairfax county circuit court judge, Richard Gardiner, which he delivered in a long-running dispute between a divorced husband and wife, is being criticized by some for wrongly and unnecessarily delving into a time in Virginia history when it was legal to own human beings.
Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African American lawyers, called Gardiner’s ruling troubling.
“I would like to think that the bench and the bar would be seeking more modern precedent,” he said.
Gardiner did not return a call to his chambers on Wednesday. His decision, issued last month, is not final: he has not yet ruled on other arguments in the case involving Honeyhline and Jason Heidemann, a divorced couple fighting over two frozen embryos that remain in storage.
Here is a link to the full opinion. The ruling file format does not allow for pasting into this blog, however, the reasoning on pages 7-8 is worth a read.
March 13, 2023 in Courts, Family, Gender, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)
Wednesday, March 8, 2023
New Book First Woman Judge: Florence Allen, Feminism and the Transformation of US Courts
My new book, First Woman Judge: Florence Allen, Feminism & the Transformation of US Courts, will be published by the University of California Press in 2025. The book examines the jurisprudence of Judge Allen's forty years on the courts through the lens of progressive law, feminism, and social justice.
Judge Florence Allen was the "first" woman judge many times over. She was the first woman in the country elected to a general jurisdiction trial court, the Cuyahoga County Court of Common Pleas (Cleveland) in 1920 immediately following ratification of the 19th Amendment. Before that there had been a few women magistrates in the country: two women justices of the peace (WY and IL), two women juvenile court judges (IL and DC), and one woman probate judge (KS). Allen was then the first woman elected to a state supreme court, joining the Ohio Supreme Court in 1922. She was then the first woman appointed to a federal appellate court, nominated by President Franklin D. Roosevelt to the U.S. Court of Appeals for the Sixth Circuit in 1934. And she was the first woman shortlisted to the U.S. Supreme Court--considered ten times by four presidents from two parties.
I've written a basic account of Allen's life and jurisprudence here: The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, 27 William & Mary J. Race, Gender & Social Justice 293 (2021). The book will delve more into Allen's progressive roots, theories of the expansive governmental power, liberal and social feminisms, and work for women's rights and suffrage.
March 8, 2023 in Books, Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)
Resolving the Interstate Conflict of Emerging Abortion Laws by Borrowing a Model from Family Law
Susan Frelich Appleton, Out of Bounds?: Abortion, Choice of Law, and a Modest Role for Congress
35 J. Am. Acad. Matrim. Law._____ (2023)
This invited contribution to a symposium on the multiple intersections of family law and constitutional law grapples with the emerging problems of jurisdictional competition and choice of law in interstate abortion situations in the wake of Dobbs v. Jackson Women’s Health Organization—as abortion-hostile states seek to impose restrictions beyond their borders and welcoming states seek to become havens for abortion patients, regardless of their domicile. Grounded in a conflict-of-laws perspective, the essay lays out the interstate abortion chaos invited by Dobbs and the threat to our federal system that it presents, given Congress’s failure to codify a national right to abortion in the Women’s Health Protection Act or other proposals. The essay then examines the promise, shortcomings, and uncertainties of relevant provisions of the U.S. Constitution as potential solutions to the problems. With no magic constitutional bullet available, new tools are needed to address this looming “war between the states.” The essay proceeds to propose one, borrowing a model from family law’s existing toolkit, specifically, the Parental Kidnapping Prevention Act (PKPA).
Enacted under Congress’s power to implement the Full Faith and Credit Clause, the PKPA’s intervention is modest, and it walks the fine line that that clause requires—recognizing each state’s sovereignty while commanding respect for other states’ prerogatives, aspiring to achieve national unity and harmony. Accordingly, the PKPA does not address the merits of an underlying child custody controversy or impose substantive custody-law requirements on the states. Instead, it allocates authority over child custody matters among the states and then ensures respect elsewhere for such authority lawfully exercised.
The recent enactment of the Respect for Marriage Act bodes well for this approach in a Congress that must bridge sharp divisions in order to legislate at all. It too allocates authority and ensures respect elsewhere, without codifying a right to celebrate same-sex and interracial marriages throughout the country.
Of course, how to allocate authority over abortion presents vexing challenges. What concessions would be worth making to have the certain knowledge that abortion-friendly states really are safe havens? Even if Congress cannot codify reproductive rights, can a majority of the House and at least 60 members of the Senate fulfill their responsibility under the Full Faith and Credit Clause so that the “laboratory of the states” can survive as a single nation?
March 8, 2023 in Abortion, Courts, Family, Reproductive Rights | Permalink | Comments (0)
The Hidden Framework of a Punishment Lens in the Supreme Court's Approach to Public Values
June Carbone & Naomi Cahn, The Court’s Morality Play: The Punishment Lens, Sex, and Abortion, Southern California Law Review (forthcoming)
The Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped – and will continue to shape – the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, gay sex, Medicaid expansion, or pretrial detention.
The Article is unique in discussing the circumstances in which the Court has simultaneously concluded that the state could regulate but could not punish, even if that means redefining a sanction as not punitive. By making visible this framework, we offer the Court and the states a potential off-ramp from the continuation of an ugly and litigious future on abortion access. If the Supreme Court seeks to deflect the outrage over Dobbs, the simplest way to do so would be to take seriously the statement that all it has to do is to return the issue to the states. In that case, the Court’s focus should be, as Justice Kavanaugh suggested in his concurrence, on the impermissibility of punishment that infringes on established rights, independent of a right to abortion, such as the right to travel, the First Amendment right to communicate accurate information about abortion availability, or doctors’ efforts to perform therapeutic abortions necessary to preserve a pregnant person’s health. The Court would not pass judgment on the permissibility of abortion, and it could affirm the propriety of state bans, but still strike down heavy-handed prosecutions and ill-defined prohibitions that impose undue penalties.
After Dobbs v. Jackson Women’s Health Organization, this Article is particularly important for three reasons. First, the Article examines the ways in which the Court has used considerations of punishment to deflect irreconcilable values clashes. Second, a focus on punishment often illuminates the “dark side” of government action, justifying limits on such actions. Third, a focus on “punishment” often illustrates the consequences of government actions, consequences that may be an indirect result of statutes or regulations but that have disproportionate effects on marginalized communities. Understanding how the Court has used this elusive concept in the past may thus help shape the response to Dobbs.
March 8, 2023 in Abortion, Constitutional, Reproductive Rights, SCOTUS, Theory | Permalink | Comments (0)
Tuesday, March 7, 2023
Mary Wollstonecraft's 18th Century Feminist Philosophy of Relational Autonomy
Alan Coffee, "Mary Wollstonecraft and Relational Autonomy" in Routledge Handbook of Autonomy, Ben Colburn (ed.), London: Routledge, 2022, 65-74
Although best known as an early and pioneering feminist, Mary Wollstonecraft has more recently become recognised as a wide-ranging moral and political philosopher (Bergès and Coffee 2016, Bergès, Botting and Coffee 2019). One ideal that is of central importance within her philosophical framework is that of social and personal freedom understood as independence from arbitrary control. Although I generally prefer to speak of ‘freedom’ or ‘independence’ with respect to Wollstonecraft, these being her own terms, the concept that she uses can be understood in terms of a form of autonomy. In particular, it can be argued that Wollstonecraft develops an idea that anticipates and foreshadows the contemporary notion of relational autonomy (Mackenzie 2016, Coffee 2018).
March 7, 2023 in Legal History, Theory | Permalink | Comments (0)
UN Chief Warns Gender Equality is 300 Years Away
Wash Post, "Gender Equality is 300 Years Away", UN Chief Warns
Speaking to the U.N. Commission on the Status of Women on Monday, ahead of International Women’s Day on Wednesday, Secretary General António Guterres said gender equality is “vanishing before our eyes.”
He drew special attention to Afghanistan, where Guterres said women and girls “have been erased from public life” following the return to Taliban rule. The regime has barred women and girls from universities and some schools. The Taliban has also blocked many female aid workers, imperiling key aid programs, including those overseen by the U.N.
Guterres also trained a spotlight on the “misogynistic disinformation and misinformation” he said was flourishing on social media, and what is known as gender trolling aimed at “silencing women and forcing them out of public life.”
March 7, 2023 in Education, Equal Employment, International, Reproductive Rights, Science | Permalink | Comments (0)