Wednesday, December 1, 2021
It continues to be frustrating to see inaccurate statements and polemics on the history of abortion in America. Even more frustrating when those voices are elevated to legitimacy as alleged balanced discussions of the issue.
The leading book on 19th century history of the laws and legal regulation of abortion is James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979).
For more modern legal history, the leading book on post-Roe legal history is Mary Ziegler, Abortion Law in America: Roe v. Wade to the Present. For the time just before Roe, one of the best sources is the edited collection by Linda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before Roe (2010).
I have written on the topic of the long history of abortion in the 19th century, particularly on the improper attribution of anti-abortion views to the feminist foremothers like Elizabeth Cady Stanton and Susan B. Anthony:
Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012)
Over the past twenty years, prolife advocates have sought to control the political narrative of abortion by misappropriating women’s history. Conservatives, led by the group Feminists for Life (FFL), have used historical feminist icons to support their antiabortion advocacy. Federal antiabortion legislation has been named after feminist heroines. Amicus briefs to the U.S. Supreme Court quote women’s rights leaders in support of abortion regulation. And political forums for college students popularize the notion that feminists historically opposed abortion. Prolife groups claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. Such misuse of history diminishes, rather than enhances, the credibility of this antiabortion advocacy.
The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony, have traditionally opposed abortion. If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.
The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women’s rights. Since the second wave of the women’s liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest. The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman’s right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.
The lack of popular knowledge about the lives and work of women’s rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women’s lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it. Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true. Sound bites that have been excised from history are taken out of context to convey a meaning not originally intended.
Tracy Thomas, Chapter 4 "The 'Incidental Relation' of Mother" and Chapter 6, "Conclusion," in Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).
Tracy Thomas, interview in The Atlantic, The Epic Political Battle Over the Legacy of the Suffragettes (June 2019)
Tracy Thomas, National Constitutional Center Podcast, The Constitutional Legacy of Seneca Falls (July 25, 2019)
Tracy Thomas, in Lily, Was Susan B. Anthony Antiabortion? (Aug. 3, 2020)
See also Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)
For all of the past coverage of the abortion issue on Gender & the Law Prof Blog, go to Blog / Categories / Abortion.
Some of the recent posts specifically on Dobbs include:
Gender & the Law Prof Blog (8/21), featuring Marc Spindelman's Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).
Gender & the Law Prof Blog (9/15/21), featuring Aaron Tang, The Originalist Case for an Abortion Middle Ground.
Gender & the Law Prof Blog (11/17/21) featuring David Gans, No, Really, the Right to an Abortion is Supported by the Text and History of the Constitution, The Atlantic
Tuesday, November 30, 2021
California lawsuit: Law allowing transgender inmates to choose housing based on gender identity is unconstitutional
A California law that gives transgender, nonbinary and intersex inmates at state prisons the right to be housed at either men’s or women’s facilities is under fire in a lawsuit filed last week.
The Women’s Liberation Front, which also opposes transgender female athletes’ participation in girls’ and women’s sports, filed the lawsuit in federal court alleging that Senate Bill 132, signed by Gov. Gavin Newsom in 2020, is unconstitutional and creates an unsafe environment for women in female facilities.
. . .
“The foundational basis of our lawsuit is that these are male offenders being housed in women’s prisons,” said Lauren Adams, legal director for the Women’s Liberation Front. “To pretend that they are female, in language or what we say about them or how we talk about them, goes against the whole basis of the lawsuit.”
Transgender and LGBTQ+ advocates slammed the suit as baseless and damaging.
. . .
A 2007 UC Irvine study found that the rate of sexual assault was 13% higher for transgender inmates.
Samuel Garrett-Pate, a spokesperson for LGBTQ+ advocacy group Equality California, said he expects Atty. Gen. Rob Bonta to defend SB 132.
Dobbs v. Jackson Women’s Health Organization, regarding Mississippi abortion law, to be heard by SCOTUS on December 1
On Wednesday, the U.S. Supreme Court will hear a case out of Mississippi that could eliminate a pregnant person’s constitutional right to an abortion. The law in question bans abortion at 15 weeks gestation, significantly before viability. With this case as a vehicle, the Mississippi attorney general has explicitly called on the high court to strike down Roe v. Wade.
The case, Dobbs v. Jackson Women’s Health Organization, turns on the issue of viability. Supreme Court precedent protects the right to abortion before a fetus can survive outside of the womb, usually around 24 weeks; states can’t pass laws that present an “undue burden” for someone seeking an abortion before that point. While a total ban before viability would undermine Roe, many experts think the Supreme Court might allow it anyway. Because the one clinic in Mississippi only performs abortions up to 16 weeks, lawyers may argue, a 15-week ban does not constitute an undue burden.
. . .
Between the Texas and Mississippi cases, this is an unprecedented term for abortion on the Supreme Court.
The Yurok Nation is the largest tribe in California, nestled along the Klamath River on the northern Pacific coast. As a sovereign nation, the Yurok Tribe manages its own court system and is able to apply its specific cultural lens to its functioning. Chief Justice Abby Abinanti’s court looks very different from a traditional state, county, or federal court. Judge Abby—as the community calls her—sees herself as a community member, not as a punisher. In her court, the person facing charges helps to decide how they should be held accountable. “We’re a culture that’s responsibility based,” she says. “You have a responsibility to and a responsibility for. Yes, there is a consequence for misbehavior, but they get to help decide how to address it because it was their mistake. That’s the whole thing about humans—we’re pretty mistake prone.”First, Judge Abby gives people the choice of going to trial or working with her to come to a mutually agreeable solution. The majority of people choose the latter option. Second, the individual helps decide how they should be held accountable. In a fishing violation, for example, someone may choose to pay a fine, or they may donate fish to a ceremony or the elders program. In child support cases, Judge Abby works with parents to come to a mutual agreement, which may include requiring the noncustodial parent to provide babysitting, rides to town, or wood or fish to the custodial parent. These noncash payment solutions are particularly valuable in a community with concentrated poverty: 41 percent of families with children and 53 percent of families headed by single mothers in the tribal area live below the federal poverty level. Judge Abby notes that off-reservation courts often garnish wages to resolve child support cases. According to the most recently available Census Bureau data, the average child support payment in the United States is $430 per month.. . .Unlike the U.S. legal system, which Judge Abby calls “stranger justice,” the Yurok system prioritizes the agency of the individuals involved. “What I’m trying to do is say to someone, ‘You have exhibited behavior that is not okay. How are we going to help you get past that? Because we want you in [our] community.’” The tribal court sees a variety of cases—from environmental violations and domestic violence to child support and legal guardianship—but their jurisdiction is limited. The state has criminal jurisdiction over people residing on reservations, including tribal members. In most states, either the federal government or tribes have jurisdiction over their members. But California—along with Alaska, Minnesota, Nebraska, Oregon, and Wisconsin—is a Public Law 280 (PL 280) state. PL 280 was passed in 1953 without consulting tribes, and it gives state governments jurisdiction over all criminal matters on reservations. Tribal advocates argue that PL 280 violates sovereignty. The statute is often cited as a reason that tribes are denied funding for their own systems of justice.. . .The Yurok aren’t alone in revitalizing traditional forms of justice. In Southern California, Quechan tribal judge Claudette White pioneered the use of tribal values and customs in legal proceedings to reduce incarceration rates. She was highlighted in the 2017 documentary Tribal Justice, alongside Judge Abby. The Navajo Nation Peacemaking Program, which prioritizes nonpunitive dispute resolution and restorative justice, has been a parallel entity to the Western-style court for four decades. It is the largest tribal justice system in the world. These tribal communities demonstrate that we can implement alternatives to America’s violent and racist carceral system. And these alternatives are urgently needed. “Your way of doing things is not working,” Judge Abby says. “So you might want to look at how we managed to survive for a few thousand years.”
Monday, November 29, 2021
A landmark study by Uplift Lab of Oregon State University, a Research and Reproductive Equity Laboratory, offers important data supporting the safety of waterbirth. The press release first explains the significance of the study and its data set:
[The authors] compared 35,060 pregnancies from all 50 states: 17,530 water births and 17,530 non-water births. A unique aspect of the OSU study was that they were able to match pregnancies within the two groups on more than 80 covariables, such as age, education level and pregnancy characteristics. This propensity score method ensured a direct comparison between the two groups.
The authors offer a summary of the key findings here. They also offer a link to request the full study from the researchers. The press release summaries these findings:
In the propensity-matched analysis, the only maternal outcome where water births resulted in a slightly elevated risk was postpartum uterine infection. Water births were associated with an additional six postpartum uterine infections per 10,000 water births compared with non-water births. However, there was no increase in risk of being hospitalized for infection.
Furthermore, water births were associated with lower risks for several other maternal outcomes, including 64 fewer hemorrhages per 10,000 births, and 28 fewer hospitalizations in the first six weeks.
Water births were associated with 20 additional umbilical cord avulsions per 10,000 births. Avulsions occur when the umbilical cord snaps before it can be tied off and can cause hemorrhages. However, there were no infant deaths from cord avulsions and no difference in overall death rates between the two groups. There were 26 fewer infant hospitalizations per 10,000 water births, suggesting that the midwives attending these births successfully managed cases of avulsion.
Kit Johnson has posted her recent article on SSRN, Women of Color in Immigration Enforcement. This article was just published in volume 21 of the Nevada Law Journal 997 (2021). The article makes several important findings about gender diversity in immigration enforcement:
Immigration enforcement agencies do not employ large numbers of female agents. The majority of female agents, however, are women of color. This is consistent with the remarkable diversity of immigration enforcement agencies. Women of color have the potential to benefit immigration enforcement agencies. Such agents have unique skills and abilities that can enhance their work, their engagement with the migrants they police, and the growth of agencies they operate within. Yet women of color also face barriers to their recruitment and retention that tie to their training, work, and workplace culture. DHS has been taking steps to diversify its law enforcement ranks. But it can do more. Just looking at the issues outlined in this Essay, the agency could: establish a daycare at the Artesia training center; eliminate training requirements that rest on upper-body strength if not a necessary component of immigration enforcement work; actively oversee training to expose and eliminate any sexist behavior by trainers; and aggressively work to end misogynist culture within the agency. All would make immigration enforcement agencies more welcoming to women of color, and that, in turn, could benefit the agencies. Finally, this Essay has led me to conclude that there is a real need for empirical focused on women of color in immigration enforcement, particularly within the OFO and ICE. It is my hope that this Essay may spark further investigation.
The 19th reports in its article The word missing from the vast majority of anti-trans legislation? Transgender on both the spike in anti-trans legislation and also the trends in language usage:
Over three special legislative sessions this year, Texas legislators introduced 47 proposed bills that aimed to restrict transgender kids’ access to sports or gender-affirming care, plus three bills that would block birth certificate updates for minors. The word “transgender” didn’t appear in any of them. * * *
More anti-trans bills were introduced in state legislatures in 2021 than in any previous year on record. The 19th reviewed the text of 102 bills in seven states that were primarily designed to restrict access to sports or gender-affirming care for trans youth, like hormones and puberty blockers, and only seven bills mentioned the word “transgender.” Only eight passed, primarily those focused on sports, although legal battles in several states have barred most from going into effect.
The article describes how this strategy is not new, but it is evolving. It is also "intentional and strategic." The harms are searing.
I think it’s a lot more simple than we want to admit,” said Emmett Schelling, executive director for the Transgender Education Network of Texas. “If we refuse to name, or even recognize the existence of something, then … understanding is negated.”
By not acknowledging transgender people’s existence in legislation or rhetoric that affects them, Schelling said, proponents of these bills make it impossible for them to also acknowledge potential harms.
“Like, ‘I’m not saying that they’re not happening, I’m actually going a step further and I’m saying, ‘You don’t exist, so it can’t happen.’ There is something deeply disturbing about that,” he said.
Wednesday, November 24, 2021
Congress Proposes Giving Plaintiffs the Option to Reject Mandatory Arbitration for Sexual Harassment and Assault Cases
Lily, Wash Post, Forced Arbitration Can Shield Workplace Harassers, Legal Experts Say
On Tuesday, they testified before the House Judiciary Committee. All four women said they reported the behavior to someone at their company. All four women said they were retaliated against for speaking up. And all four women went through mandatory arbitration — an often confidential process that has, for many companies, become the primary way of handling employee disputes.***
Mandatory arbitration, a process that requires employees and consumers to mediate their grievances with the company in a closed-door forum rather than go to court, is now the norm for many businesses, especially nonunion workplaces.
But more than four years after the #MeToo movement propelled a nationwide reckoning of sexual abuse in the workplace, critics of mandatory arbitration say it has protected toxic, abusive workplaces and the people who run them. Changing this particular process is crucial to making substantive strides on workplace harassment, they say.
Supporters of arbitration, meanwhile, claim that the process is a faster, less expensive alternative for workers than filing a lawsuit in court, and could be less intimidating. But workers rights groups and trial lawyers have long argued that the process isolates workers and leaves them at a major disadvantage in winning remedy or compensation from their employers.
In Congress, there is a bipartisan push to amend arbitration rules. On Wednesday, the House Judiciary Committee passed the Forced Arbitration Injustice Repeal (FAIR) Act, which would offer workers the option to resolve their complaints through arbitration or the courts. The Senate Judiciary Committee recently passed an identical version of the bill.
The bill would give workers with sexual abuse claims against their employers the choice to either go through arbitration or pursue their claims in court.
Rachel Wechsler, Victims as Instruments, Washington L. Rev. (forthcoming)
Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities.
This Article is the first to analyze the treatment of crime victims through the lens of moral philosophy and liberal legal theory. It demonstrates that the application of these concepts is helpful in evaluating the legitimacy of the state’s approach to GBV victims. Following this analysis, it proposes a normative shift in the approach, from one that conceptualizes GBV victims primarily as instruments to one that constructs them as agents whose dignity and autonomy the state must respect.
Martha Chamallas, Social Justice Tort Theory, 14 Journal of Tort Law Issue 2 (2021 Forthcoming)
Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).
Karissa Kang & John Kang, Anomalous Anatomies: How the TSA Should Screen for Transgender People, 21 Nevada L.J. (2021),
A transgender person faces obstacles trying to negotiate a gender-binary world. Going through a TSA checkpoint is no different. A substantial number of transgender persons have reported that they were detained and examined because they were transgender. Why this situation persists, constitutional concerns, and what policy reforms should be implemented to alleviate it are the subjects of this Essay.
Tuesday, November 23, 2021
Germany debates how to form gender-neutral words out of its gendered language after 2018 federal law
In Germany, the debate about gender-neutral and inclusive language is complicated by grammar. Just as in many other languages, gender in German isn’t denoted by personal pronouns alone. German nouns that refer to people have traditionally been masculine or feminine. So, a male citizen is a Bürger and a female citizen is a Bürgerin. But in the plural, the masculine is traditionally used by default — a point that’s been contentious at least as far back as the second wave of feminism in the 1960s.
In 2018, a new federal law stipulated that all forms of ID — from birth certificates to passports — must include three options: male, female and diverse, all of which can even be left blank.
Since then, gender-neutral language has become more commonplace. German airline Lufthansa recently ditched the phrase “ladies and gentlemen,” German scholars are preparing a gender-neutral edition of the Bible and in some cities — like Hanover — there’s an official directive about using gender-neutral words.
Known for speaking Hochdeutsch — considered the most standard variant of German — Hanoverians have been encouraged by city hall to use gender-sensitive language for almost two decades, avoiding the generic masculine whenever possible.
In 2019, Hanover became the first state capital to mandate the use of gender-neutral language in all official communication, from emails to brochures and posters. It deployed what’s known as the “gender star,” an asterisk placed within a noun to indicate it refers to men, women and nonbinary people alike. For instance, the word for all citizens became Bürger*innen.
Annika Schach, who was the city’s communications director at the time, says the new language guidelines have had a mixed reception, but she believes that the generic masculine is passé.
“Using gender-neutral language or the gender star has less to do with wanting to change the world, and more to do with reality,” Shach says. “Society is not only made up of men, but women, intersex and nonbinary people too and the language we use must reflect this.”
Titled “Advancing Gender Equity through Legislation: A Compilation of Laws passed from 2014 - 2020," the study broke down New York City legislation into three areas that traditionally disadvantage non-male genders: economic mobility and opportunity, health and reproductive justice, and safety.
“One of the things that CGE had noticed before we did this report was that all of this legislation wasn’t in one place and easily accessible to people,” said Dr. Maria D’Agostino, a professor of public administration at John Jay College and the study's co-author. “And then during COVID, lots of gender issues were made worse, such as gender-based violence, so it became even more important for New Yorkers to know their rights.”
. . .
Elias and D’Agostino are founding co-directors of the Initiative for Gender Equity in the Public Sector (IGEPS), which conducted the study.
For New Yorkers, this study’s timing may be especially noteworthy as Kathy Hochul recently became the first female governor of New York state after former governor Andrew Cuomo resigned following allegations of sexual misconduct. The scandal highlighted the sexual assault and harassment that many women, transgender, and non-binary people continue to face in the workplace.
“Our partnership with IGEPS helped CGE achieve one of its key goals—to ensure that New Yorkers can readily access information on the gender equity gains made since 2014,” said Jacqueline M. Ebanks, executive director of CGE.
One key gender equity gain from the IGEPS study was a 2017 New York City law requiring agencies designated by the mayor to survey everyone whom the agency serves on their sexual orientation and gender identity. Each agency for the first time must gather this demographic information, create a report summarizing the data, and regularly review their data collection process.
By: Maayan Sudai
Forthcoming in: Law and Social Inquiry
Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.
Monday, November 22, 2021
The New York Times ran an Op. Ed. on trends in maternal health containing very useful infographics to our communities and our classrooms depicting the "shameful" status of maternal health risks, particularly by geography and race. A few key statistics from the Op. Ed.:
- "One of every five women of reproductive age in Southern states live in counties with a high risk of death and other poor maternal health outcomes, such as post-partum hemorrhage, pre-eclampsia and preterm birth."
- "American Indian and Alaska Native are 2.6 times as likely as white women to live under conditions that create problems during and after pregnancy."
- "Black women are 1.6 times as likely as white women to live under these unfavorable conditions."
The Op. Ed visually and powerfully depicts in digestible and accessible ways how "a woman’s chance of a healthy pregnancy varies greatly depending on where she lives, based on factors such as whether she has a high school diploma, her exposure to poverty, her access to OB-GYNs and midwives, and her access to abortion clinics."
TIME'S UP just published Phase 1 of its report prepared by an independent consultant making "recommendations, tools, and plans that examine its structure, processes and culture.” The publication provides critical insights into the trajectory of the organization, a few of which are excerpted here:
- "In its urgency to pursue a very noble vision, TIME’S UP’s mission and operational model was largely undefined for some time. It grew rapidly, often chasing the short-term, important issues of the day versus tracking activities back to the larger or longer-term strategic vision. In so doing, the organization would be experienced by some of its employees and many stakeholders as distracted or unfocused."
- "While the fallout of the pandemic can in no way be blamed for TIME’S UP’s current state of crisis, it is still important to acknowledge that it did have some effect on the overall functioning of the organization during the past two years and may have exacerbated existing structural/internal issues."
- "[I]nterviewees identified “conflicts of interest,” to use their words, that now seem readily apparent in certain professional and personal relationships (previous and/or existing) maintained by the board chair, the CEO, and other board members."
- "TIME’S UP has been negatively impacted by a perception of Democratic partisanship. Some questioned the organization’s capacity to hold all accused of wrongdoing to the same standards of accountability as well its ability to provide a consistent space for all accusers to come forward."
The full report is available here. TIME'S UP's mission is to "create a society free of gender-based discrimination in the workplace and beyond. We want every person — across race, ethnicity, religion, sexuality, gender identity, and income level — to be safe on the job and have equal opportunity for economic success and security."
The Rutgers Women's Rights Law Reporter is hosting its Winter 2021 Symposium on December 2, 2021 from 3:00 - 5:00. The program is titled Feminism in the Law: An Exploration of Justice Ginsburg's Legacy. The program is both in-person and virtual. Here is the link to register: https://law.rutgers.edu/WRLR-Symposium-RBG-Hall-Dedication. Here is a list of speakers:
- Professor Jane Ginsburg - Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia Law School. Daughter of Ruth Bader Ginsburg.
- Director Rachel Wainer Apter - Director of the New Jersey Division on Civil Rights. Associate Justice nominee for the Supreme Court of New Jersey.
- Reva Siegel - Nicholas deB. Katzenbach Professor of Law at Yale Law School
- Jhuma Sen - Associate Professor at Jindal Global Law School and Assistant Director, Centre for Human Rights Studies at O.P. Jindal Global University
- Chase Strangio - Deputy Director for Transgender Justice with the ACLU’s LGBT & HIV Project
- Chalana Scales-Ferguson - Director of Academic Success at the University of Missouri - Columbia School of Law
- Earl Maltz - Distinguished Professor at Rutgers Law School, Camden, New Jersey
Moderator: Dean Suzanne Kim - Associate Dean of Academic Research Centers, Professor of Law, and Judge Denny Chin Scholar at Rutgers Law School.
Friday, November 19, 2021
Latonia Haney Keith, Visible Invisibility: Feedback Bias in the Legal Profession, 23 J. Gender Race & Just. 315 (2020).
In this article, Vice President Latonia Haney Keith, highlights “feedback bias” as a contributing factor to “the legal profession [ ] ‘losing the war on retention [with] women and minorities leav[ing] the profession because they feel unprotected and undervalued.’” Feedback bias refers to the phenomenon of “employers and educators reinforc[ing] and perpetuat[ing] bias, albeit unintentionally” when providing assessment and evaluations to employees and students. The article highlights three cognitive biases that affect feedback and evaluating performance. The three are “confirmation bias, in-group bias and availability heuristic.” For example, in the confirmation bias context:
“[G]etting noticed as a leader in the workplace is more difficult for women than for men.” This is the confirmation bias cycle at work. When people are consistently exposed to leaders that fit a particular mold, they will continue to seek out or notice only those leaders who fit that same mold. So, when evaluating the performance of a lawyer or law student, a supervisor’s or faculty’s preconceived notions will impact their evaluation. If, for example, a preconception exists that males are assertive, it will be easier for a supervisor or faculty to recall instances in which a male employee or student asserted themselves in a meeting. Conversely, a supervisor or faculty may easily forget instances in which a female employer or student similarly asserted herself by, for example, suggesting an effective strategy or navigating a tough client interaction.
The article then goes into how these types of bias can manifest in feedback provided to employees and students. “Women are for more likely to receive critical, subjective or vague feedback, and their performance is less likely to be attributed to their abilities and skills. . . . When women [do] receive more specific feedback, it [is] either tied to their caregiving abilities, attribute their accomplishments to teamwork rather than leadership or ‘overly focus on their communication style.’” How do we move forward then? Vice President Keith suggests a number of solutions, particularly in the context of law school feedback, including leveraging anonymous evaluation processes, incorporating objective measures and articulable rubrics, avoiding ambiguity, incorporating a broader group of reviewers, and increasing the frequency of evaluation among other best practices.
Wednesday, November 17, 2021
David Gans, No, Really, the Right to an Abortion is Supported by the Text and History of the Constitution, The Atlantic
An originalist reading of the text and history of the Fourteenth Amendment, in fact, provides a strong basis for protecting unenumerated fundamental rights, including rights to bodily integrity, establishing a family, and reproductive liberty. The right to abortion flows logically from there. The Supreme Court should recognize this when it decides this term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization.
It is of course true that the debates over the Fourteenth Amendment do not explicitly mention abortion. But there is no daylight between the rights specifically affirmed in the debates and the right to abortion.
The rights to control one’s body, establish a family, and have children necessarily safeguard the right to abortion as a fundamental right. The right of “having a family, a wife, children, home,” as Senator Jacob Howard, who played a central role in drafting the Fourteenth Amendment, put it, guarantees to the individual free choice in matters of family and childbirth, in the same way that the freedom of speech also includes the right to not speak. The right to bear and raise children and the right to abortion are two sides of the same coin—both integral parts of reproductive freedom. In our constitutional heritage, laws that prohibit abortion and those that compel abortion are equally offensive to bodily integrity, autonomy, and equal dignity.***
To understand why the Fourteenth Amendment’s protections are so sweeping and phrased in general terms, remember that the amendment was a response to slavery. Its framers sought to safeguard fundamental rights that have no explicit textual basis in the Bill of Rights but that are crucial to equality and liberty. To ensure true freedom and redress the subjugation of Black bodies during slavery required, at a minimum, asserting control over one’s body as a basic right. During the debates, members of Congress insisted that a person’s “uninterrupted enjoyment of his life, his limbs, his body, his health” was a bedrock right guaranteed to all. Without bodily integrity, the Fourteenth Amendment’s promise of equal citizenship would be illusory.
Protecting people’s reproductive liberty was very much a part of that effort to define what it means to not be enslaved—to be free. One of slavery’s cruelest aspects was the brutal denial of reproductive autonomy in matters of family life. Plantation owners forced enslaved women to bear children who would be born into bondage. Rape and other forms of coerced procreation enabled the growth of the institution of slavery, even after the international slave trade was outlawed in 1808. “Slavery is terrible for men,” wrote Harriet Jacobs in the 1861 narrative of her enslavement, “but it is far more terrible for women.” Jacobs’s autobiography, as the intellectual Henry Louis Gates has observed, demonstrated how enslaved women were treated as “object[s] to be raped, bred, or abused.” Not only were enslaved people coerced into bearing children; enslaved people in loving relationships had no right to marry or raise children of their own. ***
The framers of the Fourteenth Amendment recoiled at the treatment of enslaved families and wrote the amendment to provide broad protection for what might be called rights of heart and home: the right to marry a loved one, to establish a family, to decide whether to bear and raise children. As the debates in the 39th Congress reflect, true freedom would be impossible without securing those freed from enslavement the right “to be protected in their homes and families,” as Senator John Sherman said. Because reproductive freedom and family life were impossible “where the wife is the property of the husband’s master and may be used at will” and where “children are bred, like stock, for sale,” Representative Thomas Eliot argued, “no act of ours can fitly enforce their freedom that does not contemplate for them the security of home.” The denial of these basic rights under slavery provided an invaluable lesson about the meaning of freedom: Decisions about marriage, family, and reproduction had to be left to the individual, not coerced by the government or subject to the brutal domination of another.
During the debates in the 39th Congress, Senator Howard eloquently spoke to how enslaved people had been robbed of their dignity and stripped of their rights to marry a loved one, start a family according to their desires, and enjoy reproductive freedom.