Thursday, July 7, 2022

Legal Scholars Argue that Femtech Products Poised to Fill Gaps as States Try to Limit Birth Control and Abortion Access

Leah Fowler & Michael Ulrich, Femtechnodystopia 

Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral changes that support the health of the fetus. However, more nefarious actors also have interests in these technologies and the intimate information they contain. In the wrong hands, these tools can effectuate increased reproductive control and criminalization. What happens next will depend on whether we can improve efficacy, limit foreseeable privacy risks, and raise consumer awareness. But the current legal and regulatory landscape makes achieving these goals far from a straightforward proposition, further complicated by political influence and a conservative Supreme Court. Thus, this Article concludes with multiple solutions involving diverse stakeholders, offering that a multifaceted approach is needed to keep femtech’s dystopian future from becoming a reality.

July 7, 2022 in Abortion, Pregnancy, Reproductive Rights, Science, Technology | Permalink | Comments (0)

Study Shows Unintended Consequences of MeToo in Fewer Research Projects and Collaborations for Junior Women Academics

Marina Gertsberg, The Unintended Consequences of #MeToo - Evidence from Research Collaborations 

In this study, I use research collaborations between junior female and male academics at U.S. Economics departments as a laboratory in which to analyze how #MeToo affected workplace interactions between men and women. I find that junior female academics start fewer new research projects after the #MeToo movement. This decrease is driven by a decline in the number of collaborations with new male co-authors at the same institution. The negative effect is more pronounced in locations with more liberal gender attitudes. Moreover, I show that the drop in collaborations is concentrated in universities with both a high number of sexual harassment cases and more ambiguous sexual harassment policies. These results suggest that the social movement had unintended consequences that disadvantaged the career opportunities of the protected group. The study has also important implications for the design of organizational sexual harassment policies.

July 7, 2022 in Education, Equal Employment, Science, Technology, Workplace | Permalink | Comments (0)

Misattribution of Authorship in Legal Work Masks Women's Efforts and Contributes to Gender Gap in Legal Profession

Jordana Goodman, Ms. Attribution: How Authorship Credit Contributes to the Gender Gap, Yale J. Law & Tech. (forthcoming)

 Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis of gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior-most legal team member signs on behalf of the team. This work illustrates that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. The gender gap in the legal profession is exacerbated through this practice by falsely implying that women do less work, are more junior, and do not deserve as much credit as their male colleagues.

Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship, doctrine, and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy de facto and de jure discrimination.

July 7, 2022 in Equal Employment, Legislation, Technology, Women lawyers, Workplace | Permalink | Comments (0)

Wednesday, July 6, 2022

School Dress Code Bans Skirts and Dresses

TX School District's Dress Code Dresses, Skirts to Promote Workforce Skills

The Forney Independent School District announced this week that it was implementing the new dress code to help improve the children’s “future workforce skills” for the 2022-23 academic year. All hoodies, as well as hooded jackets and coats, will be prohibited for all the roughly 15,000 students inside any of FISD’s 18 schools. Dresses, skirts and skorts are now allowed only for kids in prekindergarten through the fourth grade in an effort the district says will “help prepare students for a safe and successful future.”

 

“The use of a school dress code is established to improve student self-esteem, bridge socio-economic differences among students, and promote positive behavior, thereby enhancing school safety and improving the learning environment,” the district wrote in its announcement to parents.***

 

Historians have noted how school dress codes have been a way to assert power and control over students. Einav Rabinovitch-Fox, an assistant professor of American history and women’s and gender history at Case Western Reserve University, wrote in The Post last year about the long history schools had of imposing codes of appearance and behavior, from uniforms to rules of conduct.

 
“As social institutions that are meant to prepare future citizens to function in society, schools are hardly democratic spaces. Instead, schools use their authority to enforce social values through curriculum choices, enrollment decisions and also dress codes,” Rabinovitch-Fox wrote. “Dress codes have usually targeted women and minorities, continuing a long tradition of policing these groups’ appearance and presence in public.”

 

Yet other schools have required skirts for girls: See Fourth Circuit En Banc Holds Charter School Dress Code for Girls is Gender Discriminationsee also Controlling Women by Controlling Clothes in the Workplace

July 6, 2022 in Education, Workplace | Permalink | Comments (0)

New Bipartisan "Speak Out" Bill in Congress Removes Legal Barriers to Reporting Sexual Harassment from Nondisclosure Agreements

The Speak Out Act Removes Legal Barriers to Reporting Sexual Assault

A new bipartisan bill would enable workers to report workplace sexual assault and harassment even if they signed a confidentiality agreement, nearly five years after the viral #MeToo movement exposed how the common legal tools can muzzle survivors.

 

Reps. Lois Frankel (D-Fla.) and Ken Buck (R-Colo.) told The Washington Post they introduced legislation Friday that would empower survivors to report instances of abuse in the workplace. The bill, called the “Speak Out Act,” would prevent employers from enforcing nondisclosure or nondisparagement agreements (NDAs) in instances when employees and workers report sexual misconduct.

 

“This is a preventive piece,” Frankel said. “When companies that are going to have offenders are aware that they cannot hide illegal sexual harassment, that they cannot put it under the rug, they’re going to take more steps from the get-go to keep it from happening.”

 

NDAs are standard features of employment contracts that protect sensitive company information. They’re common across industries: Over one-third of the U.S. workforce is bound by an NDA, according to a 2018 Harvard Business Review report.

July 6, 2022 in Business, Equal Employment, Legislation, Workplace | Permalink | Comments (0)

CFP Centering Family Violence in Family Law

Call for Papers

Centering Family Violence in Family Law

Abstract Submission Deadline: July 22, 2022

from the Family Law Center, UVA School of Law and National Family Violence Law Center, GW Law School

We invite submissions to contribute to a roundtable about the place of domestic violence in family law and scholarship. Submissions should consist of a proposed abstract under 300 words. The roundtable will be held on January 20, 2023 at the University of Virginia School of Law.

Although evidence shows that family violence is endemic, family law continues to design doctrines and procedures around an image of families in which violence is exceptional. Significant new empirical research indicates that, despite extensive law reforms designed to require courts to address family violence, mothers in custody litigation who seek to protect their children from paternal abuse typically face resistance from judges, if not outright hostility. Moreover, most family lawyers are ill-equipped to effectively represent protective parents and at-risk children, especially in an unreceptive family court culture. Cf. Meier, Denial of Family Violence:  An Empirical Analysis and Path Forward for Family Law, 110 Geo. L. J. 835 (2022).

 

How would family law practice, scholarship, and teaching change if each centered the reality of family violence instead of treating it as exceptional? 

This roundtable will bring together a group of diverse participants to explore how the realities of family violence and judicial intransigence should affect core doctrines and practices in family law, such as allocating custody and establishing parenthood. Participants will also consider how concern for family violence should inform discussions of systemic reforms such as decriminalization, abolition of the child welfare system, and parenting after incarceration. The roundtable’s goal is to carve out new ways to think about how family law can respond to the failure of the law, scholarship, and the courts to appropriately deal with violence within American families. 

We offer the following “provocations” for new thinking about how to place family violence at the center of family law:

  • Shared Parenting:  How might we talk about shared parenting and its appropriate place in child custody if we acknowledged the history of intimate partner violence and child maltreatment among many (possibly most) separating parents, both those that litigate and those that do not?
  • Functional Parenting:  As we seek to expand parenting rights and recognition to functional parents, how can we ensure that abusive partners are not empowered to extend their abuse through parenting litigation (a well-documented problem among biological parents)?
  • Pedagogy: How should we best integrate the realities of family violence in our teaching, particularly in broad courses such as Family Law, Criminal Law, and Child, Family & State?
  • Formerly Incarcerated Parents:  As we work to reintegrate formerly incarcerated parents into the community and their families, how can we ensure that reintegration maximizes and protects healthy and caring parent-child relationships?
  • The Child Welfare System:  As we work to reform the child welfare system and its known racial and class injustices, how can we best integrate the realities of family violence into such reforms to ensure they do not exacerbate the victimization of children or safe parents?
  • A Supportive State:  As we develop state tools to affirmatively support familial stability and security, how should such policies change if family violence is pervasive rather than an aberrant imperfection? 

We are delighted to report that the Virginia Journal of Social Policy & the Law has agreed to publish eight short (5,000-word) papers from this gathering. We will be requesting drafts (3,000-5,000 words) one week in advance of the conference so they can be circulated and read by all participants. 

We plan to host the event in person, although the format may change depending on public health considerations. We will supply meals, and we have some funding available. If you need funding to attend, then please provide an estimate of your travel costs.  

Thank you.  Please submit abstracts to centeringfamilyviolence@gmail.com.  And please let us know if you have any questions!

July 6, 2022 in Call for Papers, Conferences, Family, Violence Against Women | Permalink | Comments (0)

Thursday, June 30, 2022

A Resource List of the New Legal, Political, and Practical Issues on Abortion Post-Roe

Updated 7/7/22

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            Trigger Laws:

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

                        Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to Trigger Laws: 

TX, OH Top Courts Allow Abortion Bans to Take Effect (7/6/22)

FLA Judge will Temporarily Block 15 Week Abortion Ban (7/3/22)

TX SCt Lifts Freeze on Abortion Ban (7/2/22)

OH SCt Rejects Request to Suspend State's 6 Week Abortion Ban (7/1/22)

Judge Grants Restraining Order to Restore Abortion Access in Kentucky (6/30/22)

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:22

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

NM Governor to Sign Executive Order on Abortion Access (6/30/22) 

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

           Prosecutors:

Cuyahoga Cty Prosecutor Says He Won't Enforce 6 Week Abortion Ban (6/30/22) 

Liability for Pregnant Women:

Abortion Abolitionists Want to Punish Women (7/1/22)

FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            First Amendment Rights of Speech and Advise

First Amendment Confrontation May Loom in Post-Roe Rights (6/30/22)

            Validity of State Travel Bans:

WP, Anti-Abortion Lawmakers Want to Block Patients From Crossing State Lines (6/30/22)

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Lauren Van Schilfgaarde, Aila Hoss, Sarah Deer, Ann Tweedy, Stacy Leeds, The Indian Country Abortion Safe Haven Fallacy

            Other Constitutional Liberties: contraception, marriage, LGBTQ

Thirteenth Amendment:

The Amendment Ending Slavery Could be the Key to Securing Abortion Rights (7/7/22)

State Legislation:

Voters in as Many as Eight States Will Vote on Abortion This Year (7/7/22)

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

NY Moves to Enshrine Abortion Rights in State Constitution (7/6/22)

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

           See generally:

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

Abortion Defenders in MI and OH Get It: Take it to the Voters (6/30/22)

            Fetal Personhood:

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

How Green Bandanas Became the International Color of Abortion Rights

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Election issue

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            Contraception: double layer contraception, increase in vasectomies

Plan B:

Missouri AG Says State Abortion Ban Does not Prohibit Plan B or Contraception (6/30/22)

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

            Digital Privacy & Period Tracking Apps:

HHS Issued Guidance to Protect Private Medical Info (inc Period Tracking Apps) (7/6/22)

Scholars Explain How Femtech Products Poised to Fill Gap as States Try & Limit Birth Control and Abortion 

Google Will Delete User Location History for Abortion Clinic Visits (7/6/22)

Period Tracker App Flo Develops Anonymous Mode (6/30/22)

Why Deleting Your Period Tracking App Won't Protect You (6/30/22) 

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Women's Medical Care: 

Physicians Face Confusion and Fear in Post-Roe World

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies paying travel expenses:

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Information & Assistance:  

Abortion Finder Org Site ("The pink book" of where to access providers)

ABJ, Experts Say Helping OH Patients Get Abortions Isn't Illegal (6/30/22)

            Rebecca Traister, The Necessity of Hope: "It means doing the thing that people have always done on the arduous                             path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity."

June 30, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, June 29, 2022

Ohio Lawsuit Filed to Enjoin 6 Week Abortion Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care

Lawsuit Filed Against Ohio Abortion Ban After Roe v. Wade Ruling

Just days after the United States Supreme Court overturned Roe v. Wade in a historic decision, multiple groups have come together to file a lawsuit in the Ohio Supreme Court “seeking to block the state’s six-week ban on abortion and to restore and further protect Ohioans’ reproductive rights secured by the Ohio Constitution.”

Their lawsuit comes after a federal judge in Ohio granted the state’s request to allow the previously blocked six-week abortion ban – also known as the “heartbeat bill” – to take effect. The suit argues the bill “radically restricts access to abortion in Ohio by lowering the gestational age limit from 22 weeks to approximately six weeks, with very limited exceptions.”

The Complaint is here: Download Complaint, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

See also: Download Memo in Support of Writ, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

To add some additional information:

1.  There is original jurisdiction in the Ohio Supreme Court for "extraordinary writs" like mandamus when there is no adequate remedy at law.  It is an unusual option, but that is the argument the provider plaintiffs are making here. saying there is a need for a definitive, state-wide ruling on this emergency motion.

2.  Ohio may be different in interpretation of its state due process ("due course of law") clause because it also now has a "Freedom to Choose Health Care" constitutional provision.  Ohio Const. Art. I.21.  This freedom of health care provision was passed by initiative in 2011 in response to the federal Affordable Healthcare Act as an "anti-Obamacare" action.

 

 

June 29, 2022 in Abortion, Constitutional, Courts, Pregnancy, Reproductive Rights | Permalink | Comments (0)

The Theory of Constitutional Memory and its Silencing of Women's Voices and Citizenship

Reva Siegel, The Politics of Constitutional Memory, 20 Georgetown J. Law & Public Policy 19 (2022)

Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law.

 

This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law.

 

To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents.

 

But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

June 29, 2022 in Constitutional, Family, Legal History, Theory | Permalink | Comments (0)

Historians Weigh in on All That is Wrong with the Legal History of the SCT's Abortion Decision

Patricia, The Dobbs Decision Looks to History to Rescind Roe

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Reva Siegel, The Trump Court Limited Women’s Rights Using 19th-century Standards

But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.***

Justice Alito claims that tying the meaning of the Fourteenth Amendment’s liberty guarantee to America’s “history and traditions” prevents the justices from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to 'liberty,’” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Here he echoes the late Justice Antonin Scalia, who wrote, in “Originalism: The Lesser Evil,” that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But Dobbs shows why both of these claims are wrong. A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty largely with reference to laws enacted in mid-19th-century America. During that period — conveniently enough — there was a campaign to ban abortion across the nation. (Alito includes an appendix enumerating many of these state statutes.) But consider what else was part of this period’s “history and traditions”: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tether the meaning of the Fourteenth Amendment’s liberty guarantee to laws enacted by men with such a cramped view of women’s rights? The move is unprecedented.

Jill Hasday, On Roe, Alito Cites a Judge who Treated Women as Witches and Property

There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.

Alito reports that [Judge] Hale “described abortion of a quick child who died in the womb as a ‘great crime’ ” while glossing over the key part of that passage. Hale wrote that abortion was a crime “if a woman be quick or great with child.” Note the “if.”

Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.

Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.

June 29, 2022 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, June 28, 2022

Ohio Statutory Framework of Abortion Laws After Dobbs

Download Summary: Ohio Statutory Framework for Abortion Laws After Dobbs (as of 6-27-2022)

 

OHIO ABORTION STATUTORY FRAMEWORK POST-DOBBS

I.  Ohio Laws on the Books That Have Been Enjoined or Not Enforced Under Roe

Telemedicine & Medical Abortions:  Only a physician can provide abortion-inducing drugs, physician must be physically present at administration of initial dose, exceptions for self-managed by woman and legal delivery. O.R.C. §§ 2919.123, 2919.124(B).  New 2021 version preliminarily enjoined by Planned Parenthood Sw. Ohio v. Ohio Dep’t of Health, No. A 2101148 (Hamilton Cty, Ohio, C.C.P. Apr. 20, 2021).  Earlier version enjoined for 12 years, limited to as-applied injunction, mooted on motion by Federal Drug Agency.  See Planned Parenthood of Sw. Ohio v. Dewine, 931 F.3d 530 (6th Cir. 2019), cert. denied, 141 S.Ct. 189 (2020).

Limitation of Backup Physician: Prohibits physicians affiliated with state institutions from being backup providers. Preliminarily enjoined, Women’s Med Dayton v. Vanderhoff, No. A2200704  (Ohio C.C.P. Apr. 15, 2022), second preliminary injunction granted (June 17, 2022).

“Dismemberment Feticide”: Prohibits D&E and D&X procedures, except to preserve life or physical health of mother. O.R.C. § 2919.15 (2019). Partially enjoined to permit D&E procedures before 18 weeks.  Planned Parenthood Sw. Ohio Region v. Yost, 375 F.Supp.3d 848 (S.D. Ohio 2019), reconsideration denied, 2020 WL 40143 (2020). 

Fetal Burial Law: Requires cremation or internment of fetal remains. O.R.C. § 3726.02 (2021), preliminarily enjoined by Planned Parenthood Sw. Ohio Region v. Ohio Dep't of Health, No. A2100870 (Ohio C.C.P. Jan. 31, 2022). 

Municipal Ban: A municipal ordinance in the City of Lebanon bans all abortions and those who “aid or abet,” but city stipulated it would not enforce after being sued by ACLU.  Ohio's Only Sanctuary City Chooses Not to Enforce Abortion Ban, Fox19News (May 26, 2022); Nat'l Assoc. Social Workers v. City of Lebanon, No. 1:22-cv-258 (S.D. Ohio May 11, 2022).

II. Ohio Abortion Regulations Currently In Effect That Have Criminal Penalties

Fetal “Heartbeat Protection Act”: O.R.C. § 2919.195(A), enjoined by Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796 (S.D. Ohio July 3, 2019), injunction dissolved (S.D. Ohio June 24, 2022).  The law had not been structured as a trigger law, but operated as one when the district court dissolved the injunction upon emergency motion of the state immediately following the Dobbs decision and the law went into effect. Litigation continues in the case. The law prohibits abortion when a “fetal heartbeat has been detected” (5-6 weeks) except to prevent death or “serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.”

*6/29/22: Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care (includes complaint and memorandum)

20 Week Ban:  O.R.C. § 2919.201(A) prohibits abortion after twenty weeks post-fertilization (22 weeks), except to prevent death or serious physical impairment. An earlier law prohibits abortion after “viability” and requires viability testing at 20 weeks. O.R.C. §§ 2919.17, 2919.18.

“Abortion Manslaughter”:  First degree felony if purposely takes life or “fails to take measures” to “preserve the health or life” of “child born by attempted abortion who is alive when removed from the uterus.” O.R.C. § 2919.13 (eff. Mar. 23, 2022).

Minor Parental Notification or Judicial Bypass: O.R.C. §§ 2919.121, 2151.85, upheld in large part by Cincinnati Women’s Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006) (overturning limit on one judicial petition per pregnancy).

Down Syndrome Ban:  Ohio prohibits abortions if provider has knowledge of woman’s reasons related to Down syndrome of the fetus. O.R.C. § 2919.10(B) (2018).  The U.S. Court of Appeals for the Sixth Circuit (en banc), reversed a preliminary injunction enjoining the Ohio Down syndrome law, finding that there was no likelihood of success on the merits that this was an unconstitutional undue burden.  Preterm-Cleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021).  However, in a subsequent decision, the Sixth Circuit declared a similar Tennessee Down syndrome law unconstitutional on grounds of void for vagueness and expressly noted that the Ohio decision had not address the vagueness issue. Memphis Center for Reproductive Health v. Slatery, 114 F.4th 409, 428-34 (6th Cir. 2021).

“Partial Birth Feticide”: O.R.C. § 2919.151(B) prohibits “partial birth procedure” of late term abortion when fetus is viable unless necessary to safe life or health of woman.

Woman’s Immunity: “Abortion” defined to include “purposeful termination” by “the pregnant woman herself.”  O.R.C. § 2919.11.  Exemption for Down syndrome prosecution.  O.R.C. § 2919.10(F).  Immunity for women for all bans passed, O.R.C. § 2919.198, enjoined in Yost, but injunction dissolved (S.D. Ohio June 24, 2022).

III.       Ohio’s Current Civil Framework Regulating Abortion

Many criminal prohibitions also carry civil liabilities for compensatory damages, exemplary damages, and attorney’s fees. E.g., O.R.C. §§ 2919.201; 2919.10; 2307.54.  Several permit the father to bring a civil action. E.g., O.R.C. § 2307.54 (20-week ban).

Other provider requirements are: (1) physician reporting, O.R.C. §§ 2919.171, 2919.101, 2919.202, 3701.79; (2) mandatory twenty-four-hour waiting period, O.R.C. § 2317.56; (3) counseling, O.R.C. § 2317.56; (4) determine fetal heartbeat. O.R.C. § 2919.191 (eff. 6/24/22).

IV.  Ohio’s Fetal Personhood Laws

“Intentionally aborted fetuses” are not considered “persons.” O.R.C. § 2901.01(B).

Fetal personhood law proposed in the Human Life Protection Act to define “unborn child” from the date of fertilization.  OH HB 598 (proposed Rev. O.R.C. § 2904.02(E)). The Act would also impose a total ban on all surgical and medical abortions, except as necessary to “prevent death” or “a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant individual.” OH SB 123 (introduced 3/2021); OH HB 598 (introduced 3/2022); see generally Ohio Policy Evaluation Network (tracking Ohio abortion laws and legislation).

 

See also Ohio Democratic Lawmakers Propose a Constitutional Amendment to Protect Abortion Rights (Joint Resolution requiring 3/5 vote of legislators to place on ballot for vote) (May 17, 2022)

 

June 28, 2022 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Texas District and County Attorneys' Explanation of Current State Abortion Law After Dobbs

Texas District & County Attorneys Association, Interim Summary: Abortion-Related Crimes After Dobbs

New criminal offense under HB 1280

The gist of new Chapter 170A is §170A.002 (Prohibited Abortion; Exceptions), which prohibits knowingly performing, inducing, or attempting an abortion at any time after fertilization. A violation of that section is a second-degree felony under §170A.004 (Criminal Offense) unless the unborn child dies, in which case it is a first-degree felony.

 

Other things to know about this new crime:

  • “Abortion” includes surgical and non-surgical means, such as drugs/medicine (which now account for more than half of all elective abortions). The term would appear to include “selective reductions” performed as a part of some IVF treatments, but it does not include contraception, ectopic pregnancy removals, and other surgical acts listed in the definition of that term (§170A.001(1)).
  • Nothing in Chapter 170A can be used to impose criminal, civil, or administrative liability upon a pregnant woman upon whom an abortion is performed (§170A.003).
  • Doctors have defenses for performing an abortion to save the expectant mother from death or severe injury and for any medical treatment that results in an accidental fetal death (§170A.002).

 

This new criminal offense will apply to conduct occurring on or after the 30th day after Dobbs finally overrules Roe. Note that this is *not* 30 days from today; the Court’s opinion was released today, but not it’s final judgment or mandate. The Attorney General’s Office issued a legal advisory today noting this remaining contingency, along with a (speculative) comment that some abortion-related crimes may be prosecutable immediately. (More on that below.) Regardless of an such opinion, though, any criminal, civil, or administrative action brought under the new law is likely to involve litigation over the effective date of §170A.002 due to its unusual (unprecedented?) trigger mechanism.

 

New civil fines (and complications)

Chapter 170A also includes new §170A.005 (Civil Penalty) creating a civil penalty of not less than $100,000 for each violation of §170A.002. If this sends up a double jeopardy red flag for you, congratulations—you are probably recalling the admonition from Dep’t of Revenue of Montana v. Ranch, 511 U.S. 767 (1994), in which SCOTUS held that a defendant already convicted and punished for a criminal offense cannot have a non-remedial civil penalty imposed against him for the same offense in a separate proceeding due to the Fifth Amendment’s Double Jeopardy Clause. And the reverse is also true: If a defendant fully pays a civil fine, then any subsequent criminal prosecution is barred by double jeopardy. See, Ex parte Ward, 964 S.W.2d 617, 627 (Tex. Crim. App. 1998).

 

While the Double Jeopardy Clause does not prohibit the initial filing of concurrent criminal and civil actions, a conviction in the former or a full payment in the latter will foreclose the other option. Interestingly, the civil enforcement provision of §170A.005 requires the attorney general (OAG) to file a civil action to recover this civil fine. By requiring OAG to pursue a minimum six-figure civil penalty for the same conduct that potentially incurs a felony sentence of imprisonment and a criminal fine, the legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion “trigger law” crime if any of those civil fines are collected by OAG.

June 28, 2022 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Friday, June 24, 2022

The SCOTUS Joint Dissent in Abortion Case Calls Out Women's Loss of Citizenship

A joint dissent by Justices Breyer, Sotomayor and Kagan in Dobbs v. Jackson Women's Health Organization is expressive in its attack on the philosophical and physical harms to women from the Court's reversal of the fifty-year right of women to choose whether or not to bear a child in choosing an abortion. 

For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.***

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reason able limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.***

We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.

***

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

The dissent finds it clear that other constitutional rights of liberty interests are now threatened:

And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. ***

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” position, as JUSTICE KAVANAUGH tries to argue.

June 24, 2022 in Abortion, Constitutional, Judges, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

US Supreme Court Overrules Constitutional Right to Choose an Abortion

The US Supreme Court expressly overruled the 50-year old constitutional right for women to choose an abortion. Dobbs v. Jackson Women's Health Organization.

The vote is 5-4 to overturn Roe/Casey, with the majority opinion by J. Alito, joined by Thomas, Gorsuch, Kavanaugh and Barrett.  Roberts concurs only in the judgment of upholding the 15-week ban, but not in overruling Roe.  The dissent is Breyer, Sotomayer, and Kagan.

In my first quick look, the majority opinion is not much different from the leaked draft opinion.

Thomas in his concurrence of one calls for revisiting Griswold, Lawrence, and Obergefell, meaning to challenge the constitutional rights to marital privacy, contraception, sexual intimacy and conduct, and same-sex marriage.

Kavanaugh in concurrence says the Constitution calls for neutrality, and not taking sides between the pregnant woman's interest and the fetal life, which he says Roe did.  He footnotes a Rehnquist dissent that says exceptions to protect the life of the woman are constitutionally required.  He emphasizes that the decision doesn't prohibit abortion, but allows for legislative action.  He responds to Thomas and says nothing in the opinion calls into question the constitutional rights to contraception or LGBTQ rights because abortion is different.  And, in veiled reference to harmonize the Court's recent decision in Bruen on the Second Amendment, he says in a footnote that the relevant historical evidence for the abortion decision is at the time the 14th Amendment was enacted in 1868 when two-thirds of the states criminalized abortion.

Roberts concurs only to uphold the judgment.  He overturns the viability standard from Roe, but does not overrule the right to abortion completely.

A joint dissent by Justices Breyer, Sotomayor, and Kagan is explicit in noting the philosophical and physical harms to women from the decision:

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. 

See Gender & the Law Prof Blog, The Joint Dissent in SCOTUS Abortion Case Calls Out Women's Loss of Citizenship

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

President Biden's Proposes New Administrative Rules on Title IX for Campus Sexual Assault and LGBTQ Protections

Chronicle, Here's How Title IX Could Change Under Biden's Proposed Rule

The U.S. Education Department on Thursday released its proposed Title IX regulations, which would reverse many Trump-era policies and restore the pro-victim approach championed by the Obama administration.

 

Specifically, the rule would:

  • Enshrine protections for sexual orientation and gender identity, as well as “sex stereotypes, sex characteristics, [and] pregnancy or related conditions.”
  • Permit, but no longer require, live hearings and cross examination in Title IX investigations.
  • Expand the definition of sexual harassment.
  • Clarify the protections students, faculty, and staff have from retaliation by their institution.
  • Require colleges to confront off-campus conduct that “creates or contributes to a hostile environment.”
  • Require certain campus employees to notify the Title IX office of possible sex discrimination, a return to broader mandatory-reporting requirements. If an incident involves students, anyone with “teaching” or “advising” responsibilities — in other words, most faculty members — must report it. Some professors have criticized mandatory reporting, saying it harms the trust they’ve built with their students.
  • Require all other faculty and staff members to provide students with the contact information of the campus Title IX coordinator, unless they’re designated as confidential resources.

 

The changes would once again upend how colleges handle sexual-misconduct complaints. Experts who work with colleges say campus officials are exhausted by more than a decade of political Ping-Pong over Title IX, as the three most-recent presidential administrations have switched up rules and guidance, and colleges have rushed to comply.

Sweeping Title IX Would Shield Trans Students, Assault Survivors

On the 50th anniversary of Title IX, the Biden administration proposed sweeping changes to the landmark law that would bar schools, colleges and universities from discriminating against transgender students, as the battle over transgender rights moves to the front lines of the culture war.

 

The proposal would also amend the rules that govern how educational institutions investigate and resolve claims of sexual assault and sexual harassment. Over concerns that people were being wrongfully punished, President Donald Trump’s education secretary, Betsy DeVos, revised the rules to make them more accommodating to the accused. Critics assailed the changes, saying they would discourage sexual assault survivors from coming forward to report assaults or harassment.

 

Our goal is to give full effect to the law’s reach and to deliver on its promise to protect all students from sex-based harassment and discrimination,” Education Secretary Miguel Cardona said. “Every student deserves to learn free from discrimination and harassment, regardless of their sex, sexual orientation or gender identity.”

June 24, 2022 in Education, Legal History, LGBT | Permalink | Comments (0)

Scottish Bill Would Pardon Thousands of Women Convicted and Executed as Witches

Thousands of Witches Could be Posthumously Pardoned in Scotland

Thousands of people were convicted of practicing witchcraft in Scotland in a hunt that spanned nearly two centuries — and the majority of those sentenced to death and executed were women. Many were also tortured.

 

Now, a bill proposed in the Scottish Parliament is trying to set the record straight, said Natalie Don, a Scottish lawmaker who introduced the proposal. It could allow for posthumous pardons to thousands of women who faced convictions hundreds of years ago.

 

The pardons would ensure they are “recognized as victims of a miscarriage of justice and are no longer recorded in history as criminals,” Don said Thursday in a video.

 

Calls for legal pardons for “witches” or “necromancers” have gathered pace in Scotland, where the country’s most senior politician, First Minister Nicola Sturgeon, issued a formal apology in March to those vilified under the Witchcraft Act. The act, which was in effect from 1563 to 1736, made practicing witchcraft punishable by death.

 
“It was injustice on a colossal scale, driven at least in part by misogyny,” Sturgeon said on International Women’s Day. “They were accused and killed because they were poor, different, vulnerable or in many cases just because they were women.”

June 24, 2022 in International, Legal History, Legislation | Permalink | Comments (0)

Developing a Theory of Institutional Betrayals as Actionable Sex Discrimination under Title IX

Emily Suski, Institutional Betrayals As Sex Discrimination, 107 Iowa L. Rev. (2022)  

Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe than those resulting from the original sexual harassment. Further, schools do not passively cause institutional betrayals; they impose them in three affirmative ways: Schools punish students for their sexual harassment, blame them for it, and communicate an automatic, default disbelief of students’ harassment.

Because Title IX’s statutory mandate is broad—it prohibits sex discrimination without limitation—courts could recognize as sex discrimination the institutional betrayals that schools impose on students because of their status as survivors of sexual harassment. None of the three extant judicially created forms of sex discrimination under Title IX, however, has the capacity to meaningfully do so. When schools impose institutional betrayals, therefore, courts find that they do not violate Title IX.

To remedy this jurisprudential failing, this Article develops a theory of institutional betrayals as a new form of sex discrimination under Title IX. Drawing on empirical research on institutional betrayals, this theory contends that when schools impose institutional betrayals, they knowingly injure students because they have suffered gender-based harm. This Article also offers a framework for evaluating this new type of sex discrimination that would compel courts to assess institutional betrayals as sex discrimination. With such changes, Title IX jurisprudence would not only effectively recognize institutional betrayals as sex discrimination but also remedy their harms and better fulfill Title IX’s protective purpose.

June 24, 2022 in Education, Theory | Permalink | Comments (0)

Thursday, June 23, 2022

Unequal Representation of Women in Clinical Research

Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021

Abstract:

This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.

Introduction:

The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.

On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.


However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.

These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials. 

June 23, 2022 in Healthcare, Legal History, Pregnancy, Race, Science | Permalink | Comments (0)

Study Shows Female Scientists Don't Get the Authorship Credit They Deserve

Female Scientists Don't Get the Credit They Deserve. A Study Proves It

Female scientists are “significantly less likely” than men to be credited as authors on scholarly articles or named on patents to which they contribute — a systemic exclusion that probably has negative impacts on female scientists’ careers, according to a new study published in the journal Nature.

 

The study, published Wednesday, found that female scientists are 13 percent less likely than men to be named as authors on articles and 58 percent less likely than men to be named on patents, even while controlling for factors including job title, field, team and days worked. As the study’s authors write, the findings suggest that women’s contributions to science continue to be underestimated, 70 years after the British chemist Rosalind Franklin was denied credit for her role in the discovery of the structure of DNA.

 

“These are pretty big gaps, and they’re incredibly persistent,” said co-author Britta Glennon, assistant professor of management at the University of Pennsylvania’s Wharton School of Business.***

 

The findings — which come from an extensive data set and were confirmed by a survey and follow-up interviews — both partially explain and probably contribute to the underrepresentation of women in science, Glennon said: “If you’re seeing that you’re not getting credit for the work that you do, or even that your senior female colleagues aren’t getting credit for the work that they do, that’s pretty discouraging — so I think we would all be very surprised if there weren’t a significant impact on careers.”

June 23, 2022 in Scholarship, Science | Permalink | Comments (0)

The Legal History and Original Drafter and Advocate of Title IX, Edith Green

Wash Post, The True Mother of Title IX. And Why it Matters Now More than Ever

June 23 marks 50 years since Title IX, which prohibits sex discrimination in education, was signed into law. The anniversary has sparked discussion of Rep. Patsy Takemoto Mink (D-Hawaii) — the first woman of color elected to Congress in 1964, for whom Title IX was renamed in 2002. In fact, the media often refers to Mink as the "mother” of Title IX.

 

But while Mink strongly defended Title IX and focused on bringing about equality under the law in her 24 years in the House, she did not actually write the bill or introduce it into Congress. Rep. Edith Green (D-Ore.) wrote Title IX and worked tirelessly on Capitol Hill to pass this landmark legislation that has improved the lives of millions of women and girls over the past half-century.

 

Today, as conservative activists and politicians work to ban the teaching of certain concepts and history related to sex and race, it is important to insist on historical accuracy in our political discussions and remembrances. Mink more fully embraced the feminist and political ideals embedded in Title IX than did Green. But the true story of Green’s involvement reminds us that progress doesn’t only come from the political leaders you’d expect.

 

Green was well-poised to take on legislation like Title IX by the early 1970s. Before tackling sex discrimination in education, she led an eight-year battle to pass the Equal Pay Act of 1963 — the first legislation of its kind, even if limited in scope by today’s standards. After 15 years in the House, Green became chair of the subcommittee on higher education. She authored or influenced nearly every education bill during her tenure in the House, earning her the nickname “Mrs. Education.”

 

Green was a champion of sex equality and educational reform, but she seemed to have at least one blind spot on race. By February 1970, when she introduced the first iteration of Title IX, Green was a vocal opponent of court-ordered busing to racially integrate schools. Although Green didn’t see herself as racist, her argument that busing decisions should be left to local control was a favorite of anti-integrationists. Critics alternately referred to her as “the liberal racist,” “the sweetheart of the Southerners” and “the Nixon Democrat.”

June 23, 2022 in Education, Legal History, Legislation, Sports | Permalink | Comments (0)