Friday, June 21, 2024

SCOTUS Upholds Gun Ban for Domestic Violence Restraining Orders

Supreme Court Upholds Gun Ban for Domestic Violence Restraining Orders

The Supreme Court on Friday upheld a federal law that prevents people who are subject to domestic-violence restraining orders from having firearms in its first major Second Amendment decision since a 2022 ruling that expanded gun rights.

The court said the Constitution permits laws that strip guns from those deemed dangerous, one of a number of firearms restrictions that have been imperiled since the conservative majority bolstered gun rights in its decision two years ago known as New York State Rifle & Pistol Association v. Bruen.

In an 8-1 decision, Chief Justice John G. Roberts wrote that “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

Bruen required the government to point to historic analogues when defending laws that place limits on firearms, leading to a spate of court challenges against limits on possessing firearms — including the one in this case, United States v. Rahimi.

The opinion is here: US v. Rahimi.

Justice Thomas was the lone dissent. He dissented on the grounds of history and tradition:

After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a
single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent

June 21, 2024 in Constitutional, SCOTUS, Violence Against Women | Permalink | Comments (0)

New Sojourner Truth Plaza Honors Abolition and Suffrage Leader in Akron, Ohio

Right here in my hometown, the tribute to Sojourner Truth who famously gave her "Ain't I a Woman" speech here at the Akron Suffrage Meeting. 

Or did she?.... For the full story, see Nell Painter, Sojourner Truth: A Life, A Symbol and Lolita Buckner Inniss, "While the Water is Stirring": Sojourner Truth Proto-agonist in the Fight for Black Women's Rights, 100 B. U. L. Rev. 1637 (2020).

Sojourner Truth Legacy Plaza to Open in Akron

***Truth, a former slave, traveled the country advocating for an end to slavery and the betterment of women’s rights. On May 29, 1851, Truth delivered her “Ain’t I a Woman?” speech at the Old Stone Church that was once on High Street at the Ohio Women’s Convention.

The 10,000-square-foot plaza is the “first historic site in Akron that directly reflects and honors the Black woman’s experience,” according to a release from United Way of Summit & Medina. ***

A life-size statue of Truth, created by Akron artist Woodrow Nash, sits in the center of a large impala lily, the national flower of Ghana. Truth has ancestors from Ghana, Harris said, and the flower’s strong structure speaks to her character. 

“I wanted to make every aspect mean something,” Harris said. “I wanted to mix human elements and some of the natural elements with historical elements and try to tie everything together.”

June 21, 2024 in Legal History, Pop Culture, Race | Permalink | Comments (0)

New Book, Undue Burden: Life and Death Decisions in Post-Roe America

Wash Post, Book Review, Understanding the Real Impact of Abortion Bans, One Woman at a Time, reviewing Shefali Luthra, Undue Burden: Life and Death Decisions in Post-Roe America

For those brave enough to delve into this maelstrom, first-time author and veteran journalist Shefali Luthra’s “Undue Burden: Life and Death Decisions in Post-Roe America” provides a superbly reported account of the past two years. Grounded in conversations with a diverse range of people across the United States, “Undue Burden” showcases Luthra’s expertise in covering health-care policy and abortion rights. But the politics and policies that have created what she calls a “public health crisis” are not her primary topic. “Undue Burden” focuses on the stories of those who are attempting to navigate an unraveling health-care system while pregnant. Luthra brings their voices to life, and she locates her subjects in their larger contexts — socioeconomic, political, religious, historical — thereby exposing how abortion bans disproportionately harm the most vulnerable, including women of color and undocumented women and girls.

 

June 21, 2024 in Abortion, Books, Reproductive Rights | Permalink | Comments (0)

Wednesday, June 19, 2024

Black Women Reporters Sue Chicago Tribune for Pay Discrimination

Wash Post, Journalists Sue Chicago Tribune Owner Alleging Pay Discrimination

Chicago Tribune journalists filed suit Thursday against the newspaper’s owner, claiming it has knowingly paid them less than their White or male counterparts.

The federal lawsuit, filed as a class-action claim, seeks back pay for most Black and female reporters at the newspaper over the past five years, and to remedy salary discrepancies for those currently working at the paper.

“My beat has been about Black and Brown communities and inequities — the disparities, the wealth gap, homeownership, all of that,” said reporter Darcel Rockett, one of the seven named plaintiffs. “And to report on this routinely and then, in your own house, for it to fall on deaf ears … it’s debilitating.”

In 13 years, she told The Post, she has received one raise.

The suit is the latest escalation in the tensions between Alden Global Capital — which purchased the Tribune in 2021 on its rapid path to becoming one of the largest newspaper owners in the country — and the journalists who work for it. But it also represents years of frustration with past corporate owners.

June 19, 2024 in Business, Equal Employment, Race, Workplace | Permalink | Comments (0)

Using the Language of Law and Gender in Speech Theory to Understand the Gender Identify Backlash

Susan Etta Keller, Doing Things With The Language of Law and Gender: Using Speech Theory to Understand the Meaning and Effect of the Gender Identity Backlash, 24 Nevada L. Rev. 413 (2024).

A significant legal backlash against transgender individuals is currently under way. This movement--which includes state legislation, state executive action, and federal cases--seeks to limit access and participation by transgender individuals in school sports, use of bathrooms, access to appropriate care, and even the right to be addressed appropriately in the classroom. Properly understood as a political backlash in response to previous political gains by transgender individuals, this movement is composed of a series of speech acts: language that makes change in the world and alters human relations.

This article identifies the features of the backlash and the power dynamics that fuel it. Applying Speech Act Theory, the article undertakes a close examination of the language of the legislation and cases to reveal the many cloaked performative speech acts that animate the backlash. Understanding the way that the language of law and the language of gender operate to promote and normalize this backlash is a key first step to undermining the deleterious effects of these speech acts.

 

June 19, 2024 in Gender, LGBT, Theory | Permalink | Comments (0)

Federal Court Enjoins Part of the EEOC Regulations on Pregnancy Workers Fairness Act Regarding Abortion

The cases are State of Louisiana v. EEOC, et al., No 2:24-cv-00629 (W.D. La. June 17, 2024), and U.S. Conference of Catholic Bishops v. EEOC, et al., No. 2:24-cv-00691 (W.D. La. June 17, 2024).

Alexandra Olson & Claire Savage, Judge Rules that Federal Agency Can't Enforce Abortion Rule in LA and MS

A federal judge on Monday granted the U.S. Conference of Catholic Bishops, as well as employers in two Southern states, temporary relief from complying with a federal rule that would have required them to provide workers with time off and other workplace accommodations for abortions.

Judge David Joseph granted the preliminary injunction in two consolidated lawsuits, one brought by the attorneys general of Louisiana and Mississippi, and the other brought by the U.S. Conference of Catholic Bishops, Catholic University and two Catholic dioceses.

The lawsuits challenge rules issued in April by the Equal Employment Opportunity Commission, which stated that abortions are among pregnancy-related conditions covered by the Pregnant Workers Fairness Act, which passed in December 2022 and took effect last year.***

His ruling came just days a federal judge in Arkansas dismissed a similar lawsuit filed by 17 states led by Arkansas and Tennessee. Eastern District of Arkansas U.S. District Judge D.P. Marshall, Jr., who was appointed to the bench by former President Barack Obama, ruled that the states lacked standing to bring the lawsuit.

“The District Court applied a common sense interpretation of the plain words of the Pregnant Workers Fairness Act,” said Louisiana Attorney General Liz Murrill said in an emailed statement

The Louisiana ruling was a partial victory for the attorneys general of Louisiana and Mississippi, who had asked for a much broader emergency injunction that would have stopped the entirety of the EEOC rules from taking effect nationwide. That request had alarmed some civil rights and women’s advocacy groups, who warned that the EEOC rules are critical to the successful implementation of the law.

EEOC Regulations on Pregnancy Workers Fairness Act Partially Enjoined Before Implementation

Earlier this spring, we published an article detailing the highlights of the United States Equal Employment Opportunity Commission’s (“EEOC”) new 408-page regulations on the Pregnancy Workers Fairness Act (“PWFA”).

The regulations include a provision that requires employers to consider a reasonable accommodation of an employee who chooses to have or has had an abortion. The regulations go into effect today, June 18, 2024.

However, yesterday afternoon, the United States District Court for the Western District of Louisiana issued a preliminary injunction that partially blocks the EEOC’s PWFA regulations from taking effect in certain states. The United States Conference for Catholic Bishops, other various Catholic-affiliated organizations, and the states of Louisiana and Mississippi filed a lawsuit seeking to prohibit the enforcement of the provisions of the EEOC’s PWFA regulations that require employers to consider reasonable accommodations for an employee who has an abortion.  

Yesterday, in ruling on the preliminary injunction, Judge David Joseph held that the regulations are unconstitutional because they usurp the role of Congress and improperly interfere with states’ rights to regulate abortion. The plaintiffs had argued that the regulations run counter to the SCOTUS decision in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade.

The injunction expressly states that it only covers the states of Louisiana and Mississippi. Therefore, the EEOC’s PWFA regulations are not currently enjoined in California and effective today, California employers must comply with all aspects of the regulations, including considering reasonable accommodations for employees who have or choose to have an abortion, unless the accommodation would cause an undue hardship. 

June 19, 2024 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Final Regulations under Pregnant Workers Fairness Act are Released

Gillian Thomas, Final "Pregnant Workers Fairness Act" Regulations Were Released -- and its Great News for Women, Ms.

On Monday, the U.S. Equal Employment Opportunity Commission (EEOC) released its final regulations implementing the Pregnant Workers Fairness Act (PWFA). The landmark statute mandating “reasonable accommodation” of workers’ pregnancy-related needs went into effect last summer, but the regulations explain the PWFA’s protections in more detail, providing additional guidance to workers, employers and the courts, so that the full force of the law is given effect. ***

So what did Congress intend the PWFA to accomplish?

As the first federal statute enacted in 45 years to protect on-the-job rights of pregnant workers, Congress passed the PWFA to fill a significant gap in existing law when it comes to accommodations—those temporary on-the-job modifications that a person may need to maintain their health or the health of their pregnancy. These changes can be minor—such as a slightly later start time to account for “morning sickness” or more frequent breaks for workers who spend long shifts on their feet—or more significant, such as suspension of risky duties, like repeated heavy lifting or exposure to toxins.***

Given the statute’s obvious benefits to workers and their families alike, it’s no wonder that the PWFA was enacted with exceptionally broad bipartisan cooperation that is virtually unheard of in today’s Congress, and with supporters as diverse as the U.S. Chamber of Commerce, U.S. Conference of Catholic Bishops, and the American Civil Liberties Union, my employer. 

When the EEOC issued a draft version of its PWFA regulations last August, a small but noisy group raised the alarm that the agency had gone rogue. Why? The EEOC specifically stated that “pregnancy, childbirth, or related medical conditions” includes abortion, so that time off for abortion care—like time off for other doctor’s visits and medical procedures—is a “reasonable accommodation” required by the new statute. Critics contended that such a requirement improperly forces employers to somehow participate in their employees’ abortion decisions, which they claimed is unfair to employers that object to abortion on religious grounds.

June 19, 2024 | Permalink | Comments (0)

Tuesday, June 18, 2024

Eleventh Circuit Holds that Grant Program for Black Women Business Owners is Discriminatory

The case is American Alliance for Equal Rights v. Fearless Fund Management (11th Cir. June 3, 2024)

NPR, Grant Program for Black Women Business Owners is Discriminatory, Appeals Court Rules

A U.S. federal court of appeals panel suspended a venture capital firm's grant program for Black women business owners, ruling that a conservative group is likely to prevail in its lawsuit claiming that the program is discriminatory.

The ruling against the Atlanta-based Fearless Fund is another victory for conservative groups waging a sprawling legal battle against corporate diversity programs that have targeted dozens of companies and government institutions.

The case against the Fearless Fund was brought last year by the American American Alliance for Equal Rights, a group led by Edward Blum, the conservative activist behind the Supreme Court case that ended affirmative action in college admissions.

Blum applauded the ruling, saying "programs that exclude certain individuals because of their race such as the ones the Fearless Fund has designed and implemented are unjust and polarizing."

Fearless Fund CEO and Founder Arian Simone said the ruling was "devastating" for the organizations and the women it has invested in.

"The message these judges sent today is that diversity in Corporate America, education, or anywhere else should not exist," she said in statement. "These judges bought what a small group of white men were selling."

Alphonso David, Fearless Fund's legal counsel who serves as president and CEO of The Global Black Economic Forum, said all options were being evaluated to continue fighting the lawsuit.

The legal effort to dismantle workplace diversity programs has suffered its share of setbacks as well, reflecting polarized opinions among liberal and conservative judges on the issue. Last week, for example, a federal district judge in Ohio dismissed a lawsuit against the insurance company Progressive and fintech platform Hello Alice challenging a program that offers grants to help Black-owned small businesses purchase commercial vehicles. Similar lawsuits have been dismissed against Amazon, Pfizer and Starbucks.

The case against the Fearless Fund has been closely watched by civil rights groups, philanthropic organizations, employment lawyers and the venture capital industry as a bellwether for how the courts are viewing programs intended to level the playing field for racial minorities and other groups that have historically faced discrimination in businesses and workplaces.

June 18, 2024 | Permalink | Comments (0)

Unintended Consequences of Fetal Personhood Statutes in Tax, Trusts, and Estates

Bridget J. Crawford, Alexis Borders & Katherine Keating, Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates, Georgetown J. Gender & the Law (forthcoming)  

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the most salient ways fetal personhood laws could upend longstanding rules concerning property ownership and taxpayers’ determination of their fiscal obligations to the government. Unless carefully circumscribed, fetal personhood laws will disrupt the orderly transmission of property at death, the ability to administer a trust, and any durational limits on trusts. Third, the Article argues, state lawmakers should explicitly limit the scope of fetal personhood laws. Somewhat counterintuitively, both those with anti-abortion views and those who wish to secure access to the procedure share an interest in doing so.


For symbolic-political reasons, however, it is unlikely that lawmakers in anti-abortion states will place voluntary boundaries on the applicability of fetal personhood statutes. Therefore, the Article proposes rules of construction that judges should adopt in jurisdictions that have adopted fetal personhood laws. These include presumptions that a zygote-embryo-fetus is not the beneficiary of an estate or trust, disregarding in vitro embryos for purposes of the rule against perpetuities, and fixing the generational assignment of a zygote-embryo-fetus for generation-skipping transfer tax purposes at one generation below that of the intended parents. The Supreme Court is not likely to reverse the Dobbs decision for many decades, if at all. Therefore, making fetal personhood statutes inapplicable to matters of taxation (other than the state income tax deduction for dependents or child tax credit), trusts, and estates represents a pragmatic approach that simultaneously permits states to signal their anti-abortion commitments while limiting disruptions to the legal system and the spread of encroachments on the bodily autonomy of those with the capacity to become pregnant.

June 18, 2024 in Abortion, Constitutional, Family, Reproductive Rights | Permalink | Comments (0)

Gender Sidelining in Schools and the Scourge of Single Sex School Leadership

Jessica Fink & Dr. Kelley King, Gender Sidelining in Schools and the Scourge of Single Sex Leadership 

Concerns about unequal gender representation have plagued virtually every workplace in recent decades. In countless professions, even those in which women comprise a majority of the workforce, leadership positions are dominated by men. Often, the inability of women to rise within the professional hierarchy stems not only from overt acts of sex discrimination, but also from more subtle and nuanced bias in the workplace-bias referred to in other research as "gender sidelining." This sidelining seems particularly paradoxical when it arises in professions in which women already have been funneled due to their gender-including the education sphere. In this way, the K-12 education world represents a microcosm of the bias that female workers encounter more generally-workplaces rife not only with intentional bias, but also with more nuanced barriers, which culminate to create a work environment where women face dead ends, diversions and delays in ways not reached by traditional antidiscrimination laws. This article examines some of the barriers that have prevented women in the K-12 education world from achieving leadership roles, focusing, in particular, on obstacles that largely sit outside of the law-incidents of gender sidelining that would not on their own form the basis of a viable sex discrimination claim. Drawing on both legal principles and social science research, this article not only identifies the extent to which the careers of many women in education have been derailed by various forms of gender sidelining, but also provides suggestions for how to ameliorate these destructive impacts.

June 18, 2024 in Education, Gender | Permalink | Comments (0)

Monday, June 17, 2024

Robin R. Runge on "Safe Leave from Work Post-Dobbs"

Robin R. Runge published Safe Leave from Work Post-Dobbs in Volume 28 of the Employee Rights and Employment Policy Journal.  The abstract is excerpted here: 

Given the increasing restrictions on how and where a person who becomes pregnant may seek abortion care, and the large number of workers who experience reproductive coercion including birth control interference, and/or pregnancy related abuse, who may need to seek abortion related services, it is important to examine their rights as workers to take leave from work to seek these services without fear of job loss.

 

Domestic violence impacts a high percentage of working women and people who become pregnant every year. Pregnancy-related abuse, reproductive coercion, birth control sabotage, and interference with abortion-related decisionmaking are common forms of gender-based violence and harassment that may lead a survivor to seek abortion-related medical care. Without access to leave from work for this purpose, many victims of domestic and sexual violence may not seek the services necessary to ensure their health and their safety. Survivors should be able to take job guaranteed time off from work, ideally paid, to seek medical care for a dangerous pregnancy and/or seek other pregnancy related health care including abortion care, which may require travel to another state if their state prohibits abortions, without fear of job loss.

 

This essay examines how state laws providing leave from work to victims of gender-based violence and harassment may be utilized to obtain necessary medical services, including abortion care, to address pregnancy-related abuse and reproductive coercion, birth control sabotage, and interference with abortion-related decision-making that is increasingly necessary post-Dobbs.

June 17, 2024 in Abortion, Equal Employment, Family, Violence Against Women, Workplace | Permalink | Comments (0)

Robyn Powell et. al. on "Experiences with and perceptions of the child welfare system during the perinatal period of mothers with intellectual and developmental disabilities"

Melissa M. Ptacek, Lauren D. Smith, Robyn M. Powell, and Monika Mitra have published "Experiences with and perceptions of the child welfare system during the perinatal period of mothers with intellectual and developmental disabilities" in Volume 18 of the Journal of Public Child Welfare. The abstract states: 

This qualitative study explored the perceptions and experiences of 16 mothers with intellectual and developmental disabilities (IDD) regarding their interactions with the child welfare system during the perinatal period. Adverse themes included fear of child removal, wariness of the healthcare system, insufficient assistance, and trauma and stress. Positive themes included support from others and believing in one’s self. Findings underscore the need for disability cultural competence, non-discrimination, family preservation, enhanced support, self-advocacy, and family-centered care across perinatal and child welfare systems to improve equity for mothers with IDD and their children. Further research is warranted.

The article concludes: 

Urgent reforms are critically needed to prevent unnecessary child welfare involvement and enhance experiences for parents with IDD, especially mothers in the perinatal period. This study evidences how discriminatory treatment by child welfare and healthcare professionals, rooted in ableist bias rather than substantiated concerns, contributes to overrepresentation and unwarranted family disruption. Comprehensive disability-competence training, developed collaboratively with the disability community, is crucial across both systems to combat prejudice, enhance understanding of disabled parents’ needs, and prioritize family-preserving supports over punitive surveillance and separation. Healthcare providers must adopt nondiscriminatory practices as mandated reporters whose biased perspectives significantly impact families. Ultimately, equitable policies and practices guided by disabled parents themselves are imperative to strengthen rather than undermine these families.

June 17, 2024 in Abortion, Healthcare | Permalink | Comments (0)

Jamie R. Abrams Publishes Book on "Inclusive Socratic Teaching" with UC Press

I am excited to share with blog readers that I have published a new book on Inclusive Socratic Teaching: Why Law Schools Need it and How to Achieve It with the University of California Press. The book's synopsis is pasted below. Of particular note to readers is the way in which the book draws upon the sustained and impactful contributions of Feminist Legal Theorists naming and documenting critiques of problematic Socratic performances for over a half of a century. It then maps a set of implementable techniques to adapt and modernize the Socratic method to be more inclusive, effective, and equitable.   

For more than fifty years, scholars have documented and critiqued the marginalizing effects of the Socratic teaching techniques that dominate law school classrooms. In spite of this, law school budgets, staffing models, and course requirements still center Socratic classrooms as the curricular core of legal education. In this clear-eyed book, law professor Jamie R. Abrams catalogs both the harms of the Socratic method and the deteriorating well-being of modern law students and lawyers, concluding that there is nothing to lose and so much to gain by reimagining Socratic teaching. Recognizing that these traditional classrooms are still necessary sites to fortify and catalyze other innovations and values in legal education, Inclusive Socratic Teaching provides concrete tips and strategies to dismantle the autocratic power and inequality that so often characterize these classrooms. A galvanizing call to action, this hands-on guide equips educators and administrators with an inclusive teaching model that reframes the Socratic classroom around teaching techniques that are student centered, skills centered, client centered, and community centered.

June 17, 2024 in Books, Education, Law schools | Permalink | Comments (0)

Thursday, June 13, 2024

SCOTUS Unanimously Upholds FDA Rule on Abortion Pill on Grounds of Standing

In an unanimous opinion by Justice Kavanaugh, the U.S. Supreme Court overruled the lower court's invalidation of the FDA's current rules on the permissibility of the abortion pill, mifepristone.  The opinion is based solely on standing, finding that the pro-life physicians did not have standing to seek an opinion on the pill because they did not use, prescribe, or manufacture the pill. Instead, they sought to address others' personal use -- a fatal flaw for standing.

A concurrence by Justice Thomas goes deeper into associational third-party standing. There is a brief paragraph of particular interest to Remedies scholars, where Thomas discusses redressability and cites, Grupo Mexicano, Uzuegbunam, and universal injunctions.

The case is: FDA v. Alliance for Hippocratic Oath, 602 U.S. ___ (June 13, 2024).

One favorite line:  "An Article III Court is not a legislative assembly, a town square, or a faculty lounge."

 

June 13, 2024 in Abortion, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, June 10, 2024

Elizabeth Tobin-Tyler on "Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families"

Elizabeth Tobin-Tyler published Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families in Volume 51 of the Journal of Law, Medicine & Ethics. The conclusion is excerpted below: 

 

The Dobbs decision has profound implications for women, children, families and communities in states that have banned or severely restricted access. In states with large Black populations that have banned abortion and a long legacy of racial injustice and parsimonious safety nets for low-income families, the consequences will be most dire. With abortion outlawed, state lawmakers and child welfare system agency administrators have to decide if they will act to support family health and well-being or continue punitive policies that tear families apart based on poverty and deprivation. So far, state policymakers seem to be either ignoring the post-Dobbs consequences for families altogether or proposing policy solutions that will only exacerbate existing injustices — such as expanding the foster care system as proposed by the Mississippi House Speaker. With the Supreme Court and federal and state policymakers undermining reproductive and racial justice, advocates will be more vital than ever in helping to mitigate the harms, particularly to Black families, that are coming.

 

 

June 10, 2024 in Abortion, Family, Race | Permalink | Comments (0)

Abrams & Potts on "The Rhetoric of Abortion in Amicus Briefs"

I have published The Rhetoric of Abortion in Amicus Briefs with the University of Missouri Law Review. The work is in Volume 89 at page 399. Here is the abstract: 

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women's Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage with the Court. Using quantitative and qualitative methods, the study reveals how the discursive construction of the pregnant person, fetus, physician, and abortion as a right have evolved over fifty years and shows why these shifts matter. In so doing, this study offers historical perspectives into evolving arguments in abortion litigation, contemporaneous insights into the status of polarized abortion politics, and future implications for amicus activity and abortion advocacy.

June 10, 2024 in Abortion, Constitutional, Courts, Gender, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, June 3, 2024

Elizabeth Haub School of Law Announces Women, Gender & the Law Emerging Scholar Award: Call for Submissions

Elisabeth Haub School of Law's has released a Call for Submission in its annual Women, Gender & the Law Emerging Scholar Award. The announcement is here.  

Women, Gender & the Law Emerging Scholar Award: Call for Submissions

 

The Elisabeth Haub School of Law is pleased to announce the competition for its annual Women, Gender & the Law Emerging Scholar Award.  This paper competition is open to all having with five (5) or fewer years of full-time law teaching experience as of July 1, 2024. The deadline for submissions is July 1, 2024.

 

The purpose of the award is to encourage and recognize excellent legal scholarship related to gender and the law.  The work chosen for the Women, Gender & the Law Emerging Scholar Award should make a substantial contribution to legal literature and reflect original research and/or major developments in previously reported research.

 

Papers will be reviewed on a blind basis by a committee comprised of members of the Haub Law faculty with expertise in this area.  The winner of the competition will be invited to present the paper to selected students and faculty at Haub Law (located in White Plains, NY) during the 2024-2025 academic year, with reasonable travel expenses from within the continental U.S. paid, or via Zoom, as circumstances permit and by mutual agreement.

 

ELIGIBILITY:

 

All persons who have held full-time teaching positions for five (5) or fewer full academic years as of July 1, 2024 are eligible for consideration. One does not have to be on the tenure-track or tenured to be eligible. Time as a VAP or Fellow does not "count against" the five (5) year clock.

 

There is no subject-matter limitation for submissions, as long as the paper relates in some way to gender and the law.

 

Jointly authored papers are accepted as long as each author independently meets the eligibility requirements.

 

PUBLICATION COMMITMENTS/LIMITATIONS:

 

There is no publication commitment associated with the competition. 

 

Papers are eligible regardless of whether they were published prior to submission date, are scheduled to be published after the submission date, or are not yet under submission.

 

Each applicant is limited to one (1) entry.

 

Papers considered in prior years' competitions are eligible for resubmission.

 

There are no page-length or word-count limitations.

 

All publications (including scholarly articles, book chapters, legal briefs and other writings) are eligible for consideration.

 

SUBMISSION:

 

We will accept submissions for the Emerging Scholar Award from June 1, 2024, through July 1, 2024. The winner will be announced by August 30, 2024.

 

To participate, please email your work, redacted as necessary to preserve anonymity (for the blind judging process), as a portable data file (PDF) to Judy Jaeger, Senior Staff Associate, at [email protected] with the subject line "Emerging Scholar Award."

 

Please include in the body of the email your name, institutional affiliation and confirmation that you meet the eligibility requirements.

 

Unredacted or late papers will not be considered.

 

June 3, 2024 in Conferences | Permalink | Comments (0)

Ari Ezra Waldman on "Gender Data in the Automated Administrative State"

Ari Ezra Waldman has published "Gender Data in the Automated Administrative State" in volume 123 of the Columbia Law Review. The abstract is here: 

In myriad areas of public life—from voting to professional licensure—the state collects, shares, and uses sex and gender data in complex algorithmic systems that mete out benefits, verify identity, and secure spaces. But in doing so, the state often erases transgender, nonbinary, and gender-nonconforming individuals, subjecting them to the harms of exclusion. These harms are not simply features of technology design, as others have ably written. This erasure and discrimination are the products of law.

This Article demonstrates how the law, both on the books and on the ground, mandates, incentivizes, and fosters a particular kind of automated administrative state that binarizes gender data and harms gender-nonconforming individuals as a result. It traces the law’s critical role in creating pathways for binary gender data, from legal mandates to official forms, through their sharing via intergovernmental agreements, and finally to their use in automated systems procured by agencies and legitimized by procedural privacy law compliance. At each point, the law mandates and fosters automated governance that prioritizes efficiency rather than inclusivity, thereby erasing gender-diverse populations and causing dignitary, expressive, and practical harms.

In making this argument, the Article challenges the conventional account in the legal literature of automated governance as devoid of discretion, as reliant on technical expertise, and as the result of law stepping out of the way. It concludes with principles for reforming the state’s approach to sex and gender data from the ground up, focusing on privacy law principles of necessity, inclusivity, and antisubordination.

June 3, 2024 in Gender, Technology | Permalink | Comments (0)

Greer Donley and Caroline Kelly on "Abortion Disorientation"

Greer Donley and Caroline Kelly have posted a draft of their work-in-progress, titled Abortion Disorientation, on SSRN. This work-in-progress will be published in Volume 74 of the Duke Law Journal. Here is the draft's abstract: 

The word “abortion” pervades public discourse in the wake of Dobbs v. Jackson Women’s Health Organization. But do we know what it means? Not only do law and medicine define it differently; state legislatures have codified wildly different definitions of abortion across jurisdictions. Our analysis exposes inherent ambiguities at the boundaries of the term, particularly as abortion intersects with other categories that we often think of as distinct: pregnancy loss, ectopic pregnancy, and other forms of medically necessary care. By juxtaposing statutory text next to real people’s experiences of being denied care in states with abortion bans, we reveal how those ambiguities have led to tragic results. Our analysis tracks how legislatures have responded to the tragedies of their own making by changing the definition of abortion to exclude certain types of care. Fifteen abortion-hostile legislatures have changed the definition of abortion since Dobbs, thirteen of which have added at least one definitional exclusion, most commonly for ectopic pregnancy, miscarriage, molar pregnancy, or fertility treatment. States that have expanded abortion rights, on the other hand, have moved in the opposite direction, broadening their abortion definitions as they expand reproductive rights. Our analysis concludes that antiabortion legislatures are running a fool’s errand: that it is impossible to fully distinguish abortion from other types of reproductive healthcare. The lines drawn are inherently vague, incoherent, and impossible to rectify. The Dobbs framework, which moved the complicated experience of pregnancy from the medical to the legal domain, is functionally unworkable, strengthening calls to overturn the decision.

A full version of the draft article is available here

June 3, 2024 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, May 28, 2024

New Women Law Deans

Updated 5-28-24

Once again, Gender & the Law Blog's annual list of New Women Law Deans. We will update as announcements are made.

Women are 15 of 29 (52%) new law deans in 2024. 

Aviva Abramovsky, Idaho (previously Dean, Buffalo)

Marcilynn Burke, Tulane (Dean, Oregon)

Anna Carpenter, Oklahoma (Utah, Prof. & Special Advisor to President)

Brietta Clark, Loyola LA (Interim Dean, Loyola LA)

Camille Davidson, Mitchell Hamline, President & Dean (Dean, Southern Illinois)

Jelani Jefferson Exum, St. John's (Dean, Detroit Mercy)

Twinette Johnson, St. Louis (Dean, District Columbia)

Julia Hill, Wyoming (Vice Dean, Alabama)

Johanna Kalb, U San Francisco (Dean, Idaho)

Leslie Kendrick, Virginia (Prof., Virginia)

Stephanie Lindquist, Washington U, St. Louis (Prof., Arizona State)

Alicia Ouellette, Lewis & Clark (President & Dean, Albany)

LaVonda Reed, Baltimore (Dean, Georgia State).

Jenny Roberts, Hofstra (Prof. & Clinic Director, American)

Franita Tolson, USC (Interim Dean, USC)

 

Marcilynnburke_600   Anna Carpenter    Lavonda.reed_-4117056254-e1711371849757    USC_GSL_Dean_Franita_Tolson_Headshot_20230503_132-350x500-1    Camille M. Davidson    JohannaHill-web    Jelani Jefferson    Stefanie Lindquist    Brietta Clark    Kendrick_leslie    Jenny RobertsDean Twinette Johnson Alicia Ouellette   

May 28, 2024 in Education, Law schools, Women lawyers | Permalink | Comments (0)