Gender and the Law Blog

Pregnant People?

Jessica Clarke, Pregnant People?, 119 Colum. L. Rev. Online (Forthcoming)

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have benefits in terms of equality for expectant LGBT parents. To further this project, this Response asks what unsexing pregnancy might look like for different types of pregnant people: (1) pregnant individuals who do not identify as women, (2) expectant couples in which one partner is pregnant, (3) expectant parents engaging a surrogate or pursuing adoption, and (4) pregnant people who rely on networks of family and friends for support and caregiving. It argues that, in each of these contexts, the extension of pregnancy benefits raises a unique set of questions. But across all of these contexts, it will take more than simply making existing pregnancy rules gender neutral to achieve equality.

Defining Social Justice with Vulnerability Theory

Martha Fineman, Vulnerability and Social Justice, 53 Valparaiso U. L. Rev. (forthcoming 2019)  

This Article briefly considers the origins of the term social justice and its evolution beside our understandings of human rights and liberalism, which are two other significant justice categories. After this reflection on the contemporary meaning of social justice, I suggest that vulnerability theory, which seeks to replace the rational man of liberal legal thought with the vulnerable subject, should be used to define the contours of the term.Recognition of fundamental, universal, and perpetual human vulnerability reveals the fallacies inherent in the ideals of autonomy, independence, and individual responsibility that have supplanted an appreciation of the social.  I suggest that we need to develop a robust language of state or collective responsibility, one that recognizes that social justice is realized through the legal creation and maintenance of just social institutions and relationships.

Nevada Legislature Passes Pro-Choice Abortion Bill

Nevada State Legislature Passes Pro-Choice Abortion Bill

Bucking the antiabortion political trends in several other states, the Nevada state Assembly approved a pro-choice bill on Tuesday to remove criminal penalties for people who terminate a pregnancy without consulting a physician.

 

The Trust Nevada Women Act, which passed on a 27-13 vote, would also decriminalize other abortion-related actions, such as selling miscarriage-inducing medications. It would remove requirements that doctors tell pregnant people about the “emotional implications” of an abortion.***

 

Mississippi, Ohio, Georgia, Kentucky, Arkansas, Utah, Louisiana and Missouri are among the other states that have approved new laws or are considering ones that significantly limit legal abortions. 

 

On the flip side, lawmakers in Illinois and Maine seek to pass legislation that would further protect access to abortion.  

RI House Passes Bill to Guarantee Abortion Rights

RI House Passes Bill to Guarantee Abortion Rights

State lawmakers on Thursday [March 7, 2019] approved legislation to protect the legality of abortion in Rhode Island, no matter what an increasingly conservative U.S. Supreme Court might do to the landmark 1973 Roe v. Wade ruling.

 

In a major victory for abortion-rights activists, the Rhode Island House of Representatives approved the legislation by a 44-to-30 vote, over the strenuous objections of a host of antiabortion lawmakers and the Roman Catholic Church in the most Catholic state in the nation.

 

The legislation now goes to the state Senate, where its fate is uncertain and where a similar measure died in 1993 after clearing the House. That was a very different era, when Bill Clinton was president and there was nowhere near the current level of concern among advocates about the erosion of abortion rights

Video with Soledad O'Brien, The 19th Amendment: Then and Now

Soledad O'Brien, 19th Amendment: Then and Now

The National Archives is launching a new exhibit, “Rightfully Hers,” to spotlight a century of political struggle by suffragists, including Susan B. Anthony and Elizabeth Cady Stanton. The 19th Amendment was ratified in 1920, but what many don’t know is that it didn’t give all women the right to vote. Soledad is joined by three historians – Ann Gordon, Marcia Chatelain, and Maggie Blackhawk – for a discussion about the 19th Amendment. 

Study Examining Whether Women Judges are More Likely than Men Judges to Affirm Reproductive Health Rights

Michele Goodwin & Mariah Lindsay, American Courts and the Sex Blind Spot: Legitimacy and Representation,  87 Fordham L. Rev. (2019)

We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (vis-à-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, but unnecessary, and even harmful and sabotaging, to a participatory democracy.

Building from two years of empirical research and examining each federal appeals court’s record on abortion and each judge’s vote on a particular case, this project studies whether women are more likely than their male counterparts to affirm reproductive health rights. We examined 302 cases across each federal appellate circuit, including the District of Columbia and the Federal Circuit. Our findings have both normative and sociological implications. This project tells an important story about the composition of the federal appellate judiciary and the slow climb for women, including women of color, within the elite branches of the courts. This is a story expressed in numbers and it reflects the historical marginalization of women within the law and the problem of homogeneity in the courts.

Why the Supreme Court Didn't Overturn Roe in 1992, Even Though it Had the Votes

Marcia Coyle, The Justices Had 5 Votes to Overturn Roe in 1992. Why That Didn't Happen, Natl L. J.

In 1992, anti-abortion groups thought they had a winning case in defense of a restrictive Pennsylvania state law. There appeared to be five votes on the U.S. Supreme Court to overrule the landmark decision Roe v. Wade, but that did not happen. As Alabama and Missouri lawmakers adopt strict anti-abortion laws, and predict successful outcomes at the high court, history provides some lessons: Never bet on what occurs behind the high court’s closed conference doors.

 

After oral arguments in Planned Parenthood of S.E. Pennsylvania v. Casey, Justices Harry Blackmun and John Paul Stevens believed the 1973 ruling in Roe was doomed.

 

Stevens, writing in his newly published book, “The Making of a Justice,” said the justices, except for him and Blackmun, agreed the U.S. Court of Appeals for the Third Circuit correctly upheld all of the challenged abortion restrictions—save for one, which required a married woman to certify she had notified her husband of her intent to have an abortion.

 

The Casey case, which affirmed Roe’s central holding, is getting renewed attention today for the standard the decision set for determining whether a state law posed an “undue burden” on a woman’s right to get an abortion. The justices are weighing several abortion-related challenges, and separately, new laws passed by Alabama and other Republican-led states could tee up direct challenges to Roe in the coming months.

 

Several new books, including the one from Stevens, offer a glimpse behind the scenes at how the Pennsylvania case was resolved and why caution is warranted in predicting the outcome in the most contentious cases.

 

“Harry and I both assumed that the result [in Casey] would be explained in an opinion overruling Roe v. Wade,” Stevens wrote in his autobiography, published this week.

 

In fact, at the justices’ private conference, Chief Justice William Rehnquist counted five votes to reverse Roe, and he assigned the court’s opinion to himself, according to journalist Evan Thomas in his new book, “First,” a biography of Sandra Day O’Connor.

Policy Changes as a Result of Women in Positions of Political Power

Valeriya Mechkova & Ruth Carlitz, Gendered Accountability: When and Why Do Women's Policy Priorities Get Implemented?  
V-Dem Working Paper 2019:88

The past two decades have seen dramatic increases in women occupying positions of political power. Such developments have been welcomed as a means of achieving better outcomes for women in their everyday lives. We interrogate this proposition, developing a "gendered accountability" framework to the delineate conditions under which female representation should have its desired effects. Our empirical analysis applies this framework to sub-Saharan Africa, home to the largest increase in women's political representation in recent years. We find that having more women in the legislature is robustly associated with reduced infant and child mortality as well as greater spending on health. The effect on infant mortality is magnified when women are more active in civil society, and constrained to countries that have gender quotas and a proportional electoral system. We do not, however, find consistent evidence that maternal mortality and access to clean water respond to female representation.

States Quickly Passing Restrictive Abortion Bans to Challenge Supreme Court Precedent Recognizing Women's Right of Bodily Autonomy

Alabama Signs Abortion Ban Into Law

Alabama Gov. Kay Ivey signed a controversial bill that bans nearly all abortions into law Wednesday evening.

 

It's considered the most restrictive abortion law in the United States. The law makes it a crime for doctors to perform abortions at any stage of a pregnancy, unless a woman's life is threatened or there is a lethal fetal anomaly.

 

Under the new law, doctors in the state face felony jail time up to 99 years if convicted. But a woman would not be held criminally liable for having an abortion.

 

The law does not take effect for several months.

Alabama, Georgia Pass Abortion Bans Aimed at Roe v. Wade

Late Tuesday night, Alabama legislators passed a bill that would outlaw abortion at any stage in a woman’s pregnancy. They’re in good company: Earlier in May, Georgia Governor Brian Kemp signed a law making abortion illegal after a fetal heartbeat can be detected, or roughly six weeks after conception. Ohio, Mississippi, and Kentucky have all passed similar bills this year.

 

The state legislators who are passing these bills know they will be challenged in court. They also know they will probably lose. But their sights appear to be set higher than their state jurisdictions: With a solidly conservative majority on the Supreme Court, anti-abortion advocates are eager to seed the challenge that could one day take down Roe v. Wade, the 1973 opinion that legalized abortion up to the point of fetal viability. At the very least, they hope the Supreme Court will undercut Roe and subsequent decisions that reaffirmed abortion rights, the idea being that each legal challenge makes it a little harder to obtain an abortion in the United States.

NYT, Abortion Bans: How State Laws Have Limited the Procedure This Year

Georgia, Kentucky, Mississippi and Ohio stopped short of outright bans, instead passing so-called heartbeat bills that effectively prohibit abortions after six weeks of pregnancy, when doctors can usually start detecting a fetal heartbeat. Utah and Arkansas voted to limit the procedure to the middle of the second trimester.

 

Most other states follow the standard set by the Supreme Court’s Roe decision in 1973, which says abortion is legal until the fetus reaches viability, usually at 24 to 28 weeks.

 

The latest bans are not yet in effect (Kentucky’s was blocked by a judge), and all are expected to face lengthy court battles — indeed, their proponents are hoping they will reach the Supreme Court.

 

New State Bans Push Abortion to the Forefront of 2020 Campaign

A new law in Alabama bans abortion from conception, except when necessary to prevent a serious health risk to the mother. and even then, access to the procedure would be hard to come by.

 

The legislation joins a string of measures in pro-life states that are clearly unconstitutional under Roe v. Wade. But the bills' backers are betting the U.S. Supreme Court's new five-justice conservative majority is ready to reverse the 46-year-old precedent.

 

Under Supreme Court precedent, states can't unduly burden—let alone ban—abortion before fetal viability (generally at 23 or 24 weeks of pregnancy.)

 

In Ohio, the ACLU and Planned Parenthood have filed suit to block that state's six-week abortion ban, which is set to go into effect in July.

 

But with Georgia's governor signing into law another six-week ban last week, abortion opponents are confident they have the high court on their side.

 

The court last affirmed abortion rights in 2016. But Justice Brett Kavanaugh, a conservative, replaced swing Justice Anthony Kennedy, which changed the calculus, according to Professor Caroline Mala Corbin of the University of Miami School of Law.

 

"The newly configured Supreme Court has given hope to many abortion opponents that they will finally have their way and the right to abortion will be eliminated as a constitutional right," Corbin told FOX 5 NY.

High School Student Challenges Rule Prohibiting Girls from Wearing Pants at Graduation

Her School Prohibited Girls From Wearing Pants at Graduation. So She Fought Back.

It was the principle of it all, the fact that it was 2019 and women had been wearing pants for a century.

 

“I didn’t think that was very acceptable,” Kozak told The Washington Post.

 

She knew female students before her had found the policy problematic and that individual exceptions had been made for those who felt strongly enough about the issue to formally ask for permission from administrators to put on pants (though they still had to roll the pant legs up, so their ankles would appear bare — like those wearing dresses.)

 

“I felt the female students were being disproportionately burdened by going through this extra process that their male counterparts did not have to go though,” she said. “And I did not think that was fair or right."

 

But nobody had felt powerful enough to dismantle the policy altogether. Maybe, she thought, it was time to try.*** 

 

So weeks later, on a school night in mid-April, Kozak took her fight to the school board.

 

She hadn’t had time to get on the agenda, so she typed up a short speech in Google Docs and planned to present it during public comment at the end of the meeting. For two hours, she waited through budget conversations and introductions of the new superintendent, through other student presentations and mundane crosstalk.*** 

 

Kozak invoked the American Civil Liberties Union and its recent legal victory against a public charter school in North Carolina, which had defended its no-pants policy for young girls — and lost.

Rewriting the Supreme Court's Decision in Young v. UPS

Deborah Widiss, Young v. United Parcel Services, Inc., Rewritten, in Feminist Judgments: Employment Discrimination Opinions Rewritten (Ann C. McGinley & Nicole B. Porter, eds., Cambridge Univ. Press, 2019, forthcoming).

Young v. United Parcel Services, 135 S. Ct. 1338 (2015), is appropriately considered a win for women because it expanded opportunities for pregnant employees to receive workplace accommodations. However, the case could have been far more transformative, both in how it interpreted the law and in how it explained why it matters for working women. This “rewritten” version, forthcoming in an edited volume, imagines what Young might have said if it were written from a feminist perspective.

The Supreme Court’s actual decision instructs lower courts to assess whether an employer’s refusal to provide an accommodation is infected by discriminatory bias. The rewritten decision, by contrast, argues the plain language of the Pregnancy Discrimination Act makes intent irrelevant, so long as a pregnant employee can show that other workers with similar limitations receive more favorable treatment. This interpretation is better supported by the text of the statute, as well as its history and purpose. The Equal Employment Opportunity Commission also endorsed this interpretation, and the rewritten opinion shows why deference was warranted.

Finally, the rewritten opinion rejects the contention, articulated by the Court in the actual Young decision, that this interpretation affords pregnant women a “most favored nation” status. This allegation suggests accommodating male workers is an ordinary cost of business, but costs relating to pregnancy are special costs that employers should not have to bear. The PDA’s comparative structure was intended to counteract such assumptions and the still-pervasive belief that pregnant women are less capable or less committed than other employees.

Readers may also be interested in my more traditional academic scholarship on this subject: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans With Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013) (https://ssrn.com/abstract=2221332) and The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act After Young v. UPS, 50 U.C. Davis L. Rev. 1423 (2017) (https://ssrn.com/abstract=2948666).

Ohio is Third State to Pass Law Restricting Abortion to First Six Weeks

NPR, A Bill Banning Most Abortions Becomes Law in Ohio

The six-week abortion ban known as the "heartbeat bill" is now law in Ohio. That makes Ohio the sixth state in the nation to attempt to outlaw abortions at the point a fetal heartbeat can be detected.

 

Gov. Mike DeWine signed the bill Thursday afternoon, just one day after it passed the Republican-led General Assembly. The law is slated to take effect in 90 days, unless blocked by a federal judge.

 

Now known as the "Human Rights Protection Act," SB 23 outlaws abortions as early as five or six weeks into a pregnancy, before many women know they're pregnant. It is one of the most restrictive abortion laws in the country.

 

The bill does include an exception to save the life of the woman, but no exceptions for cases of rape or incest.***

 

DeWine's signature will set off a lengthy legal fight. The ACLU of Ohio announced it will sue to stop the law, which the group says "virtually bans all abortion care."

USA Today, Ohio is the Latest State to Pass "Heartbeat" Abortion Bill

With the stroke of a pen by Gov. Mike DeWine, Ohio became the third state this year to pass a "heartbeat" bill banning abortion as early as six weeks into a pregnancy. 

 

The ban takes effect after the detection of a fetal heartbeat at a point before many women are even aware they are pregnant.

 

Kentucky and Mississippi have adopted similar laws, while a Georgia bill awaits only the expected signature by Gov. Brian Kemp by May 12. The Mississippi law takes effect in July. 

 

Meanwhile, "heartbeat" bills have passed one chamber of the legislature in Missouri, Ohio and Tennessee and have been introduced in Florida, Illinois, Louisiana, Maryland, Minnesota, New York, South Carolina and West Virginia.

 

The bills hit at the nexus of the abortion debate, and frame the act in stark,emotional terms, with proponents arguing that preserving life outweighs arguments against government interference in personal, medical decisions.

For prior scholarship on this bill, see Marc Spindelman, On the Constitutionality of Ohio's Proposed "Heartbeat Bill", 74 Ohio State L.J. 149 (2012)

House Judiciary Committee Holds First ERA Hearing in 36 Years

Congress Holds First Equal Rights Amendment Hearing in 36 Years Amid Ratification Push

A House Judiciary subcommittee on Tuesday held the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years as supporters push for ratification.

 

ERA advocates want a time requirement to be stripped from the amendment’s language. Congress passed the ERA in 1972, but it failed to earn the backing of enough state legislatures to be ratified by a 1982 deadline.

 

The majority of those testifying Tuesday before the Subcommittee on the Constitution, Civil Rights and Civil Liberties argued the deadline was arbitrary and should be removed.

 

The panel heard testimony from a pair of female Democratic lawmakers backing legislation that would add language to the Constitution stating everyone is equal under the law.

 

Other witnesses included actress and advocate Patricia Arquette, as well as legal experts and a state senator involved in getting the ERA ratified in Nevada.

 

Both Nevada and Illinois have ratified the amendment in recent years. Ratification failed by one vote in Virginia earlier this year.***

 

Rep. Carolyn Maloney (D-N.Y.) also introduced a measure for a new ERA, but she and Speier have said it's a “fall back” in the case Speier’s measure falls short.

Video, ERA Hearing on CSPAN

Republicans Want to Make a Debate over Discrimination an Abortion Battle

When women’s rights activists gathered in Washington on Tuesday for the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years, they seemed to encounter many of the same decades-old strategies that have been used to derail it. Chief among them was the idea that the proposed constitutional amendment, which would enshrine equal protections for women in law, would trigger an unfettered expansion of abortion rights on the state and federal level—an argument some ERA supporters say is intended to sow division.