Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, March 31, 2020

5th Circuit Upholds Texas Ban on Abortions During Coronavirus Pandemic, Staying Contrary Ruling of District Court

Appeals Court Allows Texas to Ban Abortions During Pandemic

A federal appeals court on Tuesday ruled that Texas can temporarily enforce a ban on abortions as part of its coronavirus response.

 

The 5th Circuit Court of Appeals issued a temporary stay on a ruling from a lower court that had blocked Texas from enforcing the ban. State officials argue the ban is intended to conserve medical supplies for health workers on the front lines of the coronavirus response. But abortion rights advocates say states are using the pandemic as an excuse to block access.

 

In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered. The two judges who ruled in favor of a stay were nominated to their posts by President Trump and former President George W. Bush.

 

"The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need," Texas Attorney General Ken Paxton said in a statement Tuesday. 

 

Circuit Court Judge James Dennis, a Clinton appointee, dissented, writing “a federal judge has already concluded that irreparable harm would flow from allowing the executive order to prohibit abortions during this critical time.” 

 

Texas Gov. Greg Abbott (R) issued a directive earlier this month suspending nonessential medical procedures in an effort to conserve masks and gloves for health workers on the front lines of the pandemic. 

See also CBS News, Texas Abortion Ban Can Go Back into Effect, 5th Circuit Court of Appeals Rules

Several states have issued similar orders, but a divide has emerged between red and blue states about whether abortion is an essential procedure.

March 31, 2020 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Federal Courts Enjoin States' Attempts to Prohibit Exercise of Abortion Rights During Coronavirus Pandemic

Reuters, US Judges Stop Texas, Ohio, Alabama From Curbing Abortions During Coronavirus 

Federal judges on Monday blocked officials in Texas, Ohio and Alabama from banning most abortions in those states as part of their orders to postpone surgeries and other procedures deemed not medically necessary during the coronavirus crisis.

 

U.S. District Judge Lee Yeakel in Austin ruled that Paxton’s action “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”

 

The Texas lawsuit was filed last Wednesday after clinics said they were forced to cancel hundreds of appointments for abortions across the state.

 

“Abortion is essential healthcare, and it’s a time-sensitive service, especially during a public health crisis,” said Amy Hagstrom Miller, president of Whole Woman’s Health, an abortion provider with three clinics in Texas and a plaintiff in the case.

Dahlia Lithwick, Federal Judges Block Texas and Ohio Coronavirus Abortion Bans

There was bad news on Monday for states trying to use the coronavirus pandemic to halt abortions: Two federal judges ruled that pretextual pretexts are just pretexts. Clinics in Ohio and Texas will remain open, at least for the time being. As my colleague Christina Cauterucci reported last week, Republican governors in both Ohio and Texas tried opportunistically to halt abortions in their states by claiming that the procedures are not-essential and that states should redirect personal protective equipment, including masks and gloves, away from clinics so they can better serve coronavirus patients. Of course, women actually need abortion services even more during such crises, clinics don’t use most of the essential medical equipment necessary to fight the virus, and most abortions are time-sensitive procedures that can’t be delayed indefinitely.

 
Texas and Ohio weren’t alone, though. Iowa, Mississippi, Alabama, and Oklahoma had all recently moved to suspend abortion access using the same excuses. The Texas guidance, which was particularly draconian, would have applied to “any type of abortion that is not medically necessary to preserve the life of the mother,” and violations would include a $1,000 fine or up to 180 days in jail. Meanwhile, Ohio’s deputy attorney general, Jonathan Fulkerson, had sent letters to a handful of abortion clinics accusing them of violating the Ohio order, but the clinics had replied that they were in compliance and continued to perform procedures.
 
 
Two of these suits have already paid dividends. On Monday, U.S. District Judge Lee Yeakel lifted Texas’ restriction on abortion just a few hours before Senior U.S. District Judge Michael Barrett enjoined Ohio officials from implementing their ban. In his opinion judge Yeakel, a George W. Bush appointee, found that Texas’ attempt to shut down abortions would cause “irreparable harm” to abortion clinics and their patients, and rested his decision in the constitutional right to terminate a pregnancy: “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.” 

WSJ, Judges Block States From Limiting Access to Abortion During Coronavirus Pandemic [pay wall]

Federal judges for now blocked Texas, Ohio and Alabama from curbing most abortions amid the new coronavirus pandemic, after the states recently cited the need to preserve medical equipment and public health as reasons to halt the procedure.

Coronavirus in Ohio: Judge Temporarily Blocks State Health Order Blocking Abortions During Coronavirus 

U.S. District Court Judge Michael Barrett ruled that Ohio's abortion clinics could perform surgical abortions if they could not be delayed because of a medical condition or the delay would prevent the abortion under Ohio law. 

 

The Ohio Department of Health had threatened to apply the ban on all elective surgeries to surgical abortions, effectively banning all abortions after 10 weeks gestation, according to a motion filed by Ohio's surgical abortion clinics, including Planned Parenthood of Southwest Ohio, on Monday. 

 

Barrett, who granted the temporary restraining order later for 14 days, said the state had not proven that performing surgical abortions would "result in any beneficial amount of net saving of PPE (personal protective equipment) in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion," Barrett wrote.

Iowa, Ohio Sued Over Abortion Bans During Coronavirus Crisis

State officials in Iowa and Ohio were hit with lawsuits on Monday over their decisions to ban abortion during the coronavirus outbreak. 

 

Both states recently deemed abortion a nonessential surgical procedure that must be deferred or canceled in order to preserve medical supplies for the pandemic.

 

Planned Parenthood Federation of America and the American Civil Liberties Union of Iowa and Ohio are asking district courts to immediately restore abortion access, arguing that it’s an essential, time-sensitive procedure that has been improperly categorized as elective.

 

A growing number of states largely governed by Republicans are using the coronavirus outbreak to crack down on abortion. In addition to Ohio and Iowa, Texas and Mississippi have ordered health care facilities to stop providing abortions.***

 

Leading medical experts, such as the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology have urged state leaders to classify abortion as a time-sensitive, essential medical procedure that cannot be delayed.

March 31, 2020 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Monday, March 30, 2020

During Coronavirus Shutdowns, Guns are Essential, Abortions are Not

Are Gun Stores "Essential" During Coronavirus Outbreak?

More than 200 million people in about half of the states are under orders to stay indoors to slow the transmission of the coronavirus.

 

Under those decrees, businesses have closed unless deemed "essential," which has sparked a nationwide debate among state and local leaders: Should gun stores be considered essential?

 

"A lot of people may find themselves in situations where they may need to be their own first responders," said Michael Cargill, who runs Central Texas Gun Works in Austin.

 

Gun owners, he said, "want to protect their family in case things go the other way." .  . . .

 

"Guns will not make Americans safer in the face of COVID-19," Feinblatt said. "Gun stores do not deserve special treatment. In fact, a surge in gun sales will put many communities at greater risk if guns aren't stored securely and if background checks aren't completed."

 

Increasing concerns for gun control advocates are reports of people using firearms out of fear created by the coronavirus crisis. In Alpharetta, Ga., for instance, a man was arrested for allegedly pulling out a gun on two women wearing medical masks at a post office because he worried they had the coronavirus.

 

Gun and ammo sales have rocketed since the outbreak surfaced. And some of the panic driving the purchases is also present because of what gun rights advocates see as preserving their constitutional right to bear arms. They argue short-term emergency restrictions on gun sales could erode their enshrined rights.

 

"Just because we're in a pandemic, American rights do not go away," Mark Oliva, a spokesman for the National Shooting Sports Foundation, told NPR. "There are disparate interpretations on how people want to view these orders, but the Second Amendment is unequivocal."

State Officials are Battling Over a Push to Suspend Abortions During Medical Supply Shortage

State officials in Kentucky and Oklahoma are among a growing number of Republican officials who say abortion is a nonessential procedure that should be put on hold during the coronavirus pandemic.

 

Kentucky Attorney General Daniel Cameron and Oklahoma Gov. Kevin Stitt have joined the list of officials calling for a suspension of most abortions in their states as part of a larger effort to help free up protective equipment for healthcare workers caring for COVID-19 patients.

 

In a statement, Cameron said abortion providers "should join the thousands of other medical professionals across the state in ceasing elective procedures, unless the life of the mother is at risk."

 

Reproductive health groups say abortion is an essential, time-sensitive procedure that should not be delayed, and that doing so can jeopardize the health and well-being of pregnant women.

March 30, 2020 in Constitutional, Healthcare, Pop Culture | Permalink | Comments (0)

The Gendered Impact of the Coronavirus: Physical and Social Differences

Why the New Coronavirus May Kill More Men than Women

Men are more likely to die from new virus

New research from China has found that men, particularly middle-aged and older men, are having a harder time fighting off the virus than women. Chinese researchers found that while the infection rate among men and women is the same, the death rate among men is 2.8% compared with 1.7% for women.

According to Sabra Klein, a scientist at the Johns Hopkins Bloomberg School of Public Health, the pattern—men faring worse than women—is consistent with other viral respiratory infections. "Women fight them off better," she said.

Officials noticed this gender difference during the SARS and MERS outbreaks as well, according to Caryn Rabin. 

 

Why are men more likely to die from the new coronavirus?

According to researchers, there are a few reasons men are more likely to die from the new coronavirus.

Women have a heightened immune response

Research on previous outbreaks shows that women have stronger immune responses to coronaviruses.

Some researchers think the higher level of estrogen, which contributes to immunity, and the fact that women have two X chromosomes, which carry immune-related genes, could factor into women's heightened immune response ***

However, when the researchers blocked estrogen in the female mice and removed their ovaries, they were more likely to die from the virus

Men and women have different health behaviors, conditions

China has the largest population of smokers in the world at 316 million people, but while more than 50% of Chinese men smoke, only about 2% of Chinese women partake in the behavior.

Chinese men also have higher rates of high blood pressure, Type 2 diabetes, and chronic obstructive pulmonary disease than women

Akiko Iwasaki, a professor of immunology at Yale University, added that men may have a "false sense of security" about coronavirus and similar diseases. When the outbreak first started, for instance, officials recommended that people wash their hands thoroughly and often to prevent infection, but multiple studies have found that men are less likely to wash their hands and use soap than women, according to Klein.

"We make these broad sweeping assumptions that men and women are the same behaviorally, in terms of comorbidities, biology and our immune system, and we just are not," he said.

LA Times, Why is the Coronovirus so Much More Deadly for Men Than Women?

Men are faring worse than women in the coronavirus pandemic, according to statistics emerging from across the world.

On Friday, White House COVID-19 Task Force director Dr. Deborah Birx cited a report from Italy showing that men in nearly every age bracket were dying at higher rates than women. Birx called it a “concerning trend.”

The apparent gender gap in Italy echoes earlier statistics from other hard-hit countries. While preliminary, early accounts have suggested that boys and men are more likely to become seriously ill than are girls and women, and that men are more likely to die.***

The emerging picture of male vulnerability to coronavirus may be easily explained by a clear gender disparity with social and cultural roots: Across the world, men are much more likely to smoke cigarettes. That damages their lungs and primes them for inflammation and further damage when they are battling an infection.***

But that’s not the whole story, said Dr. Stanley Perlman, a pediatric infectious disease specialist at the University of Iowa who has studied coronavirus infection in mice.***

At the same time, the death rates of infected female mice shot up when their ovaries were removed, or when they got drugs that suppressed the activity of the hormone estrogen.

To Perlman, those dual findings strongly suggest that there’s something about estrogen that protects against the ravages of deadly coronaviruses — and he suspects it’s true for the new SARS-CoV-19 virus. ***

When it comes to fighting infection, he added, “we really need to study both sexes to understand susceptibility.”

The Atlantic, The Coronavirus is a Disaster for Feminism

Enough already. When people try to be cheerful about social distancing and working from home, noting that William Shakespeare and Isaac Newton did some of their best work while England was ravaged by the plague, there is an obvious response: Neither of them had child-care responsibilities.***

For those with caring responsibilities, an infectious-disease outbreak is unlikely to give them time to write King Lear or develop a theory of optics. A pandemic magnifies all existing inequalities (even as politicians insist this is not the time to talk about anything other than the immediate crisis). Working from home in a white-collar job is easier; employees with salaries and benefits will be better protected; self-isolation is less taxing in a spacious house than a cramped apartment. But one of the most striking effects of the coronavirus will be to send many couples back to the 1950s. Across the world, women’s independence will be a silent victim of the pandemic

Purely as a physical illness, the coronavirus appears to affect women less severely. But in the past few days, the conversation about the pandemic has broadened: We are not just living through a public-health crisis, but an economic one.

The evidence we do have from the Ebola and Zika outbreaks should inform the current response. In both rich and poor countries, campaigners expect domestic-violence rates to rise during lockdown periods. Stress, alcohol consumption, and financial difficulties are all considered triggers for violence in the home, and the quarantine measures being imposed around the world will increase all three. 

Researchers, including those I spoke with, are frustrated that findings like this have not made it through to policy makers, who still adopt a gender-neutral approach to pandemics. They also worry that opportunities to collect high-quality data which will be useful for the future are being missed.

The Coronavirus Crisis May Hit Women Harder Than Men

But in other, perhaps less obvious ways, the virus appears to disproportionately affect women. As the fight against COVID-19 continues, an increasing number of women around the world are on the front lines. Many of them will be expected to work longer hours, while juggling domestic responsibilities such as childcare

March 30, 2020 in Gender, Healthcare, Pop Culture | Permalink | Comments (0)

Friday, March 27, 2020

Confronting and Debunking the Common Reasons Given for Slow Progress for Gender Equity in Corporate Leadership

Kellye Testy, From Governess to Governance: Advancing Gender Equity in Corporate Leadership, 87 G.W. Law Rev. 1095 (2019)

Even as corporate influence on every aspect of life continues to grow, women (overall, and especially women of color) remain woefully underrepresented in corporate governance roles, particularly on boards of directors. This lack of gender diversity in the corporate boardroom is prevalent not only in more established companies but also persists — often at even higher levels — in new ventures as well. This Essay details the persistent lack of progress over more than a half century in diversifying leadership in corporate governance. This progress is especially concerning given that the benefits of diversity for sound decision-making and overall corporate welfare have been established empirically, putting into question whether those boards that fall short on gender equity are meeting their fiduciary duties of good governance. The Essay confronts and debunks the common reasons given for slow progress and outlines specific steps that corporate boards and others seeking to improve gender equity in corporate governance can deploy to make faster and more consistent progress.

This Essay is part of the George Washington Law Review's 2018 symposium, Women and Corporate Governance: A Conference Exploring the Role and Impact of Women in the Governance of Public Corporations.

March 27, 2020 in Business, Equal Employment, Workplace | Permalink | Comments (0)

How Ohio Women Legislators are Working to Keep Abortion Access Available

This is my local rep, supporting the constitutional rights of women.

How Ohio Women Legislators Are Working to Keep Abortion Clinics Open

Last weekend, Ohio Attorney General Dave Yost ordered Ohio reproductive health clinics to cease providing abortions—claiming that abortion services are not “essential” medical care during the COVID-19 pandemic.

When Ohio state House Representative Tavia Galonski—chair of the Ohio Women’s Democratic Legislative Caucus—first heard the news, she felt rage.

“Now is not the time to overturn the U.S. Constitution in the middle of a pandemic,” she said.

After his announcement, Attorney General Yost faced immediate pushback from abortion rights advocates and pro-choice state legislators.

Following a round of intense negotiations, Ohio clinics remain open.

March 27, 2020 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Pandemic Sparks New Front in Abortion Laws

Pandemic Sparks New Front in Abortion Wars

The coronavirus pandemic is deepening the divide on abortion access between blue and red states by sparking a debate over whether the procedure is medically essential.

 

Anti-abortion forces led by Republican governors in Ohio, Texas and Mississippi are citing the critical shortage of medical supplies in trying to close abortion clinics, in some instances threatening jail time if they don't shut down and donate protective gear and other necessities to local hospitals. Meanwhile, in blue states like New York, Washington and New Jersey, governors are deeming abortion and family planning clinics an essential service that can continue during the pandemic.***

 

Progressive states that have implemented broad orders shutting down businesses during the pandemic, such as Washington, have clarified that they consider abortion and family planning clinics an essential service that can continue during the pandemic. New Jersey Gov. Phil Murphy was one of a handful of Democratic leaders to explicitly carve out an exception for “the full range of family planning services and procedures, including terminations of pregnancies” from his executive order that suspends elective surgeries.

 

Meanwhile in New York, clinics are working to expand access to medication abortion. Planned Parenthood is conducting more assessments over its telehealth platform so eligible patients only have to come to centers to pick up medication, as is required by law.

March 27, 2020 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Domestic Violence During the Coronavirus Crisis: Getting the Criminal Justice Response Right

Aya Gruber & Leigh Goodmark, Domestic Violence is Also a Virus: During the Coronavirus Crisis We Need the Right Criminal Justice Response to the Crime 

As COVID-19 spreads across the nation, many are voicing alarm that sickness and social distancing will spark an epidemic of domestic violence. The alarm is merited. Social and economic stressors like job loss, discrimination, community dislocation and trauma correlate with increased domestic violence. The fact that families are cooped up together may make matters worse.

 

As domestic violence scholars and victims’ advocates, we are heartened that the media and public commentators have shifted from describing domestic violence solely as something individual criminals do to a phenomenon deeply connected with social marginality and economic precarity — conditions that will be exponentially aggravated by the virus.

 
However, we are concerned that having identified the potential for increased violence, the solution will be increased arrests and prosecutions. Police and prosecutors’ offices have assured the public that they are open for “business as usual” when it comes to domestic violence.

 

The pandemic has put a spotlight on the perils of the United States’ decades-long addiction to using criminal law as a primary solution to social problems. 

March 27, 2020 in Healthcare, Violence Against Women | Permalink | Comments (0)

Tuesday, March 24, 2020

Commission to Recommend to Congress that Women Be Included in Registration for Military Draft

NYT, Women Should Have to Register for Military Draft, Too, Commission Tells Congress

Women have been serving in the United States military since the Revolutionary War, helping to sew uniforms, heal the wounded and, eventually, fight in combat. But they have never been required to register for a military draft.

 

That could soon change. Under a new recommendation to Congress by a national commission, all Americans ages 18 to 25 — and not just young men as currently covered by the law — should be required to register with the government in case of a military draft. The move sets up a debate over a divisive issue that has been simmering for years.

 

The question of whether to expand draft registration to women was among the most contentious issues considered over the past two years by the National Commission on Military, National, and Public Service, a bipartisan group that was appointed by Congress to address the issue of conscription. The commission is set to release it recommendations to Congress on Wednesday.

March 24, 2020 in Constitutional, Equal Employment, Legislation | Permalink | Comments (0)

States Ban Abortions as Part of Coronavirus Shutdowns

.NYT, Texas and Ohio Include Abortion as Medical Procedures that Must be Delayed

Texas and Ohio have included abortions among the nonessential surgeries and medical procedures that they are requiring to be delayed, setting off a new front in the fight over abortion rights in the middle of the coronavirus pandemic in the United States.

 

Both states said they were trying to preserve extremely precious protective equipment for health care workers and to make space for a potential flood of coronavirus patients.

 

But abortion rights activists said that abortions should be counted as essential and that people could not wait for the procedure until the pandemic was over.

Ohio Halts Procedures at Abortion Clinics Amid COVID-19 Outbreak

Pro-choice groups such as the American Civil Liberties Union and Planned Parenthood say the order is an excuse from the state to restrict access to abortion.

 

Ohio's legislators have sought to curb people's access to abortion prior to the pandemic.

 

“Planned Parenthood’s top priority is ensuring every person can continue accessing essential healthcare, including abortion,” Planned Parenthood of Ohio said in a statement, adding that they are still being compliant with the state order. 

 

“Under that order, Planned Parenthood can still continue providing essential procedures, including surgical abortion, and our health centers continue to provide services that our patients depend on,” they added.

Yost Orders Clinics to Stop Non-Essential and Elective Abortions (Ohio)

Despite a state health order banning non-essential procedures during the coronavirus health emergency, Ohio abortion clinics remained open last week.

 

But after receiving complaints, Ohio Attorney General Dave Yost ordered two of them to follow Ohio Department of Health Director Amy Acton’s orders.

 

“You and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient,” Yost said.

 

“If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the [health director’s] order, the Department of Health will take all appropriate measures.”

 

On Wednesday, Acton issued an order saying “all non-essential or elective surgeries and procedures that utilized [personal protective equipment] should not be conducted.” The state is attempting to preserve supplies of equipment needed in combating the vir

Texas is the Latest State Using Coronavirus to Stop Abortions

Republicans in states around the country are doing their best to use the growing coronavirus epidemic in order to push through their rightwing, anti-abortion agendas. The latest—on Sunday night, Texas Governor Greg Abbott issued an executive order to “postpone all surgeries and procedures that are not immediately medically necessary” until April 21. In response, the state’s Attorney General Ken Paxton ordered all abortion clinics to stop providing “any type of abortion that is not medically necessary to preserve the life or health of the mother,” or face penalties of up to $1,000 or 180 days of jail time.

 

The move by Republican officials in Texas comes on the heels of Ohio’s attorney general’s office ordering abortion clinics in Dayton, Cleveland, and Cincinnati to “immediately stop performing non-essential and elective surgical abortions.”

 

Framing these moves as a way to ensure that health care professionals have the resources they need, which is what officials in both Texas and Ohio have done, is an incredibly manipulative and underhanded way to sneak in anti-abortion measures under the guide of public health. In a statement to Jezebel, NARAL Pro-Choice Texas executive Aimee Arrambide wrote, “Abortion is essential healthcare, but especially in the wake of the public health crisis we are facing now.... Abortion is a procedure where time is of the essence and cannot be delayed without profound consequences.”

Abortion Care is Essential Health Care

Over the weekend, two states made moves to ban certain abortions under the guise of preparing for the expected surge in coronavirus cases. In Ohio, Attorney General Dave Yost sent letters to three abortion clinics ordering them to stop performing “nonessential” surgical abortions that “can be delayed without undue risk to the current or future health of a patient.” In Texas, Gov. Greg Abbott ordered a halt to all procedures performed on patients not facing an immediate risk of “serious adverse medical consequences or death.” The Texas attorney general confirmed on Monday that most abortions would fall under the order.

 

Both officials have said the bans are necessary to reduce coronavirus-induced strain on health care systems and reserve personal protective equipment, including masks and gloves, for more urgent uses during a time of nationwide medical supply shortages. Their misclassification of abortion as nonessential health care betrays a deep-seated indifference for the health and welfare of pregnant women. Abortion care isn’t a delayable luxury, even during a pandemic. It’s essential preventive care—and if anything, it might be more essential than usual.

 

Abortion providers in Texas and Ohio have said they consider themselves exempt from the orders and will continue seeing patients, since the care they provide is necessary and time-sensitive. Though abortion care is extremely safe, it gets riskier, more expensive, and more difficult—or impossible—to access as a pregnancy progresses.

March 24, 2020 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Colorado Law Conference on the 19th Amendment and Women's Enfranchisement Moved Online

From the announcement: 

Please join Colorado Law for the 28th Annual Ira C. Rothgerber Conference, “Women’s Enfranchisement: Beyond the 19th Amendment," which has been modified to take place remotely on Friday April 3rd8:30 a.m. - 5:00 p.m. MT, through the use of a Zoom Webinar. The web-event is free, and has been approved for 6 general CLE credits.

2020 marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates running for offices nationwide. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class. This web-based conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement, as well as the social and economic empowerment of women more broadly. 

Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. 

For more information on the panels and speakers please visit the CU Law Rothgerber event page.  We look forward to sharing this occasion with you!

Rothgerber Webinar Schedule | April 3, 2020

8:30-9:00am  Introductory Remarks by Suzette Malveaux (CU Law) 

9:00-10:00am  Keynote Address: Reva Siegel (Yale Law)

10:00-10:15am  BREAK

10:15am-12:00pm  PANEL 1

"Historical Perspectives on the 19th Amendment: Looking Back, Looking Forward”

  • Susan Schulten (University of Denver)
  • Carolyn Ramsey (Colorado Law)
  • Julie Suk (CUNY)
  • Mary Ziegler (FSU Law)

12:00-12:15pm  BREAK

12:15-2:00pm  PANEL 2

“Barriers to Political Representation”

  • Bertrall Ross (Berkeley Law)
  • Dara Strolovitch (Princeton)
  • Atiba Ellis (Marquette Law)
  • Ming H. Chen (Colorado Law)

2:00-2:15pm  BREAK

2:15-4:00pm  PANEL 3

“Lived Equality: Beyond Formal Political Rights”

  • Aya Gruber (Colorado Law)
  • Chinyere Ezie (Center for Constitutional Rights)
  • Diana Flynn (Lambda Legal)
  • Scott Skinner-Thompson (Colorado Law) 

4:00-4:30pm  Closing Remarks 

March 24, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Friday, March 20, 2020

Analyzing US Women Lawmakers' Political Participation Based on Diversity of Background and Party

Estefania Cruz Lera,.Women From the Establishment Versus the ‘Squad’: Feminine Political Representation Styles in the US Congress,  Norteamérica, 15:1, january-june (2020)

In 2019, a historical record number of women shaped the US Congress. In addition to the increase in female participation, there is also a wider ethnic, racial, cultural and class diversity among these congress members. In this political universe, two highly contrasting profiles stand out: on the one hand, the women of the establishment led by Nancy Pelosi; on the other, the challenging "Squad" headed by Alexandria Ocasio-Cortez. Based on an analysis of social networks, press coverage, and legislative performance, in this investigation both styles of political representation are contrasted. The main result of this research is that in relation to the patterns of proposing laws, voting and fundraising there are no differences between the Squad and the women of the establishment. The main divergences reside in their public discourse, in the ideological platform to which they ascribe and in the style of leadership they exercise.

March 20, 2020 in Legislation, Pop Culture | Permalink | Comments (0)

Thursday, March 19, 2020

Exploring the Idea of a Common Law Right to an Abortion

Joanna Grossman, Women Are (Allegedly) People, Too, 114 Northwestern University Law Review Online 149 (2019)

Professor Anita Bernstein opens her book, The Common Law Inside the Female Body, with a startling “strange bedfellows” argument: William Blackstone and modern American feminists want the same thing. “The common law,” she argues “contains precepts and doctrines that strengthen the freedom of individuals; the feminist struggle against the subjugation of women pursues liberty.” Can this be the same Blackstone who articulated the doctrine of coverture and the severe impediments it imposed on the liberty of married women? His pronouncement that “the husband and wife are one person in law” — and that one is the husband — is the centerpiece of a doctrine that deprived married women of a panoply of civil rights like buying property, entering into contracts, and owning their own wages. These disabilities were lifted by statutes known as the “Married Women’s Property Acts,” but some impediments persisted into the twentieth century. But by the end of the book, Bernstein has made a compelling argument that common law principles, despite an inauspicious start, can “liberate women.” Indeed, there is little if anything in those principles that deprives women of the same rights as men. The common law may have “proceeded as if only men could enjoy its opportunities,” but that, she argues, is due to a “historical condition now supplanted.”

Once women became equal participants in civil society as well as in the justice system, there ceased to exist any basis for restricting the benefit of common-law principles to men. And, oh boy, the common law contains some juicy stuff that really could be deployed to advance the cause of gender equality. This Essay will consider and evaluate Bernstein’s argument that the common law supports a virtually unfettered right to terminate a pregnancy. It will situate her argument against the backdrop of the constitutional right of abortion, which has been the primary lens through which women’s reproductive rights have been viewed. The Essay will then consider the newly composed Supreme Court and the threat it portends to reproductive rights. It concludes by suggesting that the common law, as Bernstein understands it, could come to the rescue of women and their full humanity.

March 19, 2020 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)

The Legal and Ethical Implications of Non-Disclosure Agreements and Arbitration Clauses in the MeToo Era

Maureen Weston, Buying Secrecy: Non-Disclosure Agreements, Arbitration, and Professional Ethics in the #MeToo Era, 

We’ve heard the horrific reports of sexual assault on children, women, and men, in the context of the workplace, Hollywood, sports, and even sacred places. Now. But often these incidents took place many years ago, and we are just learning why and how. Secret settlements. Deals reached in private to buy secrecy in exchange for the release and dismissal of claims. Oftentimes through private and alternative dispute resolution (ADR) processes such negotiation, mediation, or arbitration. In most cases, the parties were represented by lawyers, loyal advocates, who are also officers of the court; third-party neutrals serving as mediators or arbitrators administered the dispute resolution process. While the immediate cases were privately resolved, the accused harasser/predator remained at large. This paper examines the role, use, and possible misuse or complicity of lawyers, neutrals, and ADR in the process of procuring and enforcing “secret settlements” in cases that effectively shielded predators, harassment, and other misconduct and left similarly situated non-parties at risk. This Article examines the existing rules, structures, and rationales for confidentiality and private dispute resolution, alongside the ethical considerations for lawyers, neutrals, and the ADR process in reaching and enforcing “secret settlements.” The paper explores the legal and ethical considerations for the professionals involved in situations where a secret settlement or provision for non-disclosure leaves similarly situated non-parties at risk. The Article counsels that lawyers, neutrals, and ADR consider the impact on others and protection of vulnerable persons from potential harm as professional ethics obligations in the advocacy and representation of parties to private settlements in order to ensure integrity of people, process, and substantive outcomes.

March 19, 2020 in Courts, Equal Employment, Workplace | Permalink | Comments (0)

Analyzing Feminist Theories of the Silencing Function of Pornography, Constraining Women's Sexual Refusal

Kate Greasley, Silencing Without Uptake, in B. Leiter and L. Green eds., Oxford Studies in Philosophy of Law, Vol 4 (forthcoming)

In the argument over pornography’s censorship, feminist theorists of certain stripes have argued that one of the ways pornography might harm women is by silencing them. First suggested by Catharine MacKinnon, the silencing claim has since been considerably developed, most notably by Rae Langton and Jennifer Hornsby. Taking their cue from J.L. Austin’s speech act theory, these scholars have argued that pornography is capable, in principle, of silencing women in the ‘illocutionary’ sense, that is, by robbing them of a speech act power — as a case in point, the power of sexual refusal. Langton refers to this as the silencing of ‘illocutionary disablement’. The illocutionary disablement claim has met with plenty of resistance, especially concerning its reliance on an ‘uptake’ condition for illocutionary success, also attributed to Austin. Pursuant to this uptake condition, certain speech acts — meaning, acts constituted in the uttering of certain words in a certain context — depend, for their very performance, on the addressee’s recognition of a particular speaker intention.

Among other misgivings, critics of the silencing claim have found it implausible that the performance of a speech act such as sexual refusal could possibly depend on the happenstance of the speaker’s intention getting through to the addressee. Sympathetic to these complaints, I will try to relay how the illocutionary disablement claim can do without the uptake condition as Hornsby, Langton, and others have heretofore formulated it. I am aligned with their critics in thinking that performing the speech act of sexual refusal cannot depend on any individual addressee’s recognition of illocutionary intent. Nevertheless, I will argue, ‘reciprocity’ of a certain kind is a condition of women’s ability to engage that illocution. The speech act of sexual refusal depends, for its very survival, on the existence of semantic and pragmatic conventions that recognisably signal refusal to competent auditors. To the extent that pornography works to destabilise these conventions, it will effectuate illocutionary disablement with regard to that speech act power. Moreover, I argue, if porn did such a thing in the way Langton and others have envisaged, it would indeed be ‘silencing’ women in a distinctive and distinctively disquieting way.

March 19, 2020 in Theory, Violence Against Women | Permalink | Comments (0)

Analyzing Feminist Theories of the Silencing Function of Pornography, Constraining Women's Sexual Refusal

Kate Greasley, Silencing Without Uptake, in B. Leiter and L. Green eds., Oxford Studies in Philosophy of Law, Vol 4 (forthcoming)

In the argument over pornography’s censorship, feminist theorists of certain stripes have argued that one of the ways pornography might harm women is by silencing them. First suggested by Catharine MacKinnon, the silencing claim has since been considerably developed, most notably by Rae Langton and Jennifer Hornsby. Taking their cue from J.L. Austin’s speech act theory, these scholars have argued that pornography is capable, in principle, of silencing women in the ‘illocutionary’ sense, that is, by robbing them of a speech act power — as a case in point, the power of sexual refusal. Langton refers to this as the silencing of ‘illocutionary disablement’. The illocutionary disablement claim has met with plenty of resistance, especially concerning its reliance on an ‘uptake’ condition for illocutionary success, also attributed to Austin. Pursuant to this uptake condition, certain speech acts — meaning, acts constituted in the uttering of certain words in a certain context — depend, for their very performance, on the addressee’s recognition of a particular speaker intention.

Among other misgivings, critics of the silencing claim have found it implausible that the performance of a speech act such as sexual refusal could possibly depend on the happenstance of the speaker’s intention getting through to the addressee. Sympathetic to these complaints, I will try to relay how the illocutionary disablement claim can do without the uptake condition as Hornsby, Langton, and others have heretofore formulated it. I am aligned with their critics in thinking that performing the speech act of sexual refusal cannot depend on any individual addressee’s recognition of illocutionary intent. Nevertheless, I will argue, ‘reciprocity’ of a certain kind is a condition of women’s ability to engage that illocution. The speech act of sexual refusal depends, for its very survival, on the existence of semantic and pragmatic conventions that recognisably signal refusal to competent auditors. To the extent that pornography works to destabilise these conventions, it will effectuate illocutionary disablement with regard to that speech act power. Moreover, I argue, if porn did such a thing in the way Langton and others have envisaged, it would indeed be ‘silencing’ women in a distinctive and distinctively disquieting way.

March 19, 2020 in Technology, Violence Against Women | Permalink | Comments (0)

Analyzing Feminist Theories of the Silencing Function of Pornography, Constraining Women's Sexual Refusal

Kate Greasley, Silencing Without Uptake, in B. Leiter and L. Green eds., Oxford Studies in Philosophy of Law, Vol 4 (forthcoming)

In the argument over pornography’s censorship, feminist theorists of certain stripes have argued that one of the ways pornography might harm women is by silencing them. First suggested by Catharine MacKinnon, the silencing claim has since been considerably developed, most notably by Rae Langton and Jennifer Hornsby. Taking their cue from J.L. Austin’s speech act theory, these scholars have argued that pornography is capable, in principle, of silencing women in the ‘illocutionary’ sense, that is, by robbing them of a speech act power — as a case in point, the power of sexual refusal. Langton refers to this as the silencing of ‘illocutionary disablement’. The illocutionary disablement claim has met with plenty of resistance, especially concerning its reliance on an ‘uptake’ condition for illocutionary success, also attributed to Austin. Pursuant to this uptake condition, certain speech acts — meaning, acts constituted in the uttering of certain words in a certain context — depend, for their very performance, on the addressee’s recognition of a particular speaker intention.

Among other misgivings, critics of the silencing claim have found it implausible that the performance of a speech act such as sexual refusal could possibly depend on the happenstance of the speaker’s intention getting through to the addressee. Sympathetic to these complaints, I will try to relay how the illocutionary disablement claim can do without the uptake condition as Hornsby, Langton, and others have heretofore formulated it. I am aligned with their critics in thinking that performing the speech act of sexual refusal cannot depend on any individual addressee’s recognition of illocutionary intent. Nevertheless, I will argue, ‘reciprocity’ of a certain kind is a condition of women’s ability to engage that illocution. The speech act of sexual refusal depends, for its very survival, on the existence of semantic and pragmatic conventions that recognisably signal refusal to competent auditors. To the extent that pornography works to destabilise these conventions, it will effectuate illocutionary disablement with regard to that speech act power. Moreover, I argue, if porn did such a thing in the way Langton and others have envisaged, it would indeed be ‘silencing’ women in a distinctive and distinctively disquieting way.

March 19, 2020 in Technology, Violence Against Women | Permalink | Comments (0)

Wednesday, March 18, 2020

Historical Precedent and Originalism in Support of Recognizing the Equal Rights Amendment Without a Time Limitation

John Vlahoplus, Ratification of the Equal Rights Amendment: Lessons from Special Elections to the House of Representatives in 1837, 95 Indiana J. Supp. (forthcoming)

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the federal constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election.

This Article suggests that the similar text of Article V gives Congress only the power to propose amendments, without any limitation, and states the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose on ratification of the Equal Rights Amendment is unconstitutional surplusage, and state rescissions are ineffective. Virginia’s ratification on January 15, 2020 pushed the amendment past the three quarters threshold, making it a valid part of the federal constitution. The Article also considers lessons from the subsequent 1837 general elections and suggests that the Supreme Court — rather than Congress — should and likely will ultimately adjudicate the validity of the Amendment’s ratification.

March 18, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Explaining the "Simple" Idea of College Sexual Consent Policies

Aya Gruber, The Complexity of College Consent, Adjudicating Campus Sexual Misconduct and Assault, Cognella, 2020

Teachers, parents, and administrators tell students that consent is “simple.” To be sure, every day, millions of people follow the directive to have only consensual sex with great success and have mutually wanted, unproblematic intimate contact. Law and policy, however, rarely intervene in easy cases. Consent standards intervene in the hard cases. College sexual consent policies delineate when sex between two competent adults of equal status, without force or threat, is a punishable offense. They determine what should happen when the accuser feels harmed but the accused believes he or she has not committed harm. They weigh in on default views of sex — whether people generally desire, are ambivalent toward, or fear sex. They guide decision makers on whom to believe in “he-said-she-said” cases. In short, consent is far from simple. This chapter, written for the book Adjudicating Campus Sexual Misconduct and Assault, unpacks the complex concept of consent in college codes. Its aim is taxonomical and explanatory: to categorize various consent formulations and clarify how they regulate behavior and resolve disputes. The first part of the chapter is a brief history of “ordinary” and affirmative consent standards in criminal law. The second turns to the concept of consent itself. There, I explore what it means to say that a sexual transaction between two people is consensual and whether consent relates to a state of mind, communication, or both. The third part examines the various formulations of consent in college codes, placing them on a scale from most to least regulatory. Finally, I discuss the complicated costs and benefits of affirmative consent.

March 18, 2020 in Education, Pop Culture, Violence Against Women | Permalink | Comments (0)

The Use of Sex as a Proxy for Interest in Predictive Algorithms

Deborah Hellman, Sex, Causation, and Algorithms: Equal Protection in the Age of Machine Learning,  98 Wash.U. L. Rev. (forthcoming 2020)

U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute [VMI] may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and women. Women and men at VMI may be subject to different training requirements, for example. Yet, it is surprisingly unclear when and why some sex-based classifications are permissible and others not. This question is especially important to examine now as the use of predictive algorithms, some of which rely on sex-based classifications, is growing increasingly common. If sex is predictive of some trait of interest, may the state – consistent with equal protection – rely on an algorithm that uses a sex-based classification?

This Article presents a new normative principle to guide the analysis. I argue that courts ought to ask why sex is a good proxy for the trait of interest. If prior injustice is likely the reason for the observed correlation, then the use of the sex classification should be presumptively prohibited. This Anti-Compounding Injustice principle both explains and justifies current doctrine better than the hodge-podge of existing rules and concepts and provides a useful lens through which to approach new cases.

March 18, 2020 in Books, Business, Constitutional, Gender, Theory | Permalink | Comments (0)