Tuesday, May 31, 2022

2022 Summer Feminist Legal Theory Series: Spotlight on New Books in the Field

The Summer Feminist Legal Theory Series is co-sponsored by the Elisabeth Haub School of Law at Pace University and the William S. Boyd School of Law at the University of Nevada, Las Vegas, together with The Feminism and Legal Theory Project, The Vulnerability and the Human Condition Initiative, the Institute for Feminist Legal Studies at Osgoode, the Family Law Center at the University of Virginia School of Law, and the AALS Section on Women in Legal Education. The series is coordinated by Bridget J. Crawford (Pace), [email protected] and Kathy Stanchi (UNLV), [email protected].

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2022  Virtual Summer Feminist Legal Theory Series

Spotlight on

New Books in the Field:

Gender, Race and Diversity in the Center of the Conversation

This summer, the U.S. Feminist Judgments Project will host a series of virtual conversations featuring authors and editors of new books in the field, with a focus on how to best use those texts to raise and frame issues of gender, race and other diversity issues in teaching and scholarship. There will be a particular emphasis on how feminist legal theory can enrich both classroom discussions and scholarly perspectives by scholars working across subject matters.

The dates and featured books are:

Date

Book

Authors or Editors

June 8, 2022

Menstruation Matters: Challenging Law’s Silence on Periods (2022)

Bridget J. Crawford (Pace) & Emily Gold Waldman (Pace)

June 22, 2022

Fight the Power: Law and Policy Through Hip-Hop Songs (2022)

Frank Rudy Cooper (UNLV)

July 6, 2022

Panes of the Glass Ceiling: The Unspoken Beliefs Behind the Law’s Failure to Help Women Achieve Professional Parity (2022)

Kerri L. Stone (FIU)

July 20, 2022

Feminist Judgments: Rewritten Employment Discrimination Opinions (2020)

Ann C. McGinley (UNLV) & Nicole Buoncore Porter (Chicago-Kent)

Sessions will run from 11:00 am to 12:15 pm Pacific/2:00 to 3:15 pm Eastern. Attendees from all parts of the academy with a verified academic email address are welcome to attend any and all sessions. There is no charge to attend. All sessions are held via Zoom.

Preregistration for all participants (speakers and attendees) is required via this link: https://pace.zoom.us/meeting/register/tJYsceGgrTsuEtd7jdyjQVGVExQa0ODkK5Fd

All attendees including speakers must register. Attendees need to register only once and then can attend any of the sessions in the summer series. Regular attendance is encouraged but not required. Approximately one week before each session, all registrants will receive an excerpt of the book that will be the subject of the discussion.

After a pause in August, the Feminist Legal Theory Series may continue into the academic year with occasional sessions featuring additional works.Authors or editors of recent books are welcome to self-nominate their work for consideration to be featured in a future session.

May 31, 2022 in Books, Conferences | Permalink | Comments (0)

Anti-Subordination Torts -- A Festschrift of Martha Chamallas's Groundbreaking Work

Scott Skinner-Thompson, Anti-Subordination Torts, 83 Ohio State L.J. (2022)  

In law school curriculum, the first-year tort law course is often caricatured as the class with the funky, sometimes amusing, fact patterns where people get injured—occasionally in bizarre ways—and attempt to recover from the party purportedly responsible. In legal scholarship, tort law has historically been dominated by two approaches: the law and economic approach focused on efficiently distributing the costs of injuries and on preventing/deterring them, and the civil recourse or corrective justice approach that underscores tort law’s role in providing individual redress for victims who have been injured by a wrongdoer.

But thanks to innovative scholars attentive to power disparities in the law and society, an ever-growing body of scholarship analyzes, critiques, and suggests reforms to tort law based on the racial, gender, ableist, socio-economic, and sexuality-based disparities or stereotyping assumptions that exist within the doctrine and its application. Professor Martha Chamallas’s scholarship has been at the vanguard of this important trend and it’s a joy to celebrate her ground-breaking work in this Festschrift, although a tall order to do it justice.

Her intellectual and moral leadership have helped us realize that tort law—no less than constitutional law, civil rights, or criminal law—is a context where power and identities play a critical role in determining whose lives will be valued, whose injuries will be remedied, and what injustices will be rectified. Or not. This work has implications not just for how tort law is interpreted and applied in courts, but also how it is taught in school. In fact, several of Professor Chamallas’s scholarly endeavors focus specifically on bringing these insights to bear on law school curriculum.

As detailed herein, her substantive contributions to tort scholarship and theory are manifold but include at the top of the list (my list, anyway): (1) critiquing the degree to which harms often (but not exclusively) associated with women are unrecognized or devalued in tort law, (2) unearthing the ways in which the injuries of racism have been ignored, and (3) articulating how constitutional equality principles might be used to reform some of the discriminatory practices of tort law.

All told, I suggest that Professor Chamallas has helped engender an anti-subordination approach to tort law. As characterized here, this anti-subordination approach to tort law does not just simply attempt to redress formal inequalities in doctrine or its application, putting people on formally equal footing in the eyes of the law. Rather, this approach moves the law in favor of prioritizing (with special solicitude) the injuries disproportionately inflicted on marginalized communities and, potentially, being mindful of (instead of ignoring) identity differences to create contextually sensitive rules that may level up those that have historically been subjugated or ignored.

May 31, 2022 in Gender, Theory | Permalink | Comments (0)

Revenge Porn and the First Amendment: Prioritizing the Victim's Autonomy

Roni Rosenberg & Hadar Dancig-Rosenberg, Revenge Porn in the Shadow of the First Amendment, 24 U. Penn J. Con. L. (forthcoming 2022)

Millions of people around the world, most of them women, have been victims of revenge porn and have suffered intense pain and distress as a result. By 2021, almost all US states had criminalized revenge porn, defining it primarily as an infringement of privacy, as obscenity or as harassment. US courts have recently considered the constitutionality of criminalizing revenge porn in view of the potential conflict with freedom of speech. Contrary to the courts’ decisions, we argue that revenge porn is a sex offense and therefore justifies limiting the disseminator’s freedom of speech to a significant degree. Empirical evidence indicates that victims experience revenge porn as an erasure of their personal autonomy, one that radically disrupts their lives, alters their sense of self and identity, and dramatically affects their relationship with themselves and with others. Insofar as the rationale of freedom of speech relies on the protection of autonomy, the protection of the disseminator’s autonomy should not be at the expense of erasing the victim's autonomy. Thus, our argument highlights the necessity for US state legislators to redefine the boundaries of the revenge porn offense accordingly.

May 31, 2022 in Constitutional, Media | Permalink | Comments (0)

Thursday, May 26, 2022

New Book The Case of Caroline Norton and the History of Married Women's Loss of Child Custody Rights

NYT, Review: The Case of the Married Woman, by Antonia Fraser

***[This is] the tragic story, of Caroline Norton, as conveyed in Fraser’s new book.... Born in 1808, 30 years before Queen Victoria came to the throne, she and her two equally beautiful sisters made a stir when they debuted in society. Her sisters married titled men, while Caroline married George Norton, who, while a younger son, had hopes of a title of his own — but would also turn out to be jealous, violent, petty and unremittingly vicious.*** 

 

In 1836, after yet another episode of her husband’s violence, Caroline went to stay with her parents. George moved their children (the youngest not yet 3) to his sister’s house, where he forcibly detained them, refusing Caroline access. He also claimed her earnings as a writer. All this was, at the time, his legal right.

 

And so, driven by the loss of her children, Caroline did that most unladylike of things: She fought. She fought George in the court of public opinion, writing pamphlets and essays and articles. She fought him in the courts. And he fought back. He sued Lord Melbourne, his patron, for “criminal conversation” with his wife.

 

Crim. con., as it was known, was not quite the same thing as suing for adultery. It was, rather, a property suit: Since a wife was the legal property of her husband, and adultery reduced the value of that property, the wife’s lover could be sued for financial compensation. George demanded 10,000 pounds from Melbourne, millions in today’s money.

 

While George did in fact want money, he wanted revenge much more, and by naming Melbourne he focused public attention squarely on his wife. In court, as in life, George Norton did not shine, and, unable to actually prove adultery, he lost the case. But the damage was done: Melbourne, tainted by the scandal, abandoned Caroline Norton, as did her friends.

 

However, she did not give up. Norton continued to campaign tirelessly for access to her children, and the publicity she brought to the legal situation forced politicians to confront the law. In 1839, the Custody of Infants Act was passed, allowing judges to give custody of children under 7 to the mother.

May 26, 2022 in Books, Family, Legal History | Permalink | Comments (0)

The New Interjurisdictional Abortion Wars in the Post-Roe Era

Maya Manian, Interjurisdictional Abortion Wars in the Post-Roe Era, JOTWELL, reviewing, David S. Cohen, Greer Donley, and Rachel Rebouche, The New Abortion Battleground, 122 Col. L. Rev. __ (forthcoming 2022), available at SSRN.

The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.

In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.

The article describes interstate conflicts over abortion that will inevitably emerge given that some states will seek to restrict their citizens’ out-of-state travel for abortion care while other states will seek to protect the provision of abortion care to out-of-state patients within their borders. Potential conflicts could also arise between an actively abortion-supportive federal government and anti-abortion states. The article’s primary contribution is to map out the complex legal questions that will ensue from Roe’s reversal on both the horizontal and vertical axes of interjurisdictional conflict. 

May 26, 2022 in Abortion, Courts, Reproductive Rights | Permalink | Comments (0)

How Comedy TV Downplays Sexual Harassment and Desensitizes Jurors

Molly Pratt, "'He Took It Out.' How Comedic Television Shows Shape Jurors' Perceptions of Workplace Sexual Harassment," 90 U.M.K.C. L. Rev. (2022)

This Comment analyzes the ways in which depictions of sexual harassment in media, specifically situational comedic ("sit-com") television series, affect potential jurors' understanding and evaluation of workplace sexual harassment claims. Part I begins by explaining the "cultivation theory," which hypothesizes that television shapes viewers' beliefs about the world around them. This section also considers social science evidence that exemplifies how people are influenced by different forms of media, especially media depictions that sexually objectify women. Next, Part II describes the elements of the two different types of harassment claims to provide a backdrop of what real humans, not characters on television, endure every day at work. Part III compares two major sensationalized claims of sexual harassment that have occurred over the past thirty years. Part IV summarizes various episodes of Seinfeld, Veep, and Curb Your Enthusiasm that include scenes of sexual harassment in order to analyze how prospective jurors might consider the illegal harassment shown on television almost every night. Finally, Part V proposes actions that can be taken by the legal and entertainment industries to ameliorate the harmful effects that comedic depictions of sexual harassment can have on juries.

Comedic television episodes which downplay workplace sexual harassment situations that would otherwise make for valid claims under Title VII may cause jurors to become desensitized to the severity of real-world harassment experienced by real-world victims. While this Comment aims to illustrate how media consumption affects the breadth of the legal industry, its underlying goal is to shed light on how inaccurate depictions of legal issues can be harmful to a viewer who is untrained in the law.

May 26, 2022 in Equal Employment, Media, Pop Culture, Workplace | Permalink | Comments (0)

Wednesday, May 25, 2022

10 Books to Understand the Abortion Debate

NYT, Ten Books to Understand the Abortion Debate in the US

***To help understand how we got to this point, here is a list of 10 books — five that examine the legal, political and social foundations of abortion in America, followed by another five that explore all that abortion has encompassed since Roe: issues of violence and stigma, politics and race, medicine and law, philosophy and medicine.

 

Abortion in America: The Origins and Evolution of National Policy (1978), by James C. Mohr

 

Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994), by David Garrow

 

Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (2010), by Linda Greenhouse and Reva Siegel

 

Abortion & the Politics of Motherhood (1984), by Kristin Luker

 

Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade (2016), by Daniel K. Williams

 

After Roe: The Lost History of the Abortion Debate (2015), by Mary Ziegler

 

Wrath of Angels: The American Abortion War (1998), by James Risen and Judy L. Thomas

 

Abortion After Roe (2015), by Johanna Schoen

 

Scarlet A: The Ethics, Law, and Politics of Ordinary Abortion (2018), by Katie Watson

 

‘What It Means to Be Human: The Case for the Body in Public Bioethics (2020), by O. Carter Snead

May 25, 2022 in Abortion, Books, Legal History, Pop Culture, Reproductive Rights | Permalink | Comments (0)

Study Shows Prosecutors Favor Defendants of their Own Gender

Stephanie Holmes Didwania, Gender Favoritism Among Criminal Prosecutors, Journal of Law and Economics (Forthcoming)

Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors. 

May 25, 2022 in Courts, Gender | Permalink | Comments (0)

US Soccer Reaches Labor Deal for Equal Pay for US National Women's Soccer Team

Wash Post, US Women's and Men's National Soccer Teams Close Pay Gap with "Game-Changing" Deal

The U.S. men’s and women’s national soccer teams struck a labor deal that closes the contentious pay gap between the squads, an unprecedented step that will equalize both salaries and bonuses, providing a substantial boost to the decorated women’s team.

 

The deal was part of new collective bargaining agreements with the U.S. Soccer Federation that were announced Wednesday. It was the culmination of a long battle between the women’s team and the sport’s national governing body, which included a high-profile lawsuit that was settled this year.

 

The USSF said the agreement makes the United States the first country to achieve equal pay for its men’s and women’s teams.

 
“To finally get to the point where on every economic term it’s equal pay, I am just really proud,” USSF President Cindy Parlow Cone said
 
The new CBAs, which still need to be ratified, will equalize World Cup bonuses, something Parlow Cone said no other nation had done. The U.S. teams will pool the World Cup bonuses received from FIFA, the sport’s global governing body, and split them equally, evening out a substantially unequal playing field.

May 25, 2022 in Equal Employment, Sports | Permalink | Comments (0)

Tuesday, May 24, 2022

How the Right to Birth Control Could be Undone by the SCOTUS Abortion Decision

Melissa Murray, Op-ed, How the Right to Birth Control Could be Undone, NY Times

The leaked draft opinion of the Supreme Court’s decision overturning Roe v. Wade has prompted a flurry of debate about the fate of other so-called unenumerated rights — rights that are not explicitly outlined in the Constitution — including the right to access contraception.

According to some commentators, claims that the right to contraception could be on the chopping block are little more than hyperbolic “catastrophizing” that cannot be taken seriously. Prominent constitutional law scholars also have insisted that such claims are little more than baseless fearmongering, and The Wall Street Journal’s editorial page insisted that liberal fears about overruling rights to contraception and same-sex marriage are little more than an “implausible parade of horribles.”

Such high-level minimizing is not surprising. To understand whether the right to access contraception, like the right to abortion, could be overturned, it’s necessary to pick up on clues in Justice Samuel Alito’s draft opinion.***

But the same could be said of other unenumerated rights, including, and especially, contraception. Nowhere does the Constitution speak of a right to contraception — the Constitution does not even explicitly mention women. And as many conservatives have noted, the American legal landscape was littered with prohibitions on contraception right up until the court invalidated Connecticut’s ban on contraception in 1965’s Griswold v. Connecticut.

Justice Alito himself has already set in motion the means for challenging the right to contraception. In 2014’s Burwell v. Hobby Lobby, the family that owns the craft store company objected on religious grounds to the Affordable Care Act’s contraceptive mandate, which required employers to provide employees with insurance coverage for contraception. Specifically, Hobby Lobby balked at providing its employees with insurance plans that would cover IUDs and emergency contraceptives, like Plan B, based on the unsubstantiated claim that such contraceptives are abortifacients. The court, in an opinion written by Justice Alito, ruled for Hobby Lobby.

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

The Equal Protection Arguments in the Dobbs Abortion Case

Featured on the Legal Theory Blog is Reva Siegel, Serena Mayeri & Melissa Murray, On Equal Protection and the Dobbs Draft, on their article Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Columbia J. Gender & Law (forthcoming).

In the leaked draft of Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito dismissed the Equal Protection Clause as an alternative ground of the abortion right, citing an amicus brief in which we advanced that argument. In dicta, Justice Alito claimed that precedents foreclosed the brief’s arguments (pp. 10-11).

 

Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.

 

This Essay, written before Justice Alito’s draft leaked, explains the brief’s equal protection arguments for abortion rights, and shows how these equality-based arguments open up crucial conversations that extend far beyond abortion.***

 

Equality challenges to abortion bans preceded Roe, and will continue long after Dobbs v. Jackson Women’s Health Organization, however the Court rules in that case. In this Essay we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause.

May 24, 2022 in Abortion, Constitutional, Legal History, SCOTUS, Theory | Permalink | Comments (0)

Monday, May 23, 2022

Exploring State Laws of Pregnant Workers Fairness Acts and Reasonable Accommodations

Deborah Widiss, Pregnant Workers Fairness Acts: Advancing a Progressive Policy in Both Red and Blue America, Nevada L.J. (forthcoming)

 Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to work safely through a pregnancy. Federal law does not explicitly address this need. However, in the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divides in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay, written for a symposium on using state legislation to advance civil rights, offers the first relatively-detailed case study of this remarkably effective campaign.

Advocates have generated bipartisan support by highlighting that the laws, generally known as Pregnant Workers Fairness Acts, simultaneously advance numerous distinct policy objectives. Lack of accommodations for pregnancy is a major barrier to women’s equality that disproportionately disadvantages poor and working-class women of color. Addressing this need is also a pro-family policy that promotes maternal and infant health and reduces liability risk to employers. These various frames help sell the policy to lawmakers across the political spectrum.

The state-level success has also been the result of effective partnerships between national organizations and state and local groups. Additionally, the Essay shows how the state legislative campaign has been reinforced by litigation in federal courts, advocacy to federal agencies and Congress, and worker organizing. Finally, the Essay explores how state-level organizing—even unsuccessful state campaigns—has bolstered support for analogous federal legislation.

May 23, 2022 in Equal Employment, Legislation, Pregnancy, Reproductive Rights, Workplace | Permalink | Comments (0)

Decriminalizing Domestic Violence in the Context of Housing and Nuisance Law

Siya Hedge, "I Am Not a Nuisance": Decriminalizing Domestic Violence Across New York's Civil Housing & Criminal Justice Systems, 29 Georgetown J. on Poverty, Law & Policy (2021)

  This Article examines how the treatment of domestic violence in New York’s civil and criminal legal systems places survivors and alleged abusers at risk of homelessness—on the one hand, it has been underplayed as a ‘bothersome’ nuisance offense to landlords, while also serving as a basis for state-sanctioned evictions through the issuance of Orders of Protection. Section I incorporates client anecdotes to display how this issue has affected Bronx tenants during the pandemic, explaining theoretical re-framings of domestic violence and providing context on how domestic violence rates in New York City have affected the homelessness epidemic. Section II conducts a deeper dive into nuisance doctrine and the ways that New York tenants affected by domestic violence are entangled in civil judicial and administrative housing disputes. Section III discusses domestic violence prosecutions in criminal courts and the pitfalls that Orders of Protection present in curtailing alleged abusers’ housing rights. Section IV offers policy recommendations to combat the impacts of local nuisance laws and Orders of Protection on survivors and alleged abusers, further acknowledging the importance of transformative justice as an advocacy method to decriminalize domestic violence across the civil and criminal legal spectrum.

May 23, 2022 in Violence Against Women | Permalink | Comments (0)

Free Exercise Arguments for the Right to Abortion

Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, 29 U.C.L.A. Women's Law J. (2022) 

The popular narrative of the relationship between religion and reproductive rights equates religious belief with opposition to abortion and the exercise of conscience with refraining from the provision of abortion care. The presumption that faith inevitably conflicts with support for reproductive rights is a chapter in a larger story—created and reinforced both legally and culturally —that links religious liberty to conservative views about sex, sexuality, and reproduction.

This Article demonstrates that this typical abortion tale, while well-worn, is one-sided. It traces the history of the claim that restrictions on abortion violate either the Free Exercise Clause or the Religious Freedom Restoration Act (RFRA). This claim asserts that laws that explicitly ban or curtail access to abortion burden pregnant people’s ability to make reproductive decisions that are guided by their sincerely held religious beliefs or burden healthcare providers’ ability to provide abortion care as dictated by their religious beliefs. This Article argues that recovering this lost history reveals a dual erasure: erasure of the fact that faith motivates or even requires people to provide or obtain abortions and erasure of the decades-long legal claim, present from the outset of the first sustained effort to challenge the constitutionality of laws criminalizing abortion in the late 1960s, that protecting the right to abortion is actually more consistent with religious-liberty principles than restricting it. There is a rich tradition of the clergy, the women’s movement, and religious organizations fusing free-exercise arguments with arguments about economic justice, dignity, and pregnant people’s ability to make choices about their lives and families.

The historic and normative groundwork laid in this Article illuminates what are now largely invisible concerns with curtailing not only abortion access but also reproductive healthcare access broadly and creates a more holistic, complete account of what it means to protect religious freedom in the reproductive-rights context.

May 23, 2022 in Abortion, Constitutional, Reproductive Rights, Theory | Permalink | Comments (0)

Friday, May 20, 2022

More on the History of Abortion as Different than Presented by Justice Alito in the Draft Dobbs Opinion

Wash Post, Abortion in the Founders" Era

Justice Samuel A. Alito Jr. calls himself an originalist, someone who thinks the Constitution should be interpreted only by how it would have been understood by the Founders when they wrote it. So it’s no surprise that his draft opinion overturning Roe v. Wade is full of history.

 
At least seven times, Alito cited Sir Matthew Hale, a 17th-century jurist who didn’t think marital rape was possible because wives were the property of their husbands, and who sentenced at least two women to die for witchcraft. Alito also cited a legal text from 1250 by Henry de Bracton that, in another section, says women are inferior to men, and that they sometimes give birth to literal monsters.

 

Alito confined his exploration of the past to legal history and English common law. But to assess how the Founders would view abortion rights, it’s necessary to paint a fuller picture of what abortion was actually like in the time of the Founders.

 

In the 18th-century United States and England, abortion was common enough that there were slang terms for it, like “taking the cold,” “taking the trade” and “bringing down the flowers.”It was less-effective and more dangerous than it is now; women seeking abortions often died from infected wounds or poisons. And it was generally unregulated, except for a few instances in England and one in colonial Maryland mentioned by Alito in the draft opinion.

 

In the late-18th and early-19th centuries, no states had laws against any form of abortion, though Alito averred that “manuals for justices of the peace printed in the colonies in the 18th century” sometimes "repeated Hale’s and [William] Blackstone’s statements that anyone who prescribed medication ‘unlawfully to destroy the child’ would be guilty of murder if the woman died.”

NPR, For Ben Franklin, Abortion Was Simple Arithmetic

NPR's Emily Feng speaks with Molly Farrell from The Ohio State University on why Ben Franklin included instructions for at-home abortions in his reference book, The American Instructor.***

 

So I thought, OK, how do you solve the problem of a missed period? And it says this is a common complaint among unmarried women that they miss their period. And then it starts to prescribe basically all of the best-known herbal abortifacients and contraceptives that were circulating at the time. It's just sort of a greatest hits of what 18th-century herbalists would have given a woman who wanted to end a pregnancy early in her pregnancy. And that's what, by the way, this abortifacient recipe would really be for was really early. It talks about, like, make sure you start to take it a week before you expect to be out of order. So take it before you've even missed that period, and it will be most effective. So it's very explicit, very detailed, also very accurate for the time in terms of what was known at the time for how to end a pregnancy pretty early on.

 

And then at the end, it just really comes out swinging and lets you know this is definitely related to sex 'cause it says, you know, also women - you know, in order to prevent this complaint at the end - so prevention for next time - don't long for pretty fellows or any other trash whatsoever.

See also Molly Farrell, Ben Franklin Put an Abortion Recipe in his Math Textbook

May 20, 2022 in Abortion, Legal History | Permalink | Comments (0)

Why the Dobbs Leaked Draft Opinion is Doctrinally Unsound

Nancy Marcus, Yes, Alito, There is a Right to Privacy: Why the Dobbs Leaked Draft Opinion is Doctrinally Unsound, 13 ConLawNOW 101 (2022)

The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe, but had instead been criminalized in a number of states. Under the apparent premise that conduct once criminalized cannot subsequently be constitutionally protected as a fundamental right. Second, the opinion is grounded in an interpretation of substantive due process that only recognizes Fourteenth Amendment protections for unenumerated rights when the specific conduct-framed right for which protection is sought be deeply rooted in history

May 20, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Sojourner Truth Monument Revealed for Akron

The Sojourner Truth Project Committee plans to build a 10,000-square-foot plaza that will welcome visitors coming into Akron. (Courtesy of GPD Group )

Sojourner Truth Committee Reveals Akron Monument Designs

AKRON, Ohio — As the anniversary nears of Sojourner Truth’s celebrated “Ain’t I a Woman” speech in Akron, a dedicated group of women is at work bringing a years-long dream to fruition — a tribute as memorable and powerful as the life and work of the slave-turned-suffragette, built on the site where she made history.

 

In less than two years, the Sojourner Truth Project Committee plans to build a 10,000-square-foot plaza that will welcome visitors coming into Akron from the north, with the word “TRUTH” clearly visible on entry. Near the plaza’s center will be a sculpture of Sojourner Truth seated on an Impala lily, a petal design radiating outward from her feet, and her right hand extended in welcome.

 

“Truth is such a big word. It’s so bold and so concrete. What it stands for is unwavering,” said Summit County Metro Parks’ landscape architect Dion Harris, who the committee commissioned to design the plaza.

 

Truth was a powerful voice for women’s rights, especially women of color. An emancipated New-York slave born Isabella Baumfree, she changed her name in 1843 before crisscrossing the nation to speak against slavery and for women’s rights.

 

On May 29, 1851 during an Ohio Women’s Rights Convention, the steps of the Old Stone Church on High Street served as Truth’s platform. She was not invited, nor was she asked to speak, but her speech that day is remembered as a voice for all women.

 

Although the steps are long gone, the power of Truth’s speech remains, rendering it one of the most important women’s rights speeches on record in the U.S.

 

Harris researched Truth’s life and work to infuse that meaning into the design, he said. The impala lily is the national flower of Ghana, Truth’s ancestry on her father’s side.

May 20, 2022 in Legal History, Pop Culture, Race | Permalink | Comments (0)

Thursday, May 19, 2022

Finding a New Home for the Abortion Right Under the Ninth Amendment

The original constitutional location for the right to abortion was identified as the Ninth Amendment by the trial court in Roe v. Wade building on the lead opinions in Griswold.   Worth another look.

Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).

This essay advocates locating the foundation of the constitutional right to an abortion in the Ninth Amendment. Using the Ninth Amendment to recognize the right to an abortion, this article argues, is a better path than using the Fourteenth Amendment because it takes the determination of whether an abortion is a protected right outside the moral realm. The analysis under the Fourteenth Amendment of whether a right is “deeply rooted in the tradition” of the United States inevitably stirs a debate about whether the public considers abortion morally acceptable. In recognizing the right to an abortion under the Ninth Amendment, no such analysis is necessary. The text of the Ninth Amendment allows the U.S. Supreme Court to recognize this protected right without an inquiry into historical tradition. Instead, the Court can use natural law principles, as contemplated by the Founders, to recognize that private conduct is worthy of constitutional protection and acknowledge that the Ninth Amendment affords these rights to the people.

May 19, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

The Cramped Parameters of "Liberty" in the Leaked Draft Dobbs Opinion

David Gans, The Framers Were Big Fans of Liberty, Unlike Samuel Alito

Alito’s opinion suggests that liberty is to be feared, not celebrated as a core feature of our constitutional heritage. “Liberty,” he insists, is a “capacious term” that could have hundreds of possible meanings, and he worries that the judiciary will engage in “freewheeling judicial policymaking” in the guise of protecting liberty. He insists that the Supreme Court should be extremely loath “to recognize rights not mentioned in the Constitution” for fear that the Supreme Court will “usurp authority that the Constitution entrusts to the people’s elected representatives.” Because liberty could mean anything, in his view, it means almost nothing.***

 

According to Alito, only the most overwhelming, centuries-old historical evidence—essentially the sort of historical grounding that rights in the Bill of Rights can point to—could possibly justify the protection of an unenumerated fundamental right. The right to abortion recognized in Roe v. Wade, he argues, spectacularly fails this test; extending his reasoning, so might the right of people of different races, or of the same sex, to marry—protected in Loving v. Virginia and Obergefell v. Hodges—and the right to use contraceptives protected by Griswold v. Connecticut, as others have pointed out. Alito’s opinion bulldozes a century of case law protecting fundamental rights to bodily integrity and marriage, and the right to decide for one’s own self whether, when, and with whom to form a family.

 

What fundamental rights have the kind of historical backing Alito seems to demand? What other fundamental rights can claim a historical lineage equivalent to rights in the Bill of Rights? Few, if any, would seem to measure up to the strict standard Alito lays out. That is not a bug, but a feature, of Alito’s approach. To Alito’s way of thinking, many of the rights we cherish as part of our heritage of liberty are not rights at all.

 

As future Supreme Court Justice James Iredell aptly observed, “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.” The Ninth Amendment, which provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” codifies that essential idea.

 

Alito’s basic move defies the Constitution. He disparages the idea that we have fundamental rights that are basic to bodily integrity, human dignity, and equal citizenship, simply because they are not mentioned in the text. He flouts the rule of construction the Ninth Amendment prescribes.

May 19, 2022 in Abortion, Constitutional, SCOTUS, Theory | Permalink | Comments (0)

Republicans Introduce "Women's Bill of Rights" to "Protect" Biological Sex Differences in Law

Republicans Introduce Women's Bill of Rights to Protect Accomplishments, Ensure Safety of Biological Females

Republicans are introducing a "Women's Bill of Rights" in order to enshrine into law protections for females based on their biological sex.

 

Rep. Debbie Lesko, R-Ariz., is leading lawmakers on the Republican Study Committee (RSC), the largest group of conservative lawmakers on the Hill, in formally introducing the legislation Thursday morning. 

 

"I am proud to introduce the Women’s Bill of Rights to affirm the importance of acknowledging women and their unique and distinguishing characteristics and contributions to our nation. As the Left continues to erase women, we must fight for women and their place in our society. Whether it’s keeping the word "mother" in written law, or ensuring women’s domestic violence shelters do not have to accept biological men, we must stand up for women," Lesko told Fox News Digital.

 

The bill states that the Women's Bill of Rights is necessary to establish in order to "reaffirm legal protections afforded to women under Federal law" due to that face that males and females have unique biological differences, which increases as they age.

 

The lawmakers' bill says that due to biological differences, only females are able to "get pregnant, give birth, breastfeed children." In addition, males are larger and possess greater strength than females due to biology. The text also states that females are subjected to more specific forms of violence, including sexual violence....

 

"This common-sense document will help codify our common understanding and the reality we all know of the words ‘female,’ ‘woman,’ and ‘sex’, and I am proud to support it," Rep. Miller added.

 

The legislation clarifies, "for purposes of Federal law, a person’s ‘sex’ means his or her biological sex (either male or female) at birth" and the term "mother" means "parents of female sex and ‘father’ is defined as parent of the male sex." It continues: "there are important reasons to distinguish between the sexes with respect to athletics, prisons, domestic violence shelters, restrooms, and other areas, particularly where biology, safety, and privacy are implicated."

May 19, 2022 in Gender, Legislation, LGBT | Permalink | Comments (0)