Tuesday, February 28, 2023

New Book: Woman, The American History of an Idea

Lillian Faderman, Woman: The American History of an Idea (2023)

What does it mean to be a “woman” in America? Award-winning gender and sexuality scholar Lillian Faderman traces the evolution of the meaning from Puritan ideas of God’s plan for women to the sexual revolution of the 1960s and its reversals to the impact of such recent events as #metoo, the appointment of Amy Coney Barrett to the Supreme Court, the election of Kamala Harris as vice president, and the transgender movement.
 
This wide-ranging 400-year history chronicles conflicts, retreats, defeats, and hard-won victories in both the private and the public sectors and shines a light on the often-overlooked battles of enslaved women and women leaders in tribal nations. Noting that every attempt to cement a particular definition of “woman” has been met with resistance, Faderman also shows that successful challenges to the status quo are often short-lived. As she underlines, the idea of womanhood in America continues to be contested.

February 28, 2023 in Books, Gender, Legal History | Permalink | Comments (0)

Study Shows Hierarchy, Race and Gender Impact Scholarly Networks and Who is Helped on Their Legal Academic Path

Keerthana Nunna, W. Nicholson Price II & Jonathan Tietz, Hierarchy Race and Gender in Legal Scholarly Networks, 75 Stanford Law Review 71 (Feb. 2023)

A potent myth of legal academic scholarship is that it is mostly meritocratic and mostly solitary. Reality is more complicated. In this Article, we plumb the networks of knowledge co-production in legal academia by analyzing the star footnotes that appear at the beginning of most law review articles. Acknowledgments paint a rich picture of both the currency of scholarly credit and the relationships among scholars. Building on others’ prior work characterizing the potent impact of hierarchy, race, and gender in legal academia more generally, we examine the patterns of scholarly networks and probe the effects of those factors. The landscape we illustrate is depressingly unsurprising in basic contours but awash in details. Hierarchy, race, and gender all have substantial effects on who gets acknowledged and how, what networks of knowledge co-production get formed, and who is helped on their path through the legal academic world.

February 28, 2023 in Gender, Law schools, Race, Scholarship | Permalink | Comments (0)

OK Judge Denies Lesbian Partner Martial Presumption of Parenthood

OK Judge Transferred a Lesbian Mom's Parental Rights to her Son's Sperm Donor

Kris Williams is a lesbian, and that means she won’t be seeing her son anytime soon. That is the official ruling of an Oklahoma court. On Monday, Oklahoma County District Judge Lynne McGuire ruled that Williams had failed to adopt her son and had forfeited her parenting rights to his sperm donor. 

Advocates say Williams’ case may test the bounds of equal marriage laws in Oklahoma and beyond. According to Williams, she and her ex-partner Rebekah Wilson planned to have their son and found sperm donor Harlan Vaughn on a paternity website together. The two married while Wilson was pregnant. 

In most states, married couples are presumed parents of children born within those unions. Williams said she and Wilson raised W. (whose name has been excluded to protect his identity) for two years. But the couple split bitterly in 2021, and Wilson moved in with Vaughn, taking W. with her. She argued that Williams was not W.’s mom. 

McGuire agreed and retroactively removed Williams from W.’s birth certificate last May. 

“I don’t feel like we should have to adopt our own children,” Williams told the 19th. “If I was a man, then nobody could come back and you know, question whether that child was mine or not, after they’re the age of two.” 

McGuire reinstated Williams on the birth certificate in June, and Williams’ name remains. But the issue of Williams’ parental rights was still undecided until February 13, when McGuire ruled that Oklahoma’s parentage act predated marriage equality and therefore didn’t apply to Williams and Wilson.***

Legal experts warn that the case could have substantial implications for marriage equality nationwide. Advocates battled a number of cases to enshrine same-sex marriage protections after the Supreme Court granted those rights nationwide in 2015. Among those fights was the right of parentage. The 2015 Supreme Court case Pavan v. Smith found that it was unconstitutional to treat queer couples differently than heterosexual couples when it came to presuming parentage. If married heterosexual couples were presumed to be parents of children born during their marriage, the same must be true for LGBTQ+ couples. 

However, laws vary state to state. 

 

February 28, 2023 in Family, Gender, LGBT | Permalink | Comments (0)

Monday, February 27, 2023

New Abortion-Related Legal Defense Services Launched

The Center for Reproductive Rights announced that it has collaborated with partners to launch a new nationwide effort to provide abortion-related legal defense services. Its partners include the ACLU, If/When/How, the National Women's Law Center, and Resources for Abortion Delivery. "Designed for both abortion providers and those seeking abortion care or who recently had an abortion, the Abortion Defense Network aims to ensure that people have access to the legal resources they need to navigate the confusing and hostile post-Roe legal landscape." The announcement provides a scope of coverage: 

Users will get answers to questions about legal rights, locating abortion care, and finding funds for legal and other expenses, including:

  • Legal rights pertaining to providing or supporting abortion care.
  • Threats of arrest, prosecution, or other legal action related to abortion.
  • How to access organizations that provide funding to cover attorney’s fees, bail and bond fees, and other legal expenses.

The link is here: https://abortiondefensenetwork.org/. 

February 27, 2023 in Abortion, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Sara Ochs on "Imposter Syndrome & The Law School Caste System"

Sara Ochs has published Imposter Syndrome & The Law School Caste System in volume 42 of the Pace Law Review (2022). The abstract previews:   

For decades, legal academia has been structured around a hierarchical caste system, with tenured and tenure-track doctrinal law professors—many of whom are men—occupying the highest caste, and professors of legal skills courses—who more often identify as women—relegated to the lower castes. The status of these “lower caste” professors is routinely reinforced through weaker job security, less respect, and lower pay than received by their doctrinal, “upper caste” colleagues. Given this inequality, imposter syndrome plays a pervasive role in the lives and careers of professors of legal skills courses. Relying on qualitative data obtained from teaching faculty and staff at ABA accredited and approved law schools nationwide, this article analyzes how the law school hierarchy manifests as imposter syndrome in professors of legal skills courses, which impacts their relationships with colleagues; teaching; relationships with students; publication and promotion of scholarship; and personal health and wellbeing. Based on these findings, the article argues that the impacts of imposter syndrome on skills professors—many of which have gendered implications—promote a recurring cycle of classism and discrimination within legal academia. The article further identifies imposter syndrome as an institutionalized, rather than an individualized, problem within legal academia. The responsibility and capacity to address this problem therefore lies in the institution—in this case, law schools—rather than the skills professors themselves. Thus, this article concludes that the only way to reduce the insidious presence of imposter syndrome in legal academia is to dismantle the law school caste system and level the hierarchy.

February 27, 2023 in Law schools | Permalink | Comments (0)

New Article on "Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals"

Jeremy Fogel. Mary Hoopes, and Goodwin Liu have published a forthcoming article on SSRN titled Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals. The article is forthcoming in the Harvard Law Review. The abstract states: 

Judicial clerkships are key positions of responsibility and coveted opportunities for career advancement. Commentators have noted that the demographics of law clerks do not align with the student population by law school, socioeconomic background, gender, race, or ethnicity, and that ideological matching is prevalent between judges and their clerks. But extant studies draw on limited data and offer little visibility into how judges actually select clerks. For this study, we conducted in-depth individual interviews with fifty active judges of the federal courts of appeals to learn how they approach law clerk selection and diversity. Our sample, though not fully representative of the judiciary, includes judges from all circuits, appointed by Presidents of both parties, with average tenure of fourteen years. The confidential interviews, which drew in part upon the peer relationship that two of us have with fellow judges, yielded rich and candid insights not captured by prior surveys.

This Article reports our findings, among them: (1) With few exceptions, appellate judges hire clerks as an “ensemble” and assign positive value to diversity, although judges vary significantly in the dimensions of diversity they seek. (2) Most judges disclaim any interest in ideological alignment when hiring clerks; we situate this finding in the context of factors that contribute to ideological segmentation of the clerkship market. (3) Republican appointees, compared to Democratic appointees, more often identified socioeconomic diversity as the primary dimension of diversity they seek. (4) Judges who graduated from law schools outside the U.S. News & World Report top twenty are significantly more likely than other judges to hire clerks from schools outside the top twenty. (5) Almost all judges in our sample consider gender in clerkship hiring, and many have specific goals for gender balance. Republican appointees reported more difficulty drawing women into their applicant pool than Democratic appointees. (6) Most judges in our sample assign positive value to racial diversity and consider race to some degree in evaluating applicants, although it is important to note that some judges believe strongly that such consideration is inappropriate. (7) Many judges who view racial diversity positively nonetheless reported difficulty hiring Black and Hispanic clerks. The judges with the most robust records of minority hiring are those who make affirmative efforts to draw minority candidates into their applicant pool or place greater emphasis on indicators of talent besides grades and law school rank, or do both. (8) Black judges are particularly successful in hiring Black clerks; we estimate that Black judges, who comprised less than one-eighth of active circuit judges during our study, accounted for more than half of the Black clerks hired each year in the federal courts of appeals.

These findings have implications for judicial selection; in short, diversity among judges affects diversity among clerks. Further, one of our most consistent findings is that judges do not discuss clerk hiring or diversity with each other. This silence reflects norms of judicial culture that foster collegiality and mutual deference while tending to inhibit peer-to-peer discussion of how judges select their clerks. Yet many judges want to hire more diverse clerks and would like to learn from their colleagues’ practices. We propose measures to increase transparency, facilitate peer exchange, and increase judges’ capacity to achieve their hiring objectives, whatever they may be.

 

February 27, 2023 in Courts, Equal Employment, Judges, Law schools, Workplace | Permalink | Comments (0)

Friday, February 24, 2023

The Future of Equal Pay in Sports

Suman Dash Bhattamishra & Rangin Tripathy, The Future of Equal Pay in Sports, 7(1) COMP. CONST. L. & ADMIN. L. J. [1] (2022)

Over the last decade, there has been a steady and unmistakable rise in the popularity of women’s sports and female athletes in general. Most of the viewership records for major women’s sporting events have been set in the last decade. With increased attention to women’s sports, there has also been heightened scrutiny on the pay gap which exists between men and women playing the same sport. While in some selected sporting competitions, such as the All-England Tennis Championships (Wimbledon), women and men are now paid equal amounts of prize money, there still exists a significant difference in the financial incentives which are afforded to men and women. This paper looks at the feasibility of ensuring equal pay through the judicial process. We argue that a judicial route would involve greater hazards in the pursuit of equal pay, and instead, the pressure of public opinion and consequential changes in policy formulation by the administrators presents a better opportunity of mitigating the pay gap which exists between men and women. We further argue that even if judicial decisions favour the cause of equal pay, in the current climate, political mobilization offers a more enduring solution than judicial intervention.

February 24, 2023 in Equal Employment, International, Sports | Permalink | Comments (0)

Conference, Mainstreaming Reproductive Health

To celebrate the publication of Feminist Judgments: Health Law Rewritten, edited by Seema Mohapatra and Lindsay F. Wiley, UCLA School of Law hosted an in-person conference on “Mainstreaming Reproductive Health in Health Law, Policy and Ethics” on February 10, 2023.

This national conference brought together health law, food and drug law, employee benefits, health information privacy, bioethics, and medical experts from across the country to share insights on how and why government and institutional leaders have traditionally siloed off reproductive and sexual health from other health care needs. We focused on the implications of this exceptionalism for efforts to secure access to reproductive and sexual health care in the aftermath of the Supreme Court’s decision overturning Roe v. Wade. We identified strategies for mainstreaming reproductive and sexual health within efforts aimed at securing equity, patient safety, and patient autonomy in health care financing and delivery.

This event was co-sponsored by UCLA Law’s Center on Reproductive Health, Law, and Policy, UCLA Law’s Health Law and Policy Program, and SMU Dedman School of Law's Tsai Center for Law, Science and Innovation.

If you were unable to join the event in person, you may view the panel recordings here

February 24, 2023 in Abortion, Conferences, Healthcare, Reproductive Rights | Permalink | Comments (0)

Ohio Will Be the 7th State to Put Abortion to a Popular Vote

Ohio Will Be the 7th State to Put Abortion to a Popular Vote

Ohio will become the seventh state to put abortion to a popular vote, as two competing pro-abortion rights groups have combined forces to file a ballot measure as soon as next week, according to local media.

The odds are looking good for supporters of reproductive autonomy: In all six ballot measures states put forth last year, abortion rights won. Kansas voters overwhelmingly chose to keep abortion legal. In Montana, voters were given a confusingly worded “born-alive” ballot initiative that presented the false belief that infants survive abortion, and they managed to protect abortion rights anyway. Michigan, Vermont and California also voted “yes” to enshrine the right in the states’ constitutions.

Ohio will likely be taking the proactive approach. Ohioans for Reproductive Freedom and Ohio Physicians for Reproductive Rights will file paperwork with the state attorney general next week to start the process of getting on the November ballot.

“The language has been worked out with both groups for weeks and weeks at this point,” Celina Coming, a spokesperson for Ohioans for Reproductive Freedom, told Cleveland.com. “We’re just dotting our I’s and crossing our T’s and waiting for a final round of poling to be completed and reviewed. But we’re all set to go very, very soon.”

The effort of gathering 400,000-plus signatures by activists could be complicated by Republicans who are upset that abortion remains popular. When news of pro-abortion rights ballot measures started to crop up last year, Republicans tried to change how a constitutional amendment is passed from a simple majority to 60 percent.

February 24, 2023 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, February 20, 2023

Marcy Karin on "Addressing Periods at Work"

Marcy Karin has published Addressing Periods at Work in volume 16 of the Harvard Law and Policy Review (2022). The abstract reads: 

Structural workplace changes are needed to acknowledge, anticipate, and accommodate menstruation, without harming equity or economic security for current and former menstruators. The biological process of menstruation does not stop at work, but workplaces are not designed to support needs related to periods, perimenopause, or menopause. Specifically, some workers who menstruate have needs related to menstrual accommodations like time away from work or access to menstrual products and private and sanitary spaces to dispose of menstrual discharge and the products that absorb them. Workers also have needs related to working free from indignities and harassment because of menstruation. Yet, periods and blood are stigmatized, gendered, and subject to taboos. The corresponding shame, lack of menstrual education, gender composition and power dynamics of workplaces, and overall structural mismatch makes some menstruators susceptible to discrimination and harassment at work.

This article explores this landscape of menstruation, menopause, and work. After identifying and categorizing menstrual needs at work, it analyzes employer-provided policies and existing legal requirements that offer some protections and supports to current and former menstruators at work. It then explores how these existing policies and law fail to comprehensively address menstrual needs or corresponding problems such as absenteeism, lost wages, privacy violations, health implications, harassment, and other menstrual indignities. Building on available menstrual experiences, voluntary employer policies, international models, and analysis of applicable federal law and related litigation, the article recommends public policy interventions to minimize menstrual injustices and acknowledge that menstruation and menopause at work matter.

February 20, 2023 in Healthcare, Workplace | Permalink | Comments (0)

Jensen Lillquist on "Comity & Federalism in Extraterritorial Abortion Regulation"

Jensen Lillquist has posted an article on SSRN titled Comity & Federalism in Extraterritorial Abortion RegulationThe abstract reads: 

On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that states may regulate abortion in whatever manner they wish. In the wake of Dobbs, commentators and laypeople have focused primarily on its implications for reproductive rights and other fundamental rights — such as gay marriage. Less often discussed are the questions that arise regarding state extraterritorial jurisdiction. Since Dobbs, a patchwork of laws has developed: pro-life states have placed greater restrictions on abortion, while pro-choice states have sought to expand abortion access. Questions arise regarding whether and to what extent states may regulate the out-of-state conduct of pregnant women who seek abortion, those who provide assistance to pregnant women, and abortion providers. This patchwork has the potential to generate interstate conflict and creates new urgency for thinking about the legal and constitutional principles that constrain state extraterritorial jurisdiction. This Article outlines state jurisdictional powers and articulates a number of legal barriers to state extraterritorial regulation, including: historical exercises of state jurisdiction, the Due Process and Full Faith and Credit Clauses, the Commerce Clause, and the individual right to travel. It then identifies and resolves nuanced questions raised by abortion regarding which out-of-state actors may face extraterritorial liability, and which kinds of liability — criminal or civil — may have greater reach. This is the first Article to comprehensively consider these issues following Dobbs.

February 20, 2023 in Abortion, Constitutional, Courts | Permalink | Comments (0)

Wednesday, February 15, 2023

The European Court of Human Rights' Decisions Attaching Increasing Importance to Paternal Care and Substantive Gender Equality

Alice Margaria, Another Side of Gender Equality: Fatherhood in the ECtHR Jurisprudence,  
I. Motoc, I. Jelic, S. Suteu and E. Brodeala (eds), Women's Human Rights in the Twenty-First Century: Developments and Challenges under International and European Law (Forthcoming)

This paper sheds light on a central, yet rarely discussed, contribution of the European Court of Human Rights to advancing women's rights and substantive gender equality: that is the increased importance attached to paternal care in its jurisprudence pertaining to fatherhood under Article 8 alone and in conjunction with Article 14. It is argued that this case-law gives us plenty of signs that the Court is taking some promising step towards creating a right to substantive gender equality. In particular, what appears to be the most promising is not – or at least not just – the extension of legal protection to a wider range of ‘unconventional’ fathers, but the way in which this extension has materialised: namely, by acknowledging the central value of care thus advancing, rather than overshadowing, women’s quest for equality. That being said, the same case-law poses also some limitations and risks from a substantive gender equality perspective. Firstly, paternal care is attached different meanings, ranging from actual caregiving to mere caring potential, entailing the risk of 'sentimentalising' care and fatherhood. Secondly, paternal care tends to be given ‘only’ conditional importance: expressions of paternal care are generally taken into consideration if expressed in an otherwise conventional context (eg, genetics, marriage, heteronormativity), rather than being decisive on its own. This assimilationist logic has, in turn, translated into a lower level of protection accorded to same-sex and trans fathers, thus calling for some critical reflections and (more) cautious interpretation of the Court’s reconstruction of fatherhood.

February 15, 2023 in Family, Gender, International | Permalink | Comments (0)

OH Abortion Case Update, ACLU Asks Ohio Supreme Court to Reject State's Appeal

ACLU Ohio Asks Ohio Supreme Court to Reject State's Appeal

The ACLU of Ohio this week asked the Ohio Supreme Court to reject a state appeal and send the court challenge over Ohio’s abortion law back to the trial court in Hamilton County.

The brief, submitted by B. Jessie Hill of the ACLU of Ohio, says the state is “trying to uproot standard procedure” by appealing to the Ohio Supreme Court.

A preliminary injunction from the Hamilton County court continues to block Ohio’s “Heartbeat Law,” which would ban abortion after any embryonic cardiac activity can be detected, as early as six weeks from the individual’s last menstrual period. That means abortion up to 22 weeks of pregnancy, Ohio’s previous standard, remains legal while the court case continues.

In September, Planned Parenthood and Ohio abortion clinics filed suit in Hamilton County Common Pleas Court, challenging the Heartbeat Law in full, and seeking a preliminary injunction for now. In October, Hamilton County Judge Christian Jenkins issued that preliminary injunction, temporarily halting the Heartbeat Law pending a trial.

The state, through Ohio Attorney General Dave Yost, appealed the preliminary injunction to Ohio’s First District Court of Appeals. That appellate court raised the question of whether it had the jurisdiction to rule on the injunction, as the injunction was a preliminary one and not a permanent one.

The appellate court’s ruling found that the injunction had been appealed prematurely as the trial court has not yet finished its case.

The appellate court’s ruling would have pushed the case back to the trial court, but Yost then filed an appeal of the appellate court’s decision to the Ohio Supreme Court.

February 15, 2023 in Abortion, Courts, Reproductive Rights | Permalink | Comments (0)

Situating Dobbs in Constitutional Memory and Other Contexts Where Women's Rights Have Been Retracted

Paula Monopoli, Situating Dobbs, 14 ConLawNOW 45 (2023)

This Article applies the concept of constitutional memory to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to dispute the dominant view that the case was unique in erasing a constitutional right. It offers three examples—voting, Prohibition, and protective labor legislation—to illustrate how situating Dobbs within an expansive view of feminist legal history teaches us that it is not the only—just the most recent—example of the Court’s eroding or erasing previously recognized legal protections or rights that had a positive impact on women’s lives. It concludes that Congress, the Supreme Court, and the People themselves have been more likely to erase or erode a legal or constitutional right that has a disproportionately positive effect on women’s lives. By adopting a broader view of constitutional history, advocates can more effectively respond to Dobbs’ implications for reproductive self-determination.

February 15, 2023 in Abortion, Constitutional, Equal Employment, Legal History, SCOTUS | Permalink | Comments (0)

Tuesday, February 14, 2023

The Implications of Dobbs for the Right of Contraception

Martha Minow, The Unraveling: What Dobbs May Mean for Contraception, Liberty, and Constitutionalism" 
Lee Bollinger and Geoffrey R. Stone, eds., Roe v. Dobbs: The Past, Present and Future of a Constitutional Right to Abortion, Forthcoming

This chapter explores the implications of the Supreme Court’s revocation of pregnant person’s right to choose to terminate a pregnancy; specifically, it explores implications for individuals’ right to choose to prevent a pregnancy through the purchase and use of contraceptives. Examining what the justices explicitly stated about the impact of the decision in Dobbs v. Jackson Women’s Health Organization on access to contraception, what they did not discuss, and what are likely and possible effects of the discussion, the chapter explores immediately and grave uncertainty and heightened risk not only of unwanted pregnancies but also of job and wage insecurity for many people who can become pregnant as well as jeopardy to public confidence in the courts and law.

February 14, 2023 in Abortion, Constitutional, Family, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Originalism is Going to Get Women Killed

 Madiba Dennie, Originalism is Going to Get Women Killed, The Atlantic

American law has not historically been good to women, and whatever progress there once was is now vulnerable to regression. This return is being midwifed into the world by the theory of constitutional interpretation known as originalism—the idea that a law’s constitutionality today is dependent on the Constitution’s purported “original public meaning” when the relevant constitutional text was enacted. Its adherents market originalism as fair and free from favor or prejudice—but its effects are not and will not be fair at all. By its very nature, originalism threatens women and other minority groups who were disempowered at the time of the Constitution’s adoption. We must instead develop a new constitutional interpretative method that protects all Americans as equal members of our democratic society.

The Fifth Circuit Court of Appeals demonstrated as much when it relied on originalism in United States v. Rahimi, a case about a law restricting the gun rights of domestic-violence offenders, last week. The central legal issue in Rahimi was not whether protecting women and children from gun violence is good; the court conceded that it is. Rather, the question before the court was whether protecting women and children from gun violence is constitutional. And the court concluded that it is not.

A three-judge panel unanimously ruled that the Second Amendment was violated by a federal statute that made possessing a gun unlawful for a person who is subject to a restraining order in protection of an intimate partner or child. Its explanation for this dangerous ruling was a straightforward application of originalism. The Founders mentioned a right to keep and bear arms in the Constitution. They did not, however, mention women, who are disproportionately victimized by domestic violence. And although today’s lawmakers may care about women’s rights, they cannot deviate from the Founders’ wishes without a formal constitutional amendment. This will almost assuredly have very real, potentially fatal consequences for women in America: The presence of a gun in a domestic-violence situation increases the risk of femicide by more than 1,000 percent. Originalism is going to get women killed.

February 14, 2023 in Constitutional, SCOTUS, Theory, Violence Against Women | Permalink | Comments (0)

What All State Constitutions Say About Abortion

Re-upping this as still particularly relevant.

Quinn Yeargain, What All State Constitutions Say About Abortion, and Why It Matters

***

As states rush to respond to the U.S. Supreme Court’s ruling, state constitutions—and the judges who have the power to interpret them—have emerged as critical battlegrounds. 

The rights and liberties protected by the federal Constitution only set a floor, not a ceiling, for the rights people enjoy at the state level. States cannot provide less protection than the federal constitution, but they can provide more. Every state constitution contains a bill of rights and other provisions that are semantically similar to the federal Constitution’s, and judges often interpret these state constitutional provisions more expansively. With federal lawsuits now effectively blocked on abortion, as on other issues, many of these state courts now offer a more promising playing field for progressive litigators.***

These rulings rely on varying provisions that are embedded in many state constitutions; most commonly, equal protection clauses, due process clauses, implied or explicit rights to privacy, and gender-equality provisions. (No state constitution has a provision that nominally enshrines a right to abortion, though there are active efforts to change that.) The presence of such clauses in a state constitution does not guarantee that courts apply it to abortion. Eleven states have clauses in their constitutions that mention privacy, for instance, but only some of their high courts have held that the provision protects abortion rights. Where they have, courts frequently rely on state-specific histories and the contexts of their adoption.***

Still, as long as they’re standing, such interpretations are a shield against all-out bans. And they survive the U.S. Supreme Court’s Dobbs decision to overrule Roe

Whether they multiply or atrophy now depends on battles that will be distinct to each state.

To enable a more informed picture of how state constitutions impact abortion rights, Bolts is publishing a state-by-state analysis of how state courts have interpreted their constitutions. The analysis also covers U.S. territories and the District of Columbia.

February 14, 2023 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Monday, February 13, 2023

Thalia González and Rebecca Epstein on "Critical Race Feminism, Health, and Restorative Practice in Schools: Centering the Experiences of Black and Latina Girls"

Thalia González and Rebecca Epstein have posted their article on SSRN: Critical Race Feminism, Health, and Restorative Practice in Schools: Centering the Experiences of Black and Latina Girls, 29 Michigan J. of Gender & Law (2022). The abstract provides: 

 

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in education practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the empirical evidence that has been gathered on school-based restorative justice has framed and named RP as a behavioral intervention aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is central to dismantling discriminatory systems, we argue it reflects an unnecessarily limited understanding of its potential and has generated unintended consequences in the field of RP research. First, the reactive RP model of analysis focuses more exclusively on behavioral change, rather than systemic improvement, to address discipline disparities. Second, RP research has insufficiently examined the potential role of RP in achieving health justice. Third, RP research too rarely engages in intersectional analyses that critically examine gendered racism. This study is intended as a course correction. Building on the work of legal scholars, public health researchers, sociologists, restorative justice practitioners, and our own prior work, this original study is the first to examine non-disciplinary RP through a critical race feminist lens, and—just as importantly—a public health praxis. Our findings reveal that the interplay between RP and adolescent health, race, and gender can no longer be overlooked. Proactive non-disciplinary RP was found to promote supportive school environments that enhance five key protective health factors for Black and Latina girls. Additionally, results indicate that RP improved the mental health and wellbeing of Black and Latina girls, building fundamental resilience skills that can help overcome the complex array of social structures that serve to disempower and disenfranchise girls and harm their educational and health outcomes.

February 13, 2023 in Education, Race | Permalink | Comments (0)

Jane Bailey on "Implicitly Feminist?: The SCC's Decision in R v. Jarvis"

Jane Bailey has posted Implicitly Feminist?: The SCC's decision in R v. Jarvis on SSRN: Implicitly Feminist?: The SCC's decision in R v. Jarvis, 32 CJWL 196 (2019). The abstract provides:  

In R v Jarvis, the Supreme Court of Canada interpreted the Criminal Code voyeurism provision for the first time. This article explores the relevant voyeurism jurisprudence preceding Jarvis including three contentious issues that shaped prior judicial interpretation of the provision: the relevance of s. 8 Charter jurisprudence, the prospect of privacy in public, and the applicability of risk analysis. Although the SCC’s reasons do not explicitly recognize the equality issues at stake, their handling of these three issues arguably mirrors three equality-enhancing strands from feminist theory and jurisprudence. This article explores this overlap, suggesting that the SCC’s reasons in Jarvis can be understood as implicitly feminist. Acknowledging that explicitly feminist reasons would have greater equality-affirming potential in future, it asserts that the SCC’s reasons represent a positive step toward an equality-enhancing conception of privacy rights.

February 13, 2023 | Permalink | Comments (0)

Center for Reproductive Rights Publishes 2022 State Legislative Wrap-Up

The Center for Reproductive Rights has published its 2022 legislative report providing a comprehensive summary of state legislative efforts both to restrict and support all aspects of reproductive healthcare. Here are a few excerpted highlights. The full report is deeply informative. 

  • "During 2022, the Center for Reproductive Rights tracked almost 700 abortion bills. States introduced more than 430 restrictive bills and more than 230 proactive abortion bills expanding protection for abortion."

  • "In 2022, eight states (Iowa, Louisiana, Missouri, Ohio, Oklahoma, Nebraska, South Carolina, and Wyoming) introduced 12 trigger bans. Three states enacted or amended existing trigger bans including Louisiana, Oklahoma, and Wyoming.

  • "In 2022, 20 states (Alaska, Arkansas, Colorado, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, Mississippi, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia) introduced 42 complete bans in the form of granting fetal personhood or just outright banning all abortions. Three states (West Virginia, Oklahoma, and Indiana) enacted complete bans."  
     
  • "In 2022, 28 states introduced 50 restrictive medication abortion bills, five of which were enacted. The bills included total medication abortion bans, medication abortion “reversal” requirements, medication abortion regulation schemes, telemedicine bans, and other medication abortion bans." 
     
  • "In 2022, 17 states (Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Nebraska, North Carolina, South Dakota, Tennessee, and West Virginia) introduced 25 telemedicine bans. Of those, seven were enacted in Indiana, Kentucky, Louisiana, South Dakota, Tennessee and West Virginia. These bans built upon existing telemedicine bans in these states."
     
  • "Thirty-seven states introduced 109 bills with restrictions on abortion providers. States enacted 13 laws with those restrictions. For example, Tennessee enacted legislation that (1) requires medication abortion to be performed by a “qualified physician,” (2) creates onerous reporting requirements for medication abortion providers, and (3) requires admitting privileges for medication abortion providers."
     
  • "Sixteen states introduced 28 bills to create new crimes in the criminal code or add additional criminal penalties to existing restrictions. These bills aimed to criminalize research on fetal tissue, self-managed abortions and feticide, medication abortion restrictions, and more. Two such bills were enacted." 

  • "In 2022, the Center tracked over 230 proactive abortion bills to expand or protect access to abortion care. Of these, 42 were enacted, including interstate shield protections, insurance coverage, and expanded provider scope of practice. Additional proactive bills included those that repeal restrictive laws, expand minors’ access to abortion, expand medication abortion care, protect self-managed abortions, include crisis pregnancy center consumer protections, and expand clinic access protections and statutory protections for abortions. Whereas 2021 brought bills that repealed abortion restrictions, expanded scope of practice, and expanded insurance coverage for abortion care were popular, this year, legislators focused on protecting abortion providers and individuals seeking access outside their home state in anticipation of a negative Dobbs decision. Proactive trends discussed include: 1) interstate shield bills, 2) scope of practice expansion, 3) statutory fundamental right to abortion, 4) expanded insurance coverage, and 5) other proactive measures."

  • "In 2022, 10 states (California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, New Jersey, New York, and Pennsylvania) and the District of Columbia introduced interstate shield bills. California,  Connecticut, Delaware, Massachusetts, New Jersey, and New York enacted their bills."
     
  • "In 2022, 13 states (California, Colorado, Missouri, Minnesota, Wisconsin, Michigan, Ohio, Kentucky, Florida, Maryland, North Carolina, New Jersey, and Vermont) introduced 19 bills to make abortion a fundamental right through statute. Two of these types of bills were enacted in Colorado and New Jersey."

February 13, 2023 in Abortion, Healthcare, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)