Friday, April 28, 2023

New Book, Gender Dynamics and Feminist Perspectives on Transboundary Water Conflict and Cooperation

Jenniver Sehring, Rozemarijn ter Horst, Margreet Zwarteveen    eds., Gender Dynamics in Transboundary Water Governance: Feminist Perspectives on Water Conflict and Cooperation (Routledge 2023)

This volume assesses the nexus of gender and transboundary water governance, containing empirical case studies, discourse analyses, practitioners’ accounts, and theoretical reflections.

Transboundary water governance exists at the intersection of two highly masculinised fields: diplomacy and water resources management. In both fields, positions are mainly held by men, and core ideas, norms, and guiding principles that are presented as neutral, are both shaped by men and based on male experiences. This book sheds light on the often hidden gender dynamics of water conflict and cooperation at the transboundary level and on the implicit assumptions that guide research and policies. The individual chapters of the book, based on case studies from around the world, reveal the gendered nature of water diplomacy, take stock of the number of women involved in organisations that govern shared waters, and analyse programmes that have been set up to promote women in water diplomacy and the obstacles that they face. They explore and contest leading narratives and knowledge that have been shaped mainly by privileged men, and assess how the participation of women concretely impacts the practices, routines, and processes of water negotiations.

April 28, 2023 in Books, Gender, International | Permalink | Comments (0)

Gender, Marketplace Deception, and Morality in Contracts

Hila Keren, Gender and Marketplace Morality, JOTWELL, reviewing Gregory Klass & Tess Wilkinson-Ryan,  Gender and Deception: Moral Perceptions and Legal Responses, Northwestern U. L. Rev. (forthcoming). 

Is caveat emptor indeed “a rule for he and not for she”? This is only one of the excellent questions raised by co-authors Gregory Klass and Tess Wilkinson-Ryan in their recent symposium contribution Gender and Deception. The question is induced by classical casebook entries that seem to reflect an increased judicial willingness to protect women from market deception. Recall, for example, the many “Arthur Murray cases” in which franchised dance studios around the country made exuberant profits from making elderly women with no dancing experience believe that they are only a few more lessons away from becoming professional dancers. However, to the extent such a gender-based approach exists (which is unclear at best), it often comes with a price not only for male buyers. Too often, as the co-authors importantly remind readers, intervention on behalf of deceived women seems to reflect and perpetuate gender biases regarding their capabilities—disrespectfully portraying them as gullible.

So, is caveat emptor indeed “a rule for he and not for she”? Not so much, according to the three original studies reported by Klass and Wilkinson-Ryan, which supported a narrow positive answer: when the buyer is a woman deceived by a man in the context of buying used furniture. Perhaps the modern retraction from caveat emptor is less influenced by the entry of vulnerable buyers into the market, as the authors at some point propose, and is more related to the increased diversity of market actors’ moral views. Might it be that the driving force behind less tolerance of market deception is women’s enhanced active participation in the market and growing role in business and legal decision-making? This alternative is tempting because it presents a less victimizing or paternalistic view of the evolution of legal rules—one that a feminist approach to contracts would more easily embrace.

While the authors do not suggest such an explanation, I was enthused to learn that their most significant finding might support the above feminist hypothesis. In their first study on moral judgments of deceptions, the authors found “robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong.”  It turns out that victims’ gender notwithstanding, male respondents ranked deceitful behaviors as more ethical than female and nonbinary respondents. Klass and Wilkinson-Ryan do not elaborate much about the broader meaning of their salient finding. Indeed, they are cautious enough to stress that, at this stage of their work, they have little to say about whether or not men are more predisposed than women to engage in deceptions. They do allude, however, to a correlation they describe as both probable and desirable between believing that conduct is wrongful and refraining from engaging in it. They also mention others who had claimed and provided evidence that women are less inclined to deceive. Additional works similarly demonstrate an over-representation of men in fraud, including in scientific research, fraud cases in 2020-2021, corporate crime, and white-collar crimes.

April 28, 2023 in Business, Gender, Theory | Permalink | Comments (0)

Senate Republicans Block Vote on Equal Rights Amendment, One Hundred Years After Its Introduction

The Hill, Senate GOP Blocks Equal Rights Amendment

Senate Republicans on Thursday blocked a measure that would have allowed the Equal Rights Amendment (ERA) to be added to the Constitution.

Senators voted 51 to 47 to invoke cloture on a motion to proceed, falling short of the 60 votes it it needed. 

Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) were the lone Republicans to vote with every Democrat. 

The ERA passed Congress in 1972, having been first proposed in 1923. Constitutional amendments, under U.S. law, must be ratified by three-quarters of all state legislatures, meaning 38 states. 

In 2020, Virginia became the 38th state to ratify the ERA, but it did so after the 1982 deadline to ratify the amendment had passed.

The Senate resolution would have removed the deadline so that the ERA could become the 28th Amendment. Sen. Ben Cardin (D-Md.) and Murkowski were the resolution’s lead co-sponsors.

Reuters, US Equal Rights Amendment Blocked Again, A Century After Introduction

With a 51-47 vote in favor, Senate Democrats and supporters were nine votes shy of the 60 needed for a resolution to clear the 100-member chamber's filibuster hurdle.

The resolution would have removed a 1982 deadline for state ratification that prevented the Equal Rights Amendment from going into effect. Three states -- Nevada, Illinois and Virginia -- approved it after 1982.


Ms., Republicans Block Senate Vote on ERA

The Senate on Thursday had its first vote on the Equal Rights Amendment (ERA) in 40 years. 

Republican opposition meant that S.J. Res. 4, which would declare the ERA ratified and valid, failed to clear the 60-vote threshold needed to bring it to the floor for debate and a vote. Polls that show 83 percent of Americans believe the ERA should be incorporated into the U.S. Constitution (including 90 percent of 18- to 24-year-olds).

S.J. Res. 4 would declare the ERA, “which prohibits discrimination on the basis of sex, was ratified by three-fourths of the states, and is therefore a valid constitutional amendment, regardless of any time limit that was in the original proposal.” (The ERA has satisfied all Article V requirements to amend the Constitution: a two-thirds vote in the House and the Senate, achieved in 1971 and 1972, and ratification by three-fourths of the states, after Virginia became the 38th and final state in January of 2020.)

“The resolution is simple,” said Senate Majority Leader Chuck Schumer (D-New York). “It removes the arbitrary deadline for state ratification of the ERA that was imposed in the 1970s. … That is why the Senate today should vote in favor of advancing this ERA resolution, so we can bring our nation one step closer to greater justice, greater equality, and a more perfect union. Let that great march towards equality take the next bold step today.”

April 28, 2023 in Constitutional, Legislation | Permalink | Comments (0)

Wednesday, April 26, 2023

Evaluating the New EU Directive on Combating Image-Based Sexual Abuse

Carlotta Rigotti & Clare McGlynn, Towards an EU Criminal Law on Violence Against Women: The Ambitions and Limitations of the Commission’s Proposal to Criminalise Image-Based Sexual Abuse,New Journal of European Criminal Law IJECL 2022, Vol. 0(0), 1-26

In March 2022, the European Commission proposed a new landmark Directive on combating violence against women and domestic violence which includes measures on the non-consensual distribution of intimate and manipulated images. We refer to this form of violence against women as ‘image-based sexual abuse’, a term that encompasses all forms of the non-consensual creating, taking or sharing of intimate images or videos, including threats to share such material and altered material. In this article, we provide a new analysis of current Member State laws covering all forms of image-based sexual abuse, as well as the first detailed examination of the Commission’s proposals to tackle this form of violence against women. We suggest that the Commission’s proposal is characterised by both its ambition and limitations. It is ambitious in its attempts to set minimum rules in challenging areas of criminal law and, in doing so, recognises the serious harms of image-based sexual abuse. At the same time, by seeking to expand the reach of EU criminal law, inevitably requiring compromise, the scope of the proposed measures is somewhat limited. Such compromises and limitations risk entrenching hierarchies between different forms of abuse and, ultimately, the proposal fails to provide a comprehensive response reflective of victims’ experiences

April 26, 2023 in International, Violence Against Women | Permalink | Comments (0)

Reflections on Progress Without Equity, Title IX at Fifty in K-12 Athletics

Elizabeth Kristen, Reflections on Progress Without Equity: Title IX K-12 Athletics at Fifty, 30 American J. Law & Gender 227 (2022)

Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only a small fraction of those cases (about 300) include the word “athletics,” and fewer still address gender inequity at the K-12 level. This Article provides a brief overview of the “state of play” concerning gender inequity in athletics and the basic structure of Title IX athletics equity law. It then considers the Ollier v. Sweetwater1 high school Title IX athletics case and lessons learned from that hard-fought litigation on behalf of a class of high school girls that sought to level the playing field at their school. It then makes nine recommendations for what changes should be made to our approach to Title IX athletics at the K-12 level to ensure more effective enforcement to achieve gender equity. Inequalities in athletics at the K-12 level require litigation and policy changes that will have substantial and positive impacts on the lives of girls and young women.

April 26, 2023 in Education, Sports | Permalink | Comments (0)

The Supreme Court's Gaslight Docket and the Anti-Equality Effects

Kyle Velte, The Supreme Court's Gaslight Docket, Temple L. Rev. (forthcoming) 

The U.S. Supreme Court’s new conservative supermajority is gaslighting the American public. This article take a systematic look at key cases from the Court’s October Term 2021 through the lens of gaslighting. It describes these case as being part of what it dubs the Court’s “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court’s recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has become to subject of academic and theoretical inquiry. This article identifies gaslighting in the Court’s civil rights cases in both oral arguments and written decisions. It reveals that this gaslighting is trans-substantive, spanning cases involving voting rights, race discrimination/affirmative action, reproductive rights, LGBTQ rights, and the First Amendment’s religion clauses.

Because gaslighting has epistemic dimensions — knowledge production and gaslighting are connected — gaslighters instill epistemic doubt in their victims as a way to have the gaslighter’s production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower” — indeed, it is given the position of ultimate “knower” of the meaning and application of the U.S. Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and anti-democratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalism movement, declaring that those interests are not co-equal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalism ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

April 26, 2023 in Constitutional, LGBT, Race, SCOTUS | Permalink | Comments (0)

Tuesday, April 25, 2023

For the First Time, Court Holds That Female Student Athletes Can Sue Universities for Damages

Andy Zimbalist & Carrie Baker, Student-Athletes Can Now Sue Discriminatory Universities for Damages, a Victory for Title IX, Ms.

A first-in-the-nation court ruling says female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

U.S. District Court Judge Todd W. Robinson ruled on April 13 that the female student-athletes suing San Diego State University (SDSU) for violating Title IX can pursue claims for equal athletic financial aid, equal treatment and retaliation. The decision is the first in the nation to hold that female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

“This is a major step forward for women and against sex discrimination at SDSU and nationwide,” said lead counsel Arthur H. Bryant of Bailey & Glasser in Oakland. “SDSU has been cheating its female student-athletes out of hundreds of thousands of dollars in equal athletic financial aid each year. It is giving its male student-athletes far better treatment than its female student-athletes. And it blatantly retaliated against its female student-athletes for standing up for their rights. Now, it can be held accountable.”

The class-action lawsuit alleges female student-athletes were given less scholarship support than the male athletes, received inferior treatment and benefits and were retaliated against when they protested against discrimination. Judge Robinson agreed their suit could go forward and went a step further—awarding the students the right to seek monetary damages.***

The other avenue for redress of grievances is litigation. Here too, courts usually require non-compliant schools to enter into a program to improve the treatment of female athletes. Until the SDSU case, however, female athletes experiencing sex discrimination in athletics did not sue for damages but instead sued for injunctive relief—a court order directing a school to stop or reduce discriminatory practices. Now, we know they can sue for monetary damages

April 25, 2023 in Courts, Education, Sports | Permalink | Comments (0)

Senate Will Vote on Equal Rights Amendment This Week, 100 Years After it was First Introduced

Wash Post, Schumer Announces Senate Will Vote on the Equal Rights Amendment This Week

The Senate will vote on the Equal Rights Amendment this week — 100 years after it was first introduced in Congress — Senate Majority Leader Charles E. Schumer said Monday.

Schumer, speaking at Hunter College in New York, argued that the Supreme Court’s decision to overturn Roe v. Wade and efforts to limit access to the abortion pill mifepristone, as well as state-level actions to roll back women’s rights, have made the ERA and its protections more critical than ever.

“In this ominous hour of American history, the Equal Rights Amendment has never been as necessary and urgent as it is today,” Schumer (D-N.Y.) said in a statement Monday.

The proposed amendment to the U.S. Constitution would guarantee equal rights under the law regardless of sex — meaning the Constitution would clearly state that women have equal rights as men. While the amendment was introduced in Congress in 1923 by leaders of the suffrage movement, it only passed in March 1972.

Ms, Ahead of the First ERA Senate Vote in 40 Years, a Nationwide Petition Launches

Senate Majority Leader Chuck Schumer (D-N.Y.) just announced the first vote on the Equal Rights Amendment in the Senate in 40 years.

“The founding document has never been interpreted to guarantee that the rights of women and the rights of men as a class are simply equal,” said Schumer on Monday at a press conference at Hunter College in New York City. “That’s why I am calling for a vote on the Equal Rights Amendment.” The senator said the vote will happen “this week,” with floor debate on Wednesday and a vote on Thursday.

For more on the history of the ERA, see Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment (Holly McCammon & Lee Ann Banaszak, eds. Oxford Press 2018).

April 25, 2023 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

Understanding the Supreme Court's Past Balanced Approach to Abortion

Carlos A. Ball, Balancing Abortion, 63 Santa Clara L.Rev. (forthcoming)  

Critics of Roe v. Wade and its progeny repeatedly contended that, in recognizing a fundamental right to choose an abortion, the Supreme Court ignored or significantly undervalued the state’s interests in regulating abortions. This Article’s examination of the Court’s abortion jurisprudence during the Roe era, however, shows how it called for a meaningful balancing of the interests of both sides in ways that led the justices to uphold roughly as many abortion laws as they struck down between 1973 and 2020. In exploring the crucial role that the balancing of the interests of both the state and pregnant individuals played in the Roe constitutional regime, the Article contends that the Court deserves more credit than it received for attempting, for decades, to accommodate the claimed interests of both sides while trying to find compromises on abortion-related questions that are deeply contested and controversial. The Article also examines why neither the antiabortion nor the pro-choice movement believed it advanced its political and legal priorities to emphasize and praise the fundamental role that the balancing of interests of both sides played in Roe and its progeny.

A well-informed understanding of this crucial aspect of the Roe constitutional regime is essential because it provides a stark contrast to the one-sided and uncompromising weighing-of-interests approach followed by the five-justice majority in Dobbs v. Jackson Women’s Health Organization. In overturning Roe, the Dobbs Court deemed the state’s claimed interests in regulating abortions to be constitutionally dispositive and the pregnant individual’s equality and liberty interests in choosing an abortion to be constitutionally irrelevant. In doing so, the Court did not avoid, as it apparently hoped, the need to balance interests; instead, Dobbs engaged in its own form of ex-ante or categorical balancing by reasoning that the state’s claimed interest in protecting fetal life is so important and so impacted by the decision to have an abortion that it requires that all future courts give the equality and liberty interests of pregnant individuals in not being forced to carry pregnancies to term against their will a constitutional value of precisely zero. Although the Dobbs Court may have believed that it was, in the name of judicial restraint, dispensing with the need to balance the interests of both sides, the Article explains why it is not possible to decide the constitutionality of abortion bans such as the one at issue in Dobbs without pitting the claimed interests of the state against those of pregnant individuals after assigning constitutional weight (even if it is only zero) to them.

April 25, 2023 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, April 24, 2023

Supreme Court Issues Stay in Medication Abortion Appeal

While the Supreme Court's decision in the abortion medication litigation is by no means a victory for women’s health, it allows Mifepristone to remain legally accessible to the degree it was before one judge in the Northern District of Texas unilaterally overrode the long-established federal drug approval process. This opinion shifts the focus back to the Fifth Circuit. The opinion is here: 

Justice Alito dissented, stating: 

The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review. (citation omitted). 

* * *

I would deny the stay applications. Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone. Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue.

April 24, 2023 in Abortion, Courts, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Reevaluating Regional Law Reform Strategies After Dobbs

I was so grateful for the chance to present at the University of Akron School of Law's Future of Reproductive Rights Symposium in October 2022. My publication, Reevaluating Regional Law Reform Strategies After Dobbs, is now published in Volume 14 of ConLawNow (2023). The abstract provides: 

This article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence” to garner insights to inform the vital work of regional law reform in a post-Dobbs America. While these campaigns, each located in the regional mid-South, were motivated by restrictive state abortion bills, they uniquely positioned menstruation and women’s bodies at the center of their activism—not abortion alone. They leveraged, as a political fault line, the contradiction of these states’ governors’ perceived disgust relating to basic women’s reproductive health, relative to their patriarchal assuredness in regulating and controlling women’s bodies. In so doing, they tapped into meaningful disruptions in the geographies, religiosities, and masculinities of abortion politics. These campaigns achieved regional collective solidarity and a frame transformation in the rhetoric of abortion access. They catalyzed the lens of “disgust,” used manipulatively in anti-abortion rhetoric, into a source of poignant activism. Masculine discomfort with menstruation and women’s health paradoxically became a tool to protect abortion access.



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

Lambda Law Publishes 2022 "Protected and Served?"

Lambda Law has published its 2022 edition of "Protected and Served?"  This survey examines the "experiences of lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ+) people and people living with HIV with the criminal legal system, to assess these communities’ levels of trust in government institutions, and to create a new resource for community members, advocates, policymakers, and researchers for LGBTQ+ and HIV liberation." This publication is intended to "support legal arguments; educate the public; train judges, attorneys, and others involved in the legal system; and in many other ways to help identify and uproot discrimination and bias and hold government actors accountable." The report recommends: 

  • "Lambda Legal supports the decriminalization of sex work by acknowledging that there is no constitutionally adequate basis to criminalize sex solely because one consenting adult pays another."  
  • "Most laws that criminalize HIV are based on outdated science and directly interfere with public health goals. . . . Lambda Legal and Black and Pink National support the repeal of HIV criminalization laws."
  • "[M]any strategies will be necessary to stop the government misconduct, harm, and violence experienced by system-impacted LGBTQ+ people and people living with HIV. It is for this reason that this report openly acknowledges the necessity of both reformist and abolitionist approaches to addressing the impacts of the criminal legal system."
  • "[T]trust in the court system among survey participants is low. But the general public also lacks confidence in the courts, in part due to the U.S. Supreme Court’s erosion of our fundamental rights. Some current reform efforts that Lambda Legal supports in the federal judiciary include adding seats to the U.S. Supreme Court to match the number of federal Circuit Courts of Appeal and adopting an enforceable ethics code for Supreme Court Justices, as well as expanding the lower federal courts to accommodate the increasing demands on those courts."
  • "Most state court systems and the federal judiciary do not explicitly prohibit discrimination in jury service based on sexual orientation or gender identity. This means that in many places, LGBTQ+ people can be dismissed from jury service simply because of their sexual orientation, gender identity, and/or gender expression. Advocates and policymakers at the state and federal levels must ensure that laws and court rules, such as the federal Equality Act and the Jury ACCESS Act, are enacted to prohibit this discriminatory treatment."
  • "The Prison Litigation Reform Act (PLRA) makes it harder for people to seek legal recourse for harms experienced while in prison. . . . Congress should make changes to the PLRA that will permit people in prison to bring their claims to court sooner. In addition, the Prison Rape Elimination Act (PREA), despite its robust protections, does not provide a private right of action to survivors or assault. . . . Congress should amend the PREA to give survivors of abuse a private cause of action against prisons and jails, as well as officials."
  • "Advocates and policymakers should work with school boards, administrators, and staff to create, adopt, and enforce anti-harassment policies for LGBTQ+ students, but also to greatly limit—or entirely prohibit—the use of disciplinary actions such as referrals to law enforcement, school-based arrests, and expulsions. All policies should be cognizant of actual and/or perceived sexual orientation, gender identity, and gender expression. For all students, and specifically LGBTQ+ students, schools should adopt policies that prohibit punishment as a means of policing gender expression. This includes prohibiting policies that dictate gender-based dress codes, bar students from using restrooms that align with their gender identity, or prevent students from utilizing a name that affirms their gender identity."

The full report is available here

April 24, 2023 in Courts, LGBT | Permalink | Comments (0)

Thursday, April 20, 2023

Book, Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights

Valena Betty, Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights

When Valena Beety first became a federal prosecutor, her goal was to protect victims, especially women, from cycles of violence. What she discovered was that not only did prosecutions often fail to help victims, they frequently relied on false information, forensic fraud, and police and prosecutor misconduct.
Seeking change, Beety began working in the Innocence Movement, helping to free factually innocent people through DNA testing and criminal justice reform. Manifesting Justice focuses on the shocking story of Beety's client Leigh Stubbs—a young, queer woman in Mississippi, convicted of a horrific crime she did not commit because of her sexual orientation. Beety weaves Stubbs's harrowing narrative through the broader story of a broken criminal justice system where defendants—including disproportionate numbers of women of color and queer individuals—are convicted due to racism, prejudice, coerced confessions, and false identifications.
Drawing on interviews with both innocence advocates and wrongfully convicted women, along with Beety's own experiences as an expert litigator and a queer woman, Manifesting Justice provides a unique outsider/insider perspective. Beety expands our notion of justice to include not just people who are factually innocent, but those who are over-charged, pressured into bad plea deals, and over-sentenced. The result is a riveting and timely book that not only advocates for reforming the conviction process—it will transform our very ideas of crime and punishment, what innocence is, and who should be free.


April 20, 2023 in Books, LGBT, Race | Permalink | Comments (0)

Siegel and Ziegler on SCOTUS, Mifepristone, and the 19th Century Comstock Act

Reva Siegel & Mary Ziegler, Our Victorian Supreme Court, Slate

The fate of mifepristone, a drug used in more than half of abortions in the United States, will now be decided by the same conservative justices who reversed Roe v. Wade, ending Americans’ right to legal abortion after nearly half a century of access. In its ruling on the mifepristone case last week, the 5th Circuit offered the Supreme Court an outline for a faux compromise: the divided three-justice panel did not revoke the original approval of mifepristone as Judge Matthew Kacsmaryk had (though the appeals court seemed open to doing so at a later stage of the litigation). Instead, the 5th Circuit proposed bringing back all kinds of limits and restrictions on the drug that haven’t been in effect since 2016: limiting its use to the first seven weeks of pregnancy (instead of 10 weeks) and requiring three in-person doctor visits instead of a telehealth consultation.

The kicker, though, was the 5th Circuit’s deployment of the Comstock Act, the 19th-century anti-vice law that has quickly become a centerpiece of anti-abortion attacks. While the court didn’t reach a definitive conclusion, it hinted that the Comstock Act makes it a crime to mail every drug or device intended or adapted for abortion.

The mifepristone case will reveal the true commitments of the conservative Supreme Court justices who reversed Roe in Dobbs v. Jackson Women’s Health Services. In that decision, the conservative justices claimed to be returning the abortion issue to the people, but was their talk of democracy just an excuse for supporting abortion bans? Will they now go further than Dobbs’ cherry-picked history by reviving Victorian laws that women had no voice in enacting in order to continue restricting abortion access?

April 20, 2023 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)

Wednesday, April 19, 2023

Challenging Dobbs' Faulty Originalist History

Miranda McGowan, The Democratic Deficit of Dobbs, Loyola U. Chicago L.J. (forthcoming 2023). 

Overturning the fifty-year old constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization wrapped itself in the mantle of the rule of law. The Dobbs Court claimed that Roe and Casey had lawlessly departed from the Court’s established history and tradition test for determining whether an unenumerated right is fundamental and protected by the Constitution. The actual history and tradition test, Dobbs said, only protects a claimed right as fundamental if positive law had affirmatively protected it when the Fourteenth Amendment was ratified. Seeing only abortion restrictions in the relevant time period, Dobbs concluded that the right to abortion is not a fundamental right.

Rule of law values, however, condemn rather than justify Dobbs’s method and holding. Dobbs turns on an act of judicial discretion, one it neither acknowledges nor justifies. This Article reveals that, since the 1960s, the Court has relied upon least three versions of the history and tradition test for identifying fundamental rights. Dobbs created a fourth overtly originalist test that dates back only to the 2010 Second Amendment incorporation case, McDonald v. City of Chicago. The original and most established version from Griswold v. Connecticut, however, is dynamic, not originalist: this test draws on recent precedents as much as longer-standing legal traditions and acknowledges that any new fundamental right creates a precedent for future fundamental rights claims.

Stripped of its rule of law veneer, Dobbs can only justify its originalist methods and result by reference to the originalist, normative justification of popular sovereignty. But on that ground, too, Dobbs fails. Dobbs’s originalist history and tradition approach is fundamentally undemocratic and at war with the ideal of popular sovereignty. This Article demonstrates that the history surrounding women and abortion in the nineteenth century makes any popular sovereignty justification for Dobbs’s originalism impossible—as well as anachronistic and incoherent. The positive law protections for abortion or contraception that Dobbs demands never would have existed in the nineteenth century for reasons having nothing to do with “the people’s” views on abortion. Robust social norms about gender and sexuality guaranteed both women and men’s quiescence to the mid-nineteenth century wave of abortion restrictions. Without legal penalty, “the people,” in fact, obtained abortions and used contraceptives throughout the nineteenth century. Dobbs’s originalist error cannot remain confined to abortion if its methods are applied consistently. The Court claimed that Dobbs does not portend a reversal of other fundamental rights cases. If true, that fact condemns Dobbs as a selective application of its supposed premise—which is to say as a political act of judicial hypocrisy. Dobbs’s methods put contraceptive access right on the chopping block.

h/t Legal Theory Blog

April 19, 2023 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

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April 19, 2023 | Permalink | Comments (0)

Examining Whether Sex-Based Disparities Still Exist in the Experience and Treatment of Pain

Diane E Hoffman, Roger Fillingim & Christin Veasley, The Woman Who Cried Pain: Do Sex-Based Disparities Still Exist in the Experience and Treatment of Pain?, 50 Journal of Law, Medicine & Ethics 519 - 541 (2022)

Over twenty years have passed since JLME published “The Girl Who Cried Pain: A Bias Against Women in the Treatment of Pain.” This article revisits the conclusions drawn in that piece and explores what we have learned in the last two decades regarding the experience of men and women who have chronic pain and whether women continue to be treated less aggressively for their pain than men.

Based on a review of the literature, they found that women were more likely than men to experience (or at least report) a number of chronic pain conditions. These included migraines and chronic tension headaches, facial pain, musculoskeletal pain and pain from osteoarthritis, rheumatoid arthritis, and fibromyalgia. In addition, in experimental settings, women had lower pain thresholds (the least intense stimulus that produces pain), higher ratings of pain stimuli, and lower pain tolerance (the most intense pain stimulus one is willing to tolerate) than men. Hoffmann and Tarzian explored what might account for these differences including biological differences, e.g., hormones, genetics, and differences in the brain and central nervous system, and psychosocial and cultural factors, such as gender role expectations, behavioral coping, and socialization. Despite the differences in pain experience, and that women were more likely to seek treatment for their chronic pain than men, several studies indicated that women were more likely to be inadequately treated by health care providers (HCPs) for their pain. including a study that found that men were more likely to be given opioids, and women sedatives, after abdominal surgery. Hoffmann and Tarzian ascribed this finding and similar findings from other research to HCPs “who, at least initially, discount[ed] women's verbal pain reports and attribute[d] more import to biological pain contributors than emotional or psychological pain contributors.”3 Other studies hypothesized that it could be due to differences in the way men and women communicate with their physicians as well as how patients are perceived by their physicians. One study found that physicians’ treatment of female patients was related to their appearance and whether they presented with hostility, whereas these same characteristics were not related to how men were treated

In this article, we examine these questions again, twenty years later.


April 19, 2023 in Gender, Healthcare, Science | Permalink | Comments (0)

Monday, April 17, 2023

Danco Laboratories Seeks Stay of Preliminary Injunction from U.S. Supreme Court

Danco Laboratories filed its "Emergency Application for Stay of Preliminary Injunction Pending Appeal" in the Alliance for Hippocratic Medicine case.  

The Fifth Circuit’s unprecedented order has created regulatory chaos across the country. The direct consequence of the Fifth Circuit’s ruling is that FDA must effectuate a series of extensive approvals to implement the Fifth Circuit’s rollback. Without those approvals, Danco cannot legally market and distribute mifepristone. But FDA is simultaneously under court order from the Eastern District of Washington enjoining it from changing any aspect of its regulation and approval of mifepristone in the 17 States plus the District of Columbia that are plaintiffs to that suit. The result is an untenable limbo, for Danco, for providers, for women, and for health care systems all trying to navigate these uncharted waters—and all after Plaintiffs waited years and years before claiming irreparable injury and a need for an emergency injunction voiding the decades-long status quo.

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Fifth Circuit’s ruling is equally flawed on the merits. Rather than defer to FDA’s expertise in evaluating data from dozens of clinical trials, which members of this Court have repeatedly said courts should do,1 the Fifth Circuit held that FDA fails to examine “ ‘an important aspect of the problem’ ” by making a change to a drug’s approval where “zero studies” incorporated all of the exact metes and bounds of the modified approval. . . . The pharmaceutical industry could not have been clearer that such a judicial imposition on FDA of this sort of rigid matching requirement, untethered to anything in the statute or regulations, would be devastating. If that were the rule governing FDA approvals, it would be unlikely that any drug on the market is properly approved. . . . The Fifth Circuit not only endorsed the District Court’s flawed reasoning—it doubled down, affirming the District Court’s blatant second-guessing of FDA’s determinations by engaging in that same conduct itself. As nearly 700 members of the biomedical industry; a dozen physicians’ groups and health societies; former FDA and DOJ officials; and numerous states, local governments, and members of Congress have recognized, these paradigm-shifting holdings inject confusion, uncertainty, and expense into the regulation of an industry that plays a foundational role in the health and safety of millions of Americans.

Leaving the Fifth Circuit’s ruling in place will irreparably harm Danco, which will be unable to both conduct its business nationwide and comply with its legal obligations under the FDCA nationwide. The lack of emergency relief from this Court will also harm women, the healthcare system, the pharmaceutical industry, States’ sovereignty interests, and the separation-of-powers.

April 17, 2023 in Abortion, Courts, Healthcare, Reproductive Rights | Permalink | Comments (0)

Benjamin Carpenter on "Reconsidering the Law’s Male-Centric Approach to Embryo Disputes"

Benjamin C. Carpenter has published "Sperm is Still Cheap: Reconsidering the Law’s Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence" in Volume 34 of the Yale Journal of Law & Feminism. The abstract is as follows: 

Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their exwives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground— one party’s interests must yield to the other. To date, appellate courts in over one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in twenty appellate cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 129 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.


April 17, 2023 in Courts, Family, Gender | Permalink | Comments (0)

JAMA Study on Mental Distress Among Females of Reproductive Age After Dobbs

The Journal of the American Medical Association has published an article on Mental Distress Among Female Individuals of Reproductive Age and Reported Barriers to Legal Abortion Following the U.S. Supreme Court Decision to Overturn Roe v. Wade.  The conclusions support the widespread effects of this legal opinion on the lives of all women of reproductive age. 

Losing the constitutional right to abortion can be associated with women’s reproductive health directly and indirectly via how future obstetricians-gynecologists would be trained. This case-control study found that for female individuals, the loss of abortion rights was associated with a 10% increase in prevalence of mental distress relative to the mean over the 3 months after the SCOTUS decision. Restricting legal abortion access may be associated with disproportionate outcomes among individuals of lower socioeconomic status and in medically underserved areas, who may experience greater economic and mental health burdens of having unwanted pregnancies due to increased travel costs of obtaining abortions. Our study suggests that mental health outcomes associated with restricting abortion access may extend broadly, beyond female individuals who have been denied an abortion to female individuals of reproductive age.

April 17, 2023 in Abortion, Healthcare | Permalink | Comments (0)