Gender and the Law Prof Blog

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

Monday, July 29, 2019

Podcast: The Constitutional Legacy of Seneca Falls

I enjoyed discussing the history and constitutional relevance of the first woman's rights movement in this We the People Podcast with the National Constitution Center.

The Constitutional Legacy of Seneca Falls (July 2019)

July 19 was the anniversary of the Seneca Falls Convention, the nation’s first women’s rights convention held in Seneca Falls, New York in 1848. This episode explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade. Women and law scholars Erika Bachiochi of the Ethics & Public Policy Center and Tracy A. Thomas of the University of Akron School of Law join host Jeffrey Rosen.

My discussion draws on my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016) tracing pioneering women's rights leader Elizabeth Cady Stanton's work in organizing the Seneca Falls Convention and leading the first women's rights movement for over fifty years.

Here is the Declaration of Sentiments waterfall outside the Women's Rights National Park in Seneca Falls, reflecting Stanton's words.

DeclarationWaterfall2015

July 29, 2019 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

Tuesday, July 23, 2019

Legal Thinking about the Declaration of Sentiments for Women's Rights at Seneca Falls on its 171st Anniversary

July 19 & 20 celebrated the 171st anniversary of women's first official demand for equal political, civil, and religious rights in the Declaration of Sentiments at Seneca Falls, New York.  The Women's Rights National Historical Park now sits at the sight of the Wesleyean Church where the convention took place, and is worth a visit.

I have written much about the Declaration of Sentiments and its author, pioneering feminist leader Elizabeth Cady Stanton. The Declaration and its articulation of 18 necessary rights for women, as well as its structural elimination of "separate spheres" of women's inferiority, essentially provided a road map for legal and social reform for women's equality and equity.

I spoke about the history a bit with the National Constitution Center in a forthcoming We the People podcast

I wrote about the broad agenda of the Declaration and the first women's rights movements in the forthcoming article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Stanford Journal of Civil Rights and Civil Liberties.

I traced its historical origins and legal significance particular in the area of family law and social rights in my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).  I blogged about the opening chapters addressing the context and specifics of the Declaration of Sentiments, here at Introduction  and here, "What Do You Women Want?.

 

July 23, 2019 in Abortion, Books, Constitutional, Family, Gender, Legal History | Permalink | Comments (0)

Thursday, July 18, 2019

The Competing State and Federal Strategies for Winning Women's Right to Vote under the 19th Amendment

Lisa Tetrault, Winning the Vote: A Divided Movement Brought About the 19th Amendment, 40 Humanities (Summer 2019)

In 1869, a bold new idea was born. . . .“Woman’s Suffrage by the proposed Sixteenth Amendment is before the nation for consideration,” one newspaper heralded. Demanding their enfranchisement through a constitutional amendment, “women,” another column remarked, “strike out in a new path.” Women had been demanding the vote for some time, but this new approach was extremely far-fetched. ***

 

Although women demanded the vote as far back as the 1840s, they did not call for a federal amendment until after the Civil War, when a new battle over the status of recently emancipated freed people split the nation. What rights should former slaves have, if any? Rejecting most of African Americans’ demands upon freedom, a band of congressmen nevertheless supported freedmen’s demands to vote. They proposed to accomplish this through amending the Constitution.

 

Passing Congress in 1869, the Fifteenth Amendment declared that voting “shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” When ratified in 1870, the amendment struck down state requirements that voters be “white,” enfranchising black men nationwide. This creation of voters through federal amendment had never before been tried.

 

Congressional passage of the Fifteenth Amendment, however, tore apart the feminist-abolitionist community and split the movement. Often working together in the same prewar coalitions, women’s rights and antislavery advocates regrouped after the Civil War to form the American Equal Rights Association (AERA). The AERA advocated the enfranchisement of both African Americans and women, as twin demands.

 

When the Fifteenth Amendment advanced only one of those goals, Elizabeth Cady Stanton and Susan B. Anthony—leading suffragists—balked. At the group’s 1869 annual convention, the pair refused to support the amendment’s ratification because it omitted women. ***

 

Angrily, Stanton and Anthony bolted from the AERA and formed a new organization, the National Woman Suffrage Association. Stanton and Anthony used their National Association to oppose the Fifteenth Amendment and advocate for their newly conceived idea for a Sixteenth Amendment, granting women’s suffrage.

 

In their eyes, the Fifteenth Amendment had only one redeeming feature: It had nationalized suffrage, shifting voting regulation from the states to the federal government. This meant suffragists no longer had to labor at the state level, attempting to remove the word “male” from the voting qualifications in each and every state—an excruciatingly onerous fight. Now they could focus all their energies on a single citadel, the U.S. Constitution.

 

Not all suffragists agreed with Stanton and Anthony’s constitutional logic, however. Their rivals in the AERA, which included most of its leading membership, countered the pair by forming an opposing American Woman Suffrage Association. Overseen by Lucy Stone—a prominent white reformer and peer of Stanton and Anthony—the American Association not only supported the Fifteenth Amendment, but also insisted the vote must still be won in the individual states. They rejected Stanton and Anthony’s arguments that constitutional authority around voting in the U.S. had been remade. The Fifteenth Amendment had been no more than a postwar exigency, ratified in order to redress the evil legacies of slavery.

July 18, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, July 16, 2019

Book Review Stone's Sex and the Constitution, Comparing Women's Rights & LGBT Movements

Rivka Weill, Women’s and LGBTQ Social Movements and Constitutional Change -- On Geoffrey Stone’s Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, Jerusalem Review of Legal Studies, Forthcoming

This essay reviews Geoffrey Stone’s “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.” Part I offers a synopsis of the treatise to make it accessible to the general public. Stone’s 600 pages book reviews the regulation of sex in the ancient cultures of the Greeks, Romans, and ancient Hebrews. It later discusses the evolution of the regulation of sex in Christianity and the English common law. Stone then focuses specifically on US regulation of obscenity, contraception, abortion, and same-sex marriage to portray a story of progress with a warning that much of this progress depends on the composition of the Supreme Court. Part II reveals the contribution of Sex and the Constitution to the literature with respect to the ways social movements may bring about constitutional change outside the formal process defined in the Constitution for amendment. Part III offers some critical reflections on the book. In particular, it argues that Stone’s book implicitly asserts great similarities between women’s and LGBTQ movements’ struggles for the recognition that their rights demand constitutional protection. Yet, Stone should have acknowledged more forcefully the major differences between the two struggles. They differ substantially in their opening positions, their agendas for social change, the length of the struggles, the pace of change, and their successes. Some possible explanations are offered for the rather meteoric success of the LGBTQ members in transforming law and society within a short period in comparison to the rather slow pace of change for women. Moreover, while women’s successes assisted the gay rights revolution, some of the advancement in gay rights came at the expense of advancement of women.

July 16, 2019 in Abortion, Books, Constitutional, Family, Legal History, LGBT | Permalink | Comments (0)

Thursday, July 11, 2019

The Best Books on Women's Suffrage

The Best Books on Women's Suffrage

Why don’t more people know about the suffrage movement? It was, after all, the largest political mobilization of women to date. It drew on the time, talent and energy of three generations of women, and yet few Americans could name more than a single suffragist. It is a puzzle to me. I fear one of the reasons is that we don’t know as much as we should about the history of American women.

 

And it’s not for lack of trying. There were multiple early histories of the suffrage movement—attempts to cement its significance in American history—written by the suffragists themselves. But it didn’t work. By the time you get to World War II, what women had gone through to get the vote was forgotten, in the way that women’s contributions are so often marginalized.

 

The centennial of the Nineteenth Amendment seems like a good chance to rectify that. What I’m hoping is that the centennial will prompt people to think: ‘Why don’t I know more about the suffrage movement? Maybe I’d like to learn a little bit more—and maybe I’ll read that new book by Susan Ware!’

July 11, 2019 in Books, Constitutional, Legal History | Permalink | Comments (1)

Monday, June 24, 2019

Why do we Blame Women for Prohibition?

Mark Lawrence Schrad, Why Do we Blame Women for Prohibition?

On January 16, 1919—the 18th Amendment was ratified, enshrining alcohol prohibition in the U.S. Constitution. And for the past hundred years, we’ve largely blamed women for that. Why?

 

With the obvious exception of the women’s rights movement—from suffragism to #MeToo—perhaps no other social movement in American history is as synonymous with women as temperance, and none is as vilified. Histories dismiss prohibition derisively as a “pseudo-reform ... carried about America by the rural-evangelical virus,” and a “wrongheaded social policy waged by puritanical zealots of a bygone Victorian era.” We describe prohibitionists in the same way we talk about Al Qaeda or ISIS: They were “ruthless” “extremists,” “deeply antidemocratic” “fanatics and fools,” who posed a “threat to individual freedoms.” These evildoers are almost universally understood to be women.

 

The standard trope back in the 1920s, when prohibition was in full force, was that the policy was “put over while the boys were away” fighting World War I—if only the men had been home, prohibition would have been avoided. Surprisingly, this gendered conspiracy theory has endured, despite being completely unfounded. There was no popular referendum on 18th Amendment, and most women couldn’t vote anyway since, chronologically, the 18th Amendment came before the suffragist 19th Amendment. (A handful of western states granted women full voting rights before the 19th Amendment.) The only woman who voted for the 18th Amendment was Jeannette Rankin of Montana, the country’s first—and at that time, only—congresswoman. In 1918, hers was but one of the bipartisan supermajority of 282 yeas (to 128 nays) in the House that passed the prohibition amendment. In the all-male Senate, the vote to submit the amendment to the states for ratification was even more lopsided: 65-20.

June 24, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, June 18, 2019

Register Now Center for Constitutional Law Conference on the 19th Amendment at 100: From the Vote to Gender Equality

Register now for the upcoming conference sponsored by the Center for Constitutional Law at Akron: The 19th Amendment at 100: From the Vote to Gender Equality

The conference examines both historic and legal contexts, exploring the advocacy for the 19th Amendment as well as residual legal problems with voting and women's public role continuing up to present day.  It explores issues of history, politics, voting, and public participation and the way in which gender was implicated in all.

Check out the terrific list of speakers here featuring law scholars and historians.

Women's suffrage movement in Ohio

 

June 18, 2019 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, June 5, 2019

The 19th Amendment: A Reading List

History of Woman Suffrage (six volumes), available on Project Gutenberg

Tina Cassidy, Mr. President, How Long Must We Wait?  Alice Paul, Woodrow Wilson, and the Fight for the Right to Vote (Simon & Schuster 2019)

J. Kevin Corder & Christina Wolbrecht, Counting Women's Ballots(Cambridge 2016)

Lynda Dodd, Sisterhood of Struggle: Leadership and Strategy in teh Campaign for the Nineteenth Amendment, in Feminist Legal History (Tracy A. Thomas & Tracey Jean Boisseau, eds. 2011)

Ellen Carol DuBois, Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820-1878, in 74 J. Amer. History 836 (1987).

Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (1978) 

Ellen Carol DuBois,  Suffrage: Women's Long Struggle for the Vote (Simon and Schuster forthcoming Feb. 2020)

Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)

Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)

Aileen S. Kraditor, The Ideas of the Woman Suffrage Movement, 1890-1920 (1965) 

W. William Hodes, Women and the Constitution: Some Legal History and a New Approach to the Nineteenth
Amendment, 25 Rutgers L. Rev. 26  (1970)

JoEllen Lind, Dominance and Democracy: The Legacy of Woman Suffrage for the Voting Right, 5 UCLA Women's L. J. 113 (1994)

Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)

Corrine McConnaughy, The Woman Suffrage Movement in America: A Reassessment (Cambridge 2013)

Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, and Federalism, 115 Harv. L. Rev. 847 (2002)

Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote: 1850-1920  (1998)

Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)

Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Stanford J. Civil Rights & Civil Liberties (forthcoming)

Marjorie Spruill Wheeler, ed. One Woman, One Vote: Rediscovering the Woman Suffrage Movement (1995) (many excellent contributions inside this collection)

United States v. Susan B. Anthony, 11 Blatchford 200, 202 (1873)

Sally Roesch Wagner, ed. The Women's Suffrage Movement (2019)

Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2018) 

Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev.  1456 (2001)

 

June 5, 2019 in Books, Constitutional, Legal History, Scholarship | Permalink | Comments (0)

Early Supreme Court Decisions on the 19th Amendment

Leser v. Garnett, 258 U.S. 130 (1922) - challenging the validity of the 19th Amendment and seeking to strike women voters, cursorily dismissed

Adkins v. Children's Hospital of D.C., 261 U.S. 525 (1923)  - interpreting the 19th Amendment broadly as a structural guarantee of gender equality in society

For more on these cases, see Tracy Thomas, More Than the Vote: The 19th Amendment as Proxy for Gender Equality, Stanford J. Civil Rights & Civil Liberties (forthcoming) and Reva Siegel, She the People: The Nineteenth Amendment: Sex Equality, and Federalism, 115 Harv. L. Rev. 947 (2002).

June 5, 2019 in Constitutional, SCOTUS | Permalink | Comments (0)

Reflection and Analysis on the 100th Anniversary of the 19th Amendment

Many articles out yesterday on the 100th Anniversary of Congress's passage of the 19th Amendment.  Ratification by the states came in August 2020, so we will be celebrating the 100th Anniversary for the next year with more history and analysis to come.

The Library of Congresss has this new exhibit: Shall Not be Denied

The Atlantic started a series of articles on the 19th Amendment.  Votes for Women: A Century of Suffrage

Emma Green, The Epic Political Battle Over the Legacy of the Suffragettes

Adrienne LaFrance, The "Undesirable Militants" Behind the 19th Amendment

Kimberly Hamlin, NEH, The Forgotten Suffragists

Kimberly Hamlin, Wash Post How Racism Almost Killed Women's Right to Vote

Tracy Thomas, More Than the Vote More Than the Vote: The 19th Amendment as Proxy for Gender Equality, Stanford J. Civil Rgt. & Civil Liberties (forthcoming)

Tracy Thomas, Speech, The 19th Amendment: From the Vote to ERA

The Center for Constitutional Law at the University of Akron School of Law will sponsor a conference on the 19th Amendment this fall.  Registration and information on speakers is here.

June 5, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, June 4, 2019

SCOTUS Decision in Box v. Planned Parenthood Foreshadows Possible Abortion Decision of the Future

The Supreme Court decided Box v. Planned Parenthood without full briefing or oral argument and issuing a per curiam opinion.  It upheld Indiana's fetal remains law, but denied cert on the second question regarding the law prohibiting abortion for fetal diagnosis or disability.  Justice Sotomayor would have denied cert on both questions.  Justice Ginsburg dissented, and would have applied a higher standard of scrutiny because the case implicated “the right of [a] woman to choose to have an abortion before viability and to obtain it without undue interference from the State."  Justice Thomas dissented from the denial of cert on the second question.  Ginsburg criticized Thomas' opinion, saying it "displays more heat than light."

 

Wash Post, Supreme Court Compromise on Indiana Abortion Law Keeps Issue off Its Docket

The Supreme Court on Tuesday agreed to a compromise on Indiana’s contested abortion law, an outcome that revealed its openness to state restrictions on the procedure but also apparently favored a cautious and incremental path in confronting one of the nation’s enduring controversies.

 

On one hand, the court upheld a part of Indiana’s 2016 law that places new restrictions on the disposal of fetal remains after an abortion. It reversed a decision by a lower court without the customary briefing and oral arguments.

 

But the court said it would not revive another part of the law, which would have prohibited abortions if the woman chose the procedure because of a diagnosis or “potential diagnosis” of Down syndrome or “any other disability,” or because of the fetus’s gender or race.

 

The Indiana case was closely watched because it was the first time the conservative court, reinforced by the addition of President Trump’s two nominees, had the opportunity to take a case with consequences for the constitutional protections found in Roe v. Wade and Planned Parenthood v. Casey.

 

Tuesday’s decision in Box v. Planned Parenthood of Indiana and Kentuckyheld no consequences for either Roe or Casey. But it appeared to be a commencement of the new court’s consideration of abortion rights, and many cases are waiting in the wings.***

 

The unsigned opinion of the court, just three pages long, was matter-of-fact and devoid of broad holdings. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have let the lower court’s rejections stay in place; fellow liberals Stephen G. Breyer and Elena Kagan were silent.

 

But there were signs of tension. Justice Clarence Thomas wrote a 20-page statement linking abortion to the eugenics policies popular in the 19th and early 20th centuries. He added in a footnote that Ginsburg’s objection to the fetal-remains portion of the law “makes little sense.”

 

She responded by correcting his use of the word “mother” throughout his opinion. “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,’ ” she wrote.

 

The portion of the Indiana law the court allowed to go into effect mandates that the “remains” of an abortion or miscarriage be buried or cremated, as required of other human remains.

See Mary Ziegler, What Clarence Thomas Gets Wrong About Abortion and Eugenics

This is a dark history, but it is not the tidy, simple one that Thomas describes. Many population controllers actually opposed legal abortion or viewed it as irrelevant. They shared the worries of their eugenicist forbears that giving women a choice would not do enough to reduce demographic growth.

 

More important, many in the population control movement had no interest in eugenics. Cold warriors hoped that curbing demographic growth would prevent developing countries from turning to communism. Environmentalists believed that population control could conserve scarce environmental resources. And feminists believed that population control could facilitate the liberation of women.

 

The converse was also true: Unlike the synergy of belief conveyed by Thomas, some abortion rights supporters had no use for population rhetoric, viewing it as unethical and counterproductive, regardless of the political benefits. Contrary to what Thomas suggests, these voices grew louder after Roe, when feminists took on more influential roles in major abortion rights organizations. These groups understood that population arguments could smack of coercion — antithetical to their beliefs about choice and freedom — and alienate people of color both in the United States and in developing countries. And feminists increasingly argued that women had a right to abortion regardless of its policy consequences.

 

June 4, 2019 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, May 22, 2019

Nevada Legislature Passes Pro-Choice Abortion Bill

Nevada State Legislature Passes Pro-Choice Abortion Bill

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

 

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

 

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

 

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

May 22, 2019 in Abortion, Constitutional, Legislation | Permalink | Comments (0)

RI House Passes Bill to Guarantee Abortion Rights

RI House Passes Bill to Guarantee Abortion Rights

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

 

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

 

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

May 22, 2019 in Abortion, Constitutional, Legislation | Permalink | Comments (0)

Friday, May 17, 2019

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

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

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

May 17, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Thursday, May 16, 2019

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

Alabama Signs Abortion Ban Into Law

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

 

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

 

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

 

The law does not take effect for several months.

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

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

 

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

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

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

 

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

 

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

 

New State Bans Push Abortion to the Forefront of 2020 Campaign

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

 

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

 

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

 

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

 

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

 

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

 

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

May 16, 2019 in Abortion, Constitutional, Legislation, SCOTUS | Permalink | Comments (0)

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

May 16, 2019 in Constitutional, Education | Permalink | Comments (0)

Friday, May 3, 2019

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

NPR, A Bill Banning Most Abortions Becomes Law in Ohio

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

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

May 3, 2019 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Thursday, May 2, 2019

House Judiciary Committee Holds First ERA Hearing in 36 Years

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

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

 

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

 

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

 

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

 

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

 

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

 

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

Video, ERA Hearing on CSPAN

Republicans Want to Make a Debate over Discrimination an Abortion Battle

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

 

May 2, 2019 in Abortion, Constitutional, Gender, Legislation | Permalink | Comments (0)

Tuesday, April 30, 2019

More than the Vote: The 19th Amendment as a Proxy for Gender Equality

My latest article, More than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, forthcoming in a symposium edition of the Stanford Journal of Civil Rights and Civil Liberties along with articles by Felice Batlan and Lisa Tetrault.

The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.

This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.

This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.

April 30, 2019 in Constitutional, Family, Legal History, Scholarship | Permalink | Comments (0)

Tuesday, April 9, 2019

Gender in Comparative Constitutional Change

Silvia Suteu, Gender in Comparative Constitutional Change, Forthcoming in Xenophon Contiades and Alkmene Fotiadou eds., Routledge Handbook on Comparative Constitutional Change (2019)

This chapter seeks to bridge the gap between the expanding literatures on comparative constitutional change and gender and constitutionalism. Starting from an inclusive definition of gender, the chapter maps and evaluates areas of recent intense constitutional activity in the field of gender equality and non-discrimination, as well as the formal and informal mechanisms used for bringing about reform. The chapter looks in particular at the continued fight for women’s rights, especially access to abortion and gender quotas, and to gender and sexual minority rights, in particular marriage equality and the recognition of a non-binary conception of gender. The chapter contextualises these issues and concludes that the framing of these debates will be very important, as will be the promotion of a change in societal attitudes alongside any constitutional and legislative change.

April 9, 2019 in Abortion, Constitutional, International | Permalink | Comments (0)