Wednesday, January 19, 2022

New Jersey Enacts the Freedom of Reproductive Choice Act Guaranteeing the Fundamental Right of Reproductive Autonomy

NJ Abortion Bill Signed Into Law by Gov Murphy at Teaneck Event

Gov. Phil Murphy on Thursday signed into law a bill protecting abortion rights, at a Teaneck ceremony where he was joined by former Senate Majority Leader Loretta Weinberg and other lawmakers who championed the bill.

Approved by the Legislature on Monday, the Freedom of Reproductive Choice Act guarantees "the fundamental right of reproductive autonomy." The scaled-back version of the bill doesn’t add a requirement that health insurers cover abortions and birth control at no cost out of pocket, as the original bill did.

“The United States Supreme Court is preparing to take a wrecking ball to its own precedent Roe v. Wade, and that would also demolish our case-law-based foundation here in New Jersey,” Murphy said Thursday outside the Teaneck Public Library. “Neither I nor those with me today can let that happen

January 19, 2022 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

The Anti-Immigrant Rhetoric of the Women's Suffrage Movement and its Effectiveness in Passing the Nineteenth Amendment

Kit Johnson, Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric, 94 St. John's L. Rev. 937 (2021)  

American suffragist Elizabeth Cady Stanton famously wrote: “We hold these truths to be self-evident; that all men and women are created equal.” Yet when suffragettes spoke of “all” men and women, they were clear about exceptions. Immigrants did not qualify. Indeed, in her own address at the First Women’s Rights Convention, held in Seneca Falls, New York, in July 1848, Stanton said that “to have . . . ignorant foreigners . . . fully recognized, while we ourselves are thrust out from all the rights that belong to citizens, it is too grossly insulting to the dignity of woman to be longer quietly submitted to.”

This Article begins with an exploration of the anti-immigrant rhetoric of the suffragettes, noting how their nativist approach helped to secure the ultimate passage of the Nineteenth Amendment. Next, this Article explores modern parallels to the suffragettes’ story, where nativist approaches propelled success for movements around issues, people, and political parties. Finally, this Article calls upon the modern women’s movement to take a different path: rising up without pushing down.

January 19, 2022 in Constitutional, Legal History | Permalink | Comments (0)

Wednesday, January 12, 2022

Women's Rights Advocacy Groups File Amicus Brief in Equal Rights Amendment Litigation

Amicus Brief in Virginia v. Ferriero (D.C. Cir.)

SUMMARY OF ARGUMENT

The fight for constitutional equality is a long-term project, andprogress has been painfully slow. For the first 144 years of our Nation’s history, women were denied the most basic right of citizens in a democracy: the right to vote. Women who otherwise met all criteria for voting found themselves barred from the polls, simply because of their sex. Their absence from the polls contributed to the development of laws and institutions that persistently discriminate against women.

Today, women serve with distinction in the C-suite, on the floor of Congress, on the soccer field, in the White House, and in combat. Yet women still face persistent inequality in nearly every sphere. Women are consistently underrepresented in positions of power and overrepresented among those in poverty. Women are still paid only 82 cents for every dollar paid to men—and, for women of color, even less than that. Women also face an epidemic of domestic and sexual violence. These problems are particularly acute for Black women, Latinas, indigenous and Native American women, immigrants, lesbians, trans women, and single mothers.

In the face of this persistent inequality, the Equal Rights Amendment is as relevant today as it ever was. The ERA declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Drafted by Alice Paul and other suffragists in the 1920s, the ERA passed through Congress in 1972 with broad, bipartisan support. After the number of state ratifications stalled at thirty-five in the late 1970s, the fight for equality pressed forward, achieving steady progress on many fronts, including in public opinion. Today, Americans overwhelmingly support including an ERA in our Constitution. Three quarters of the States have now voted to ratify the ERA—satisfying the constitutional threshold—and there are active ratification efforts in every one of the unratified States. Yet the Archivist asks this Court to send the fight for constitutional equality back to square one.

This Court should reject that argument. The painfully slow progress toward equality makes it particularly important in this context to respect the plain text of Article V, which establishes a process for amendment that leaves no room for time limits. The ERA satisfied Article V’s amendment process in January 2020, when Virginia became the thirty-eighth State to ratify. Now that the ERA has been adopted, federal law requires the Archivist to publish it. See 1 U.S.C. § 106b. The seven-year time frame that Congress imposed in 1972 does not and cannot alter the process in Article V. The ERA’s time frame does not appear in the amendment itself; Congress placed it only in the resolving clause of its joint resolution. At a minimum, that choice means that Congress reserved for itself the power to change the time frame in a subsequent joint resolution—as it did in 1978.

More fundamentally, however, a time frame imposed unilaterally by Congress cannot stand in the way of an amendment that has met all the requirements for ratification under Article V. The validity of an amendment depends on the plain text of Article V, which provides that an amendment becomes “valid to all intents and purposes . . . when ratified by the legislatures of three fourths of the several States.” Although the Framers did not recognize women as equal, they created a process for amending the Constitution that could reflect changes in our Nation’s understanding of equality, even when those changes evolve over many years. The ERA reflects such a change.

Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V. But the Archivist’s current refusal to publish the ERA is itself an inappropriate intrusion of the Executive Branch into the ratification process. One of the practical consequences of that refusal is its impact on the ongoing efforts by activists to press for revision of state statutes that continue to discriminate on the basis of sex. Although some States may be willing to make those revisions even without federal recognition of the ERA, others will not. In that respect—among others—the district court was wrong to assume that publication by the Archivist will make no difference.

 

January 12, 2022 in Constitutional, Courts, Legal History, Legislation | Permalink | Comments (0)

Can Men Legally be Given a Priority in Receiving Covid Treatment?

Diane Hoffman & Katherine Goodman, Allocating Scarce Medical Resources During a Pandemic: Can States and Healthcare Systems Consider Sex? Should They?,
University of Maryland Legal Studies Research Paper No. 2021-13

Nearly two years into the pandemic, COVID-19 has touched all U.S. states and populations. However, severe outcomes and deaths have not been borne equally. As is now well recognized, there have been significant demographic disparities by age and race: nearly 80% of all U.S. COVID-19 deaths have been among persons aged 65 or older, and hospitalization and death rates for Black and Hispanic patients with COVID-19 are two to three times higher than the rate for White patients. What has received much less attention, however, is an additional demographic disparity evident in the COVID-19 pandemic — sex. Nationally there are 20% more COVID-19 deaths among men, and men have higher COVID-19 mortality rates in every U.S. state with publicly available data. Numerous studies have established that male sex imposes an independent, approximately 30 percent higher risk of death, even when accounting for other risk factors, such as hypertension and obesity, that are more common among men.

While there has been a significant amount of discussion in the press and the academic literature regarding the role that race can or should play in decisions to allocate scarce medical resources such as vaccines, there has been much less attention paid to the role of sex in the allocation of early-intervention treatments, such as monoclonal antibodies (mAbs) and the soon-to-be-authorized oral antivirals. In this article, we seek to remedy this gap in the literature. We use a hypothetical but realistic scenario in which states have available to them a treatment that is very similar to currently available mAbs and in which therapeutic demand greatly exceeds the available supply. Even if limited to individuals over the age of 65 with one or more comorbidities, there is not enough of the therapy to treat these high-risk individuals and some sort of further triaging would be necessary. Given the strong data that male sex is an independent risk factor for poor COVID-19 outcomes, we speculate that states and/or hospital systems might wish to use sex as one risk factor, among many, in an algorithm to calculate a patient’s probability of experiencing hospitalization or death from COVID-19. These estimates, in turn, would be used to allocate this scarce medical resource to highest-risk individuals. We then ask two questions: (1) whether, as a legal matter, sex would be a permissible factor to incorporate into allocation criteria; and (2) whether, as a normative matter, sex should be considered in allocation of early-intervention therapies for COVID-19.

In answering the legal question, we first look at the possibility of successful challenges under the Equal Protection Clause of the 14th Amendment and then at possible challenges under Section 1557 (the antidiscrimination provision) of the Affordable Care Act. As to the former, we conclude that constitutionality could depend upon whether the federal courts view the basis for differential treatment as one based primarily upon biology, or upon a combination of biology and socio-cultural factors. Although we believe there is room for the courts to find that either basis is constitutionally valid, courts would be more likely to find it so if they analyzed it as a biological difference.

Under the Affordable Care Act, we conclude that it is much more difficult to predict how a federal court would rule. Section 1557 prohibits discrimination “on the basis of sex” in healthcare facilities and in the administration of healthcare. The statute permits the importation of Title IX jurisprudence in interpreting this provision. Courts, in interpreting Title IX, have also looked to Title VII case law. Each of these Titles have exceptions that permit distinctions “on the basis of sex” under certain circumstances. Whether courts would apply Title VII jurisprudence to Section 1557 is an unknown, even if it has been imported to Title IX. Additionally, whether courts would apply the exceptions provided in Title IX and Title VII to Sec. 1557, and how they would apply those exceptions, is difficult to predict. We argue that because of the flexibility the Court possesses in applying the relatively new Section 1557, as a normative matter, the Court should permit the use of sex as a factor in allocating early treatments that can prevent severe COVID-19 outcomes. We believe such a conclusion is justified by both a utilitarian framework of maximizing lives saved and stewarding scarce medical resources and by an egalitarian framework of providing individuals with the resources they need to achieve the same or similar outcomes.

January 12, 2022 in Constitutional, Gender, Healthcare, Science | Permalink | Comments (0)

Tuesday, January 4, 2022

Do Reason-Based Abortion Bans Prevent Eugenics?

Do Reason-Based Abortion Bans Prevent Eugenics?

By: Sital Kalantry

Published in: Cornell Law Review, Vol. 107, No. 1, 2021

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.

January 4, 2022 in Abortion, Constitutional, Courts, Family, Gender, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, January 3, 2022

NYT Editorial: Joe Biden Can't Save Roe v. Wade Alone. But He Can Do This.

David S. Cohen, Greer Donley and have posted a Guest Essay in the New York Times Opinion Section titled Joe Biden Can’t Save Roe v. Wade Alone. But He Can Do This. This powerful essay suggests creative and proactive measures to protect abortion access.

To be sure, the Biden administration has taken important, if measured, steps to protect and expand abortion access. The Justice Department sued Texas over the state’s six-week abortion ban, adding the weight of the federal government to the cause. And most recently, the Food and Drug Administration permanently removed some of the medically unnecessary and cumbersome restrictions it had imposed on mifepristone — the only F.D.A.-approved drug for terminating a pregnancy. In at least some states, providers will be able to mail abortion medications directly to their patients or call the prescriptions in to a certified pharmacy and can meet remotely with prospective abortion patients via telemedicine.

But the administration can do more. There are obvious actions the president can take, such as nominating judges who have defended reproductive justice and speaking out for abortion rights from his bully pulpit. Beyond those efforts, his administration has many other creative options it could pursue.

The authors propose three creative steps previewed here and elaborated upon further in the full essay: 

[T]he administration could challenge the many state laws that conflict with the F.D.A.’s regulation of mifepristone and support other lawsuits filed on these grounds.  

* * * 

[T]he Biden administration could lease federal property to abortion providers — for instance, allowing a clinic to operate out of a federal office building or a mobile clinic on federal land. 

* * * 

[T]he administration ought to take steps to expand access to telemedicine services for abortion, as it has done for the practice more generally. 

January 3, 2022 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Wednesday, December 29, 2021

Overturning Roe Threatens the Loss of More Fundamental Rights

My thoughts on "The End of Roe and More," JURIST.

The Supreme Court will overturn the law recognizing a woman’s fundamental right to choose an abortion. The only question is whether it will go even further and jeopardize women’s equality, reproductive rights, and family privacy rights for all. 

 

Pending in the Court is Dobbs v. Jackson Women’s Health Organization and the question of the constitutionality of Mississippi’s ban on abortion after 15 weeks. The Court’s most recent abortion decision, June Medical Services v. Russo (2020), regarding physician admitting privileges for providers, held on to abortion rights by a thread, tied together by Justice Ruth Bader Ginsburg’s vote and Chief Justice John Roberts’ adherence to precedent. But we now have the next generation of the Supreme Court, reconstituted after the passing of Justice Ginsburg and the additions of Justices Brett Kavanaugh and Amy Coney Barrett. There are now six conservatives who have all indicated disapproval of Roe v. Wade and its ruling on reproductive choice–and these Justices were nominated for this very purpose. The math is simple: there is a solid majority to overturn Roe.***

 

The only remaining question then is how far the Court will go in overturning abortion rights. One possible outcome is that the Court will also recognize a fundamental right of personhood protecting potential fetal life—a holding that would block state or federal legislation to guarantee reproductive choice.***

 

A second possible result is that the Court’s abortion ruling might also encroach on other reproductive rights such as contraception or pregnancy. The Court has shown its willingness to dilute this reproductive right of women by balancing it against the religious viewpoint interests of others, as it did in Burwell v. Hobby Lobby Stores (2014). Such a holding would have negative implications for procreation rights, pregnancy discrimination, and assisted reproduction rights including the frozen embryo cases which have supported the right not to procreate.***

 

A third possibility is that the Court might go so far as to disembowel all constitutional privacy rights of the family. Justice Thomas argued for this, dissenting in June Medical. The right to abortion and reproductive autonomy recognized in Roe was derived from the text of the Fourteenth Amendment’s protection of “liberty.”  In Griswold v. Connecticut (1965), the Court overruled a law banning contraception for married couples, finding that the Constitution protected privacy rights of the home including marriage, sex, and contraception. It located these rights in the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Subsequently, the Fourteenth Amendment became the consensus foundation for privacy in its protection of “liberty” against arbitrary government interference. Decades before Griswold, the Court recognized fundamental privacy rights of parenting and procreation. Years after, privacy supported extended familymedical autonomymarriage equality, and sexual conduct

 

Justice Thomas attacked this longstanding recognition of privacy in June Medical. He argued that the broader constitutional right to privacy was baseless. The Griswold Court had been “grasping at straws” and “turning somersaults in history,” he said, to find such a right, thus demonstrating its illegitimacy.

 

Yet, to the contrary, the many constitutional bases for family privacy establish its ubiquity, not its aberration. Griswold’s “penumbra” casting a broad shadow around the Constitution.***

 

Finally, it is possible that the Court will foreclose future arguments for abortion rights under equality theory. In Dobbs, attorneys advocating for women’s right argued the availability of abortion was critical to women’s full and equal participation in society. . . . Justice Amy Coney Barrett seems focused on eliminating this legal avenue of equality.

December 29, 2021 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, December 27, 2021

Hair Rules: Race, Gender, and Stigmatization in Schools

Patricia A. Banks has published Hair Rules: Race, Gender, and Stigmatization in Schools in Volume 25 of the University of Pennsylvania Journal of Law and Social Change. The abstract summarizes: 

As laws banning racial hair discrimination in schools are proposed across the United States, it is increasingly important to understand how grooming policies can stigmatize students. This essay engages social science theory and research on stigmatization and the case of Arnold v. Barbers Hill Independent School District to investigate the cultural constructions of male students who wear long locs. Drawing on content analysis of court documents around this Texas lawsuit involving two black male cousins who were disciplined in school because of refusing to cut their locs, I examine how school officials justified the school district’s hair rules through associating the defendants’ hairstyle with a range of stigmatizing attributes. The conclusion considers the potential for this court case, as well as hair discrimination legislation, to mitigate the stigmatization of boys who wear long locs, long braids, and long twists. I argue that to fully address the stigmatization of boys who wear these styles, laws and policies must be attentive to race as well as gender.

December 27, 2021 in Constitutional, Education, Gender, Race | Permalink | Comments (0)

Wednesday, December 22, 2021

New Book: Intimate States--Gender, Sexuality, and Governance in Modern US History

From Larry Solum, at the Legal Theory Blog:

The Legal Theory Bookworm recommends Intimate States: Gender, Sexuality, and Governance in Modern US History, edited by by Margot Canaday, Nancy F. Cott, & Robert O. Self.  Here is a description:

Fourteen essays examine the unexpected relationships between government power and intimate life in the last 150 years of United States history.
 
The last few decades have seen a surge of historical scholarship that analyzes state power and expands our understanding of governmental authority and the ways we experience it. At the same time, studies of the history of intimate life—marriage, sexuality, child-rearing, and family—also have blossomed. Yet these two literatures have not been considered together in a sustained way. This book, edited and introduced by three preeminent American historians, aims to close this gap, offering powerful analyses of the relationship between state power and intimate experience in the United States from the Civil War to the present.

The fourteen essays that make up Intimate States argue that “intimate governance”—the binding of private daily experience to the apparatus of the state—should be central to our understanding of modern American history. Our personal experiences have been controlled and arranged by the state in ways we often don’t even see, the authors and editors argue; correspondingly, contemporary government has been profoundly shaped by its approaches and responses to the contours of intimate life, and its power has become so deeply embedded into daily social life that it is largely indistinguishable from society itself. Intimate States makes a persuasive case that the state is always with us, even in our most seemingly private moments.

And from the reviews:

Intimate States is a stunning achievement, challenging conventional thinking that sharply divides public from private; sex and gender from politics; identity from material concerns. In its breadth and depth, originality, and cohesiveness, Intimate States also manages to avoid the usual pitfalls of edited volumes; while far-ranging, it offers a single and coherent argument of profound importance.”― Deborah Dinner, Emory University
 
 
The Table of Contents:
 
1: Reconstructing Belonging: The Thirteenth Amendment at Work in the World, Stephanie McCurry
2: The Comstock Apparatus, Jeffrey Escoffier, Whitney Strub, and Jeffrey Patrick Colgan
3: Morals, Sex, Crime, and the Legal Origins of Modern American Social Police, William J. Novak
4: The Commerce (Clause) in Sex in the Life of Lucille de Saint-André, Grace Peña Delgado
5: “Facts Which Might Be Embarrassing”: Illegitimacy, Vital Registration, and State Knowledge, Susan J. Pearson
6: Race, the Construction of Dangerous Sexualities, and Juvenile Justice, Tera Eva Agyepong
7: Eugenic Sterilization as a Welfare Policy, Molly Ladd-Taylor
8: “Land of the White Hunter”: Legal Liberalism and the Shifting Racial Ground of Morals Enforcement, Anne Gray Fischer
9: Sex Panic, Psychiatry, and the Expansion of the Carceral State, Regina Kunzel
10: The Fall of Walter Jenkins and the Hidden History of the Lavender Scare, Timothy Stewart-Winter
11: The State of Illegitimacy after the Rights Revolution, Serena Mayeri
12: What Happened to the Functional Family? Defining and Defending Alternative Households Before and Beyond Same-Sex Marriage, Stephen Vider
13: Abortion and the State after Roe, Johanna Schoen
14: The Work That Sex Does, Paisley Currah

 

December 22, 2021 in Books, Constitutional, Legal History, LGBT | Permalink | Comments (0)

Black Women and Girls and the Twenty-Sixth Amendment

Mae Quinn, Black Women & Girls and the Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, and the First Wave Youth Suffrage Movement, 43 Seattle L. 1237 (2020).

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

 

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content; it also expands upon the historical sections in that work to draw connections among different civil rights movements and move beyond the limited dualistic narratives that have been offered to date regarding suffrage in this country. Although there is much more to learn and tell, this Article advances the important ongoing project of lifting up and celebrating the multilayered identities and contributions of Black women and girls who impacted United States youth enfranchisement—including Diane Nash, Carolyn Quilloin, and Philomena Queen.

December 22, 2021 in Constitutional, Legal History, Race | Permalink | Comments (0)

Monday, December 13, 2021

Pennsylvania's Abortion Case

Greer Donley wrote an Op. Ed on December 9 for the Pittsburgh Post Gazette stressing the importance of a pending Pennsylvania abortion case, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. This case considers, among other issues, whether "the Pennsylvania Medicaid abortion coverage ban violate[s] the Pennsylvania Constitution’s explicit guarantee of equality on the basis of sex contained in Pa. Const. art. I, § 28 and its separate equal protection guarantee contained in Pa. Const. art. I, §§ 1, 26 & art. III, § 32?" Greer summarizes: 

The case challenges a Pennsylvania law that bans Medicaid funds from being used to cover abortion except in the case of rape, incest or to save the pregnant person’s life.

Importantly, the litigants are asking the court to recognize the right to abortion under the Pennsylvania Constitution. If the court recognizes this right — which it has not previously recognized — then even if Roe is overturned, the Pennsylvania Constitution will step up to protect the right to abortion in our state.

Moreover, this protection will survive even if voters elect a Republican governor who is willing to sign a strict abortion ban into law. Why? Because that theoretical ban would be unconstitutional under our Constitution even if it is no longer unconstitutional under the federal Constitution.* * *

[P]regnant people need more than the right to abortion; they need the ability to access it. If the Pennsylvania Supreme Court also invalidates the state law banning Medicaid funds from being used for abortion, it would help poor women access the abortion care they need.

The full Women's Law Project Brief is available here. This case is a powerful example of professors on the ground in Pennsylvania working actively with non-profits to seek law reform. 

December 13, 2021 in Abortion, Constitutional, Courts, Family, Gender, Healthcare, Pregnancy | Permalink | Comments (0)

Thursday, December 9, 2021

Proposed California Legislation Would Position State as Refuge for Abortion Rights

NY Times, California Positions Itself as a "Refuge" of Abortion Rights

Political leaders in California said on Wednesday that they would work to make the state a sanctuary for women seeking abortions if a Supreme Court ruling allows the procedure to be banned in more conservative parts of the country.

 

The proposal, which was released with the backing of Gov. Gavin Newsom and the leaders of California’s two legislative chambers, calls for increasing funding for abortion providers and dozens of other measures to make it easier for clients to access abortion services and providers to get paid. It also includes a recommendation to fund the procedure for low-income women who come to California for abortion services.***

 

“We consider this an incredibly critical moment in the history of women’s rights,” Ms. Atkins said in an interview. “We want to let people know that we are going to be part of the solution, that we are a beacon.”***

 

Twenty-one states have anti-abortion laws already in place that could be put in effect if Roe is overturned, according to the Guttmacher Institute, a research group that advocates abortion rights.

December 9, 2021 in Abortion, Constitutional, Legislation | Permalink | Comments (0)

Tuesday, December 7, 2021

Women’s Law Project in Pennsylvania seeks a new leader at a key moment in the gender justice movement

Women’s Law Project seeks a new leader at a key moment in the gender justice movement

The Pennsylvania nonprofit that acted as co-counsel in the landmark Supreme Court case that affirmed a woman’s right to undergo an abortion before fetal “viability” is searching for a new leader.

After 31 years at the helm of the Women’s Law Project, Carol Tracy announced this week she will be stepping down as executive director in June.

“I’ve been an activist in the Philadelphia area for 50 years,” said Tracy, 75, who said she wants someone with “younger eyes” to take over. “I think it’s time for me to hand over the mantle to a different generation.”

. . .

Whoever becomes Tracy’s successor will be taking the reins at a critical moment in the gender justice movement.

On Wednesday, the U.S. Supreme Court’s conservative majority signaled it would uphold a Mississippi law that bans most abortions after 15 weeks. Critics of the Mississippi ban say such a decision would undermine the tenet guaranteed in Roe v. Wade, and affirmed in a case the Women’s Law Project helped argue before the Supreme Court in 1992 — Planned Parenthood v. Casey, which gave women the choice to have an abortion until the fetus can survive outside the womb, typically around 24 weeks.

Tracy said when she came to lead the Women’s Law Project, she thought abortion rights were secure. In Casey, the highest court struck down a Pennsylvania statute that required a woman to obtain her husband’s permission to get an abortion. The court determined no abortion law could place an “undue burden” on the women trying to undergo the procedure.

. . .

Tracy’s successor will also be dealing with an array of other policy issues, from fighting for women who have been fired because of a pregnancy, to athletics equity, to the continued advocacy of women who have suffered from sexual assault.

December 7, 2021 in Abortion, Constitutional, Gender, Healthcare, Reproductive Rights | Permalink | Comments (0)

Monday, December 6, 2021

Unilateral Burdens and Third-Party Harms: Abortion Conscience Laws as Policy Outliers

Nadia Sawicki has published Unilateral Burdens and Third-Party Harms: Abortion Conscience Laws as Policy OutliersThis article is published in volume 96 of the Indiana Law Journal. The abstract explains: 

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers' rights to refuse-- and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences--are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article argues that state abortion conscience laws should incorporate limitations similar to those established in the Civil Rights Act and the Americans with Disabilities Act in order to minimize risks to third parties who might be harmed by provider refusals.

December 6, 2021 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Thursday, December 2, 2021

Recap of SCOTUS Oral Argument in Dobbs Abortion Case

Wednesday, December 1, 2021

Getting the Legal History of Abortion Right

It continues to be frustrating to see inaccurate statements and polemics on the history of abortion in America.  Even more frustrating when those voices are elevated to legitimacy as alleged balanced discussions of the issue. 

 The leading book on 19th century history of the laws and legal regulation of abortion is James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979). 

For more modern legal history, the leading book on post-Roe legal history is Mary Ziegler, Abortion Law in America: Roe v. Wade to the Present.  For the time just before Roe, one of the best sources is the edited collection by Linda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before Roe (2010).

I have written on the topic of the long history of abortion in the 19th century, particularly on the improper attribution of anti-abortion views to the feminist foremothers like Elizabeth Cady Stanton and Susan B. Anthony:

Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012)

Over the past twenty years, prolife advocates have sought to control the political narrative of abortion by misappropriating women’s history. Conservatives, led by the group Feminists for Life (FFL), have used historical feminist icons to support their antiabortion advocacy. Federal antiabortion legislation has been named after feminist heroines. Amicus briefs to the U.S. Supreme Court quote women’s rights leaders in support of abortion regulation. And political forums for college students popularize the notion that feminists historically opposed abortion. Prolife groups claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. Such misuse of history diminishes, rather than enhances, the credibility of this antiabortion advocacy.

 

The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony, have traditionally opposed abortion. If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.

 

The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women’s rights. Since the second wave of the women’s liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest. The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman’s right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.

 

The lack of popular knowledge about the lives and work of women’s rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women’s lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it. Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true. Sound bites that have been excised from history are taken out of context to convey a meaning not originally intended.

Tracy Thomas, Chapter 4 "The 'Incidental Relation' of Mother" and Chapter 6, "Conclusion," in Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).

Tracy Thomas, interview in The Atlantic, The Epic Political Battle Over the Legacy of the Suffragettes (June 2019) 

Tracy Thomas, National Constitutional Center Podcast, The Constitutional Legacy of Seneca Falls (July 25, 2019)

Tracy Thomas, in Lily, Was Susan B. Anthony Antiabortion? (Aug. 3, 2020)

See also Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)

December 1, 2021 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

Gender and the Law Prof Blog Coverage of Dobbs and the Right of Reproductive Autonomy

For all of the past coverage of the abortion issue on Gender & the Law Prof Blog, go to Blog / Categories / Abortion.

Some of the recent posts specifically on Dobbs include:

Gender & the Law Prof Blog (8/21), featuring Marc Spindelman's Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).

Gender & the Law Prof Blog (9/15/21), featuring Aaron Tang, The Originalist Case for an Abortion Middle Ground.

Gender & the Law Prof Blog (11/17/21) featuring David Gans, No, Really, the Right to an Abortion is Supported by the Text and History of the Constitution, The Atlantic

December 1, 2021 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Tuesday, November 30, 2021

Dobbs v. Jackson Women’s Health Organization, regarding Mississippi abortion law, to be heard by SCOTUS on December 1

Explainer: Abortion At the Supreme Court

On Wednesday, the U.S. Supreme Court will hear a case out of Mississippi that could eliminate a pregnant person’s constitutional right to an abortion. The law in question bans abortion at 15 weeks gestation, significantly before viability. With this case as a vehicle, the Mississippi attorney general has explicitly called on the high court to strike down Roe v. Wade

The case, Dobbs v. Jackson Women’s Health Organization, turns on the issue of viability. Supreme Court precedent protects the right to abortion before a fetus can survive outside of the womb, usually around 24 weeks; states can’t pass laws that present an “undue burden” for someone seeking an abortion before that point. While a total ban before viability would undermine Roe, many experts think the Supreme Court might allow it anyway. Because the one clinic in Mississippi only performs abortions up to 16 weeks, lawyers may argue, a 15-week ban does not constitute an undue burden.

. . .

Between the Texas and Mississippi cases, this is an unprecedented term for abortion on the Supreme Court.

November 30, 2021 in Abortion, Constitutional, Family, Gender, Healthcare, Legislation, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, November 17, 2021

Supporting the Right to an Abortion by the Text and History of the Constitution

David Gans, No, Really, the Right to an Abortion is Supported by the Text and History of the Constitution, The Atlantic

An originalist reading of the text and history of the Fourteenth Amendment, in fact, provides a strong basis for protecting unenumerated fundamental rights, including rights to bodily integrity, establishing a family, and reproductive liberty. The right to abortion flows logically from there. The Supreme Court should recognize this when it decides this term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization.

 

It is of course true that the debates over the Fourteenth Amendment do not explicitly mention abortion. But there is no daylight between the rights specifically affirmed in the debates and the right to abortion.

 

The rights to control one’s body, establish a family, and have children necessarily safeguard the right to abortion as a fundamental right. The right of “having a family, a wife, children, home,” as Senator Jacob Howard, who played a central role in drafting the Fourteenth Amendment, put it, guarantees to the individual free choice in matters of family and childbirth, in the same way that the freedom of speech also includes the right to not speak. The right to bear and raise children and the right to abortion are two sides of the same coin—both integral parts of reproductive freedom.  In our constitutional heritage, laws that prohibit abortion and those that compel abortion are equally offensive to bodily integrity, autonomy, and equal dignity.***

 

To understand why the Fourteenth Amendment’s protections are so sweeping and phrased in general terms, remember that the amendment was a response to slavery. Its framers sought to safeguard fundamental rights that have no explicit textual basis in the Bill of Rights but that are crucial to equality and liberty. To ensure true freedom and redress the subjugation of Black bodies during slavery required, at a minimum, asserting control over one’s body as a basic right. During the debates, members of Congress insisted that a person’s  “uninterrupted enjoyment of his life, his limbs, his body, his health” was a bedrock right guaranteed to all. Without bodily integrity, the Fourteenth Amendment’s promise of equal citizenship would be illusory.

 

Protecting people’s reproductive liberty was very much a part of that effort to define what it means to not be enslaved—to be free. One of slavery’s cruelest aspects was the brutal denial of reproductive autonomy in matters of family life. Plantation owners forced enslaved women to bear children who would be born into bondage. Rape and other forms of coerced procreation enabled the growth of the institution of slavery, even after the international slave trade was outlawed in 1808. “Slavery is terrible for men,” wrote Harriet Jacobs in the 1861 narrative of her enslavement, “but it is far more terrible for women.” Jacobs’s autobiography, as the intellectual Henry Louis Gates has observed, demonstrated how enslaved women were treated as “object[s] to be raped, bred, or abused.” Not only were enslaved people coerced into bearing children; enslaved people in loving relationships had no right to marry or raise children of their own. ***

 

The framers of the Fourteenth Amendment recoiled at the treatment of enslaved families and wrote the amendment to provide broad protection for what might be called rights of heart and home: the right to marry a loved one, to establish a family, to decide whether to bear and raise children. As the debates in the 39th Congress reflect, true freedom would be impossible without securing those freed from enslavement the right “to be protected in their homes and families,” as Senator John Sherman said. Because reproductive freedom and family life were impossible “where the wife is the property of the husband’s master and may be used at will” and where “children are bred, like stock, for sale,” Representative Thomas Eliot argued, “no act of ours can fitly enforce their freedom that does not contemplate for them the security of home.” The denial of these basic rights under slavery provided an invaluable lesson about the meaning of freedom: Decisions about marriage, family, and reproduction had to be left to the individual, not coerced by the government or subject to the brutal domination of another.

 

During the debates in the 39th Congress, Senator Howard eloquently spoke to how enslaved people had been robbed of their dignity and stripped of their rights to marry a loved one, start a family according to their desires, and enjoy reproductive freedom.

 

November 17, 2021 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

New Book Gendered Citizenship on the Gap Years of the Equal Rights Amendment, 1920-1963

From Legal Theory Blog (Larry Solum): Highly Recommended

Legal Theory Bookworm: "Gendered Citizenship" by DeWolf

The Legal Theory Bookworm recommends Gendered Citizenship: The Original Conflict over the Equal Rights Amendment, 1920–1963 by Rebecca DeWolf.  Here is a description:

By engaging deeply with American legal and political history as well as the increasingly rich material on gender history, Gendered Citizenship illuminates the ideological contours of the original struggle over the Equal Rights Amendment (ERA) from 1920 to 1963. As the first comprehensive, full-length history of that struggle, this study grapples not only with the battle over women’s constitutional status but also with the more than forty-year mission to articulate the boundaries of what it means to be an American citizen.

Through an examination of an array of primary source materials, Gendered Citizenship contends that the original ERA conflict is best understood as the terrain that allowed Americans to reconceptualize citizenship to correspond with women’s changing status after the passage of the Nineteenth Amendment.

Finally, Rebecca DeWolf considers the struggle over the ERA in a new light: focusing not on the familiar theme of why the ERA failed to gain enactment, but on how the debates transcended traditional liberal versus conservative disputes in early to mid-twentieth-century America. The conflict, DeWolf reveals, ultimately became the defining narrative for the changing nature of American citizenship in the era.

November 17, 2021 in Books, Constitutional | Permalink | Comments (0)