Gender and the Law Blog

Wilkins v. Austin Eliminates Discriminatory HIV Barrier to Military Service

Lambda Legal challenged the United States Military's prohibition on the enlistment of people living with HIV in Wilkins v. Austin. Here are excerpts from Lambda's press release describing the case: 

The lawsuit, Wilkins v. Austin, was filed on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status. Minority Veterans of America (“MVA”) is also an organizational plaintiff. MVA advances the interests of its civilian members who are living with HIV and wish to serve in the military.  

The filing followed the Biden administration’s announcement in July 2022 that it would no longer defend discriminatory restrictions that prevented servicemembers living with HIV from deploying and commissioning as officers. Instead of appealing the decision of the district court declaring these restrictions unlawful and unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, which stated that individuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no medical restrictions applied to their deployability or to their ability to commission while a servicemember based on their HIV-positive status.    

Before the July 2022 announcement, a federal district court handed down one of the most substantial judicial rulings in over two decades for people living with HIV in two cases—Harrison v. Austin and Roe & Voe v. Austin.  The rulings ordered the Department of Defense (DOD)—the world’s largest employer—to stop discriminating against servicemembers living with HIV and to allow them to deploy and commission as officers in the U.S. military. That groundbreaking ruling represented a landmark moment in the fight to advance the rights of people living with HIV. It reflected the reality that HIV is a chronic, treatable condition, not a reason to discriminate.   

Here are Lambda's selected excerpts from the successful opinion in Wilkins v. Austin striking down the policy: 

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious. Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals." 

“Modern science has transformed the treatment of HIV, and this Court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment. Now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction.”  

Ohio's 24-Hour Waiting Period Abortion Law Enjoined by Judge

Susan Tebben, Ohio's 24-hour Waiting Period Abortion Law Paused by Judge

An Ohio law requiring a 24-hour waiting period before abortion services will not be enforced as a lawsuit seeking to eliminate the law entirely sees its way through court, a judge ruled on Friday.

Franklin County Court of Common Pleas Judge David C. Young not only put a temporary pause on the 24-hour waiting period, but also a minimum of two in-person visits and certain information about abortion that the state required doctors to provide before an abortion.

That information includes the “probable gestational age of the zygote, blastocyte, embryo or fetus” and “nature and purpose of the particular abortion procedure to be used,” according to state law.

Young cited the newest amendment to the state constitution as reason to rule in favor of the clinics and physicians.

“The plain language of the amendment clearly sets forth the applicable legal standard,” Young wrote. “This language is easily understood and clear.”

The decision comes following an oral argument hearing last week, in which Young heard from the Ohio Attorney General’s Office representing the state, and an attorney for abortion clinics and a physician party in the case.

The state said by legal definition, the “status quo” should be maintained in a preliminary injunction, and according to the AG’s office’s arguments, that would leave state law as it is and the regulations in place. The office of Ohio Attorney General Dave Yost issues a release Friday saying they plan to appeal the ruling and that they disagree with the judge that the waiting period and extra appointments constitute a burden.

According to Jessie Hill, attorney for the parties attempting to eliminate the laws, the status quo is now the constitutional amendment that placed reproductive rights including abortion into the Ohio Constitution after being passed by 57% of Ohio voters last November.

The amendment bars any state laws that “burden, penalize, prohibit, interfere with or discriminate” against abortion care and abortion providers.

See also Columbus Dispatch, Ohio's 24-Hour Waiting Law for Abortions is Put on Hold

William Carter on "Trans Talk and the First Amendment"

William M. Carter has posted Trans Talk and the First Amendment on SSRN. The abstract is excerpted below: 

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at birth; and bans upon doctors providing minors with referrals for gender-affirming care.

This Article breaks new ground in two respects. First, it focuses on an aspect of student speech regarding transgender issues that has not yet been addressed by courts or in the scholarly literature: namely, whether the Supreme Court's school speech cases would permit states or public school officials to restrict student speech advising a peer to obtain forms of gender-affirming care that are unlawful to minors in the state where the speech occurs. This Article is also the first to apply the history of the battles over free speech regarding slavery and of the Nation's Second Founding following the Civil War to analyze the First Amendment implications of restrictions upon student speech relating to transgender issues.

Under the classic framework of Tinker v. Des Moines School District, student speech cannot be restricted unless it causes or poses a significant risk of material and substantial disruption to the learning environment. The Supreme Court's post-Tinker school speech cases, however, have been significantly more solicitous toward school officials' efforts to restrict student speech. Opponents of gender-affirming care for minors are therefore likely to seek to rely upon the post-Tinker jurisprudence to justify restricting or punishing student speech advocating that a peer seek gender-affirming care. This Article argues that the Court's post-Tinker school speech cases cannot and should not be read to justify restrictions upon such speech. This Article further argues that extending the post-Tinker cases to allow the government to punish student speech advocating that a peer receive gender-affirming care would violate the right to freedom of speech secured at great cost by our Nation's Second Founding. 

Huberfeld, McClain, and Ahmed on "Rethinking Foundations and Analyzing New Conflicts: Teaching Law After Dobbs"

Nicole Huberfeld, Linda McClain, and Aziza Ahmed have published "Rethinking Foundations and Analyzing New Conflicts: Teaching Law After Dobbs" in volume 17 of the Saint Louis University Journal of Health Law & Policy. The abstract is excerpted here: 

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs’ overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”—and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes.

 

Interrogating Dobbs's Claim to Vindicate Democracy

Katherine Shaw & Melissa Murray, Dobbs and Democracy, 137 Harvard L. Rev. 738 (2024)  In Dobbs v. Jackson Women’s

Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree of this claim and its substantive vision of democracy.

In grounding its decision in democracy, the Dobbs majority relied on a well-worn but dubious narrative: that Roe, and later Casey, disrupted ongoing democratic deliberation on the abortion issue, wresting this contested question from the people and imposing the Court’s own will. The majority insisted that this critique had always attended Roe. However, in tracing the provenance of the democratic deliberation argument, this Article finds more complicated intellectual origins. In fact, the argument did not surface in Roe’s immediate aftermath, but rather emerged years later. And it did so not organically, but through a series of interconnected legal, movement, and political efforts designed to undermine and ultimately topple Roe and Casey. The product of these efforts, the Dobbs majority’s claim that democracy demanded overruling Roe and Casey, was deployed to overcome the force of stare decisis in Dobbs — and may ultimately reshape the scope and substance of the Court’s stare decisis analysis in future cases.

Having identified the intellectual origins of the democratic deliberation argument and its contemporary consequences, this Article examines the contours of the Dobbs majority’s vision of democratic deliberation. We show that although Dobbs trafficked in the rhetoric of democracy, its conception of democracy was both internally inconsistent and extraordinarily limited, even myopic. The opinion misapprehended the processes and institutions that are constitutive of democracy, focusing on state legislatures while overlooking a range of other federal, state, and local constitutional actors. As troublingly, it reflected a distorted understanding of political power and representation — one that makes political power reducible to voting, entirely overlooking metrics like representation in electoral office and in the ecosystem of campaign finance. The opinion was also willfully blind to the antidemocratic implications of its “history and tradition” interpretive method, which binds the recognition of constitutional rights to a past in which very few Americans were meaningful participants in the production of law and legal meaning. The deficits of the Dobbs majority’s conception of democracy appear even more pronounced when considered alongside the Court’s recent and active interventions to distort and disrupt the functioning of the electoral process. Indeed, Dobbs purported to “return” the abortion question to the people and to democratic deliberation at the precise moment when the Court’s own actions have ensured that the extant system is unlikely either to produce genuine deliberation or to yield widely desired outcomes.

Ultimately, a close examination of the Dobbs majority’s invocation of democracy suggests that the majority may have employed the values and vernacular of democracy as a means to a different end. As we explain, the majority’s embrace of democracy and democratic deliberation allowed it to shield its actions from claims of judicial activism and overreach. More profoundly, and perhaps paradoxically, the opinion may lay the groundwork for the eventual vindication and protection of particular minority interests — those of the fetus. With this in mind, the Dobbs majority’s settlement of the abortion question is unlikely to be a lasting one. Indeed, aspects of the opinion suggest that this settlement is merely a way station en route to a more permanent resolution — the recognition of fetal personhood and the total abolition of legal abortion in the United States.

Montana Supreme Court Upholds Minors' Right to Abortion

Montana Supreme Court Rules Minors Don't Need Parental Permission for Abortion

Montana’s Supreme Court ruled Wednesday that minors don’t need their parents’ permission to get an abortion in the state – agreeing with a lower court ruling that found the parental consent law violates the privacy clause in the state constitution.

“We conclude that minors, like adults, have a fundamental right to privacy, which includes procreative autonomy and making medical decisions affecting his or her bodily integrity and health in partnership with a chosen health care provider free from governmental interest,” Justice Laurie McKinnon wrote in the unanimous opinion.

The ruling comes as an initiative to ask voters if they want to protect the right to a pre-viability abortion in the state constitution is expected to be on the Montana ballot in November. County officials have verified enough signatures to qualify the issue for the ballot, supporters have said. The Secretary of State’s Office has to certify the general election ballots by Aug. 22.

See also Montana Supreme Court Strikes Down Abortion Law Requiring Parental Consent

The unanimous decision is here,  Planned Parenthood of Montana v. State of Montana (Aug. 14, 2024), authored by Judge Laurie McKinnon. Of the seven justices, three are women.

Montana is a little different than other states. As I have written here, Protecting Abortion with Health Care Freedom of Choice, 51 Journal Law, Medicine & Ethics 601 (2023), Montana has an express right to health care in its state constitution. When combined with rights to privacy under due process, there is a synergism that strengthens reproductive rights. 

This broader meaning of the right to health care freedom was adopted by Montana in interpreting its constitution to protect abortion. In 1972, Montana adopted a health care freedom amendment guaranteeing the right to seek “safety, health and happiness.” In 1999, the Montana Supreme Court applied the amendment to abortion, defining this health freedom in Armstrong v. State as “the right to seek and obtain medical care from a chosen health care provider and to make personal judgments affecting one’s own health and bodily integrity without government interference.” The court emphasized: “Unless fundamental constitutional rights—procreative autonomy being the present example—are grounded in something more substantial than the prevailing political winds, Huxley’s Brave New World or Orwell’s 1984 will always be as close as the next election.” “Fortunately,” the court held, “the roots of Montana’s constitutional 
right of procreative autonomy go much deeper and are firmly embedded in the right of individual privacy.”

The Supreme Court has affirmed this holding three times: Armstrong v. State, 989 P.2d 364 (Mont. 1999); reaffirmed in Weems v. State, 440 P.3d 4 (Mont. 2019); declined to overrule in Planned Parenthood v. Knudsen, 515 P.3d 301, 307-08 (Mont. 2022). 

 

 

First Amendment Law of Student Speech as Protection for Transgender Youth

William M. Carter, Jr. "Trans Talk" and the First Amendment,   

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at birth; and bans upon doctors providing minors with referrals for gender-affirming care.

This Article breaks new ground in two respects. First, it focuses on an aspect of student speech regarding transgender issues that has not yet been addressed by courts or in the scholarly literature: namely, whether the Supreme Court's school speech cases would permit states or public school officials to restrict student speech advising a peer to obtain forms of gender-affirming care that are unlawful to minors in the state where the speech occurs. This Article is also the first to apply the history of the battles over free speech regarding slavery and of the Nation's Second Founding following the Civil War to analyze the First Amendment implications of restrictions upon student speech relating to transgender issues.

Under the classic framework of Tinker v. Des Moines School District, student speech cannot be restricted unless it causes or poses a significant risk of material and substantial disruption to the learning environment. The Supreme Court's post-Tinker school speech cases, however, have been significantly more solicitous toward school officials' efforts to restrict student speech. Opponents of gender-affirming care for minors are therefore likely to seek to rely upon the post-Tinker jurisprudence to justify restricting or punishing student speech advocating that a peer seek gender-affirming care. This Article argues that the Court's post-Tinker school speech cases cannot and should not be read to justify restrictions upon such speech. This Article further argues that extending the post-Tinker cases to allow the government to punish student speech advocating that a peer receive gender-affirming care would violate the right to freedom of speech secured at great cost by our Nation's Second Founding.

The Disconnect Between Sex and Pregnancy-Based Affirmative Action

Ruth Colker, The Hypocrisy of Sex or Pregnancy-Based Affirmative Action, 25 Georgetown J. Gender & Law 1139 (2024)  

The Supreme Court’s sex-based jurisprudence has always been a mess; the Court, for example, is not even willing to conceptualize pregnancy-based discrimination as sex discrimination. But, oddly, within this mess, the Court has consistently recognized sex-based affirmative action as consistent with its sex discrimination jurisprudence.

The Supreme Court’s race-based affirmative action jurisprudence has consisted of a different kind of mess, a confusion stemming from its choice to narrowly justify affirmative action in college admissions based on the need for a robust exchange of ideas rather than on the need to remedy centuries of race-based subjugation in our society. After decades of hammering away at this limited justification, the Court has now seemingly abandoned the race-based affirmative action enterprise altogether. This states’ rights Court has swept broadly by taking away the opportunity for state and private actors to craft effective affirmative action programs.

While critiquing this Court’s sex- and race-based jurisprudence, this Article highlights one bizarre but salutary logical outcome from these constitutional strands. Both sex-based and pregnancy-based affirmative action should be found constitutional under the logic of the Court’s existing jurisprudence. This Article urges state entities to aggressively push both sex-based and pregnancy-based affirmative action to remedy historical vestiges of discrimination in both arenas while also making the public and the courts see the absurdity of the current situation. While it is hard to imagine the current Court changing course on the need for race-based affirmative action, I hope this Article can help reinvigorate discussions about the Court’s approach to race-based affirmative action by drawing on the Court’s recognition of the continuing need for sex-based affirmative action. The robust exchange of ideas justification for race-based affirmative action has done its damage and needs to be replaced by an anti-subordination approach, which has been somewhat reflected in the Court’s sex-based jurisprudence.

Ohio Judge Upholds Ban on Gender-Affirming Care for Minors and Ban on Transgender Girls in School and College Sports

Wash Post, Ohio Judge Upholds Ban on Gender-Affirming Care for Minors

A judge upheld a law Tuesday that bans gender-affirming care for minors in Ohio, keeping it among the nearly two-dozen states that have levied similar restrictions in recent years and drawing criticism from advocates who say the statute infringes on transgender peoples’ rights.

Franklin County Judge Michael J. Holbrook wrote in the ruling that recourse for those “dissatisfied with the General Assembly’s determinations must be exercised through their vote as opposed to the judicial system.”

Families of trans youth will not be able to access treatments in Ohio to support gender-affirming care such as puberty blockers and hormone therapy — although a grandfather clause allows residents already on such treatments to continue. The law also blocks transgender girls and women from playing on school or college sports teams designated for girls or women. The court’s decision clears the way for the law to take effect.

 

 

Utah's Majority-Women Supreme Court Upholds Injunction of Strict Abortion Ban and Includes Women's Legal Scholarship of History in its Analysis

The majority-female Utah Supreme Court upheld an injunction preliminarily enjoining an abortion ban by a vote of 4-1. The case is Planned Parenthood of Utah v. State, ___P.3d___, 2024 WL 3612730 (Utah Aug. 1, 2024)

    Wash Post, Utah Abortion Ban Remains on Hold After Ruling by State's High Court

    NYT, Utah Supreme Court Upholds Block on Strict Abortion Ban

In the discussion of the state history of abortion regulation in the late 19th century, the majority includes a discussion of my work: 

In addition, the State's evidence does not necessarily demonstrate that abortion was illegal at statehood because Utahns understood that a woman lacked the legal ability to decide whether to carry a pregnancy to full term. There is evidence suggesting that concern for the life of the mother motivated, at least in part, abortion bans. See, e.g., Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle U. L. Rev. 1, 21 (2012). Tracy Thomas writes that “early legislation” (taking place around 1841) “continued to focus on medical malpractice and protection of the life and health of the mother from the consequences of abortion.” Id. ***

 Some scholars also suggest that the push for anti-abortion laws that determined fetal life started from conception was a way to standardize the medical profession. Thomas writes: “The lobbying effort to criminalize abortion was spearheaded by the medical profession.” Thomas, supra ¶ 145, at 21. Doctors “claim[ed] pregnancy as an area solely for medical expertise. ... Quickening, the physicians argued, could not be relied upon as an indicator of fetal life because it did not occur at a standard moment.” Id. at 21–22. Reva Siegel writes that “[d]uring the period of the criminalization campaign, the gynecologists and obstetricians of the AMA [American Medical Association] were seeking to appropriate management of the birthing process from midwives, and to prevent women from entering the medical profession.” Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 300 (1992). The period Thomas and Siegel examine—the 1850s to the 1880s—parallels the founding of the Utah Territory and its development toward statehood. See Thomas, supra ¶ 145, at 21; Siegel, supra at 286 (discussing the AMA's 1859 resolution “condemning abortion as an unwarranted destruction of human life” and the AMA's 1860s campaign to save “the nation from the evils of abortion” (cleaned up)).

Sixth Circuit Upholds School Misgendering Policy, Saying Objectors Can Avoid Using Pronouns

ABA J. 6th Circuit Refuses to Block School's Pronoun Policy; Dissent Makes Belief-in-Ghost Comparison

A federal appeals court has refused to block a school policy banning the misgendering of transgender students.

The plaintiff, a group called Parents Defending Education, did not make a clear showing that the policy violates the First Amendment, the 6th U.S. Circuit Court of appeals at Cincinnati ruled Monday in a 2-1 decision.

At issue was a policy adopted by the Olentangy Local School District in suburban Columbus, Ohio, report Courthouse News Service and Reuters.

The school’s policy banned discriminatory harassment and bullying based on protected characteristics that include gender identity. The policy barred intentional and repeated use of nonpreferred pronouns when referring to transgender classmates.

Parents Defending Education had alleged that the policy violated the constitutional rights of students who don’t believe in gender transitioning because of their religious beliefs. The 6th Circuit, however, said students don’t have to use preferred pronouns because they can avoid using any pronouns when referring to transgender classmates.

“Students who do not want to use their transgender classmates’ preferred pronouns may permissibly use no pronouns at all and refer to their classmates using first names,” the appeals court said in the July 29 opinion by Judge Jane B. Stranch.

The plaintiff did not make a clear showing that the policy unconstitutionally compels speech, or that it constitutes unconstitutional viewpoint discrimination, said Stranch, who is an appointee of former President Barack Obama.

In her dissent, Judge Alice M. Batchelder said there was a First Amendment violation, and the majority opinion had created a circuit split.

The majority opinion “requires the speaker to recognize and accept that gender transition is a real thing,” Batchelder said.

Anti-Transgender Constitutional Law

Katie R. Eyer, Anti-Transgender Constitutional Law, 73 Vanderbilt L. Rev. 1113 (2024)  

Over the course of the last three decades, gender identity anti-discrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or eliminate such trans-protective measures. Such litigation has attacked as unconstitutional everything from laws prohibiting anti-transgender employment discrimination to the efforts of individual public school teachers to support transgender teens.

This Article provides the first systematic account of the phenomenon of anti-transgender constitutional litigation. As described herein, such litigation is surprisingly novel: while trans-protective measures date back much further, anti-transgender constitutional litigation was virtually nonexistent prior to 2016. Moreover, as late as 2018, the few victories in such cases were almost always either temporary or predicated on arguments with only limited application. In contrast, the most recent wave of anti-transgender constitutional litigation has seen increasing success in invalidating or limiting transgender equality measures, based on increasingly broad and potentially impactful rationales.

These findings raise significant questions, both for the transgender community and for those who care about broader anti-discrimination law. They suggest that even at a time when the transgender community is achieving important gains, the constitutional claims of transgender equality opponents are simultaneously eroding these gains. Moreover, the reasoning in some of the recent rulings in anti-transgender constitutional cases ought to be of substantial concern to all groups protected by anti-discrimination law.

Indeed, the rulings in some anti-transgender constitutional law cases provide a troubling vision of what the future of speech- and religion-based claims could portend. Emboldened by the recent victories, litigants have become increasingly aggressive—and lower courts increasingly creative—in arguing for the constitutional limitation of equality rights. While such arguments have been adopted by only a limited number of courts to date, they could—if adopted more widely—form the basis for the constitutional limitation or invalidation of broad swaths of modern anti-discrimination law.

Texas Sues Biden Administration Over Teenage Access to Birth Control

Texas Sues Biden Administration Over Teenage Access to Birth Control, Wash Post

Texas Attorney General Ken Paxton (R) is suing the Biden administration over a policy that allows adolescents to access birth control without their parents’ consent, arguing that the rule violates state law requiring guardians to consent to their children’s use of contraceptives.

Paxton said in a statement that he was protecting parental rights, a popular GOP rallying cry used by Republicans to talk about culture-war issues such as education and transgender care.

“By attempting to force Texas health care providers to offer contraceptives to children without parental consent, the Biden administration continues to prove they will do anything to implement their extremist agenda — even undermine the Constitution and violate the law,” Paxton said in a statement.

The lawsuit, filed Thursday in a division of the Northern District of Texas that has one federal judge, is unlikely to change much in the state, analysts said. That’s because a similar case ended in March with a ruling that required Texas providers to begin obtaining parental consent this spring without wholly striking down the rule.

But it is the latest conservative effort to challenge the Biden administration’s reproductive health-care policies and Title X, a half-century-old family-planning program.

 

 

Daniel Del Gobbo on "Reckoning with Queer History: The Canadian 'LGBT Purge' Case and the Limits of Forgiveness"

Daniel Del Gobbo has posted Reckoning with Queer History: The Canadian 'LGBT Purge' Case and the Limits of Forgiveness on SSRN. This article is forthcoming in Volume 62 of the Osgoode Hall Law Journal (2025). The abstract is excerpted here: 

The Canadian government has a long history of regulation, exploitation, and violence against lesbian, gay, bisexual, trans, queer, and two-spirit (LGBTQ2) people. One of the most painful chapters in this history is the “LGBT Purge,” a term that refers to the expulsion of LGBTQ2 service members and employees from the Canadian Armed Forces, Royal Canadian Mounted Police, and federal public service between 1955 and 1992. The LGBT Purge was the subject of a class action lawsuit filed in 2017 that resulted in a settlement agreement in 2018. On a parallel track to the settlement, Prime Minister Justin Trudeau issued a formal apology for the government’s history of state-sponsored discrimination against LGBTQ2 people in 2017. In this article, I consider these events from a legal historical and queer theoretical perspective. I focus on the potential of the settlement to promote reconciliation with LGBTQ2 people, contextualizing the settlement in light of neoliberal and homonationalist pressures on the class members to settle the past and forgive legacies of homophobic violence that continue to be felt today. Praiseworthy as the settlement terms might be, I conclude by arguing that forgiving the government’s history of discrimination against LGBTQ2 people is an historical impossibility.

Abortion's New Criminalization--A History and Tradition Test Right to Healthcare Access After Dobbs

Reva Siegel & Mary Ziegler, Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term  

Since Dobbs v. Jackson Women's Health Organization reversed Roe v. Wade as contrary to the nation's history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before. Cases in the Court's 2023 Term, Moyle v. United States and Food and Drug Administration v. Alliance for Hippocratic Medicine, demonstrate these trends. Under Dobbs, do abortion bans that break with history and tradition in obstructing access to urgently needed health care violate liberty guarantees of state or federal constitutions?

We present evidence that the nation has long had a tradition of exempting health care from criminalization that extended to abortion law and was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. This tradition demarcated quite self-conscious limits on state action that were reiterated across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically understood as a right. We show that courts in states with abortion bans view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend this account of our law against an originalist reading of Dobbs advanced by Professor Stephen Sachs asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s reading conflicts with important aspects of Glucksberg and Dobbs, misconstrues Dobbs’s reasons for turning to history and tradition, and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. Posing concrete questions of Dobbs illustrates how much of Dobbs has yet to be written, showing the many senses in which, as Justice Barrett writes in Vidal v. Elster, “a rule rendering tradition dispositive is itself a judge-made test.” 

The Return of Boy Scouts v. Dale and the Resurgence of Expressive Association Claims

Elizabeth Sepper, The Return of Boy Scouts of America v. Dale, 68 St Louis U L.J. (2024)  

In 2000, the Supreme Court’s decision in Boy Scouts of America v. Dale seemed to upend the law of freedom of association. Fears surfaced that the right of expressive association would be “an easy trump of any antidiscrimination law” —and perhaps other regulations of conduct. Organizations from schools to employers, social service providers to unions, could mount constitutional claims against the inclusion of individuals unwanted because of their sex, sexuality, race, disability, or beyond.

Instead, lower courts read Dale narrowly. Expressive associational rights would, it seemed, be bounded by the facts of the case. Freedom of association would not override equality under the law.

The ground, however, is now shifting. This essay identifies a rapid and dramatic resurgence of expressive association claims. In a series of decisions, courts have begun to read Dale as broadly as commentators once feared. Indeed, they have gone further still, taking the right to expressive association far beyond its foundations in the membership of non-profit, non-commercial groups. Employers, commercial entities, and social services providers have notched recent wins on expressive association claims. Several decisions conclude that an employer becomes expressive simply by articulating a desire to discriminate. Others deny a state interest in requiring nondiscrimination in employment on the ground that dissenting employees can work elsewhere—a proposition that would dismantle all of labor and employment law.

The essay offers some tentative explanations of the recent successes of expressive association claims. It predicts that the Supreme Court’s compelled speech opinion in 303 Creative v. Elenis will further fuel expansion. The essay concludes with a call to scholars to pay attention to developments in the lower courts where doctrinal siloes no longer hold and the antiregulatory agenda of the conservative legal movement is fast developing.

Teaching Law After Dobbs: Rethinking Foundations and Analyzing New Concepts

Nicole Huberfeld, Linda C. McClain & Aziza Ahmed, Rethinking Foundations and Analyzing New Concepts: Teaching Law After Dobbs, 17 St. Louis U. J. Health L. & Pol'y 243 (2024) [Westlaw Access]

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs' overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”--and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes.

Understanding the Original Meaning of Washington v. Glucksberg and its Use in the Dobbs Abortion Decision

Marc Spindelman, Washington v. Glucksberg's Original Meaning

This Article elaborates and defends Washington v. Glucksberg's original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.  
 
The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court's Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. Wade and constitutional abortion rights. As Dobbs figures it, Glucksberg signs the constitutional warrant that Dobbs enforces by overturning Roe.   

Proceeding in stages, the Article traces Dobbs' reliance on Glucksberg before pivoting to a detailed account of Glucksberg's original meaning, which engages and surmounts Dobbs' undefended tally of Glucksberg. Having shown Dobbs' reading of Glucksberg cannot be squared with Glucksberg's text and its meaning--as crosschecked against other Supreme Court decisions, as well as new sources found in the Supreme Court archives--the work explains that Dobbs is also deficient in not providing an independent, full-blown justification, beyond Glucksberg's invocation, for its basic, if contoured, constitutional interpretive method of decision. In context, Dobbs' failure to offer this kind of public accounting, consistent with constitutional and rule-of-law demands, means that Dobbs stands exposed as lawless at its foundations. Dobbs is thus primed for challenge on these grounds, the very terms of legality that Dobbs deploys as it eliminates Roe and constitutional abortion rights.

 

Kansas Supreme Court Strikes Down Abortion Restrictions

Kansas Supreme Court Strikes Down Abortion Restrictions, Clinic Rules in Major Decisions, Kansas City Star

The Kansas Supreme Court struck down a series of abortion rules and restrictions on Friday in twin opinions affirming its landmark decision that the state constitution protects the right to end a pregnancy. The justices in two near-unanimous decisions tossed a ban on dilation and evacuation abortions, a common second-trimester surgical procedure, and a series of abortion-specific clinic regulations that providers have long fought. The opinions marked the end of two years-long legal battles over rules, which never took effect.

The rulings delivered a stinging but expected blow to anti-abortion activists and Republicans, who for years sought to steadily chip away at access. The opinion built upon the court’s key 2019 decision, which upheld the right to an abortion under a broader guarantee of bodily autonomy. “We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen, appointed by Democratic Gov. Kathleen Sebelius in 2005, wrote in the majority opinion striking down the dilation and evacuation ban.

Rosen wrote that the state “must show any infringement of that right withstands strict scrutiny.” The decision was 5-1 in both cases, with Justice Caleb Stegall, an appointee of Republican Gov. Sam Brownback, the sole dissenting vote. Justice K.J. Wall, an appointee of Democratic Gov. Laura Kelly, didn’t participate.

 

Suzanne A. Kim on "Bringing Visibility to AAPI Reproductive Care After Dobbs"

Suzanne A. Kim has published "Bringing Visibility to AAPI Reproductive Care After Dobbs" in Volume 71 of the UCLA Law Review Discourse (2024). The article abstract is excerpted here: 

Dobbs’ impact on growing AAPI communities is underexamined in legal scholarship. This Essay begins to fill that gap, seeking to bring together an overdue focus on the socio-legal experiences of AAPI communities with examination of the effects of reversing Roe and Casey on women of color. It does so by prompting a research agenda that connects diverse AAPI women’s experiences, abortion access, and Dobbs’ impact.