Wednesday, December 4, 2019
Legal History Section, A Century of Women's Suffrage
2020 marks one hundred years since the Nineteenth Amendment was ratified, ushering in a century of women's suffrage in the United States. This program brings together scholars writing on the history of women's suffrage, including scholars who will explore the suffrage movement that culminated in the Nineteenth Amendment; address how the Nineteenth Amendment affected political parties in the subsequent century; and compare the women's suffrage movement to analogous social movements.
Speaker: Dr. Martha S. Jones, Johns Hopkins University
Speaker from a Call for Papers: Elizabeth D. Katz, Washington University in St. Louis School of Law
Speaker: Holly McCammon, Vanderbilt University Law School
This session will explore the legal accomplishments and failures of the women’s movement since 1920. A century ago, women won the right to vote. Since then, women garnered additional rights in virtually every legal area, including in the realms of employment, property, reproduction, education, care taking, sexual freedom, and protection from violence. Despite significant success, much work remains. This session will consider the future of the women’s movement through a critical examination of our past.
In honor of the 100th anniversary of the Nineteenth Amendment and the 150th anniversary of the Fifteenth, the Constitutional Law Section is putting on a joint program with the Section on Election Law (co-sponsored by the Section on Legal History). The program will run from 2 pm – 5 pm on Thursday, January 2nd in Virginia Suite C.
The overall program is described as follows:
While the constitutional amendments related to voting rights have suggested that all citizens ought to be included in the franchise, the modern right to vote has nonetheless been heavily contested. The efforts to meaningfully include all citizens in the franchise in the century after the Nineteenth Amendment (and the 150 years after the Fifteenth Amendment) have been complicated, fraught, and have often diverged from the underlying idea of inclusion. Tensions still exist in modern voting rights law regarding the meaning of the right to vote, as illustrated by the litigation and activism around issues such as partisan and racial gerrymandering, voter identification, and proof of citizenship requirements. These examples reveal the complexities of the project of democratic inclusion, and this panel will explore how those complexities have evolved and are manifest in today’s right-to-vote doctrine.
Panel 1 (2:00 pm - 3:30 pm): This panel will explore the Nineteenth Amendment’s role in constitutional interpretation both inside and outside of the courts in the century after suffrage.
Steven Calabresi, Northwestern University Pritzker School of Law
Paula A. Monopoli, University of Maryland Francis King Carey School of Law (selected from a Call for Papers)
Reva B. Siegel, Yale Law School
Julie C. Suk, The Graduate Center, City University of New York
Moderator: Louis J. Virelli III, Stetson University College of Law
Monday, November 25, 2019
Woman Challenges UT Lewdness Statute as Unconstitutional, Stemming from Charge from Being Topless in her own Home in front of Step-Children
A Utah woman has been charged with lewdness in her own home after her stepchildren walked into the room and saw her bare chest.
Attorneys for the American Civil Liberties Union of Utah argued this week that the statute under which Tilli Buchanan, 27, was charged is unconstitutional, and they have asked a judge to drop the charges against her and change the state law.
Buchanan and her husband had been installing drywall in the garage and had taken off their shirts that were itchy from the fibers, she told The Salt Lake Tribune.
When her stepchildren, aged 9, 10 and 13, walked in, she "explained she considers herself a feminist and wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing," her lawyers wrote in court documents, The Associated Press reports.
Now the state had charged Buchanan with three charges of lewdness involving a child. The charge is a Class A misdemeanor.
Though her husband was similarly clad, he was not charged with a crime.
The state's lewdness statute criminalizes exposure of "the female breast below the top of the areola" in the presence of a child in a private place "under circumstances the person should know will likely cause affront or alarm."
If convicted, Buchanan faces imprisonment, fines and the requirement to register as a sex offender for 10 years.
The charges were filed after the children's mother told that authorities she was "alarmed" by the incident, according the AP.
Buchanan's case raises a number of constitutional concerns, says Leah Farrell, an attorney at the ACLU of Utah.
To begin with, "the criminalizing of behavior that many people don't consider criminal, and is normal."
Most people wouldn't consider, for instance, that they "might be brought into court because of their dealing with their dirty clothes within their house. Anything that really extends the criminal justice system into people's homes in this way is something that we're interested in looking at closer," Farrell says.
And then there's the gender issue.
"Simply because Miss Buchanan is a woman, she is facing this charge," Farrell says. "Therefore, women throughout Utah are at higher risk of facing a criminal charge simply because of their gender. There are different ideas around what morality is or is not. But the state's reach to criminalize morality based on gender and gender stereotyping is incredibly problematic."
Farrell notes that the statute's language requiring women to predict whether going topless is likely to cause "affront or alarm" imposes an additional burden that is not required of men.
Wednesday, November 20, 2019
Here is a short piece I wrote for the American Bar Association's public education online magazine:
Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)
The Nineteenth Amendment to the U.S. Constitution guaranteeing women’s right to vote was passed by Congress one hundred years ago on June 4, 1919. Many[JD1] states quickly ratified the amendment, though it would be a close call when the final state, Tennessee, pushed the amendment into law in August 2020. When first proposed, the vote or “suffrage” was just one of many civil and social rights demanded by women. But it became the primary focus of the women’s rights movement in the late nineteenth and early twentieth centuries, fueled by political allegiances with conservative temperance women and supported by focus on the vote as the primary right of citizenship as embodied in the new Fourteenth and Fifteenth Amendments.
One year after the passage of the Nineteenth Amendment, women’s rights leaders resurrected the demands for gender equality in aspects of society by proposing the first Equal Rights Amendment (ERA) in 1921. The ERA would have guaranteed that civil and legal rights cannot be denied “on the basis of sex.” From the beginning, however, the ERA was met with opposition including from women themselves, with conservative women concerned about impact on the family and progressive women concerned about impact on labor and union rights. It would take another fifty years before both national political parties would endorse the ERA, and Congress passed the ERA in 1972 guaranteeing that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The necessary two-thirds of the states, however, failed to ratify the ERA, even after an extension of the deadline.
A modern movement has renewed efforts to pass the ERA, still believing in the necessity of a constitutional guarantee of the broad legal and social equality of women first advanced 171 years ago. This essay traces the history of the women’s constitutional demands for equality, from its origins in Seneca Falls, the adoption of the Nineteenth Amendment, the proposed ERA, and modern efforts for a new amendment to secure gender equality.
The blue wave that flipped the Virginia Legislature last week was a victory for Democrats in the commonwealth, who will now be in control for the first time in more than 20 years.
But this milestone could affect more than just Virginia. It’s a potentially historic turning point for women and their equal rights. Because now that Democrats are in charge of both houses of the Virginia General Assembly, the Equal Rights Amendment might finally be approved there, which would mean it has been approved by three-fourths of the states — the threshold set for changing the U.S. Constitution.
The decades-long effort to amend the Constitution to explicitly outlaw sex discrimination seemed hopelessly stalled until 2017, when the Nevada Legislature unexpectedly voted to ratify — 45 years after Congress sent the amendment to the states for approval. Then, in 2018, the Illinois Legislature did the same, and suddenly it seemed that the ERA might actually reach the constitutional threshold. But efforts to get a 38th state to approve the amendment this year failed. A ratification bill in Virginia’s House of Delegates by Democrat Jennifer Carroll Foy was squashed by her Republican colleagues, who wouldn’t even let the proposal get out of a subcommittee.
Crazy as it seems, Republicans continue to oppose an amendment guaranteeing equal rights for women even in the 21st century. But their argument has shifted from decrying its threat to traditional gender roles to claiming that the ERA is unnecessary because of past Supreme Court rulings on discrimination. Even if passing the ERA were only a symbolic act, and we think it would be much more than that, then what’s the harm in enshrining it in the country’s most enduring statement of values?
Danaya Wright, "Great Variety of Relevant Conditions, Political, Social and Economic": The Constitutionality of Deadlines on Amendment Proposals Under Article V, 28 Wm. & Mary Bill Rts. J. 1 (2019)
Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing deadlines on amendment proposals began in 1917 with the Eighteenth Amendment, but has not been consistent since. Deadlines appear to have originated as an effort to torpedo amendments by opponents, but have since become almost pro forma. Some argue deadlines ensure finality and closure;8 others argue they infringe on the power of states to control the ratification process free of unconstitutional limitations imposed by the national legislature.
With the 1992 ratification of the Twenty-Seventh Amendment after 203 years, and state ratifications of the ERA after 35 years,11 the issue of congressional deadlines is both front and center and of potentially enormous consequence. This Article examines the history, theory, and policy of amendment deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding. This issue will almost certainly require resolution by the Supreme Court, which needs to give the issue of congressional deadlines its most thoughtful attention.
Monday, November 18, 2019
Pleased to see that my recent article, Leveling Down Gender Equality, in the Harvard Journal of Law & Gender (2019), was reviewed favorably today in JOTWELL Chao-Ju Chen, Equality for Whom: The Curious Case of RBG's Equality and Morales-Santana's Nationality.
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”1 Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.***
The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).
The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.***
The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)
In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.***
At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.)
Wednesday, October 23, 2019
Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***
Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***
In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***
At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.
Nicholas Mignanelli, Equal Protection and the Male Gaze: Another Approach to State of New Hampshire v. Lilley, 22 Journal of Gender, Race & Justice (2019)
This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey’s concept of the “male gaze” to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so long as they apply equally to women and men.
Friday, October 4, 2019
Getting up to Speed on the Issues in June Medical Services, the Abortion Case Just Granted Cert by the Supreme Court
The US Supreme Court granted cert on Oct. 4, 2019, in June Medical Services v. Gee, https://www.supremecourt.gov/orders/courtorders/100419zr_onkq.pdf
The issue is " Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt."
The case page from SCOTUSblog is here, including the docket and prior commentary.
Justice Kavanaugh's opinion dissenting from the grant of a stay in the case in Feb. 2019 is here.
[T]he status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period. I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.
Louisiana’s new law requires doctors who perform abortions to have admitting privileges at a nearby hospital. The question presented to us at this time is whether the law imposes an undue burden under our decision in Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016). All parties, including the State of Louisiana, agree that Whole Woman’s Health is the governing precedent for purposes of this stay application. I therefore will analyze the stay application under that precedent. Louisiana has three clinics that currently provide abortions. As relevant here, four doctors perform abortions at those three clinics. One of those four doctors has admitting privileges at a nearby hospital, as required by the new law. The question is whether the other three doctors—Doe 2, Doe 5, and Doe 6—can obtain the necessary admitting privileges. If they can, then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden for purposes of Whole Woman’s Health. By contrast, if the three doctors cannot obtain admitting privileges, then one or
two of the three clinics would not be able to continue providing abortions. If so, then even the State acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.
The law has not yet taken effect, so the case comes to us in the context of a pre-enforcement facial challenge. That means that the parties have offered, in essence, competing predictions about whether those three doctors can obtain admitting privileges.
My prior blog post on the Kavanaugh dissent in the grant of the stay, and his inversion of the usual standard of the status quo for preliminary injunctions, is here at Understanding More About Justice Kavanaugh's Dissent.
An excellent symposium and deep dive on the implications of the case is at the Take Care blog, here.
June Medical Services v. Gee is the Supreme Court’s next opportunity to weigh in on women’s constitutional right to decide to end their pregnancies
Alicia Bannon & Jennifer Weiss-Wolf, June Medical Services’ Double Threat to the Rule of Law
In recent months, commentators and the justices themselves have raised concerns about declining public confidence in the judiciary. But confidence has to be earned. Enforcing the law and summarily reversing the Fifth Circuit is an essential first step.
Ideological lower court judges have challenged the Supreme Court by defying its precedent. There is one way for the Court to keep from being put in this position time and again. It should summarily reverse, making clear that only the Court will decide when its own precedent is no longer good law.
Mary Ziegler, The Anti-Abortion Movement's Unworkability Strategy
Antiabortion lawyers think that they can turn a fact and evidence-based legal standard into an argument against stare decisis, which would advance their ultimate goal of overturning Roe. In June Medical, it is time for the justices to prove them wrong.
What is clear in June Medical Services v. Gee, as with the other antiabortion measures making their way through the courts, is that these targeted regulations of abortion providers have nothing to do with protecting women or their health
Mary Bonatuo & Shannon Minter,Pavan and June Medical Services
Pavan and June Medical Services are both examples of lower courts bending over backwards to avoid the clear command of Supreme Court precedent. Both merit the same treatment from the Supreme Court – summary reversal.
Leah Litman, June Medical And The End of Reproductive Justice
While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions would allow states to regulate abortion out of existence
Wednesday, October 2, 2019
Providing an excellent macro-level account of how the 19th Amendment is relevant to constitutional interpretation today, in reading the 19th Amendment and its history into a jurisprudence of equality.
This year marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.
Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.
Thursday, September 26, 2019
Throughout the year, the justices meet periodically to decide if they want to add more cases to the short list of lawsuits that are argued before the Court. Monday is the Court’s “long conference,” the annual meeting where the justices consider the backlog of petitions that were filed while the Court was on its summer break, each of which ask the Court to hear a particular case.
One of those petitions concerns June Medical Services v. Gee, a case involving a Louisiana abortion restriction that will be very familiar to anyone who’s followed the last several years of abortion litigation.
To recap: Three years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court considered a Texas law that imposed burdensome restrictions on abortion clinics that, at least on the surface, appeared to be ordinary health regulations. One provision required any physician performing an abortion in Texas to have admitting privileges at a nearby hospital (a credential that is especially difficult for abortion providers to obtain). Another required abortion clinics to maintain expensive facilities, such as “a full surgical suite with an operating room.”
Whole Woman’s Health was a challenge to what abortion-rights advocates often refer to as “targeted restrictions on abortion providers” or “TRAP” laws — laws that masquerade as efforts to make abortions safer but whose real purpose is to drive up the cost of operating abortion clinics until they shut down.
Many abortion clinics, for example, only offer medication abortions — a non-surgical abortion induced by pills. As Whole Woman’s Health explained, “the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication” because “complications would almost always arise only after the patient has left the facility.” Simply put, it makes no sense to require facilities that perform no surgeries to have a full surgical suite.***
Which brings us back to Gee, the case the Court will discuss next week. The Louisiana law at issue in that case is nearly identical to the admitting privileges law struck down in Whole Woman’s Health. Nevertheless, a panel of the conservative United States Court of Appeals for the Fifth Circuit upheld this extraordinarily similar law, largely resting its decision on a contested factual claim that it may be easier for doctors to obtain admitting privileges in Louisiana than it is in Texas.
That prompted a strongly worded dissent from Judge Patrick Higginbotham, a Reagan appointee. The Fifth Circuit majority, Higginbotham wrote, ignored the Supreme Court’s command that “‘unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden’ on the exercise of that right.”
Wednesday, September 18, 2019
Emily Prifogle, Law & Laundry: White Laundresses, Chinese Laundrymen, and the Origins of Muller v. Oregon
Forthcoming, Studies in Law, Politics, and Society
This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely the entangled histories of white laundresses’ labor and labor activism in Portland, as well as the labor of their competitors — Chinese laundrymen. In so doing, the article offers an intersectional reading of Muller that incorporates regulations on Chinese laundries and places the decision in conversation with a long line of anti-Chinese laundry legislation on the West Coast, including that at issue in Yick Wo v. Hopkins (1886).
Tuesday, September 17, 2019
Massachusetts Historical Society Conferences
Call for Papers for the 2020 Conrad E. Wright Research Conference
“Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of their Ratifications, October 16-17, 2020
Deadline: November 1, 2019
The year 2020 marks the anniversaries of two critical amendments to the United States Constitution. Spaced fifty years apart, the Fifteenth and Nineteenth Amendments, ratified in 1870 and 1920, respectively, prohibited the use of race or sex to deny American citizens the franchise. However, the amendments did not prevent states from adopting other methods of discrimination. Viewed as the product of two different movements—abolitionism and the Civil War on the one hand and the Progressive campaigns and the First World War on the other—these two periods and amendments are not often considered together. This conference revisits the long journey to secure voting rights for African Americans and women in United States history. It considers the legal precedents and hurdles that each amendment faced, the meaning and uneven outcomes of each, the social context that allowed for ultimate ratification, the role of key individuals and groups in these respective contexts, and how each amendment has been remembered over time.
This conference invites scholars from various disciplines to discuss common themes and challenges surrounding the amendments and papers can cover any topic relating to them. We welcome submissions from all historical, political science, and legal fields.
A keynote panel and reception will take place on Friday, 16 October. The panel features Profs. Alison M. Parker (University of Delaware) and Lisa Tetrault (Carnegie Mellon University) and will be moderated by Prof. Alex Keyssar (Harvard). The full conference day will take place on Saturday, 17 October.
Interested parties are encouraged to submit either individual paper presentations or full panels (with or without commenters) by November 1, 2019. Application materials must include a paper description and CV for individual submissions. Full panel proposals must include paper descriptions and individual CVs along with a description of the panel itself. Paper proposals should not exceed one page and accompanying CVs should not exceed ten pages in length. Please submit applications materials and/or questions to email@example.com.
Tuesday, September 10, 2019
Jenna Sapiano & Beverley Baines, Feminist Curiosity about International Constitutional Law and Global Constitutionalism, Journal of the Oxford Centre for Socio-Legal Studies, Issue 1, 2019
Cynthia Enloe’s theory of feminist curiosity inspired us to ask whether feminist International Constitutional Law (ICL) scholars and their Global Constitutionalism (GC) counterparts apply the same concept of gender to the internationalization/globalization of constitutional norms. We analyzed ICL scholarship on substantive rights to security and equality (Hilary Charlesworth and Christine Chinkin), freedom from violence (Catharine A. MacKinnon), and parity (Ruth Rubio-Marín) and GC scholarship on processes of contestation (Antje Wiener), proportionality (Anne Peters), and democratic iterations (Seyla Benhabib). Our findings, in the form of a hypothesis, are that gender specificity infuses the former and gender inclusivity, the latter. In other words, these scholars take competing approaches to protecting (ICL) and empowering (GC) women. This hypothesis sets the stage for the conversations we imagine these feminist scholars might have: Charlesworth and Chinkin with Wiener about the rule of law; MacKinnon and Peters about the separation of powers; and Rubio-Marín and Benhabib about democracy. Their collective insights could yield constructive connections that advance women’s protection and empowerment domestically, internationally, and globally.
Thursday, September 5, 2019
Lawsuit Challenges California's Board Gender Diversity Law as Presumptively Invalid under Equal Protection
Cydney Posner, A First Challenge to California's Board Gender Diversity Law
It was only a matter of time. As reported here on Bloomberg, a conservative activist group has filed a lawsuit,Crest v. Alex Padilla, in California state court on behalf of three California taxpayers seeking to prevent implementation and enforcement of SB 826, California’s Board gender diversity legislation. This appears to be the first litigation filed to challenge the new law. Framed as a “taxpayer suit,” the litigation seeks to enjoin Alex Padilla, the California Secretary of State, from expending taxpayer funds and taxpayer-financed resources to enforce or implement the law, alleging that the law’s mandate is an unconstitutional gender-based quota and violates the California constitution. Even proponents of the law recognized the possibility of legal challenges. ***
In the complaint, the plaintiffs contend that the law’s requirement for female representation on corporate boards “employs express gender classifications. As a result, SB 826 is immediately suspect and presumptively invalid” under the equal protection provisions of the California Constitution and subject to “strict scrutiny” in the California courts. The complaint requests entry of a judgment declaring any expenditures of taxpayer funds to implement or enforce SB 826 to be illegal and issuance of an injunction permanently prohibiting the Secretary from expending taxpayer funds to enforce or implement the provisions of the legislation.
h/t Stefan Padfield
Judicial Watch, a conservative activist group, has filed the first lawsuit challenging the constitutionality of Senate Bill 826 (SB 826), California’s mandatory board diversity law requiring women on public company boards of directors. The lawsuit was filed against the California Secretary of State on behalf of three California taxpayers on August 6, 2019, in the Los Angeles Superior Court and seeks a judgment that any expenditure of taxpayer funds and taxpayer-financed resources to enforce or carry out the provisions of SB 826 is illegal.
Plaintiffs argue that the gender classifications used in SB 826 can only be justified by a compelling government interest, which the Secretary of State has failed to establish. The lawsuit cites then-Governor Jerry Brown’s words in his signing message acknowledging that SB 826 has “potential flaws that indeed may prove fatal to its ultimate implementation” and that “serious legal concerns have been raised” to the legislation. The complaint is available here.
For my thoughts and analysis on the permissibility of gender quotas, including corporate boards, see Tracy Thomas, Making the Case for Gender Quotas, discussing my article, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).
Thursday, August 29, 2019
I'm quoted in this article in Time on the history and future of the ERA.
When American women won the right to vote — a milestone commemorated on Women’s Equality Day, which marks the anniversary of the Aug. 26, 1920 certification that the 19th Amendment had been ratified — it was just one part of an even larger fight for equality. From Mary Church Terrell’s endeavors to make sure African-American women were included in the fight for suffrage, to Margaret Sanger’s work to promote access to birth control, to Ruth Bader Ginsburg’s efforts to eliminate sex discrimination in the law, women before and after that day in 1920 have fought for wider rights.
And yet, the U.S. Constitution does not say that people are equal regardless of their sex.
This fact came close to changing in 1972, when the U.S. legislature passed the Equal Rights Amendment (ERA), which stated that rights cannot be denied “on account of sex.” But after conservatives mobilized opposition to the ratification of the proposal, the amendment fell short of the three-quarters majority needed to add the ERA to the Constitution. Now, as the Equal Rights Amendment has regained momentum — with two more states, Illinois and Nevada, recently ratifying it — advocates say that there’s a new opportunity for the ERA to move ahead. ***
How would an Equal Rights Amendment affect women’s rights?
Although American women have made significant gains in equality since the 1970s — and certainly since the 1920s — advocates say that an Equal Rights Amendment could still have a profound effect on the law and on American society.
Advocates say that the amendment is help back by the sense among some people that it’s not necessary, but proponents argue that it could strengthen the legal basis for combating violence against women, pay inequality and maternity leave.***
Professor Tracy Thomas of The University of Akron School of Law tells TIME that the law would prevent women’s rights from sliding back, and eliminate some “wiggle room” that leaves space in the law for stereotypes to affect civil rights. She also argues that protecting women’s rights in the Constitution would have a major cultural impact.
“There’s this overriding structure of the highest law in the land that has this absolute command, and so that has to trickle down,” says Thomas. She says that recent events such as the rise of the #MeToo movement reveal how quickly society can change. “Once you start changing the culture and the dialogue, things that were acceptable become unacceptable really quickly.”
Monday, July 29, 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.
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?.
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.
Tuesday, July 16, 2019
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.