Wednesday, September 15, 2021
Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.
It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.
After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.
To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.
h/t Larry Solum
Tuesday, September 14, 2021
By: Danielle Conway
Forthcoming in: 13.1 Ala. C.R. & C.L. L. Rev. 1 (forthcoming 2022)
America is at an unprecedented time with self-determination for Black women, and this phase of the movement is reverberating throughout this nation and around the world. There is no confusion for those who identify as Black women that this movement is perpetual, dating back to the enslavement of Black people in America by act and by law. One need only look to the intersecting crises of 2020 to discern the reality of Black women’s — and by extension the Black community and by further extension individuals and groups marginalized, subordinated, and oppressed by white patriarchy — perpetual struggle for civil and human rights.
To appreciate the genealogy of this perpetual struggle for civil and human rights, it is instructive to look back on the 100th Anniversary of the 19th Amendment and to be immersed in the stories and the legacies of Black women suffragists to gain insights about modern contestations against limiting the franchise. In the forming of this nation, Black women were intentionally excluded and erased from conceptions of humanity. This exclusion and erasure of Black women’s voices and contributions from the annals of social, political, and economic movements throughout history, such as abolitionist and women’s suffrage movements, tarnish the legitimacy of our democratic institutions, our laws, and our collective progress toward equality.
This article centers Black women’s lived experiences in the struggle for universal suffrage while also leading and supporting their communities in the fight against racial inequality and oppression. By making the sojourn through history using the lens of Black women, an opening is created to understand the perpetuation of racial injustice and oppression through the practices of withholding citizenship and the franchise. It also offers a window into the expertise and resilience of Black women in building and maintaining relationships, alliances, and coalitions to press for the larger vision of universal suffrage, even when their putative partners choose self-interest over the collective. The purpose of highlighting the duality of the movement is to contribute to the literature that seeks to reveal how Black women and their lived experiences with racism and oppression during the women’s suffrage movement up through and after the ratification of the 19th Amendment can inform today’s efforts at successful coalition building to support modern movements against injustice and inequality.
Wednesday, September 8, 2021
1. FACE - federal Freedom of Access to Clinic Entrances Act
U.S. Attorney General Merrick Garland said Monday that the Justice Department will protect people trying to obtain or provide abortions in Texas, in the wake of the state's new restrictive abortion law.
Senate Bill 8 — often called the "heartbeat bill" by supporters — effectively bans abortions after six weeks, well before many people even know they are pregnant. Physicians who specialize in reproductive health say the term “fetal heartbeat” used in the legislation is misleading because there is no cardiovascular system or a functional heart six weeks into pregnancy.
Garland said his department will urgently explore all options to challenge the law. In the meantime, he said it will continue to protect the rights of people seeking access to abortion under the Freedom of Access to Clinic Entrances (FACE) Act of 1994.
The FACE Act prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services. It also prohibits intentional property damage of a facility providing reproductive health services.
“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack. We have reached out to U.S. Attorneys’ Offices and FBI field offices in Texas and across the country to discuss our enforcement authorities," the statement explained.
"The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now," it added.
2. Use the Ku Klux Klan Act to charge those who act "under color of state law" to deprive women of their constitutional rights.
Some abortion-rights supporters say the answer is for the Department of Justice to prosecute private citizens who sue to enforce the law, which bans abortions after a fetal heartbeat is detected, the Washington Post reports.
The law authorizes private citizens to file the suits against abortion providers and others who knowingly help pregnant women violate the law, which effectively bans abortions after about six weeks of pregnancy.
In a letter, Democratic members of the House Judiciary Committee on Tuesday encouraged Garland to fight the law with legal action “up to and including the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law.”***
In a Washington Post op-ed, Laurence Tribe, a professor emeritus at Harvard Law School, explained how the DOJ could initiate criminal prosecutions using a law intended to battle the Ku Klux Klan.
The department could rely on Section 242 of the federal criminal code, which makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges or immunities secured or protected by the Constitution or laws of the United States.” The private citizens who sue under the Texas law are acting “under color of law,” and they are violating the constitutional right to abortion, he said.
Tribe said the DOJ could also rely on Section 241 of the federal criminal code, which makes it an even more serious crime for “two or more persons” to agree to “oppress, threaten or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Purely private vigilantes acting in concert with others could be prosecuted under this section, he said.
Tribe also suggested a third course of action: The DOJ could seek a court order blocking enforcement of the Texas law under the All Writs Act, which allows federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions.”
The Women's Health Protection Act in the House provides that a "health care provider has a statutory right under this Act to provide abortion services, and may provide abortion services, and that provider’s patient has a corresponding right to receive such services," "without any of the following limitations or requirement" like the typical restrictions on abortion in many states.
Congressional Democrats reintroduced legislation on Tuesday that would protect abortion access around the country, even if Roe v. Wade were weakened or overturned.
The Women’s Health Protection Act, if passed, would guarantee the right for health care professionals to provide abortion care and their patients to receive care, without restrictions and bans that impede access.
Specifically, it would prohibit state and federal lawmakers from imposing several limits on abortion care, including mandatory ultrasounds, waiting periods, admitting privileges requirements, and limits on medication abortion.
The bill was first introduced in 2013 and has been reintroduced in every congressional session since. However, it has never received a vote in either chamber.
The bill is led by Sens. Richard Blumenthal of Connecticut and Tammy Baldwin of Wisconsin, along with Reps. Judy Chu, D-Calif., Lois Frankel, D-Fla., Ayanna Pressley D-Mass., and Veronica Escobar D-Texas.
The renewed effort comes in the wake of the U.S. Supreme Court’s decision last month to take up Mississippi’s controversial ban on most abortions after 15 weeks of pregnancy along with a rise in anti-abortion legislation being enacted in various states.
“With the Supreme Court set to consider a direct attack on Roe and as emboldened and extremist lawmakers viciously attack women’s reproductive rights in statehouses across the nation, the Women’s Health Protection Act has never been more urgent or more necessary,” Blumenthal said. “These demagogic and draconian laws hurt women and families as they make personal and difficult medical decisions."
Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion
Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion. President Biden has called on Congress to act. House Speaker Nancy Pelosi has similarly called for action. And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021. It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment.
The Supreme Court too, has periodically suggested this option. For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).
Except that it might not be that easy. The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare. Congress must rely on a source of power specifically articulated in the Constitution.
Here are some options under the Supreme Court’s existing precedent. It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.
- Commerce Clause
Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act. Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.” There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).
The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case. In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause. It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance. Inactivity, the Court said, was not economic activity.
The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock. Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”
The Commerce Clause power also requires that a regulate activity be “economic.” This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity. “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison. While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity. The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.
The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power. The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause. Abortion services is an economic activity. It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.
The abortion context also seems more clearly interstate. With bans and restrictions on abortion, patients travel out of state to other providers. They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality. If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard. Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court. It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.
- Section 5 of the Fourteenth Amendment
A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment. This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws.
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion. But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary. Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court.
That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law. FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors. If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.
However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way. Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison.
Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs. In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality. The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct. In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished. It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation. In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.
The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right. This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt). These are rights that would not necessarily be struck down if Roe is overturned. There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion. There might also be an argument to connect to the provider’s right to work or profession.
A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination. Hibbs provides good precedential support here. In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process. See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).
- The Necessary and Proper Clause
Congress has also cited the Necessary and Proper Clause for authority to legislate abortion. The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case. The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.
- The Taxing Power
Following Sebelius, Congress could structure the abortion legislation as a tax. In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power. The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.
A Roe tax might tax the states which impose bans or regulations on abortion. That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.
- The Ninth Amendment
Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion. That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause. Another possible source of recognizing the right is the Ninth Amendment. In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution. A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment. See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020). The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.
 Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with Boerne. See Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote). See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).
Thursday, September 2, 2021
By a vote of 5-4, the US Supreme Court denied abortion providers' request to stay the operation of a new Texas law banning abortion after six weeks. The split was Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett in the majority and Sotomayor, Breyer, Kagan, and Roberts in the dissent.
Here is the opinion: Whole Women's Health v. Jackson
The majority highlight the unique procedures established by the Texas law requiring private citizen enforcement.
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention
In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in
no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
For a blog post on Justice Kavanaugh's prior thinking in a stay of an abortion case, somewhat following his assent to the majority here while also seeming to follow Roberts' approach, see Supreme Court Temporarily Block Louisiana Abortion Law Requiring Doctors Admitting Privileges
All dissenting Justices wrote separate opinions.
Roberts focused on the standards of stays and temporary injunctions and maintaining the status quo.
I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.
Breyer disagreeing that the procedural posture is relevant, and focused on the imminent harm to the plaintiffs, one of the traditional factors in granting temporary relief:
I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district
attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. Normally, where a legal right is “‘invaded,’” the law provides “‘a legal remedy by suit or action at law.’” Marbury v. Madison.
Sotomayor blatantly calls out the Court for its decision on the merits and procedurally.
The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent....
Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of
the rights of women seeking abortions throughout Texas....
Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry....
The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.
Kagan takes on the shadow docket and the shadowy state procedure:
The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to
carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey. Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence.
Tuesday, August 31, 2021
By: Ty Alper
Published in: Washington Law Review, Vol. 96, No. 1, 2021
Law faculty who teach and train students in clinical settings regularly expose students to the potential for sexual harassment. Because clinics involve actual cases in real-world contexts, students may encounter sexual harassment from third parties such as clients, witnesses, and judges. Do faculty who tolerate this exposure run afoul of their obligations under Title IX to stop and remedy sexual harassment about which they are, or should be, aware?
This Article is the first to identify and propose a method for addressing a phenomenon that strikes at the intersection of three sets of priorities for clinical faculty: duty to serve the client, duty to educate the student, and duty to protect the student. When a law student may face sexual harassment from a third party in the course of representing a client, the values underlying those priorities are in tension and admit no obvious solution; some remedies that Title IX arguably requires are, in many cases, impossible to square with the duties of loyalty and zealousness owed to a clinical client, not to mention the educational goals of the clinic. And yet, clinicians can and must embrace the fundamental principle of Title IX, which is to ensure that educational opportunities are available to all students, regardless of sex or gender presentation. The dilemma explored here echoes the modern American cultural, educational, and legal shift toward protecting students from speech and conduct deemed harmful, but does so in a non- classroom setting where legal ethics and clinical pedagogy are complicating factors.
Thursday, August 26, 2021
Viewing Justice Gorsuch's Opinion in the LGBT Decision in Bostock as Support for--not Against--Abortion Rights in the Upcoming Dobbs Case
Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).
Informed speculation holds that the Supreme Court’s decision to hear and decide Dobbs v. Jackson Women’s Health Organization spells bad news for constitutional abortion rights. Recognizing both the stakes and the odds, this brief commentary engages Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County and the prospects that it opens up in Dobbs for a future for—not against—abortion rights. Bostock’s pro-gay and pro-trans sex discrimination rulings are built atop—and go out of their way to reaffirm—women’s statutorily-grounded economic and social rights, and hence women’s equal citizenship stature. Moreover, the final decision in the case emerges after judicial wrestling with rule of law concerns involving legal and social stability. In both of these respects, Bostock aligns with the controlling opinion in Planned Parenthood v. Casey, a decision that Justice Gorsuch, like other justices in Dobbs, might yet in principle reaffirm. After exploring some of Casey’s doctrinal implications and its example of judicial moderation, discussion turns to Casey’s often overlooked spiritual dimensions. Not only does Casey’s spiritual pluralism on the abortion right and its limits converge with important features of Bostock, but it also actively counsels a decision in Dobbs giving Casey and what it preserves of Roe a new lease on life as part of a larger effort to preserve the American public’s shared faith in a constitutional republic that everyone in Dobbs wishes to keep.
CFP Center for Constitutional Law -- Sexual Orientation, Gender Identity, and the Constitution: How LGBTQ Rights are Defined, Protected, and Preempted
CONSTITUTIONAL LAW VIRTUAL COLLOQUIUM, CENTER FOR CONSTITUTIONAL LAW
Friday, Feb. 4, 2022
Sexual Orientation, Gender Identity, and the Constitution: How LGBTQ Rights are Defined, Protected, and Preempted
The Center for Constitutional Law at Akron seeks proposals for its annual Colloquium. The Center is one of four national centers established by Congress in 1986 on the bicentennial of the Constitution for legal research and public education on the Constitution. Past programs have included Justice Sandra Day O’Connor, Justice Arthur Goldberg, Professor Reva Siegel, Professor Lawrence Solum, Professor Ernest Young, Professor Julie Suk, and Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit.
The 2022 Colloquium explores the questions of sexual orientation and gender identity under the Constitution. These rights are at the intersection of many recent decisions of the U.S. Supreme Court and other courts. On one hand, the Court has interpreted “sex” to include sexual orientation and transgender in the context of federal statutory law. Yet under the Constitution, it has refused to identify sexual orientation or identity as a suspect class, even as it strikes down law that socially discriminate on this basis. Another recent line of cases seems to preempt these equality rights by counter-balancing the religious and speech rights of those seeking to discriminate against LGBTQ people by denying services, disrespecting preferred pronouns, or restricting students.
This Colloquium brings together scholars exploring what the Constitution does or should say about sexual orientation and gender identity. Topics may include, but are not limited to: the rise of religious liberty preemptions in business and/or education, counter-balances of free speech, the meaningful use of rational basis scrutiny, interpretative methods of constitutional and statutory law, the legal history of LGBTQ rights, meanings of privacy and self-determination, the importance of language and pronouns, or comparisons with international norms and laws.
The Virtual Colloquium will be held on Friday, February 4, 2022. This virtual format allows for expanded access to scholars by reducing costs, balancing work/life/health demands, and reaching widely across geographic bounds. Papers will then be published in a spring symposium edition of the Center’s open-access journal, ConLawNOW (also indexed in Westlaw, Lexis, and Hein). Papers are typically shorter, essay style and we expedite publication within four weeks of final paper submission. Those interested in participating should send an abstract and CV to Professor Tracy Thomas, Director of the Center for Constitutional Law, at email@example.com by October 20, 2021.
Monday, August 23, 2021
Lift Louisiana and If/When/How filed a motion for an injunction arguing that Louisiana's Act 482 violates the Louisiana Constitution because it deprives minors of meaningful and effective access to the Courts when seeking judicial bypass to terminate a pregnancy. Prior to the Act, Louisiana minors could either pursue a judicial bypass in the jurisdiction in which they are domiciled or in the jurisdiction in which the clinic is located. Under the prior jurisdictional rule, most bypass proceedings were heard in the parishes where two of the three remaining clinics are located. This broader approach protected the anonymity of minors, ensured that the courthouses were savvy in handling these proceedings, created a path for out of state minors to seek a bypass, and worked more expeditiously. Act 482 limits the jurisdictional rules such that minors can only pursue bypass proceedings in the parish of their domicile. Lift Louisiana and If/When/How seek an injunction blocking Act 482 before it causes irreparable injury. The plaintiffs argue that this Act deprives plaintiffs of their right to access the courts under the Louisiana Constitution and violates the due process and privileges and immunities clauses of the Fourteenth Amendment of the United States Constitution.
Thursday, August 12, 2021
4th Circuit Holds Ban on Topless Public Sunbathing Doesn't Violate Equal Protection Clause, but Concurrence Questions Continued Reliance on Problematic Gender Stereotypes
A ban on women going topless in public in Ocean City, Maryland, doesn’t violate the equal protection clause of the 14th Amendment, the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, has ruled.
In an Aug. 4 opinion, the 4th Circuit said the ban “is substantially related to an important government interest—protecting public sensibilities.”
The court said it was bound by the 1991 4th Circuit opinion, United States v. Biocic, which upheld a federal public indecency regulation in the prosecution of a woman who went topless on the beach in a National Wildlife Refuge.
The plaintiffs had asked the 4th Circuit to overrule Biocic because of changing public sentiment.
“To be sure, public attitudes about gender and sexuality are constantly changing and evolving,” the appeals court said. “But our precedent has not changed. As a three-judge panel, we may not overrule Biocic, and it has not been overruled by the Supreme Court. In any event, plaintiffs’ arguments do not persuade us that the important government interest we recognized then is no longer important.”
The court recognized that most courts have upheld topless bans, with the exception of the 10th Circuit at Denver.
Judge A. Marvin Quattlebaum Jr. wrote the opinion, which was joined by Judge Barbara Milano Keenan. Chief Judge Roger Gregory concurred in the judgment.
Gregory said he agreed that the court was bound by Biocic, but he thinks the 1991 decision is inconsistent with equal protection principles.
“Laws that discriminate between male and female toplessness embody problematic stereotypes through the control imposed upon the bodies of women and not men,” Gregory wrote. “By treating women’s breasts (but not those of men) as forbidden in public sight, these laws may reduce women’s bodies to objects of public gaze, reproduce the Victorian-era belief that women should be seen but not heard, and reinforce stereotypes that sexually objectify women rather than treating them as people in their own right.”
The case is Eline v. Town of Ocean City, Maryland.
Rachel Casper, When Harassment at Work is Harassment at Church: Hostile Work Environments and the Ministerial Exception, University of Pennsylvania Journal of Law and Social Change
Sexual harassment and harassment on the basis of race, national origin, disability, and age are unlawful workplace practices; what does that mean when one’s workplace is a church? This article explores the ministerial exception’s application to hostile work environment claims. Can ministerial employees bring harassment claims against their religious employers? Put differently, can religious organizations harass their ministerial employees with impunity and without fear of legal recourse? Respecting both First Amendment interests and individual rights, this article appraises and takes seriously the constitutional purpose and necessity of the ministerial exception. Recognizing that importance, this article nevertheless rejects a categorical ban on ministerial employees’ hostile work environment claims. Instead, it proposes a case-by-case analysis of ministerial employees’ hostile work environment claims, granting all employees possible protection from harassment, regardless of who employs them. Religious freedom need not close the courthouse doors on hundreds of thousands of employees. Religious freedom and speculative First Amendment problems need not, and should not, undermine employees’ rights to dignified workplaces and protection from workplace harassment.
Tuesday, August 10, 2021
Federal appeals court will hear novel argument, invoking 19th Amendment, against felon voting restrictions
A federal appeals court rendered a decisive victory for Gov. Ron DeSantis and legislative Republicans last year in upholding Florida’s law requiring felons to pay all fines, fees, and restitution before they can win back the right to vote under 2018’s Amendment 4.
But that ruling, by the full U.S. Court of Appeals for the 11th Circuit, didn’t quite kill every challenge to the law, known as SB 7066.
. . .
The plaintiffs now before the court are Rosemary McCoy and Sheila Singleton, two Black women with felony records who have been denied the right to vote under the Florida law because their criminal records prevent them from getting jobs that would pay enough for them to satisfy restitution orders.
The defendants include DeSantis and Laurel Lee, Florida’s secretary of state, who oversees elections.
“Appellants’ lawsuit requires the state of Florida to acknowledge the compounding impact of race, class, and gender in a law like Senate Bill 7066 that ties the payment of legal financial obligations (“LFOs”) to the right to vote, but artificially disentangles the continuing burdens low-income women of color face in satisfying those financial obligations,” their lawyers wrote in their opening brief.
Monday, August 9, 2021
The 19th* is a non-profit organization committed to the ongoing work of actualizing the vision of the 19th Amendment. The asterisk in its logo denotes the unfinished work. Its mission is to empower "women, women of color and the LGBTQ+ community — with the information, resources and community they need to be equal participants in our democracy."
Today, women make up more than half of the American electorate and are more engaged than ever in our politics — marching on state capitols, voting at higher rates than men, and running for local office and seeking the presidency in record numbers. Yet they remain underrepresented in government and in the nation’s executive ranks. Women and LGBTQ+ people are also underrepresented in politics and policy journalism and in newsroom leadership, which influences what stories are told, how the news is covered and whose voices are elevated.
The 19th is hosting a free online summit next week (Aug. 16-20) with a tremendous line-up of programs.
Mark your calendars for a week exploring why #RepresentationMatters in democracy, sports, business, culture and voting! Join us for keynotes and conversations with leaders, history-makers and rising stars. * * * RSVP now to save your seat; it’s free!
The Texas Court of Appeals issued an opinion in Mark Lee Dickson and Right to Life East Texas v. Afiya Center and Texas Equal Access Fund. The opinion considered underlying defamation and conspiracy claims brought by organizations named in a local anti-abortion ordinance. The appellants (advocates for the ordinance) argued that the organizations could not prove the elements of defamation. Appellants also argued that their statements were constitutionally protected speech under the constitution and the Texas Citizens’ Participation Act.
The “Waskom Ordinance” at issue read:
“WHEREAS, a surgical or chemical abortion is the purposeful and intentional ending of a human life, and is murder “with malice aforethought” since the baby in the womb has its own DNA, and at certain points in pregnancy has its own heartbeat and its own brain waves . . .” * * *
- We declare Waskom, Texas to be a Sanctuary City for the Unborn.
- Abortion at all times and at all stages of pregnancy is declared to be an act of murder with malice aforethought, subject only to the affirmative defenses described in Section C.3.
- Organizations that perform abortions and assist others in obtaining abortions are declared to be criminal organizations. * * *
- The Supreme Court’s rulings and opinions in [Roe, Casey, Stenberg, and Whole Woman’s Health] are declared to be unconstitutional usurpations of judicial power, which violate both the Tenth Amendment and the Republican Form of Government Clause, and are declared to be null and void in the City of Waskom.
The court upheld the trial court’s order denying the appellants’ motion to dismiss the defamation and conspiracy claim. The court also ordered appellant to pay costs.
Seventh Circuit Rules that Indiana’s Abortion “Complications Statute” is Not Unconstitutionally Vague
The Seventh Circuit ruled last week in Planned Parenthood of Indiana and Kentucky v. Marion County Prosecutor. The Indiana statute at issue, Indiana Code § 16-34-2-4.7, required that providers report “any adverse physical or psychological condition arising from the induction or performance of an abortion” to the state. The appeal considered whether this statute was unconstitutionally vague on its face. The District Court had agreed with the challengers and reasoned:
that there was constitutionally intolerable overlap between “normal” side effects of abortions and “complications” that would trigger the reporting requirement. As a result, the Statute “fail[ed] to inform [Plaintiffs of] what conduct is prohibited.” The district court was concerned that physicians would “run the risk of being found ... to be out of compliance with their statutory responsibilities” (and thereby risking time in prison and their medical licenses) for failing to report “every ‘adverse physical or psychological condition’ for which patients seek treatment as a reportable condition, no matter how routine, minor, and expected.” The district court found the Complications Statute’s illustrative list of conditions to be “so broad or vague that they do not remedy the uncertainty of the general definition of ‘abortion complication.’
The Seventh Circuit vacated the District Court's permanent injunction concluding that the statute has some ambiguity but “Planned Parenthood has not shown that the law is unconstitutionally vague on its face in this pre-enforcement challenge.” The Seventh Circuit reasoned (internal citations removed):
Here, we cannot conclude that the Complications Statute has no discernable core. Although Planned Parenthood contests the frequency and seriousness of abortion-related complications, Planned Parenthood’s response brief acknowledges that “[t]here are potential complications from the performance of medication and surgical abortion.” Planned Parenthood maintains that several of the complications listed in the Complications Statute are “not abortion-specific complications and almost never occur as a result of abortions,” but the brief stops short of stating that these complications are impossible.
The complications that a reasonable doctor would find to have arisen from an abortion constitute a core of the Complications Statute. Although these complications may be rare, an individual of ordinary intelligence would understand that there may be complications that arise from an abortion (as is the case with any medical procedure). And when one such rare complication occurs, the physician must report it if she believes in her reasoned medical judgment that the complication arose from an abortion. This “core” of the Complications Statute satisfies the void-for-vagueness test: It is understandable by persons of ordinary intelligence and not subject to arbitrary enforcement.
As a result, although we appreciate the dissent’s concerns about the ambiguity of this Statute, the Statute must survive Planned Parenthood’s pre-enforcement, facial attack. * * * Though an as-applied vagueness challenge to the Statute may have a different outcome, this challenge to the Statute fails because it is a facial challenge to a statute with a discernable core.
Tuesday, July 27, 2021
Documentary Preview, ThinkTV, Let Ohio Women Vote
Let Ohio Women Vote tells the story of the long fight for women’s suffrage in our state – a fight which created unpredictable alliances as well as surprising connections to national events. The documentary will premiere in the fall of 2021.
"As Ohio goes, so goes the nation."
Thursday, July 22, 2021
Anna High, Sexual Dignity in Rape Law, 33 Yale J. Law & Feminism (2021)
Dignity is a famously contested concept, suggesting its deployment as a legal principle should be closely scrutinized. This Article sets out a functional and contextual analysis of dignity as an organizing principle underpinning rape law, which I term “sexual dignity”. Based on sexual violence theory, I trace the “democratization” of sexual dignity over time, as dignity and attendant rights of autonomy and equality have gradually extended from man to the (qualified) woman to women as a group, and identify an emerging contemporary feminist consensus on the meaning of sexual dignity. This framework is then applied to a critical review of how judges across common law jurisdictions understand and use dignity in decisions on rape. The caselaw of sexual dignity illustrates that dignity is a usefully capacious concept for exploring and condemning the multiplicity of rape’s harms and wrongs. However, uncritical engagement with sexual dignity can be harmful, with implications both for rape law and for the regulation of sexual behaviour generally. As such, I argue that robust and reflective engagement with sexual dignity is both necessary and productive.
Tuesday, July 13, 2021
Julie Suk, The Equal Rights Amendment, Then and Now, The Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas, & Verna Williams eds. 2021)
One hundred years in the making, the Equal Rights Amendment is the only proposed amendment to the U.S. Constitution that has met the requirements of Article V of the Constitution but has not been added to the Constitution due to a congressionally imposed ratification deadline. The Amendment guarantees that “[e]quality of rights shall not be denied or abridged by the United States or by any state on account of sex,” like gender equality guarantees in most constitutions around the world. This Essay exposes the unique trajectory of the Equal Rights Amendment to shed light on the process of feminist constitutional change and the evolution of substantive feminist legal aspirations. The revival of the ERA ratification process, decades after Congress’s deadlines, has generated transgenerational public meanings for a new body of gender equality law and public policy.
Monday, July 12, 2021
Nearly half a century after the landmark decision in Roe v. Wade, recent events have given supporters of the pro-choice position good reason to fear that the Supreme Court is likely to soon abandon its support for abortion rights. Although the Court recently struck down an anti-abortion statute in June Medical Services v. Russo, the balance of power in that case was held by Chief Justice John Roberts, whose opinion indicated that, in the future, he was likely to allow states to impose a wide variety of restrictions on access to abortions. Moreover, the pro-choice forces recently lost one of their staunchest allies when Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, whose nomination was roundly cheered by those who argue that Roe should be overruled. Thus, many observers believe that the Court is likely to use Dobbs v. Jackson’s Women’s Health Organization as a vehicle to eliminate or significantly undermine constitutional constraints on the ability of state governments to limit access to abortions.
However, we have been here before. In the decade between 1981 and 1991, Republican presidents who were openly critical of the decision in Roe had the opportunity to nominate five of the nine members of the Supreme Court. Moreover, during this period, the issue of abortion played an increasingly important role in the selection of those justices. Thus, by the early 1990s, most commentators believed that the anti-abortion forces were on the verge of claiming near-total victory in their campaign against Roe and its progeny. But despite the expectations of most commentators, in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a majority of the justices reaffirmed their support for the view that the Constitution protects the right of a woman to terminate her pregnancy without undue interference from the government, and thereby created a regime that has endured for almost three decades. This article will describe the sequence of events that led to the decision in Casey and culminated in the failure of the assault on abortion rights.