Gender and the Law Blog

State Constitutions as the Next Battleground for Abortion Rights

Kate Zernike, A Volatile Tool Emerges in the Abortion Battle: State Constitutions? NYT

When the Supreme Court overturned Roe v. Wade and the constitutional right to abortion in June, it declared that it was sending the issue back to the “people and their elected representatives.” But the fight has largely moved to a different set of supreme courts and constitutions: those in the states.

On a single day this month, South Carolina’s highest court handed down its ruling that the right to privacy in the State Constitution includes a right to abortion, a decision that overturned the state’s six-week abortion ban. Within hours, Idaho’s highest court ruled in the opposite direction, saying that state’s Constitution did not protect abortion rights; the ban there would stand.

Those divergent decisions displayed how volatile and patchwork the fight over abortion rights will be over the next months, as abortion rights advocates and opponents push and pull over state constitutions.

For abortion rights groups, state constitutions are a critical part of a strategy to overturn bans that have cut off access to abortion in a wide swath of the country. Those documents provide much longer and more generous enumerations of rights than the United States Constitution, and history is full of examples of state courts using them to lead the way to establish broad rights — as well as to strike down restrictions on abortion. They offer a way around gerrymandered state legislatures that are pushing stricter laws.

The Original Public Meaning of Abortion and the Ambiguities of Pregnancy

Evan Bernick & Jill Wieber Lens, Abortion, Original Public Meaning, and the Ambiguities of Pregnancy

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion.

Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

I've also done a little bit of work on the public meaning of abortion in the 1860s. See Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYUP 2016), chp. 4, "The Incidental Relation of Motherhood."

Kate Redburn on "Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement"

Kate Redburn has published Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1962-86, Law & History Rev. 1 (2023). The abstract provides: 

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

New Lawsuit by Pill Manufacturer Challenges State Bans on Abortion Pills

NYT, New Lawsuit Challenges State Bans on Abortion Pills

A company that makes an abortion pill filed a lawsuit Wednesday morning challenging the constitutionality of a state ban on the medication, one in what is expected to be a wave of cases arguing that the federal Food and Drug Administration’s approval of the pill takes precedence over such restrictive state laws.

The case was filed in federal court in West Virginia by GenBioPro, one of two American manufacturers of mifepristone, the first pill used in the two-drug medication abortion regimen. A ruling in favor of the company could compel other states that have banned abortion to allow the pills to be prescribed, dispensed and sold, according to legal experts. If the courts reject the company’s arguments, some legal scholars say the decision could open the door for states to ban or restrict other approved drugs, such as Covid vaccines or morning-after pills.

The case is one of a number of lawsuits testing legal arguments in the aftermath of the Supreme Court’s ruling last June overturning the federal right to abortion. Also on Wednesday, an obstetrician-gynecologist sued officials in North Carolina, which still allows abortion, challenging the state’s requirements for using mifepristone because they go beyond F.D.A. regulations on the drug. In November, abortion opponents filed a lawsuit challenging the F.D.A.’s approval of mifepristone nearly 23 years ago and asked that the courts order the agency to stop allowing the use of the drug and the second drug, misoprostol, for abortion.

Taken together, the cases underscore how pivotal medication abortion has become in legal and political battles. With pills now being used in more than half of abortions in America, and with recent F.D.A. decisions allowing patients to have pills prescribed by telemedicine and obtained by mail or from retail pharmacies, states that ban or restrict abortion are increasingly targeting the medication method.

Equality Emerges as a Ground for Abortion Rights

Cary Franklin & Reva Siegel, Equality Emerges as a Ground for Abortion Rights

This chapter locates debates over abortion in equal protection and in an evolving understanding of women’s citizenship. Sex discrimination law has grown from the time of Roe to Dobbs; and sex equality arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. As we show, evolving understandings of women’s citizenship have implications for how the state protects new life. The labor of lifegiving is no longer to be coerced or extracted by law—as states enforcing the law of gender status historically assumed it could be. Equal protection commitments give rise to an anti-carceral presumption in regulating abortion. As state laws inside and outside the abortion context attest: States that respect women as equal citizens do not turn, as a matter of first resort, to measures that rely on coercion and control when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions strips women of agency, forces them to continue pregnancies and become mothers against their will, and perpetuates the forms of inequality that are the central concern of sex-based equal protection law. To opt for the maximally coercive approach—forced pregnancy and childbirth—when there are alternative means for enabling families to flourish is neither constitutional nor plausibly characterized as promoting life.

h/t Larry Solum, Legal Theory Blog

The Equality Problems with Erasing Gestation as an Important Feature of Constitutional Parenthood

Katharine K. Baker, Equality, Gestational Erasure and the Constitutional Law of Parenthood,  
35 J of the American Academy of Matrimonial Lawyers 501 (2022)

This article calls into question the abundance of academic writing that criticizes, as inconsistent with equality principles, the constitutional law of parenthood. Some of this criticism, concerned with gender stereotypes, argues that the current doctrine’s preferential treatment of gestational mothers inexcusably discriminates against fathers. Other critics focus on how the Supreme Court’s approach to gestational investment excludes same sex partners from parental rights. Both of these critiques argue that the work of gestation has been overvalued. They both endorse a kind of gestational erasure, but they differ sharply on where they root the essence of parenthood. Those concerned about equal treatment for fathers root parenthood in genetics. Those concerned about equal treatment for same sex partners root parenthood in parental investment. This article highlights the tension between these positions and challenges those willing to erase the relevance of gestation at both a normative and practical level. It explains how discounting the relevance of gestation will have serious consequences for the law of abortion, adoption and custody, placing already vulnerable women at more risk of being controlled by men they want to escape. Further, this article argues that the current constitutional doctrine, which recognizes the salience of gestation, necessarily incorporates what LGBTQ advocates argue must be incorporated into decisions about parenthood: parental investment. What is inconsistent with LGBTQ equality in parenthood is not a regime that recognizes gestational investment, but one that reifies the genetic essentialism on which the gender-stereotype critique relies.

SCOTUS Asks SG to Weigh in on Granting Cert for NC Charter School Case Mandating Girls Wear Skirts

Supreme Court Could Consider Charter School Dress Code

The Supreme Court is asking the Biden administration to weigh in on whether it should take up a case over a North Carolina charter school’s dress code requiring its girl students to wear skirts or dresses.

In a brief order Monday, the justices invited U.S. Solicitor General Elizabeth Prelogar to weigh in on whether the court should take up that case, Charter Day School v. Peltier, one of several major court cases in recent years that challenge school dress code policies as sexist and discriminatory.

Charter Day School, a K-8 public charter school operated by a private contractor in Leland, North Carolina, says it seeks to provide a “classical, traditional-values-based education,” enforced in part with a dress code designed to promote “mutual respect between boys and girls.” The case centers around the school’s policy, blocked by a federal court, requiring girls to wear a skirt, skort or jumper to school. ***

In 2019, District Judge Malcolm Howard ruled in favor of the plaintiffs, represented by the American Civil Liberties Union, and prohibited the school from enforcing the skirt requirement. Both parties appealed the case to a panel of the U.S. Court of Appeals for the 4th Circuit, which ruled that dress codes treating boys and girls differently violated Title IX, but that the school was not an actor of the state and thus couldn’t be sued on constitutional grounds for its dress code policies. 

The full 4th Circuit reheard the case and largely ruled against the school in a 10-6 ruling in June 2022, finding that the school is a state actor and thus violated the Equal Protection Clause with its skirt requirement. The ruling remanded whether the policy violated Title IX back to the district court. 

Judge Barbara Milano Keenan wrote the court’s opinion and noted that “nothing in the Equal Protection Clause prevents public schools from teaching universal values of respect and kindness.”

“But,” she continued, “those values are never advanced by the discriminatory treatment of girls in a public school. Here, the skirts requirement blatantly perpetuates harmful gender stereotypes as part of the public education provided to North Carolina’s young residents.”  

In September 2022, Charter Day School asked the U.S. Supreme Court to take up the case. 

SC Strikes Down Six Week Abortion Ban, While Idaho Upholds Abortion Ban and Civil Enforcement Law

The State, SC's 6-Week Abortion Ban is Unconstitutional, State Supreme Court Rules

The South Carolina Supreme Court on Thursday struck down the state’s six-week abortion ban, ruling 3-2 that it violated the state’s constitutional right to privacy.

In its 147-page opinion, the state’s high court wrote, in part, “We hold that our state constitutional right to privacy extends to a woman’s decision to have an abortion.”

In the majority were state Supreme Court Chief Justice Donald Beatty, Justice John Few and Justice Kaye Hearn, the lone woman on the Supreme Court, who will retire this year. Justices John Kittredge and George James dissented. ***

Because South Carolina is one of 10 states to include a specific citizen’s right to privacy in its Constitution, the court’s decision came down to whether the six-week abortion ban constituted an “unreasonable invasion of privacy.”

The state had argued the right to privacy applied only to criminal defendants in the context of search and seizure and did not extend to an individual’s decisions about their own medical care, arguing the Constitution never mentioned abortion or a woman’s right to bodily autonomy.

The Supreme Court majority rejected the state’s argument that citizen’s privacy rights should be limited in this way and found the state’s definition actually ran contrary to prior state Supreme Court rulings.

AP, South Carolina Supreme Court Strikes Down Abortion Ban

The South Carolina Supreme Court on Thursday struck down a ban on abortion after six weeks, ruling the restriction enacted by the Deep South state violates a state constitutional right to privacy.

The decision marked a significant victory for abortion rights’ advocates suddenly forced to find safeguards at the state level after the U.S. Supreme Court overtured Roe v. Wade in June.

With federal abortion protections gone, Planned Parenthood South Atlantic sued in July under the South Carolina constitution’s right to privacy. Restrictions in other states are also facing challenges, some as a matter of religious freedom.

But since the high court’s momentous decision in Dobbs v. Jackson Women’s Health Organization, no state court until Thursday in South Carolina had ruled definitively whether a constitutional right to privacy — a right not explicitly enumerated in the U.S. Constitution — extends to abortion.

Idaho SCT Upholds Abortion Ban, Civil Enforcement Law

In a 3-2 decision, the Idaho Supreme Court upheld Idaho’s abortion ban and the civil enforcement law allowing providers to be sued for performing abortions in an opinion released Thursday. 

Planned Parenthood and one of its abortion providers, Dr. Caitlin Gustafson, filed three separate challenges with the Idaho Supreme Court, beginning with the civil enforcement bill — also known as the heartbeat bill — in April. Two other challenges were filed in June and July, after the U.S. Supreme Court announced its decision to overturn Roe v. Wade and return the ability to regulate abortion to the states.

Since August, Idaho has had a near-total abortion ban in effect that only permits defenses in court for abortions performed to save a pregnant person’s life or in documented cases of rape and incest. The civil enforcement law allows immediate and extended family members to sue medical providers who perform abortions for no less than $20,000. The law went into effect at the same time as the ban.

 

Ohio Six Week Abortion Ban Remains Block After Appellate Declines Review of Preliminary Injunction Invalidating the Law

Been getting lots of questions about this status in Ohio:

Ohio's Abortion Law Will Remain Blocked for Now After Appeals Court Decision

The First District Court of Appeals in Cincinnati has denied the state's request on taking up its appeal of a preliminary injunction blocking enforcement of a state law banning abortions after six weeks of pregnancy.

A Hamilton County Court Judge issued the preliminary injunction Oct. 7.

The court says it can only rule on the issue if the Hamilton County judge issues a final ruling on whether the state law on abortion is constitutional.

The American Civil Liberties Union, ACLU of Ohio, Planned Parenthood Federation of America, and the law firm WilmerHale will now proceed with litigation to get a permanent injunction on behalf of Ohio abortion providers.

With the preliminary injunction still in place for now, abortions that happen at up to 22 weeks of pregnancy will remain legal in Ohio

Study Documents Political Link Between SCOTUS Ruling in Dobbs and Increase of Voter Registration by Young, White, Democratic Women

Udi Somer, Or Rappel-Kroyzer, Amy Adamczyk,  Lindsay Lerner, Anna Weiner, "The Political Ramifications of Judicial Institutions: Establishing a Link between Dobbs and Gender Disparities in the 2022 Midterms" 

In the American system of government, judicial institutions are designed to operate within the legal sphere, with limited interface with politics. Is it possible, though, that a behavior that is at the heart of the political process be influenced directly by a ruling of the Court?

In June 2022, the US Supreme Court overturned Roe v. Wade. With the Dobbs v Jackson Women's Health Organization decision, the Court annulled women’s constitutional right to abortion, on the books since 1973. Dobbs occurred less than six months before the Midterm Elections in November 2022.

We capitalize on voter registration bigdata for the universe of voters in North Carolina (NC) three months before and three months after the Court’s decision. NC is the only state whose voter registry has the necessary granularity over time, data availability, and scope of questions needed to assess the link with Dobbs. Furthermore, politically and demographically, NC is largely similar to the nation as a whole. Bigdata for >150K voters in NC indicate that the ruling mobilized women and created an uptick in voter registration gender gap, absent in previous midterms. This trend is evident at the level of individual registrants and aggregately at the county level.

Dobbs created a medical predicament for women as women, and thus their reaction in terms of political mobilization should have been unitary. However, those women who registered came from politically and sociologically well-defined constituencies. They were overwhelmingly Democrats, White non-Hispanic, in their 20s and born in the Northeastern United States.

Much of the credit for the absence of a Red Wave, predicted in the 2022 midterm elections, was given to the salience of abortion politics due to Dobbs (e.g., De Vise, 2022; Knoll and Smith 2022). However, this argument is based, at best, on exit polls and, at worst, on anecdotal conversations with voters. To overcome the myriad problems ranging from limited samples, non-response and response biases to the fact that polls may confound the ruling with various political variables, we offer a direct behavioral measure for women’s reaction to the ruling: voter registration. We causally link Dobbs to variance in gender gaps in voter registration based on original bigdata and identify the matrix of sociopolitical antecedents of this gap.

Conference and CFP, Equal Justice Under Law?

American University, Annual Symposium, Equal Justice Under Law

CFP Deadline Jan. 3, 2023

2023 Annual Symposium: Equal Justice Under Law?

On February 3, 2023, the American University Law Review's 2023 Annual Symposium—Equal Justice Under Law?—will explore what is left of the Constitution after the 2021-2022 U.S. Supreme Court term. The Law Review is thrilled to announce that Dean Erwin Chemerinsky will be this year's Keynote Speaker. Dean Chemerinsky is a distinguished scholar and has authored fourteen books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. Additionally, the Law Review will host multiple Supreme Court practitioners as panelists this year to weigh in on the Court's recent term and the questions it raises moving forward.

Call for Papers: American University Law Review’s 2023 Annual Symposium

Download PDF Here!

The American University Law Review is placing a call for submissions of original legal articles and scholarly commentaries for its forthcoming Annual Symposium issue, this year dedicated to a review and response to the 2021 through 2022 Supreme Court term and the upcoming term. Specifically, the Law Review seeks submissions analyzing the rapidly evolving response to the Supreme Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Kennedy v. Bremerton School District, Carson v. Makin, Shurtleff v. City of Boston, and pending cases before the Supreme Court in the next term on affirmative action, the Indian Child Welfare Act, and free speech. Approximately four to six submissions will be selected, with a publication date slated for the spring of 2023.

The Respect for Marriage Act Doesn't Codify the Fundamental Right of Same-Sex Marriage But Requires Interstate Recognition of Marriages

The 19th, Why The Respect for Marriage Act Doesn't Codify Same-Sex Marriage Rights

The U.S. House approved legislation Thursday to shore up marriage rights for LGBTQ+ couples. The Respect for Marriage Act has been hailed by lawmakers as a landmark law that will protect queer Americans for generations to come. 

The Senate advanced the bill last month, and President Joe Biden is expected to sign it. 

But the bill doesn’t codify the Supreme Court’s 2015 Obergefell v. Hodges decision that granted LGBTQ+ couples the right to marry. Instead, it forces states without marriage equality laws to recognize LGBTQ+ marriages from other states. 

It also declares all legal marriages in the United States must be recognized, even across state lines. That means if a marriage is recognized in Maine, it must be recognized in Texas. That part is seen as critical so that queer families can cross state lines to get married even if their home states don’t offer those rights. It also means that married couples can travel without having to worry that a hospital in another state won’t recognize their marriage in the event that one spouse has an emergency and another needs to visit or make medical decisions on their behalf. The same would be true for interracial couples, who the bill also protects — although the justices have not indicated that interracial marriage rights should be reconsidered.

Bill to Protect Same Sex Marriage Rights Clears Congress

The legislation repeals the Defense of Marriage Act, which defines marriage as between a man and a woman and allows states to refuse to honor same-sex marriages performed in other states. It prohibits states from denying the validity of an out-of-state marriage based on sex, race or ethnicity.

But in a condition that Republican backers insisted upon, it would guarantee that religious organizations would not be required to provide any goods or services for the celebration of any marriage, and could not lose tax-exempt status or other benefits for refusing to recognize same-sex unions.

Michele Goodwin and Mary Ziegler on "The Next Anti-Abortion Tactic: Attacking the Spread of Information"

Michele Goodwin and Mary Ziegler have published an Op-Ed titled "The Next Anti-Abortion Tactic: Attacking the Spread of Information in the New York Times." Here is an excerpt: 

Now that abortion has been banned in more than a dozen states, abortion opponents want to stoke confusion about the legality of not just having an abortion, but even of discussing the procedure. The ultimate goal seems to be ensuring that women are unclear about their options to obtain an abortion or contraception, in their home state or elsewhere.

Signs of this trend can be found around the country. In Nebraska, law enforcement obtained a warrant to search a teenager’s private Facebook messages, in which she told her mother of her urgent desire to end her pregnancy. The mother is now being prosecuted on charges of helping her daughter abort the pregnancy by giving advice about abortion pills.

Proposed legislation in South Carolina would have made it unlawful to provide information about abortions. In September, the University of Idaho issued guidance that it might be illegal for employees to “promote” birth control or abortion. In Texas, two abortion funds (groups that help people pay and travel for abortions) this year received deposition demand letters from people tied to anti-abortion lawmakers for information on anyone who has “aided and abetted” the procedure.

And in Oklahoma, some library workers were warned about helping patrons find information about abortion, or even uttering the word. In an email, the employees were told they could face a $10,000 fine, jail time or even lose their jobs if they didn’t comply. (The library system later updated its guidance.)

Attacks on speech about abortion may seem a sudden reversal for an anti-abortion movement that long claimed to be a champion of the First Amendment. But in fact, decades before Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe,social conservatives set their sights on the First Amendment as a tool to chip away at reproductive rights. And it worked.

* * * 

The gains of social conservatives in curtailing access to abortion are substantial. The next front of their work — hindering access to information about abortion by trampling the First Amendment rights of others — requires more than reversing a Supreme Court decision. The next frontier is interpretation of the First Amendment in ways that contradict how some conservatives have previously interpreted the Constitution, presenting new obstacles for those who wish to keep abortion accessible for women.

Federal Court Strikes Down Ban on Possessing Guns While Subject to a Domestic Violence Protective Order Based on History and Tradition

The case is here: US v. Perez-Gallan (W.D. Tex. Nov. 10, 2022)

Yet it wasn’t until the mid- to late-1970s before states enacted laws enabling civil protection orders barring domestic abusers from further abusing the victim.33 And it wasn’t until the mid-1990s—around the time Congress created § 922(g)(8)—that every state had some sort of civil protection order statute.

Protective orders for domestic violence then, are also a recent legal invention. And because they are so recent, a much deeper historical inquiry is needed to satisfy Bruen’s historical requirement. Thus, the Court’s straightforward historical analysis digs deeper to uncover how this Nation has historically punished domestic abusers. 

This straightforward historical analysis, however, reveals a historical tradition likely unthinkable today. Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.

A reason for that was how infrequently domestic abusers were prosecuted. For example, the Plymouth Colony court records from 1633 to 1802 represent the only jurisdiction where the prosecution of domestic violence has been studied over a long time frame.

And during that almost 200-year period, only 12 cases involving wife beating were prosecuted.36 Zero complaints during that time were for child abuse.37 Another study of the six New England colonies from 1630 to 1699 confirmed the same—only 57 wives and husbands were tried on charges of assault. One explanation for such low prosecution numbers is that “a second judicial system, the church court, existed alongside the magistrate’s court.” And church courts relied more on public shaming than anything else.

That said, religious communities handed out the most severe consequences. Indeed, colonial New England, dominated by Puritans, imposed the harshest punishments on domestic violence offenders. For instance, a 1672 court sentenced a man convicted of abusing and beating his wife to be whipped with ten stripes or pay a five pounds monetary
fine to the court.***

The Puritan’s moral law, however, was not the British common law. And as society moved into the eighteenth century, Puritan morality dissipated. Indeed, like domestic violence historian Elizabeth Pleck stated, any prosecution of domestic violence charges at that point “were remnants of a much more extensive form of social policing that ended with the demise of the Puritan experiment.”

This is not to say society encouraged or turned a blind eye toward spousal abuse. Quite the opposite. One judge in 1914 stated that “wife-beating is one of the most contemptible of crimes.” Or as another scholar recounts, private citizens sometimes rebuffed abusers. Indeed, railroad workers in 1886 responded to the sounds of an assault from a nearby home by accosting the husband and taking him to the stationhouse. Or the woman who fended off a would-be abuser with a shotgun while harboring the battered wife in her home. Or the tarring and feathering of abusive husbands. Stories like these appear to have been common.

But glaringly absent from the historical record—from colonial times until 1994—are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence.

See Duke Center for Firearms Law: Federal Judge Strikes Down Ban on Possessing Guns While Subject to a Domestic Violence Restraining Order

The Supreme Court's New Second Amendment Test is Off to a Wild Start

On Guns, This Maniacal Focus on Constitutional Originalism is Insanity

Same Sex Marriage Bill Clears Critical Hurdle in Congress

NYT, Same-Sex Marriage Rights Bill Clears a Crucial Senate Hurdle

The Senate on Wednesday took a crucial step toward passing landmark legislation to provide federal protections for same-sex marriages, as 12 Republicans joined Democrats to advance the Respect for Marriage Act, putting it on track to become law in the twilight of the Democratic-held Congress.

The 62-to-37 vote, which came only days after the midterm elections in which Democrats retained control of the Senate but lost the House to Republicans, was a rare and notable last gasp of bipartisanship by a lame duck Congress as lawmakers looked toward an era of political gridlock.

It also signaled a remarkable shift in American politics and culture, demonstrating how same-sex marriage, once a divisive issue, has been so widely accepted that a law to protect the rights of same-sex couples across the country could gain decisive, bipartisan majorities in both the Senate and the House. Last summer, 47 House Republicans joined Democrats to pass a version of the bill.

Dobbs' Originalism as Anti-Democratic Living Constitutionalism

Reva Siegel, Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, Texas L. Review (forthcoming0

 This Article examines originalism’s role in overruling Roe in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism’s authority, the Article shows that the conservative legal movement has practiced originalism as form of living constitutionalism that makes our constitutional order less democratic in several important ways.

To demonstrate how this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it.

The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration.

The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.

New Book Female Genius and the Likely Origins of Gender Neutral Language in the US Constitution

Mary Sarah Bilder, Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution 

In this provocative new biography, Mary Sarah Bilder looks to the 1780s—the Age of the Constitution—to investigate the rise of a radical new idea in the English-speaking world: female genius. Bilder finds the perfect exemplar of this phenomenon in English-born Eliza Harriot Barons O’Connor. This pathbreaking female educator delivered a University of Pennsylvania lecture attended by George Washington as he and other Constitutional Convention delegates gathered in Philadelphia. As the first such public female lecturer, her courageous performance likely inspired the gender-neutral language of the Constitution.

Female Genius reconstructs Eliza Harriot’s transatlantic life, from Lisbon to Charleston, paying particular attention to her lectures and to the academies she founded, inspiring countless young American women to consider a college education and a role in the political forum. Promoting the ideas made famous by Mary Wollstonecraft, Eliza Harriot brought the concept of female genius to the United States. Its advocates argued that women had equal capacity and deserved an equal education and political representation. Its detractors, who feared it undermined male political power, felt deeply threatened. By 1792 Eliza Harriot experienced struggles that reflected the larger backlash faced by women and people of color as new written constitutions provided the political and legal tools for exclusion based on sex, gender, and race.

In recovering this pioneering life, the richly illustrated Female Genius makes clear that America’s framing moment did not belong solely to white men and offers an inspirational transatlantic history of women who believed in education as a political right.

h/t Paula Monopoli

Why Democracy is Proving so Powerful for Protecting Abortion

Rachel Rebouche & Mary Ziegler, Why Direct Democracy is Proving so Powerful for Protecting Abortion, The Atlantic

Ballot initiatives—not party politics—are allowing new majorities to emerge in support of more lenient abortion policies.

The news for abortion rights in Tuesday’s midterm election was stunning. In five states—California, Kentucky, Montana, Michigan, and Vermont—voters went to the polls and either rejected an anti-abortion measure or added abortion rights to their state constitution. Just months earlier, Kansas, a conservative state with a history of intense anti-abortion activism, shocked the country by voting to protect state abortion rights by a significant margin.

The lesson here goes beyond the unpopularity of many abortion restrictions. With the reversal of Roe v. Wade, people have looked primarily to political parties to defend abortion rights (or undo them)—and have come to expect outcomes that break cleanly along partisan lines. The results of these latest ballot measures suggest that we’ve underestimated the abortion-rights protections that direct democracy—not party politics—can produce. The fact is that disentangling questions about abortion from political affiliation may provide one of the best ways to protect or to restore abortion access in red and purple states, at least in the short run.

Lessons on how and why can be gleaned from an effort that took place an ocean away: Ireland’s 2018 campaign to repeal the Eighth Amendment, which had, since 1983, recognized fetal rights and thus banned abortion. In subsequent years, the country was repeatedly chastised by the European Court of Human Rights for violating the human rights of women, but it was able to resist many demands for change by insisting that the country had democratically established its strong consensus in favor of fetal rights. In reality, support for legal abortion grew over the years, fueled, in part, by outrage over the death of Savita Halappanavar, a woman who died of sepsis after being refused an abortion following an incomplete miscarriage.

A Majority of State Constitutions Have Gender Equality Provisions

Brennan Center for Justice, State-Level Equal Rights Amendments: A Majority of State Constitutions have Gender Equality Provisions

In the United States, the fight for a federal Equal Rights Amendment has been a century in the making.

Meanwhile, state-level equivalents abound. Some are comprehensive provisions of state constitutions that guarantee equal rights regardless of an individual’s gender, and others are provisions that prohibit gender-based discrimination in specific circumstances.

State courts and constitutions are becoming increasingly important in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization as well as federal courts’ growing hostility to many forms of civil rights protection. In the coming months and years, litigants may increasingly turn to state-level Equal Rights Amendments. 

What follows is a summary of the protections afforded in the 50 states. It is not intended to be exhaustive and may change and evolve in real time.

Nevada Set to Pass Most Comprehensive State Equal Rights Amendment to Include Gender Identity and Expression

Voters to Decide Nevada Version of Equal Rights Amendment

Nevada voters on Tuesday will decide to adopt or reject what is widely considered the most comprehensive state version of the Equal Rights Amendment, a sweeping update that would put protections in place for people who have historically been marginalized in the state Constitution.

Nevada’s ERA would amend the state Constitution to ensure equal rights for all, “regardless of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.” It is a more wide-ranging amendment than the federal ERA that Nevada adopted in 2017, which outlaws discrimination based on sex, though the push to ratify it in the U.S. Constitution remains gridlocked.

With 90% of the vote counted, the new ERA is winning 57% to 42%.  See NYT, Nevada Question 1 Election Results (may take several days for full count).