Gender and the Law Blog

Teaching Law After Dobbs: Rethinking Foundations and Analyzing New Concepts

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

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

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

Marc Spindelman, Washington v. Glucksberg's Original Meaning

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

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

 

Kansas Supreme Court Strikes Down Abortion Restrictions

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

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

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

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

 

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

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

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

 

Teneille R. Brown on "The Criminalization of Care: Health and the Home"

Teneille R. Brown has posted The Criminalization of Care: Health and the Home on SSRN. This article was a forward, published in 2024 Utah Law Review 761 (2024), to a Symposium issue. Brown summarizes the scope of the Symposium:

The lines between private care and criminal law are being deliberately obscured. In the last few years, states have criminalized life-saving forms of reproductive and trans health care, normalized police provision of sub-standard mental health “treatments” to people in crisis, and in general have allowed law enforcement to invade the private lives of vulnerable families. This is not entirely new. But perhaps emboldened by the Dobbs decision1 and to retaliate against those protesting police brutality, the pace of the criminalization of care is off-the-charts. This fall, we had the pleasure of welcoming scholars in health care law and policy, medical ethics, trans rights, and feminist legal theory, to discuss the legal issues that arise when doctors and other institutional actors are asked to serve the interests of law enforcement. The central question we asked is this: how are communities harmed when we criminalize care both in health care settings and the home? In this issue of the Utah Law Review, our readers will hear from a variety of perspectives on how the criminalization of care is impacting our communities.

 The symposium volume is available here. It includes the following articles: 

Gender Regrets: Banning Abortion and Gender-Affirming Care, Noa Ben-Asher & Margot J. Pollans

We Cannot Police Systemic Racism and Systemic Poverty: Why Policing Is Not a Solution to Our Public Health Crisis, Semir Bulle, MD

Caught in the Middle: Providing Obstetric Care When Pregnant Women Have Complications, Ellen Wright Clayton, MD, JD & Luke A. Gatta, MD

Preempting Red State Restrictions on the Use of FDA-Approved Drugs in Gender-Affirming Care?, Lars Noah

Panel Presentation, The Criminalization of Trans Lives and Health Care: Provider and Patient Perspective, Dr. Dana N. Johns

Examining the Constitutionality of Legislative Medical Care Bans for Transgender Youth, John Mejia

 

Velte on "The Supreme Court's Gaslight Docket"

Kyle Velte has published "The Supreme Court's Gaslight Docket" in Volume 96 of the Temple Law Review. Here is the article's abstract: 

The U.S. Supreme Court's new conservative supermajority is gaslighting the American public. This Article takes a systematic look at key cases from the Court's October 2021 Term through the lens of gaslighting. It describes these cases as being part of what it dubs the Court's “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court's recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has been the subject of academic and theoretical inquiry. This Article identifies gaslighting in both oral arguments and written decisions of the Court's civil rights cases. It reveals that this gaslighting is transsubstantive, spanning cases involving voting rights, race discrimination, affirmative action, reproductive rights, LGBTQ rights, and the First Amendment's religion clauses.

Because gaslighting has epistemic dimensions--knowledge production and gaslighting are connected--gaslighters instill epistemic doubt in their victims as a way to have the gaslighter's production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower”--indeed, it is given the position of ultimate “knower” of the meaning and application of the Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 Term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and antidemocratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalist movement, declaring that those interests are not coequal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the Article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalist ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

How the Texas Title IX Case is About a National Abortion Ban

Jessica Waters has published an important column on how "Texas's Title IX case is about a national abortion ban, not student attendance" with The Hill. The column flags an important new case challenging Title IX in Texas. A link to the Complaint is here. Waters summarizes the allegations of the two professors as plaintiffs: 

The two plaintiff professors have declared (in advance) that they will not comply with the Title IX guidance. They lodge a range of complaints about using non-binary gender pronouns and “cross-dressing” teaching assistants, and, notably, students who seek abortions.
 

They state that they will refuse to excuse a student’s class absence — read: they will impose grading penalties — if the absence is related to “elective” abortion. 

More specifically, they state that they will academically penalize a student who is absent because she obtained an “elective” abortion (an illegal abortion in Texas), got FDA-approved medications for a self-induced abortion or traveled to another state to obtain a safe and legal abortion.

They go on to opine (with their finance and philosophy expertise, naturally) that “elective abortion” is not “health care” or a “medical procedure.” And finally, they state that they will not hire any teaching assistants who “aid or abet” someone seeking an abortion because they refuse to employ “criminals” and “lawbreakers.” 

Waters concludes that: 

This case is not about class attendance policies. This is about the continuation of a deliberate strategy to make sure those seeking or providing abortions do so with threats of criminal prosecution, loss of medical licenses, civil lawsuits — or now, denial of educational and employment opportunities — hanging over them.

It is about making sure family members, friends, partners — or now, teaching assistants — know that they help a pregnant person find safe abortion care at their peril.

It is about making it harder for pregnant patients, faced with draconian abortion bans in their home states — or now, the states where they attend school — to travel to states where abortion is legal. 

It is about continuing to position abortion as “not health care” or not a “medical procedure.” It is about underpinning arguments that medical decisions about abortion should be made by legislators and judges — and now, finance and philosophy professors — rather than doctors and their patients. 

Read Waters' full column here. 

Boone and McMichael on "Reproductive Objectification"

Meghan Boone and Benjamin McMichael have published Reproductive Objectification in Volume 108 of the Minnesota Law Review. Here is the abstract: 

The American system of rights is individualized—premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate, and autonomous.

This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object— a reproductive vessel, merely the container for another individual rights-holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the “maternal-fetal conflict” and undermine pregnant people’s rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome—undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety.

 

New Study of the Rhetoric of Abortion in Supreme Court Amicus Briefs

Congrats to my co-blogger, Prof. Jamie Abrams on the coverage of her research on abortion amicus briefs in the New York Times.

NYT, In Abortion Cases, Legions of "Friends" Seek to Persuade the Supreme Court

*** In the decision that overturned Roe in 2022, Dobbs v. Jackson Women’s Health Organization, the court was flooded with more than 140 amicus briefs. The footnote had metastasized, spanning seven pages.

Those 50 years of amicus briefs tell a cumulative story, one explored in a new study published in The Missouri Law Review, “The Rhetoric of Abortion in Amicus Briefs.” Using corpus linguistics, a social-science tool that analyzes patterns of words in large databases, the study found that the briefs “serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights and harms over time.”

The study, conducted by Jamie R. Abrams, a law professor at American University, and Amanda Potts, who teaches at Cardiff University, concluded that opponents of abortion had in some ways been more effective, remaining “resolutely intent on advancing fetal personhood.” The anti-abortion briefs were nimble, they wrote, and were “able to adapt and evolve in response to doctrinal shifts of the court.”

Overall, the authors wrote, abortion opponents had pressed “a more relentlessly human, emotional, personal attack to pursue its political agenda.”

The authors, self-described feminist scholars, wrote that supporters of abortion rights “simply could not counter these arguments within conventional advocacy strategies.”

I have also noticed as well that particular in the abortion amicus briefs allegedly revealing the "history" of abortion, that the history is merely partisan advocacy and junk science. And that the amicus of the historians, like the American Historical Association in Dobbs, are disregarded.

SCOTUS Upholds Gun Ban for Domestic Violence Restraining Orders

Supreme Court Upholds Gun Ban for Domestic Violence Restraining Orders

The Supreme Court on Friday upheld a federal law that prevents people who are subject to domestic-violence restraining orders from having firearms in its first major Second Amendment decision since a 2022 ruling that expanded gun rights.

The court said the Constitution permits laws that strip guns from those deemed dangerous, one of a number of firearms restrictions that have been imperiled since the conservative majority bolstered gun rights in its decision two years ago known as New York State Rifle & Pistol Association v. Bruen.

In an 8-1 decision, Chief Justice John G. Roberts wrote that “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

Bruen required the government to point to historic analogues when defending laws that place limits on firearms, leading to a spate of court challenges against limits on possessing firearms — including the one in this case, United States v. Rahimi.

The opinion is here: US v. Rahimi.

Justice Thomas was the lone dissent. He dissented on the grounds of history and tradition:

After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a
single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent

Unintended Consequences of Fetal Personhood Statutes in Tax, Trusts, and Estates

Bridget J. Crawford, Alexis Borders & Katherine Keating, Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates, Georgetown J. Gender & the Law (forthcoming)  

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the most salient ways fetal personhood laws could upend longstanding rules concerning property ownership and taxpayers’ determination of their fiscal obligations to the government. Unless carefully circumscribed, fetal personhood laws will disrupt the orderly transmission of property at death, the ability to administer a trust, and any durational limits on trusts. Third, the Article argues, state lawmakers should explicitly limit the scope of fetal personhood laws. Somewhat counterintuitively, both those with anti-abortion views and those who wish to secure access to the procedure share an interest in doing so.

For symbolic-political reasons, however, it is unlikely that lawmakers in anti-abortion states will place voluntary boundaries on the applicability of fetal personhood statutes. Therefore, the Article proposes rules of construction that judges should adopt in jurisdictions that have adopted fetal personhood laws. These include presumptions that a zygote-embryo-fetus is not the beneficiary of an estate or trust, disregarding in vitro embryos for purposes of the rule against perpetuities, and fixing the generational assignment of a zygote-embryo-fetus for generation-skipping transfer tax purposes at one generation below that of the intended parents. The Supreme Court is not likely to reverse the Dobbs decision for many decades, if at all. Therefore, making fetal personhood statutes inapplicable to matters of taxation (other than the state income tax deduction for dependents or child tax credit), trusts, and estates represents a pragmatic approach that simultaneously permits states to signal their anti-abortion commitments while limiting disruptions to the legal system and the spread of encroachments on the bodily autonomy of those with the capacity to become pregnant.

Abrams & Potts on "The Rhetoric of Abortion in Amicus Briefs"

I have published The Rhetoric of Abortion in Amicus Briefs with the University of Missouri Law Review. The work is in Volume 89 at page 399. Here is the abstract: 

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women's Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage with the Court. Using quantitative and qualitative methods, the study reveals how the discursive construction of the pregnant person, fetus, physician, and abortion as a right have evolved over fifty years and shows why these shifts matter. In so doing, this study offers historical perspectives into evolving arguments in abortion litigation, contemporaneous insights into the status of polarized abortion politics, and future implications for amicus activity and abortion advocacy.

Chan Tov McNamarah on "Cis-Woman-Protective Arguments"

Chan Tov McNamarah has published "Cis-Woman-Protective Arguments" in Volume 123 of the Columbia Law Review.  Here is a summary excerpt: 

It has become common to oppose the equal citizenship of transgender persons by appealing to the welfare of cisgender women and girls. Such Cis-Woman-Protective (CWP) arguments have driven exclusionary efforts in an array of contexts, including restrooms, sports, college admissions, and antidiscrimination law coverage. Remarkably, however, this unique brand of anti-trans contentions has largely escaped being historicized, linked together, or subjected to extended analytical scrutiny as a group.

Tallied up, these problems make a strong case that, strategically, CWP arguments are ineffective and deeply flawed—even counterproductive—assuming that protecting cis women and girls is truly the goal. Building on that assessment, the Essay concludes with reasons for healthy skepticism that it actually is. Stripping away the veneer of protectionism begins to expose some less-palatable intentions and effects possibly driving the use of CWP arguments.

This Essay provides those missing pieces.

First, it situates CWP arguments within the longer history of woman-protective justifications in American law. Taking their well-known harms to women, alongside their use in lending legitimacy to discrimination against racial and religious minorities, forcefully demonstrates that the rationales’ current use against transgender persons warrants closer inspection.

Second, the Essay canvasses recent CWP arguments to document the line of thought. Reading the heretofore-uncollected allegations reveals a far-reaching cluster of contentions, whose members bear striking family resemblances to, and inherit the disfigurements of, their historical priors.

Third, casting unsparing light on the claims, the Essay demonstrates that CWP arguments overwhelmingly fail to deliver. Structurally, the arguments’ moves are questionable, at best. Substantively, most fall wide of their mark. And, instrumentally, the arguments backfire completely, since their operationalization harms the very persons they supposedly protect.

Symposium Advancing Pregnant Persons' Right to Life

Boston University School of Law, Advancing Pregnant Persons' Right to Life

On February 8, 2024, scholars of law, medicine, and religion from across the world came together at Boston University School of Law to discuss the potential of promoting and protecting reproductive justice through advancing pregnant persons’ right to life. Stemming from that event are six articles and an annotated bibliography from leading legal scholars. This historic and important symposium is captured in its entirety in the video below.

The Free Exercise Right to Life
David A. Carrillo, Allison G. Macbeth, & Daniel Bogard
104 B.U. Law Review Online 19 (2024)

Religion Clause Challenges to Early Abortion Bans 
Caroline Mala Corbin
104 B.U. Law Review Online 37 (2024)

Medical Authority and the Right to Life
Jessie Hill
104 B.U. Law Review Online 67 (2024)

The Right to Life as a Source of Abortion Rights: Lessons from Kansas
Richard E. Levy
104 B.U. Law Review Online 87 (2024)

Turning Away from Criminal Abortion Laws and Towards Support for Pregnant People and Families
Cynthia Soohoo
104 B.U. Law Review Online 109 (2024)

Reproductive Justice and the Thirteenth Amendment
Rebecca E. Zietlow
104 B.U. Law Review Online 143 (2024)

Annotated Bibliography: “Persons Born” and the Jurisprudence of “Life
Martha F. Davis
104 B.U. Law Review Online 161 (2024)

CFP 150th Anniversary of Minor v Happersett and Women's Second Class Citizenship

The 150th Anniversary of Minor v. Happersett: The Past and Future of Women's Rights

Washington University School of Law

September 27, 2024

Call for Papers

Abstract Submission Deadline: June 14

The Washington University School of Law and the Washington University Law Review will host a Symposium centered on the 150th anniversary of the historic St. Louis case, Minor v. Happersett, on September 27, 2024. (The 150th anniversary will align with the subsequent publishing of the Law Review's Symposium edition as Volume 6 of Issue 102 the following spring.)

In 1872, Virginia Minor challenged a St. Louis registrar's decision to block her from registering to vote. Minor argued the Fourteenth Amendment conferred upon her the right to vote as a "privilege" of American citizenship. In 1875, the Supreme Court unanimously rejected Minor's assertion, ruling that voting was not a right of national citizenship. Despite the rejection of Minor's claim, this case remains an important historical moment in both American women's suffrage and the feminist movement at large.

This Symposium will bring together scholars across many fields of law, including feminist studies, voting rights and election law, and related fields. Submissions having no direct relation to the Minor case are welcome. Papers might address topics including, but not limited to, the following:

• The history and evolution of women's rights
• Past or present voting rights and election law
• Ballot initiatives post-Dobbs

The Symposium will consist of approximately 3-4 panels over the course of one day, with the panels being created by the Law Review based on relatedness of subject matters across selected pieces. Participants will attend and serve on the panels, and will be asked to read up to a dozen papers (with special attention paid to the papers of others on their panel). The papers circulated for the Symposium are drafts, and the discussion on September 27 will include feedback.

The Symposium will include a dinner the night before. There is no conference fee, and Washington University will host all of the meals on the conference date. Funding will be available to assist with travel expenses-each participant is eligible for up to $1,000 to reimburse hotel and economy-class airfare expenses.

To apply, please submit an abstract of no more than 500 words to [email protected] by June 14, 2024. Submissions will be vetted by a committee of students from the Law Review, supervised by faculty advisors (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with other papers in a collaborative dialogue.

Participants will also be invited to submit a paper for publication in the Washington University Law Review's Symposium edition (Issue 6 of Volume 102). The publication cycle for this edition will begin in February 2025, with publication estimated to be in the late summer of 2025. If you are interested in publishing a paper (10,000-15,000 words), please indicate your interest when you submit your abstract.

Participants will be notified of their selection by early July. Drafts for distribution at the Symposium will be due on September 6. We look forward to your submissions and participation. Questions can be directed to the organizing Law Review members and their faculty advisors via the [email protected] address.

Thank you!

Hannah Keidan

Chief Diversity Editor (Law Review lead on the Symposium)

Washington University Law Review

[email protected]

Kaitlyn Salyer

Editor-in-Chief

Washington University Law Review

[email protected]

Susan Frelich Appleton

Lemma Barkeloo & Phoebe Couzins Professor of Law

Washington University School of Law

[email protected]

Travis Crum

Associate Professor of Law

Washington University School of Law

[email protected]

Fourth Circuit Rules that State Health Care Insurance Plans Must Cover Gender-Affirming Care

Washington Post, Court Says State Health-Care Plans Can't Exclude Gender-Affirming Surgery

A federal appellate court in Richmond became the first in the country to rule that state health-care plans must pay for gender-affirming surgeries, a major win for transgender rights amid a nationwide wave of anti-trans activism and legislation.

The decision came from a set of cases out of North Carolina and West Virginia, where state officials argued that their policies were based on cost concerns rather than bias. The U.S. Court of Appeals for the 4th Circuit rejected that argument, saying the plans were discriminating against trans people in need of treatment.

Judge Roger L. Gregory, an appointee of President Bill Clinton, wrote for the majority that the restrictions were “obviously discriminatory” based on both sex and gender.

“In this case, discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex,” Gregory wrote, because “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it.”

The majority ruled that West Virginia’s policy also violated the Affordable Care Act’s anti-discrimination provision, a finding that has broad implications for other states’ Medicaid programs.

It’s the second ruling in favor of trans rights this month from the 4th Circuit, a once-conservative court that has become a trailblazer in the realm of transgender rights. The court was the first to say trans students had a right to use the bathrooms that align with their gender identity and the first to recognize gender dysphoria as a protected disability. Earlier this month, the court said a federally funded middle school could not ban a trans 13-year-old from playing on the girls’ track and field team.

Law Scholars File Amicus Arguing to Overturn Dobbs in the Idaho Emergency Abortion Case

David Cohen, Greer Donley & Rachel Rebouche, Amicus Brief, Moley v. U.S.

INTRODUCTION AND SUMMARY OF ARGUMENT

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), should be overruled. This case presents the Court with an appropriate vehicle to correct its unworkable and calamitous ruling from two years ago. This case addresses whether the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd, preempts Idaho Code § 18-622’s prohibition of abortion when abortion is necessary to stabilize a pregnant patient in crisis at an EMTALA-covered hospital. Only a handful of states, including Idaho, lack a health exception in their abortion bans, prohibiting emergency care that federal law demands certain hospitals provide. This failure to assure minimal protections to pregnant women’s health has devastated reproductive health care in states with abortion bans and demonstrates a race to the bottom that is sowing enormous chaos and discord. ***

In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current case, and between and among states. These conflicts are proliferating because of the Pandora’s box of constitutional questions Dobbs opened,
implicating travel, federalism, extraterritorial jurisdiction, preemption, and federal executive power. Less than two years after it was decided, it is evident that Dobbs has proven unworkable and should be overruled.

SCOTUS to Consider Whether Gender Bias and Sex Shaming Contributed to Death Penalty Conviction

NY Times, Did Prosecutors' Sex Shaming Help Send Brenda Andrew to Death Row?

*** 

Later this month, the Supreme Court will consider whether to hear Ms. Andrew’s appeal, which said the display of her underwear was a representative part of an unrelenting strategy by prosecutors, as a dissenting judge put it, “of introducing evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother and a bad woman.”

Nathalie Greenfield, one of Ms. Andrew’s lawyers, said gender stereotypes infected the trial and poisoned the jury.

“Every single day the state was presenting gendered evidence about her appearance, about her clothing, about her sexual practices, about her skills as a mother,” she said. “We’ve got someone who is at risk of execution for not conforming to gender stereotypes.” ***

“Gender bias is normalized and tolerated to an extent that racial bias no longer is in the administration of the death penalty,” said Sandra Babcock, a law professor at Cornell who represents Ms. Andrew in a related case. “Women on trial for capital murder have been subjected to similar shaming tactics for hundreds of years.”

In urging the Supreme Court not to hear the case, Andrew v. White, No. 23-6573, prosecutors said almost nothing to justify using evidence about Ms. Andrew’s appearance and sexuality. They argued instead that it was “but a drop in the ocean” in the case against her. State and federal appeals courts have more or less agreed, suggesting that the prosecutors’ presentation was regrettable but that there was ample evidence of Ms. Andrew’s guilt

See Supreme Court Amicus Brief Argues Brenda Andrew's Capital Murder Case Used Prejudicial "Sexualized Evidence", Gender & the Law Blog.

Symposium, Securing Reproductive Justice After Dobbs, in Journal of Law, Medicine & Ethics

Aziza Ahmed, Nicole Huberfeld & Linda McClain, Introduction: Securing Reproductive Justice After Dobbs, 51 Journal of Law, Medicine & Ethics 463 (Fall 2023)

By overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and throwing the question of how to regulate abortion to the “people and their elected representatives,” Dobbs v. Jackson Women’s Health Organization radically reset the legal, ethical, medical, public health, and political landscape. This introduction to a special multidisciplinary symposium, “Seeking Reproductive Justice in the Next 50 Years,” in the Journal of Law, Medicine, & Ethics, sets the stage for the twenty-five symposium articles that map and document the post-Dobbs landscape. Dobbs has already had dire and far-reaching effects on the legal regulation of pregnancy and reproduction. In this new landscape, questions arise about how to secure reproductive justice and about what strategies and approaches hold promise. This essay introduces the several organizing parts of the symposium, Beginnings, Social and Legal Dimensions of the Post-Dobbs Health Care Environment, Legal Regulation of Pregnancy and Reproduction, and New Strategies and Approaches. We explain how each article contributes a critical aspect of the bigger picture, demonstrating the need for working across disciplines.

I was glad to be a part of this symposium. See Tracy Thomas, Protecting Abortion with State Health Care Freedom of Choice, 51 J. Law, Medicine & Ethics 601 (2023).

The Critical Role of History After Dobbs

Serena Mayeri, The Critical Role of History After Dobbs, 2 Journal of American Constitutional History 171 (Winter 2024)

The Dobbs majority’s reliance on a flawed and impoverished account of “history and tradition” to deny fundamental freedoms today may tempt us to despair of appealing to the past as a source of constitutional rights or principles. But the problem with Dobbs is not its discussion of history per se; rather, it is how and for what purposes the Court looks to the past. History need not preserve archaic values; it can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality.

This essay explores critical roles for history in legal, constitutional, and political arguments about reproductive freedom and democracy after Dobbs. These critical approaches define differently the historical voices and sources that matter; the constitutional principles and lessons to be drawn from the past; and the roles that history and tradition should play in shaping our present and future. Critical histories read the Reconstruction Amendments as a mandate for emancipation and for the eradication of all forms of bodily and reproductive coercion. They elevate the voices of those who long were excluded from political participation and place abortion restrictions in a longer history of reproductive control and anti-democratic political traditions. Critical histories can and do inform the interpretation of state as well as federal constitutional provisions in and outside of court. From courtrooms, legislatures, and campuses to workplaces, street protests, and dinner tables, these histories play a more crucial role than ever in informing legal and political discourse about reproductive justice and the future of democracy.