The Connecticut state Senate gave final approval late Friday to a novel plan to turn the state into an abortion safe haven for patients who live in conservative states that are moving rapidly to restrict access to the procedure.
Thursday, May 12, 2022
Michele Goodwin, The New Jane Crow, The Atlantic
With the Supreme Court poised to overturn Roe v. Wade, abortion access for tens of millions of women and girls across the nation may soon be a matter of the past. For many women of means, who can travel and pay for child care, the loss of Roe will be disruptive. For many poor women—particularly poor women of color—the loss will be deadly. This is the coming of the new Jane Crow.
Certain aspects of the era of the new Jane Crow are already predictable. First, high rates of maternal mortality will persist, and Black and brown women will disproportionately experience the blow and brunt of these deaths. Medicaid will not be expanded in anti-abortion states, nor will welfare benefits increase to meet families’ needs.
Second, states will turn to civil and criminal punishments of women and girls who seek abortions through medication or by traveling out of state. Even now, before Roe has fallen, lawmakers are working on such legislation. Third, just as the Jim Crow era sanctioned racism and racial profiling, the Jane Crow era will be marked by greater surveillance of pregnant women and the curation of laws, practices, and policies to justify stalking, watching, and policing women’s bodies. That is our near future.
Already today, we know how dangerous pregnancy and delivery can be. An American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion—a fact the Supreme Court itself acknowledged in Whole Woman’s Health v. Hellerstedt just six years ago. In Louisiana, giving birth is roughly 57 times more dangerous for women than having an abortion. For Black women, the risk of death is especially dire—and especially in states eager to ban abortions. For example, according to the Mississippi Department of Health’s most recent investigation of maternal health and mortality, Black women accounted for “nearly 80% of pregnancy-related cardiac deaths” in that state; they also suffered from far greater rates of gestational diabetes, sepsis, and hemorrhaging. Black women in Mississippi are 118 times more likely to die from giving birth than from having an abortion. To be Black and pregnant in America is a deadly combination.
Some of this devastation is the result of the anti-abortion movement itself, and in particular its white, male champions in statehouses across the South. These legislatures have targeted abortion providers for decades, stripping them of their ability to provide essential health-care services for poor women, including pap smears, cancer screenings, and contraception. Their efforts have contributed to the United States being the deadliest country in the developed world to be pregnant.
Surely Justice Samuel Alito and the four justices who, according to Politico, voted to sign on to his draft opinion are aware of this. But do they find such data relevant? Seemingly not, as the draft opinion barely acknowledges maternal deaths—and does so only in reference to 1973, not 2022.
Friday, May 6, 2022
Glad to have my work help inform the discussion of this issue of the history of abortion law and practice at the center of the draft Dobbs opinion.
Lawrence Hurley, U.S. Supreme Court: Justice Alito's Abortion History Lesson in Dispute, Reuters
Justice Samuel Alito's draft U.S. Supreme Court ruling that would overturn the landmark 1973 Roe v. Wade decision legalizing abortion nationwide hinges on a contested historical review of restrictions on the procedure enacted during the 19th century.
Lawyers and scholars backing abortion rights have criticized Alito's reading of history as glossing over disputed facts and ignoring relevant details as the conservative justice sought to demonstrate that a woman's constitutional right to terminate a pregnancy was wrongly recognized in the Roe ruling.***
His reasoning was that a right to abortion was not "deeply rooted in this nation's history." Alito relied upon a reading of state laws on the books in 1868 when the U.S. Constitution's 14th Amendment, which among other things protects due process rights, took effect in the immediate aftermath of the U.S. Civil War and the end of slavery.
To Alito, the scope of 14th Amendment rights must be considered in the context of the times in which it was devised. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then-37 U.S. states "had enacted statutes making abortion a crime" even early in a pregnancy. This shows, Alito argued, that there was no understanding at the time of any right to abortion.
Some lawyers who support abortion rights said many states lacked criminal abortion restrictions until the mid-19th century and some banned it only when performed at a point later in a pregnancy - known as "quickening" - when the woman could feel the fetus move, usually at four to five months of gestation.
Tracy Thomas, a professor at the University of Akron School of Law in Ohio, said Alito selectively cited history as presented by anti-abortion activists.
"We do have to interpret history, but we also have to see the nuance, and he is missing the nuance," said Thomas, who favors abortion rights.
A brief filed in the case by groups representing historians supportive of abortion rights said that in 1868 "nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening."
Even in places where all abortions were banned, "ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy," the brief said.
University of California, Davis School of Law professor Aaron Tang has argued that state laws enacted in the 19th century were not understood to ban abortion before quickening.***
David Garrow, a legal historian, said lawyers on both sides of the abortion debate have disregarded the practical reality that the procedure was commonplace even in states where it was banned when the 14th Amendment was added and that criminal prosecutions were rare.
"If you wanted to argue that abortion is deeply rooted in American history you don't argue about state statutes," Garrow said. "You argue about the evidence of demographic reality."
Tang's article is here: The Originalist Case for an Abortion Middle Ground
This understanding plausibly supports a narrower abortion right. As of the founding, every state respected the right to abortion before quickening, or the first noticeable fetal movement that often occurs at 15 or 16 weeks in pregnancy. To be sure, some states took a different view by the time of the Fourteenth Amendment’s ratification, punishing pre-quickening abortion due in part to misogynistic views of women’s proper “role” in society. But contrary to both the received scholarly wisdom and Mississippi’s claim in Dobbs, this Article shows that this was only a minority position among the states. As of ratification, 21 of 37 states continued to recognize the very pre-quickening abortion right that was universally embraced at the founding. In other words, throughout America’s early history, pregnant people in most states enjoyed a right to abortion during roughly the first 15 weeks of pregnancy. This is the originalist case for an abortion middle ground.
David Garrow's book is Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade
The amicus brief by the historians and the American Historical Association is here. Alito had the information he needed to include the full history, but did not.
This brief, based on decades of study and research by professional historians, aims to provide an accurate historical perspective.***
The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.***
These central claims were accurate in Roe and remain so today. In the five decades since Roe, our ability to confirm this history has grown through the digitization of historical newspapers and records. These records show that the influence of the common law persisted even as states slowly began to create laws of their own.
Newly accessible historical evidence further refutes any claim that, from the adoption of the Constitution through 1868, our nation had a settled view on the criminality of abortion.
Instead, Alito relies on the work and amicus brief of a sole individual, law professor Joseph Dellapenna, an expert on water rights, who wrote the anti-abortion advocacy book, Dispelling Abortion Myths (2006). In the prologue to the book, "A Personal Aside," Dellapenna describes the work as an "argumentative book," based on his personal belief that abortion should be banned at 8 weeks, and coming from his experience as "a white man who has fathered at least five children," who offered a different view than "politically correct women." Dispelling, at ix, xii.
Dellapenna's brief also cites an anonymous newspaper article from the women's rights paper, The Revolution, commonly invoked by anti-abortion groups like Feminists for Life that incorrectly attributes an unsigned blurb to women's rights pioneer, Elizabeth Cady Stanton. I have literally written a book, as well as an article, disputing this attribution to Stanton and any support from her for the anti-abortion laws. See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016) ; Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).
Thursday, May 5, 2022
If the Supreme Court overturns Roe v. Wade, it would not outlaw abortion. Instead, states would be able to individually determine the procedure’s legality.
Thirteen states across the country have signaled their readiness to ban abortion by passing so-called trigger laws, which would effectively ban abortions almost immediately after a decision from the Supreme Court to overturn Roe v. Wade.
“Some states that are very strongly anti-abortion, having been frustrated that they couldn’t ban abortion because of Roe v. Wade, decided to pass laws that would be on the books and operative immediately in the future event that the court ever removed the protections of Roe,” said Donna Crane, an adjunct professor at San José State University with an expertise in women’s rights and reproductive rights.
The states are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, Wyoming. Read the full article for details on each of the state laws.
“Legislators in [antiabortion] states have made clear that their intent is not only to ban abortion within their own states borders but to ban it in states where it is expressly permitted,” said state Rep. Matt Blumenthal (D), one of the sponsors of the bill.***
But while some other states have focused largely on laws that codify the right to abortion within their own borders, legal experts say the Connecticut plan stands out for its effort to shield against new efforts in the antiabortion movement to stop abortion patients from crossing state lines to seek care in places with less restrictive laws.
Greer Donley, an assistant professor at the University of Pittsburgh School of Law who has studied antiabortion legislation, said the Democratic states that seek to protect abortion rights — but focus inward only — are adopting laws that might not withstand the challenges of a post-Roe world where antiabortion states try to legislate beyond their borders.
Those laws “are not necessarily going to provide the protections many people think [they] will,” said Donley, whose research informed some of the provisions in the Connecticut law.
California has proposed bills that offer some of the same protections as the Connecticut legislation, many of which are rapidly moving through the legislature. But no other bill wraps all the protections into one package, said David Cohen, a Drexel University law professor who worked with Donley to research antiabortion legislation.
Donley said she expects the Connecticut law will become a model for other Democrat-led states that want to protect abortion access.
“It’s definitely going to have ripple effects,” Donley said. “Once it’s enacted, people are going to take notice.”
Julie Suk, A World Without Roe: The Constitutional Future of Unwanted Pregnancy, 64 William & Mary L. Rev. (2022)
With the erosion and potential demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the moment that the law has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe.
Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the state, without properly valuing these contributions. This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings and 13th Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Such avenues for reestablishing abortion access as well as public support for pregnancy and parenting imagine a broader world of reproductive justice than the one defined by Roe.
Tuesday, May 3, 2022
There are many things to challenge in the Supreme Court’s leaked draft opinion in the abortion case of Dobbs v. Jackson Women’s Health Organization. Including its rigid application of the standard that fundamental rights recognized as “liberty” within the context of the Fourteenth Amendment’s Substantive Due Process Clause must be “deeply rooted in the nation’s history.” Yet even taking the Court’s standard and definition of that standard at face value—the Court, I think, gets the legal history wrong.
In ascertaining what it views as the relevant history, the Court looks to a few reported English opinions from 1600 and 1700 and American criminal statutes passed after 1868. This gap speaks volumes. For what existed in the gap of early America between its earliest organization around 1776 to a century later, was an accepted practice of permitting abortions until quickening. Quickening is about four or five months, or just after the end of the first trimester. This was the line of demarcation Roe recognized in recognizing a woman’s fundamental right to choose an abortion in the first trimester, unregulated. This is even the same basic idea of new conservative fifteen-week abortion bans as in Dobbs itself, recognizing something different about that early period of pregnancy.
The leading sources on this legal history are James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979) and Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stanford L. Rev. 261 (1992). I have done some historical work here as well, focusing on the women’s movement for “voluntary motherhood” in the nineteenth century recognizing women’s right to choose not to be pregnant. See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).
Many of Justice Alito’s own sources in the appendix support this point, showing that the early prohibitory statutes were for a “woman quick with child.” Other statutes applied to a “pregnant” woman, and the historians explain how prove a woman was “pregnant” required physical evidence such as a showing or knowledge such as quickening. The absence of menstruation was insufficient, as women know, because periods can be missed for physical and mental stress, hunger, physical illness, nursing, among many others.
Justice Alito addresses this significant period of time only briefly. He says: “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.” But this statement shades the point. The subcontext here is the perceived difference between a right and a liberty. They are essentially similar, although some distinction has been made between a “right” that is an affirmative guarantee versus “liberty” which is a freedom unrestrained. The words have also taken on a politicized meaning, with right used by liberals and liberty by conservatives and libertarians. So note Justice Alito’s careful choice of the word right here. He is stating that there was no affirmative guarantee of abortion in the law. That is true. Just as there was no affirmative guarantee of related family rights like marriage, parenting, and procreation. But of course the operative constitutional text is “liberty.” Pre-quickening abortion was a liberty, a freedom permitting the practice unrestrained by law. Such social rights happened in social history, even if they were not embodied in express law. The restraint on these social liberties came historically later in time and later in a pregnancy. Thus, there is a strong argument that a century-long common practice of pre-quickening abortion does establish that it was “deeply rooted in the nation’s history”
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
My initial reactions:
- In the leaked SCOTUS draft opinion overturning Roe, the Court applies rational basis to all abortion regulations and a “strong presumption” of validity with deference to the legislature. Post-Roe is Post-Lochner.
- SCOTUS also rejects the equal protection argument saying abortion is not a sex based classification. That’s right—Geduldig for the win. (In Geduldig, the Supreme Court held that pregnancy classifications are not sex-based classifications)
- The Court distinguishes other privacy and familial fundamental rights recognized as liberties in one quick sentence saying only, well those don't involve "unborn life." I'm pretty sure more is needed to show why these rights are not jeopardized under the Court's holding.
- I think the Court gets the legal history wrong here in this key part to its historical analysis. Justice Alito writes: “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.”
Thursday, April 28, 2022
4th Circuit Rules Constitution's Fifth Amendment Equal Protection Clause Protects Against Sexual Harassment
The ruling comes as leaders of the federal judiciary have overhauled the court’s process for reporting misconduct, and as Congress is considering legislation to extend protections to the judiciary’s more than 30,000 employees who lack the same legal rights as other government and private-sector workers.
In a 118-page decision, the appeals court said Tuesdaythat judiciary employees in management roles can be held liable for “their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee,” according to the opinion, written by Judge Mary Beck Briscoe of the U.S. Court of Appeals for the 10th Circuit.
The panel said the Fifth Amendment’s equal protection clause “secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The decision is: Strickland v. United States (4th Circ. Apr. 26, 2022) (procedural due process and equal protection claims)
C. Strickland’s equal protection claim
We next turn to the second claim for relief asserted in Strickland’s complaint, which alleges that defendants “violated the equal protection component of the Fifth Amendment’s Due Process Clause, which confers a right to be free from sex discrimination in federal employment.” ***
The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of 77 law.” U.S. Const. Amend. V. “In numerous decisions,” the Supreme “Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.” Davis, 442 U.S. at 234 (internal quotation marks omitted). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 234₋35 (internal quotation marks omitted). “The equal protection component of the Due Process Clause thus confers . . . a federal right to be free from gender discrimination which cannot meet these requirements.” Id. at 235.
In analyzing Strickland’s Fifth Amendment equal protection claim, the district court began by concluding that Strickland was “attempt[ing] to graft precedent interpreting Title VII onto the Fifth Amendment.” JA, Vol. IV at 1520. The district court in turn concluded that the Fourth Circuit would not recognize such a claim. Id. at 1521. In support, the district court stated that “the Fourth Circuit has not held that courts must apply Title VII standards to free-standing Fifth Amendment claims” and, “[t]o the contrary,” has “rejected a similar attempt to graft Title VII standards onto a free-standing Fourteenth Amendment equal protection claim.” Id. at 1522 (emphasis in original) (citing Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020)). The district court concluded that “Strickland’s complaint is devoid of any allegation that women are treated differently than men under the EDR Plan,” and that “Strickland does not allege that the actions taken against her were on the basis of her sex.” Id. at 1523. “Instead,” the district court concluded, Strickland “theorizes that the [defendants] discriminated against her on the basis of sex when they mishandled 78 her sexual harassment complaints, ultimately leading to retaliation and constructive discharge.” Id.
We conclude that the district court misconstrued both the Fourth Circuit’s decision in Wilcox and, more importantly, Strickland’s equal protection claim. In Wilcox, the Fourth Circuit “conclude[d] that a pure retaliation claim is not cognizable under the Equal Protection Clause” of the Fourteenth Amendment. In doing so, the Fourth Circuit noted that neither it nor the Supreme Court “has recognized an equal protection right to be free from retaliation.” 970 F.3d at 458. Instead, the court noted that it “has consistently considered retaliation claims brought under Section 1983 to be more properly characterized as claims asserting a violation of the First Amendment.” Id.
The court explained that “[r]etaliation for reporting alleged sex discrimination imposes negative consequences on an employee because of the employee’s report, not because of the employee’s sex.” Id. at 460. “The very premise of a retaliation claim,” the court noted, “is that the employer has subjected an employee to adverse consequences in response to her complaint of discrimination.” Id. Thus, the court noted, “[t]he necessary causal link is between the employee’s complaint and the adverse action, not between her sex and the adverse action.” Id. The court emphasized that “continued sexual harassment and adverse treatment of a female employee unlike the treatment accorded male employees remains actionable as a violation of the Equal Protection Clause even when the sex discrimination and harassment continue after, and partially in response to, the female employee’s report of prior discrimination and harassment.” Id. at 461 (emphasis added). But, the court noted, “[t]he employee’s claim in such a case is not a claim of pure 79 retaliation, but instead implicates the basic equal protection right to be free from sex discrimination that is not substantially related to important governmental objectives.” Id. (internal quotation marks omitted; emphasis added). Although the court’s holdings were limited to the Equal Protection Clause of the Fourteenth Amendment, we have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (noting that the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”).
***Thus, Strickland has not alleged a pure retaliation claim, but rather has alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment to be free from sex discrimination.
We also agree with Strickland that, under Fourth Circuit law, her complaint adequately alleged that defendants were deliberately indifferent to her complaints of sexual harassment. The Fourth Circuit has held in the context of a § 1983 action that a school official can be liable under the Equal Protection Clause of the Fourteenth Amendment for his or her deliberate indifference to student-on-student sexual harassment. Feminist Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir. 2018).***
Because the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment,” Weinberger, 420 U.S. at 638 n.2, we conclude that the principles outlined by the Fourth Circuit in Feminist Majority Foundation apply equally to the circumstances alleged by Strickland in this case. More specifically, federal judiciary employees who occupy supervisory roles and/or who are charged with enforcing an EDR plan can, under Feminist Majority Foundation, be held liable under the Fifth Amendment 82 for their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee. This conclusion is based on the principle that the Fifth Amendment’s Equal Protection Clause secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The elements of such a claim, we conclude, are essentially identical to those outlined by the Fourth Circuit in Feminist Majority Foundation: (1) the plaintiff was subjected to sexual harassment by another employee or supervisor; (2) the plaintiff alerted supervisory officials and/or officials responsible for overseeing the court’s EDR plan about the sexual harassment; (3) the supervisory officials and/or officials responsible for overseeing the court’s EDR plan responded to the allegations with deliberate indifference; and (4) the deliberate indifference was motivated by a discriminatory intent.***
Thus, in sum, we conclude that Strickland’s complaint adequately alleged that defendants violated her equal protection rights under the Fifth Amendment and that the district court erred in concluding otherwise.
Wednesday, April 27, 2022
Equal Protection and Abortion: Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, and Reva Siegel as Amici Curiae in Support of Respondents in Dobbs v. Jackson Women's Health Organization
Equal Protection changes the questions we ask about abortion restrictions. In Dobbs v. Jackson Women’s Health Organization, an amicus brief filed on our behalf demonstrated that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause. The brief continues a tradition of equality arguments that preceded Roe v. Wade and will continue, in new forms, after Dobbs. Our brief shows how the canonical equal protection cases United States v. Virginia and Department of Human Resources v. Hibbs extend to the regulation of pregnancy, hence provide an independent constitutional basis for abortion rights.
Under equal protection, government must give reasons why it is better served regulating by group-based rather than facially neutral means, especially when group-based laws perpetuate historic forms of group-based harm. As we show, Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life at the same time that the state was refusing to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends. Why? Asking equal protection questions may move decision makers in federal and state venues, as well as in politics where, over time, equality claims have the potential to enable new intersectional forms of coalition and to transform the conversation about the meaning of our values and our practices, inside and outside the abortion context.
Part I of our brief shows how, in the decades after Roe, equal protection doctrine has evolved to include laws regulating pregnancy. Most recognize that Justice Ginsburg’s landmark opinion in United States v. Virginia restates the equal protection framework with attention to securing equality for the sexes across differences. Virginia is the Court’s first equal protection decision to consider laws regulating pregnancy as sex-based state action subject to “skeptical scrutiny.” We consider abortion laws under Virginia’s framework, which requires states to defend sex-based laws by showing (1) that the use of sex classifications is substantially related to achieving important government ends, for reasons not reduceable to generalizations about the sexes and (2) laws employing sex classifications may not “be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.” Following Virginia, we analyze the Mississippi abortion statute in both a historical and a policy context. Part II of the brief demonstrates that Mississippi’s claims to protect both women and the unborn by singling out women and compelling pregnancy reason from sex-role stereotypes about women (the statute terms them “maternal patients”) that were employed in the nineteenth-century campaign to ban abortion and its modern successors. This might be sufficient to establish an equal protection violation, but we go further to demonstrate how these traditional sex-role assumptions distort Mississippi’s approach to protecting unborn life.
Part III of the brief examines Mississippi reasons for employing sex-based coercive laws to protect health and life. The brief shows that Mississippi targeted women resisting motherhood for coercive abortion restrictions while refusing to enact numerous policies, many federally funded, that provided non-coercive and nondiscriminatory alternatives by which the State could have protected life and health—such as comprehensive sex education and access to contraception; Medicaid expansion; public benefits and child-care assistance. Did the state endeavor to protect health and life by helping those who seek its assistance—either in avoiding pregnancy or in raising healthy families—before singling out for coercion those who violated sex-role stereotypes? Given this historical and policy context, under Virginia Mississippi has failed to offer an “exceedingly persuasive justification” for the means it chose to protect health and life. The abortion ban it adopted enforces a sex-based and coercive classification that re-entrenches stereotypes and “perpetuate[s] the legal, social, and economic inferiority of women.”
Part IV concludes by anticipating—and rejecting—claims that abortion bans promote equality by preventing abortion from being used for eugenic purposes. We distinguish between laws that protect individual choice and laws that promote eugenics by limiting reproductive freedom in order to control the demographic character of the community. We offer historical illustrations of campaigns for eugenics, including Mississippi’s history of sterilizing women of color as punishment for nonmarital childbearing and with attention to the racial identity of the community.
Efforts to associate abortion rights with eugenics blame women for state policies—many surveyed in our brief—that perpetuate the very conditions in which growing numbers of poor women and women of color decide to end their pregnancies. Analyzing abortion restrictions in this larger policy context, our brief asks, how is this mix of policies—favored by states banning abortion—pro-life? How might the characteristics of the persons the state is regulating have shaped Mississippi’s choice of coercive rather than supportive strategies to protect health and life?
Wednesday, April 20, 2022
Stephanie Toti, Foreword, The Never-Ending Struggle for Reproductive Rights, Michigan L. Rev. (April 2022)
My career has largely focused on reproductive rights. It is an area of the law that is perpetually at a crossroads and therefore always ripe for reflection. These rights, long recognized and deeply valued by a majority of Americans, are continually under attack and always—it would seem—on the brink of elimination. Almost from the day Roe v. Wade was decided, critics began calling for it to be overruled, and commentators began predicting its downfall. Although it has weathered the storm for nearly fifty years, those critics and commentators remain undeterred, still forecasting Roe’s imminent demise. And who knows? Perhaps this charged moment in our nation’s history, which seems increasingly like the dystopian future that prescient novelists warned of long ago, will see a disruption in constitutional protection for reproductive rights. Or perhaps the rights that have been central to the liberty and equality of women and gender-expansive people for half a century will continue to endure.
In this Foreword, I would like to reflect on two aspects of reproductive rights law in particular. First, there is a seeming duality in the Supreme Court’s abortion jurisprudence. On the surface, it embodies a longstanding commitment to safeguarding the right to abortion. But just below the surface, the caselaw reflects a deep tension between this commitment and the Court’s recognition that certain members of our society—some motivated by “unprincipled emotional reactions” and others motivated by “principles worthy of profound respect”—will never accept that the Constitution grants the authority to make decisions about the outcome of a pregnancy to the individual who is pregnant rather than to the government. Second, the abortion right has proven surprisingly durable despite powerful efforts to subvert it. It seems that the vital relationship of this right to core constitutional values like liberty, equality, and freedom of belief, and the critical role that it plays in the ability of women and all people with the capacity for pregnancy to participate fully and equally in society, make it extremely difficult to cast aside, rhetorical denunciations notwithstanding.
Wednesday, April 13, 2022
Kate Greasley, Pornography and the Limits of Speech Act Analysis, forthcoming in New Directions in Jurisprudence (R. Chang & A. Srinivasan eds., OUP, 2022)
Some feminist philosophers have argued that harmful pornography is not mere speech, but, in the right conditions, constitutes the speech act of subordinating women. This chapter considers the ramifications of this speech act analysis for the standard liberal argument that pornography should enjoy protection from legal interference under the principle of free speech. It begins by setting out the putative normative significance of the view that pornography is the ‘illocutionary’ act of subordination, and not only speech that harms. This apparent significance inheres in the idea that free speech only protects expression as such, not harmful conduct carried out through communicative means. It then explores some reasons for which the speech act analysis might be thought to obscure a core thread of the feminist critique of pornography-as-speech, by acceding to, or even further entrenching, the double standard according to which pornography, but not some other harmful speech, is legally assimilated with its expressive content. I end by suggesting some ways in which the speech act analysis can bolster that feminist argument in legal and political terms, by placing the double standard of pornography’s protection into sharper resolution.
Thursday, April 7, 2022
Ellen D Katz, Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment, forthcoming Georgetown Journal of Law & Public Policy, Vol. 20.
In 1920, eleven States required voters to pay a poll, or capitation, tax as a prerequisite to voting. States assessed these taxes well in advance of an election and required voters to present proof that they paid the tax in order to cast a ballot. Several States made this requirement even more stringent by imposing cumulative obligations, such that would-be voters needed to pay not only the tax assessed for the given year but all taxes past due in order to vote. Ratification of the Nineteenth Amendment gave rise to disputes as to whether States now needed to set identical poll tax obligations for men and women.
This Essay examines two rulings that addressed this question. In the 1921 decision Graves v. Eubank, the Alabama Supreme Court held that the Nineteenth Amendment “placed all women in the state upon the same footing with men” and thus prohibited Alabama from “placing conditions or burdens upon one [sex] not placed upon the other as a condition precedent to the right to vote.” Sixteen years later, the United States Supreme Court overruled Graves in Breedlove v. Suttles and held that nothing in the Nineteenth Amendment limited Georgia’s power to discriminate between men and women when setting poll tax requirements. Where Graves suggested the Nineteenth Amendment set forth a broad principle of gender equality that extended throughout the electoral process, Breedlove saw a narrow prohibition targeting only those state laws that explicitly limited the electorate to men. Graves and Breedlove thus adopted facially incompatible views of the Nineteenth Amendment’s reach.
Read together, Graves and Breedlove are fodder for the narrative, pressed by assorted scholars for decades, that judges, legislators, and other public officials have long read the Nineteenth Amendment too narrowly. These scholars claim that the Amendment is best read to set forth a robust equality norm or, even more broadly, an anti-subordination principle that should have displaced a broad swath of regulations that made or promoted gender-based distinctions.
On this view, decisions like Breedlove failed to implement the Amendment as intended because the Court read it to allow a gender-specific poll tax. By contrast, claims of the sort found in cases like Graves—that, for instance, the Nineteenth Amendment “placed all women . . . upon the same footing with men”—are viewed more favorably. Language of this sort is seen to suggest the possibility of a different storyline, one in which the Nineteenth Amendment was understood to embrace broad equality and anti-subordination principles. This interpretation insists that the Amendment should have occupied a more central place in the fight for gender equality and that it might yet be deployed productively in ongoing disputes.
This Essay relies on a close examination of Graves and Breedlove to introduce a competing account of the Nineteenth Amendment. The underlying claim, which I develop elsewhere in more detail, is that the Nineteenth Amendment was never meant to promote a broad equality principle, much less an anti-subordination norm. Instead, it was crafted as a deliberately circumscribed measure that would eliminate the male-only electorate while preserving and promoting existing social hierarchies. More specifically, advocates of the Nineteenth Amendment repeatedly promised that women could be included in the electorate without destabilizing either the traditional family or white supremacy. Indeed, these advocates promised that women voters would bolster both hierarchies. These promises, while not universally endorsed, dominated discussion of the
Amendment, particularly in the years closest to ratification, and were the ones that shaped how the Amendment was read and applied.
On this understanding of the Amendment, cases like Graves and Breedlove look more harmonious than their seemingly conflicting holdings might otherwise suggest. In particular, this Essay seeks to show that both Graves and Breedlove manifested a determination to preserve existing social hierarchies and read the Nineteenth Amendment to mandate such preservation.
For its part, Graves made sure that newly enfranchised women voters would not threaten the existing racial hierarchy. Graves did so by holding that the Nineteenth Amendment barred Alabama from exempting women voters from the poll tax that it collected from men.
Wednesday, April 6, 2022
Full disclosure: As a writer of all things feminist policy and politics, I’m not a theater reviewer. But I have to report that after experiencing Suffs (still in previews), it is a modern marvel of a musical. With its impeccable period costumes and powerhouse all-female cast, Suffs explores the women who drove the 19th Amendment across the finish line a century ago—and whose tactics and strategies continue to shape the fight for social and political equality.
Unlike the limited lessons of women’s suffrage many learn—Seneca Falls and Susan B. Anthony—Suffs digs deep into the gamesmanship wielded by the movement’s early 20th century leaders. Among those are Carrie Chapman Catt, stalwart of the National American Woman Suffrage Association, who favored winning the vote state-by-state while wielding elite, inside influence to push for a federal amendment; Alice Paul and Lucy Burns, next-gen radicals of the day, whose National Women’s Party crafted the playbook for civil disobedience; and Chicago journalist Ida B. Wells and activist Mary Church Terrell whose call out of the unique plight of Black women framed the fight for universal suffrage.***
How little the general public has absorbed about this movement and its myriad players is not an accident, suggests Lucy Beard, director of the Alice Paul Institute, in a 2020 interview. Activists like Alice Paul and Inez Milholland, as well as many of the others portrayed in Suffs—Doris Stevens, Ruza Wenclawska, and Dudley Malone, hardly household names—“represented the radical part of the suffrage movement,” said Beard, “[and] history generally gets written by the moderates.”
Suffs may be just the medium to change that. And a bonus, it also manages to impart a dose of pragmatic wisdom for today’s activists: that radical and moderate strategies need not forever be locked in conflict but rather can be combined to force-multiply and win seismic change.
“Suffs” is opening in the same theater where “Hamilton” — and America’s runaway romance with the roguish “ten dollar founding father” — was born. Are audiences open to seeing Taub’s feminist founding mothers as similarly three-dimensional heroes, shaded by their flaws rather than simply damned by them?
“Suffs” may be about women. But their long fight for the vote, Taub said, can stand in for any of the great social movements in American history, all of which were also messy, fractious, imperfect — and unfinished.
Friday, April 1, 2022
Mary Anne Franks, Speaking of Women: Feminism and Free Speech, Signs J. (2022)
It is no less important to ask of First Amendment law what Finley asks about law generally: “If the law has been defined largely by men, and if its definitions, which are presumed to be objective and neutral, shape societal judgments as to whether a problem exists or whether a harm has occurred, then can the law comprehend and adequately redress women’s experiences of harm?” The answer, of course, is that it cannot. The theory and practice of free speech is suffused with pretensions to universality that obscure the gendered nature of power and the particularities of women’s lived experience. The protections and exceptions of the First Amendment that are presented as neutral and abstract are almost inevitably determined by men’s interests. When First Amendment law fundamentally ignores or misunderstands women’s speech, “free speech for all” can only ever mean “free speech for men.” ***
Feminist analysis of the First Amendment, on the other hand, reveals that freedom of speech is a reality only for certain people—in particular, white men. Women’s free speech rights, while eventually formally acknowledged in theory, do not yet fully exist in practice. For more than a century in this country, women were barred from exercising one of the most basic forms of political expression, the vote. For even longer, they were legally prohibited from accessing political, employment, and educational opportunities available to men, which meant that their voices were literally excluded from public spaces, workplaces, and schools. For even longer than that, and continuing to the present day, women have been silenced by domestic violence, sexual assault, workplace discrimination, street harassment, stalking, rape threats, and other forms of abuse disproportionately targeted at them. The threat of male violence anywhere chills women’s speech everywhere—in public, in private, at work, at home, in the street, online.
Thursday, March 31, 2022
Carliss Chatman, We Shouldn't Need Roe, UCLA Women's L J. (forthcoming)
In the face of state-by-state attacks on the right to choose, which result in regular challenges to Roe v. Wade in the Supreme Court, this essay asks whether Roe is needed at all. Building on prior works that challenge the premise of fetal personhood and highlighting the status of Roe-based rights after decades of challenges, this essay proposes an alternative solution to Roe. Decades of state law encroachments cause Roe to fail to properly protect the right to choose. Federal legislative and executive efforts, including the Women’s Health Protection Act, are necessary to ensure the constitutionally guaranteed right to choose remains accessible to all pregnant persons.
David Cohen, Greer Donley & Rachel Rebouche, The New Abortion Battleground, 123 Columbia L.Rev. (forthcoming 2023)
This Article examines the paradigm shift that will occur if (and, likely, when) the Supreme Court overturns Roe v. Wade this coming summer. While most commentators are focusing on what a post-Roe world looks like within individual states, this Article examines the challenging legal issues that will arise across state borders and between the state and federal government. We emphasize how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for what lies ahead.
Judges and scholars have long claimed that abortion law will become simpler if Roe is overturned, but that is woefully naïve. Overturning Roe will create a novel world of complex, interjurisdictional legal conflicts over abortion. Some states will pass laws banning their citizens from out-of-state abortions while others will pass laws insulating their providers from out-of-state prosecutions. State legislatures are already introducing and drafting bills to this effect . The federal government will also stake a claim. Beyond promoting access to medication abortion, federal regulations may preempt state abortion bans and federal land could provide shelter for abortion services. Ultimately, once the constitutional protection for pre-viability abortion disappears, the impending battles over abortion access will transport the half-century war over Roe into a new arena, one that will make abortion jurisprudence more complex than ever before.
This Article is the first to offer insights into this fast-approaching transformation of abortion rights, law, and access. We explore the interjurisdictional issues sure to arise while looking ahead to creative strategies to promote abortion access in a country without a constitutional abortion right.
Monday, March 28, 2022
ABA Model Rule of Professional Conduct 8.4(g) prohibits attorneys from “knowingly engag[ing] in conduct constituting harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.” The Eastern District of Pennsylvania granted plaintiff's motion for summary judgment in the case of Greenberg v. Goodrich finding a likelihood that the rule will chill speech.
While [the Office of Disciplinary Counsel] asserts that the Amendments only prohibit verbal conduct that actually targets an individual, not speech that is perceived to be discriminatory or harassing, this is nonsensical and subjective at best. It is nonsensical to say that an individual's perception is irrelevant where the Rule relies on complaints filed by the public to start an investigation into the attorney's conduct. It is also nonsensical to consider anything under the umbrella of harassment to be devoid of perception. Whether an individual perceives another's conduct to be welcome or unwelcome is a basic premise for harassment. For example, if a person in a protected class hears an otherwise offensive joke from a friend at a Pennsylvania Bar event, it may not be considered by that person as discrimination or harassment, while the same exact joke made by a panelist at a CLE would more likely be deemed offensive. * * * Outside of the third party's perception, it is also the subjective assessment of ODC as to whether the verbal conduct is actual or perceived. The standards for that assessment are, at best, subjective, and, at worst, completely unknown to both Pennsylvania licensed attorneys like Mr. Greenberg and even ODC itself. Therefore, speech . . . . will continue to be so affected under the revised Rule.
* * * This assures that attorney's speech is targeted by the Rule and will continue to be broadly monitored and subject to government censure under this Rule. The Rule limits what a lawyer may say and it serves as a warning to Pennsylvania lawyers to self-censor during the course of their interactions that fall within the Board's broad interpretation of the practice of law. * * *
Read the full opinion here.
Thursday, March 24, 2022
Legal History of 1983 SCOTUS Decision in Akron Abortion Case May Provide Playbook for Post-Roe Legislation
My research and legal history of the US Supreme Court's decision in Akron v. Akron Center for Reproductive Health, 461 U.S. 416 (1983), on abortion regulations is featured in this deep dive feature in the Akron Beacon Journal. Doug Livingston & Seyma Bayram, How Catholic Democrats in Akron Helped Write the Conservative Playbook to Overturn Roe, ABJ, Mar. 23, 2022. [Download article here (without photos)]
In 1978, hundreds of protesters marched in downtown Akron or outside the city's four abortion clinics in their first year of operation. The civil unrest, from threats of violence to documented arson, burned even as the Storm of the Century buried Akron in more than 3 feet of snow.
Akron City Council moved public hearings on 16 proposed abortion restrictions to the Morley Health Center to accommodate a standing-room only crowd of 300 people, evenly split in support or opposition. A national audience followed along as the three major news channels of the day covered sweeping restrictions crafted by national anti-abortion lawyers and sponsored by Catholic Democrats on Akron City Council.
The debate was intense. Council members shouted long after some hearings ended.
In a 7-6 vote on the last day in February, national leaders in the anti-abortion movement had found in Akron willing participants in the creation of "the playbook” to incrementally unravel Roe v. Wade.***
By 1976, a few states tried and none succeeded in chipping away at the landmark 1973 ruling that legalized abortion in the United States. A Missouri law requiring a husband’s consent was the latest to fail that year.
By the late 1980s, though, a more conservative bench would revisit Roe, giving increased deference to state and local restrictions.
“It’s the nibble theory,” said Tracy Thomas, Seiberling chair of constitutional law at the University of Akron.
Going further and earlier than others in the effort to restrict abortion, Democrats on Akron City Council would not nibble. They chomped.
Thomas has chronicled the legal history of abortion in Akron in multiple judicial reviews. In 2013, she examined the legacy of the 1978 restrictions passed by City Council and a later case out of Akron, which resulted in one of the first of several national rulings pulling at the loose threads of a woman’s right to access an abortion. Thomas’ research drew on “archives and long-forgotten files in dusty basements” and “interviews with key players in the cases,” including a couple now in their 80s or 90s and unwilling to return a call from the Beacon Journal.
As the first stand-alone clinics opened in the city, Akron passed an ordinance requiring all abortions after three months to be done in a hospital. In 1978, they approved 16 more restrictions — waiting periods requiring multiple patient visits, parental consent for minors and the inclusion of religious and non-medical language designed to discourage people from seeking abortions.
In 1983, the justices who decided Roe a decade earlier ultimately overturned the new laws in Akron. The ruling gave abortion-rights advocates their earliest and strongest reaffirmation of a woman’s reproductive rights and the Reagan administration, which joined the case alongside legal counsel for the city of Akron, its first national “embarrassment."
But the lasting legacy is that Akron lawmakers, at the bidding of anti-abortion groups, “created that conservative playbook” for the eventual fall of Roe, which Thomas said “is definitely not going to survive … in any way, shape or form.”
The high court rejected nibbles that went too deep, Thomas explained. Within a decade, though, several restrictions got through, gradually battering Roe to the point of teetering on collapse.***
“What was immediately drafted in opposition to Roe becomes the playbook because eventually all of those (Akron restrictions) are upheld” in separate court cases that followed, Thomas said. “As a case, Akron becomes a much more important example of how it can be done. I think it will come back to life with restrictions passed by the states. And cities are obviously easier to get things through.”
The research is here:
Tracy Thomas, Back to the Future of Regulating Abortion in the First Term, 29 Wisconsin J. Gender & Law 47 (2014)
Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie: A History of the US District Court for the Northern District of Ohio (Paul Finkelman & Roberta Alexander, eds. 2012).
Wednesday, March 9, 2022
Missouri Lawmaker Proposes Provision to Allow Private Citizens to Sue Anyone who Helps a Resident Obtain an Abortion Out of State
An unusual new provision, introduced by state Rep. Mary Elizabeth Coleman (R), would allow private citizens to sue anyone who helps a Missouri resident obtain an abortion out of state, using the novel legal strategy behind the restrictive law in Texas that since September has banned abortions in that state after six weeks of pregnancy.
Coleman has attached the measure as an amendment to several abortion-related bills that have made it through committee and are waiting to be heard on the floor of the House of Representatives.
Abortion rights advocates say the measure is unconstitutional because it would effectively allow states to enact laws beyond their jurisdictions, but the Republican-led Missouri legislature has been supportive of creative approaches to antiabortion legislation in the past. The measure could signal a new strategy by the antiabortion movement to extend its influence beyond the conservative states poised to tighten restrictions if the Supreme Court moves this summer to overturn its landmark precedent protecting abortion rights.
Wednesday, February 23, 2022
Webinar, University of Maryland Law, From the 19th to the ERA: Leser v. Garnett and the Validity of Constitutional
Monday, Feb. 28, 2022
Please join Paula A. Monopoli, Sol & Carlyn Hubert Professor of Law, to mark the centennial of the U.S. Supreme Court’s decision in Leser v. Garnett on February 27, 1922, validating the Nineteenth Amendment to the U.S. Constitution. In Leser, a local judge had challenged the voter registration of two Baltimore City women, one Black and one white, on the theory that the woman suffrage amendment was “an unconstitutional constitutional amendment.” Hear two distinguished constitutional scholars discuss the connections between the Supreme Court’s analysis of the Nineteenth Amendment’s constitutional validity and today’s debates about the validity of the Equal Rights Amendment.
• Julie Chi-hye Suk, Professor of Law, Fordham University School of Law, and Florence Rogatz Visiting Professor of Law & Senior Research Scholar, Yale Law School
• Tracy A. Thomas, Seiberling Chair of Constitutional Law and Director, Center for Constitutional Law, University of Akron School of Law