Gender and the Law Blog

The Feminist-Neutrality Paradox of Women Judges

Alissa Rubin Gomez, The Feminist-Neutrality Paradox, 127 Dick. L. Rev. 101 (2023)

Female judges are vital to a well-functioning third branch of government given the long-documented link between diversity and judicial legitimacy. Beyond appearances, however, the article explores the reasons why so many empirical studies have shown that judges do not decide cases differently on account of their gender. This article describes how women must act like men to gain acceptance into the male-dominated judicial sphere and then are expected to apply precedent that has been overwhelmingly decided by men. In other words, the decisions of female (and feminist) judges are largely the same as those of their male counterparts because of systemic pressures on female judges to conform to the unstated male norm under the guise of neutrality and the rule of law. These observations are not new. But in the wake of Dobbs v. Jackson Women’s Health Organization – the case that erased the constitutional right to abortion with little concern for the appearance of judicial neutrality or stare decisis – this article asks whether feminists should stop playing by the rules as well.

A Comprehensive Proposal for Transitional Justice for Healing Sexual Violence Against Women of Color

Miyoko Pettit-Toledo, Collective Memory and Intersectional Identities: Healing Unique Sexual Violence Harms Against Women of Color Past, Present and Future, 45 Univ. Hawaii L. Rev. (2023)

For at least the last decade, at the urging of gender scholars and advocates, reconciliation initiatives started to recognize specialized harms of sexual violence against women and began to tailor redress to address these harms. Yet, although a step in the right direction, even those forward-looking redress initiatives did not specifically and forthrightly recognize unique sexual violence harms to women of color. This Article builds on this developing intersectional race-gender redress analysis with its focus on sexual violence by illuminating an important next step: recognition, through storytelling and collective memory, of sexual violence injustices against women of color. The collective memory of injustice is an important prelude to reconciliation initiatives. In the context of sexual violence against women of color, the shaping of an individual’s and group’s narrative and public image of the harms are vital to moving forward, especially as related to truth commission investigations and hearings. Where women of color who suffered sexual violence (and other forms of gender-based harms) are often silenced or largely rendered invisible in the redress process, voicing both individual and collective experiences of such harms may be an important step forward in healing such unique harms.

Yet in many transitional justice initiatives, those willing to come forward are frequently narrowly cast or categorized as “victims,” often in the context as witnesses in criminal prosecutions or for the purpose of determining legal eligibility for monetary reparations. However, recent studies reveal that women of color who have suffered sexual violence harms experience multiple, intersectional identities—as victims, survivors, political activists, fighters and much more. And many of them have expressed that they wish to be remembered that way—as more than just “victims”—in reparative justice initiatives and beyond. Through a mini case study of the experiences of Toufah Jallow, the Gambian woman who is credited with inspiring the #MeToo movement in Africa, this Article begins to illuminate what more is needed for comprehensive and enduring social healing through justice for both individual women of color and the polity itself. The time is now to listen to these women of color with empathy and understanding. The time is now to strive for more genuine and comprehensive social healing through justice.

The Prevalence of Gender-Based Violence in the Lives of Women Sentenced to Death Row

Sandra Babcock & Nathalie Greenfield, Gender, Violence, and the Death Penalty, 53 California Western Int'l L.J. (2023)

 This article undertakes the first and only comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row. We examine the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution. Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV and that the great majority have experienced multiple incidents of GBV.

Further, our research shows that both in the United States and around the world, defense attorneys frequently fail to present evidence of GBV in women’s capital trials. When they do introduce such evidence, they fail to fully explain the nature of their clients’ victimization and the harm they have suffered as a result. Moreover, we show that prosecutors frequently rely on gendered tropes to discredit women’s accounts of violence such as childhood sexual abuse, rape, and intimate partner violence. Consequently, those who sentence women to die rarely comprehend the extensive trauma that the women have endured throughout their lives, and how that trauma relates to their legal and moral culpability.

Dispute Resolution in a Feminist Voice

Andrea Kupfer Schneider, Carrie Menkel-Meadow: Dispute Resolution in a Feminist Voice, 10 Tex. A&M L. Rev. 151 (Fall 2022)

The presence of women in the law has changed the law’s substance, practice, and process. Carrie Menkel-Meadow, whose scholarship centers on this theme, is one such revolutionary woman.

Professor Menkel-Meadow, who I am proud to call my colleague, co-author, and friend (hereinafter referred to as Carrie), began her career in 1977 with a series of simple questions that sparked a breathtaking body of work. Carrie probed the depth of male domination in the realm of law and wondered what changes female representation might engender. In particular, she focused her inquiry on the value orientation each respective gender might bring to the law: "To what extent are the legal institutions we deal with male-dominated, both in the values they reflect and the manner or means used to express those values? To what extent might the expression of feminine or female values, principles and qualities both in the ends desired and the means used to express those ends alter our legal institutions? How does the increased participation of women in these legal institutions move us toward or away from the realization of feminine values in the law?"

Over 40 years, Carrie elaborated on these questions to develop a thorough and wide-ranging feminist jurisprudence. This Essay attempts to do justice to her work. Part II recapitulates her account of the feminization of the law: the way that feminine values affect the substance of the law; the way that we practice and learn law; and the process of law, especially in the area of Carrie’s other love—dispute resolution. In particular, Carrie used a key narrative to illustrate competing approaches to problem-solving. Spurred by Carol Gilligan’s reanalysis of psychology studies, Carrie dove into the moral dilemmas used in psychology and recast the story of Amy and Jake (where they wrestle over the dilemma of whether to steal drugs to save a life) as a lesson in problem-solving. Throughout her writings, Carrie advocated for a feminine ethic of care to have equal footing with the more traditional (masculine) ethic of justice that has been hallowed in law.

Part III of this Essay uses a different narrative from Carrie’s scholarship to illustrate the application of the feminization of the law. In the case of Ziba—a hypothetical mediation between an underage bride and her controlling husband, Ahmed—we see how Carrie’s own passions for feminism and dispute resolution collide in the mediation process she typically champions. Ultimately, Carrie’s treatment of the case puts into practice the ethic of care developed within her feminist jurisprudence.

Sabbeth and Steinberg on "The Gender of Gideon"

Kathryn Sabbeth and Jessica Steinberg have published The Gender of Gideon in volume 69 of the U.C.L.A L. Rev. in January 2023.  The abstract is provided here: 

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating racial and gender inequality.

 

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

 

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and, we argue, available data suggest that the largest categories of these cases--family law, eviction, and debt collection--disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, in the absence of government-appointed counsel, women’s individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised by lack of access to representation, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

For the First Time, Court Holds That Female Student Athletes Can Sue Universities for Damages

Andy Zimbalist & Carrie Baker, Student-Athletes Can Now Sue Discriminatory Universities for Damages, a Victory for Title IX, Ms.

A first-in-the-nation court ruling says female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

U.S. District Court Judge Todd W. Robinson ruled on April 13 that the female student-athletes suing San Diego State University (SDSU) for violating Title IX can pursue claims for equal athletic financial aid, equal treatment and retaliation. The decision is the first in the nation to hold that female student-athletes deprived of equal athletic financial aid can sue their schools for damages.

“This is a major step forward for women and against sex discrimination at SDSU and nationwide,” said lead counsel Arthur H. Bryant of Bailey & Glasser in Oakland. “SDSU has been cheating its female student-athletes out of hundreds of thousands of dollars in equal athletic financial aid each year. It is giving its male student-athletes far better treatment than its female student-athletes. And it blatantly retaliated against its female student-athletes for standing up for their rights. Now, it can be held accountable.”

The class-action lawsuit alleges female student-athletes were given less scholarship support than the male athletes, received inferior treatment and benefits and were retaliated against when they protested against discrimination. Judge Robinson agreed their suit could go forward and went a step further—awarding the students the right to seek monetary damages.***

The other avenue for redress of grievances is litigation. Here too, courts usually require non-compliant schools to enter into a program to improve the treatment of female athletes. Until the SDSU case, however, female athletes experiencing sex discrimination in athletics did not sue for damages but instead sued for injunctive relief—a court order directing a school to stop or reduce discriminatory practices. Now, we know they can sue for monetary damages

Supreme Court Issues Stay in Medication Abortion Appeal

While the Supreme Court's decision in the abortion medication litigation is by no means a victory for women’s health, it allows Mifepristone to remain legally accessible to the degree it was before one judge in the Northern District of Texas unilaterally overrode the long-established federal drug approval process. This opinion shifts the focus back to the Fifth Circuit. The opinion is here: https://www.supremecourt.gov/opinions/22pdf/22a901_3d9g.pdf. 

Justice Alito dissented, stating: 

The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review. (citation omitted). 

* * *

I would deny the stay applications. Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone. Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue.

Lambda Law Publishes 2022 "Protected and Served?"

Lambda Law has published its 2022 edition of "Protected and Served?"  This survey examines the "experiences of lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ+) people and people living with HIV with the criminal legal system, to assess these communities’ levels of trust in government institutions, and to create a new resource for community members, advocates, policymakers, and researchers for LGBTQ+ and HIV liberation." This publication is intended to "support legal arguments; educate the public; train judges, attorneys, and others involved in the legal system; and in many other ways to help identify and uproot discrimination and bias and hold government actors accountable." The report recommends: 

• "Lambda Legal supports the decriminalization of sex work by acknowledging that there is no constitutionally adequate basis to criminalize sex solely because one consenting adult pays another."  
• "Most laws that criminalize HIV are based on outdated science and directly interfere with public health goals. . . . Lambda Legal and Black and Pink National support the repeal of HIV criminalization laws."
• "[M]any strategies will be necessary to stop the government misconduct, harm, and violence experienced by system-impacted LGBTQ+ people and people living with HIV. It is for this reason that this report openly acknowledges the necessity of both reformist and abolitionist approaches to addressing the impacts of the criminal legal system."
• "[T]trust in the court system among survey participants is low. But the general public also lacks confidence in the courts, in part due to the U.S. Supreme Court’s erosion of our fundamental rights. Some current reform efforts that Lambda Legal supports in the federal judiciary include adding seats to the U.S. Supreme Court to match the number of federal Circuit Courts of Appeal and adopting an enforceable ethics code for Supreme Court Justices, as well as expanding the lower federal courts to accommodate the increasing demands on those courts."
• "Most state court systems and the federal judiciary do not explicitly prohibit discrimination in jury service based on sexual orientation or gender identity. This means that in many places, LGBTQ+ people can be dismissed from jury service simply because of their sexual orientation, gender identity, and/or gender expression. Advocates and policymakers at the state and federal levels must ensure that laws and court rules, such as the federal Equality Act and the Jury ACCESS Act, are enacted to prohibit this discriminatory treatment."
• "The Prison Litigation Reform Act (PLRA) makes it harder for people to seek legal recourse for harms experienced while in prison. . . . Congress should make changes to the PLRA that will permit people in prison to bring their claims to court sooner. In addition, the Prison Rape Elimination Act (PREA), despite its robust protections, does not provide a private right of action to survivors or assault. . . . Congress should amend the PREA to give survivors of abuse a private cause of action against prisons and jails, as well as officials."
• "Advocates and policymakers should work with school boards, administrators, and staff to create, adopt, and enforce anti-harassment policies for LGBTQ+ students, but also to greatly limit—or entirely prohibit—the use of disciplinary actions such as referrals to law enforcement, school-based arrests, and expulsions. All policies should be cognizant of actual and/or perceived sexual orientation, gender identity, and gender expression. For all students, and specifically LGBTQ+ students, schools should adopt policies that prohibit punishment as a means of policing gender expression. This includes prohibiting policies that dictate gender-based dress codes, bar students from using restrooms that align with their gender identity, or prevent students from utilizing a name that affirms their gender identity."

The full report is available here. 

Danco Laboratories Seeks Stay of Preliminary Injunction from U.S. Supreme Court

Danco Laboratories filed its "Emergency Application for Stay of Preliminary Injunction Pending Appeal" in the Alliance for Hippocratic Medicine case.  

The Fifth Circuit’s unprecedented order has created regulatory chaos across the country. The direct consequence of the Fifth Circuit’s ruling is that FDA must effectuate a series of extensive approvals to implement the Fifth Circuit’s rollback. Without those approvals, Danco cannot legally market and distribute mifepristone. But FDA is simultaneously under court order from the Eastern District of Washington enjoining it from changing any aspect of its regulation and approval of mifepristone in the 17 States plus the District of Columbia that are plaintiffs to that suit. The result is an untenable limbo, for Danco, for providers, for women, and for health care systems all trying to navigate these uncharted waters—and all after Plaintiffs waited years and years before claiming irreparable injury and a need for an emergency injunction voiding the decades-long status quo.

* * * 

Fifth Circuit’s ruling is equally flawed on the merits. Rather than defer to FDA’s expertise in evaluating data from dozens of clinical trials, which members of this Court have repeatedly said courts should do,1 the Fifth Circuit held that FDA fails to examine “ ‘an important aspect of the problem’ ” by making a change to a drug’s approval where “zero studies” incorporated all of the exact metes and bounds of the modified approval. . . . The pharmaceutical industry could not have been clearer that such a judicial imposition on FDA of this sort of rigid matching requirement, untethered to anything in the statute or regulations, would be devastating. If that were the rule governing FDA approvals, it would be unlikely that any drug on the market is properly approved. . . . The Fifth Circuit not only endorsed the District Court’s flawed reasoning—it doubled down, affirming the District Court’s blatant second-guessing of FDA’s determinations by engaging in that same conduct itself. As nearly 700 members of the biomedical industry; a dozen physicians’ groups and health societies; former FDA and DOJ officials; and numerous states, local governments, and members of Congress have recognized, these paradigm-shifting holdings inject confusion, uncertainty, and expense into the regulation of an industry that plays a foundational role in the health and safety of millions of Americans.

Leaving the Fifth Circuit’s ruling in place will irreparably harm Danco, which will be unable to both conduct its business nationwide and comply with its legal obligations under the FDCA nationwide. The lack of emergency relief from this Court will also harm women, the healthcare system, the pharmaceutical industry, States’ sovereignty interests, and the separation-of-powers.

Benjamin Carpenter on "Reconsidering the Law’s Male-Centric Approach to Embryo Disputes"

Benjamin C. Carpenter has published "Sperm is Still Cheap: Reconsidering the Law’s Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence" in Volume 34 of the Yale Journal of Law & Feminism. The abstract is as follows: 

Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their exwives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground— one party’s interests must yield to the other. To date, appellate courts in over one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in twenty appellate cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 129 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.

 

Study Shows Dramatic Decrease in Domestic Violence Restraining Orders from Remote Procedures Used During the Pandemic

Andrea Kupfer Schneider, Heather Hlavka, Sameena Mulla, Erin Schubert & Aleksandra Snowden, Remote Justice & Domestic Violence: Process Pluralism Lessons From the Pandemic, 52 Stetson L. Rev. 231 (2022) 

Domestic violence procedures, like so many court processes around the world, were forced to go online and remote during the pandemic. The impact was dramatic—there were fewer restraining order petitions filed in the first place and an even lower amount granted. In short, domestic violence survivors, among the most vulnerable in our court system, were even more challenged in the last two years. Like many court systems, Milwaukee will never go back to being fully in-person for all procedures in conjunction with domestic violence. The evolving hybrid choices could provide additional access to justice, or these processes could create additional barriers to successful filing of restraining orders in court and accessing needed social services for survivors.

Interestingly, the shift to remote and online processes has been successful and effective in other contexts. How can we explain the difference? Using the lens of process pluralism, this Article addresses four key factors: (1) context—recognizing that domestic violence survivors are a unique set of court clients and present specific challenges; (2) process plurality—the use of different and hybrid technological options considering party access to technology and advocate support, synchronous versus asynchronous modes, efficiency, and benefits versus costs of video/face to face interactions; (3) imagination—the need to evolve and create new process options to meet the concerns of particular contexts and courts; and (4) justice—ensuring that processes are both procedurally and substantively just, providing voice, legitimacy and fair outcomes to participants. In conjunction with empirical research conducted on survivors and service providers in the Milwaukee County area during the pandemic, this Article will review each of these principles and outline crucial next steps for the court to protect the most vulnerable.

Implications of Conflicting Federal Court Rulings on the Availability of Medication Abortion

A publication by Women's Health Policy of the Kaiser Family Foundation provides a useful primer on the implications of the two conflicting federal court rulings regarding the legal accessibility of medication abortion published on Friday in Washington and Texas. The full Washington opinion is here. The full Texas opinion is here. The Women's Health Policy Q&A summarizes the plaintiffs in the lawsuits, the conflicting outcomes, and the likely next steps: 

Hours after Judge Kacsmaryk’s ruling, the FDA filed a notice of appeal to the US Court of Appeals for the 5th Circuit and Attorney General Merrick Garland said the government would request a stay to block this ruling while the appeal is considered. If the 5th Circuit does not grant this request, the FDA is likely to appeal immediately to the Supreme Court of the United States to block the ruling during the appeal process. If the case is appealed but the courts do not provide a stay, then the distribution of mifepristone could be halted across the nation pending the final outcome of the case.

 

The FDA may not appeal Judge Rice’s decision as it directs the FDA to keep the status quo. The Attorneys General who brought the case may appeal the decision to the 9th Circuit to seek an injunction to block the enforcement of the REMS approved in January 2023.

 

As both of these cases involve the FDA approval and provision of mifepristone, it is likely that if they reach the Supreme Court, it will review the cases together.

For a discussion of how the ruling threatens the FDA and federal regulatory authority, see this Washington Post article. 

For a discussion of how the Texas opinion is "lawless," check out Leah Litman's commentary in Slate closing with this powerful excerpt: 

Overturning Roe has, in fact, had the opposite effect that Justice Alito and his crew—allegedly— intended. In the opinion overruling Roe, Justice Alito quoted Justice Scalia’s dissent in Casey, which maintained that “Roe … has inflamed our national politics.” And Justice Kavanaugh wrote that Roe and Casey’s “well-intentioned effort did not resolve the abortion debate. The national division has not ended.” . . . He continued, “After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans.” Apparently, it will all be up to one guy named Matt.

The Evolving Right of Public School Teachers to Refuse to Use a Student's Preferred Name or Pronoun

Suzanne Eckes, Public School Teachers Who Refuse to Use Preferred Names and Pronouns: A Brief Exploration of the First Amendment Limitations in K-12 Classrooms,  14 ConLawNOW 159 (2023)

This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.

Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service

Jennifer Brinkley, Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service,   
Tennessee Journal of Race, Gender, and Social Justice, Forthcoming

This article will look at the history of women and jury service, focusing on the work both Kenyon and Murray did to persuade courts that sex discrimination, like race discrimination, was unconstitutional. Jury service was an issue that advocates of equality could agree upon and Kenyon and Murray would use every resource at their disposal to obtain compulsory service for women. Part II gives a brief history of how women were excluded from juries in the United States. It provides popular culture references of the time, along with public opinion about whether women should serve. This clarifies the history surrounding jury service. Part III provides context on the lives of Dorothy Kenyon and Pauli Murray before they became a team. Their litigation strategy was strongly influenced by division in the women’s equality movement over how best to proceed to seek relief from sex discrimination. Some thought legislative change would be best, while others believed judicial reinterpretation was the proper pathway. The division, and its impact, is discussed. Part IV begins with a history of jury service litigation before various courts. In 1966, Kenyon and Murray co-authored the ACLU’s brief for a federal court case, White v. Crook, where they successfully challenged an Alabama statute restricting jury service only to white males. Prior to White, all sex-based discrimination challenges arguing a Fourteenth Amendment violation had failed. White wanted to successfully link the civil rights and women’s rights movements by showing the inferior status both groups experienced. This section gives details about the White case — the facts, arguments made, and ultimate victory. Following their work on White, Kenyon and Murray encouraged the creation of the ACLU Women’s Rights Project, which would place Professor Ruth Bader Ginsburg at the helm. In her brief for Reed v. Reed, where the United States Supreme Court unanimously struck down an Idaho law preferring males over females in administrating estate matters, Ginsburg gave credit to both Kenyon and Murray by listing them as co-authors. The Reed decision marks the first time the Supreme Court declared a statute unconstitutional based on sex-based differentials using the Equal Protection Clause of the Fourteenth Amendment. A discussion of the ACLU Women’s Rights Project and subsequent cases drawing on the strategies put forth in White provides evidentiary support of the important work Kenyon and Murray did to effect change. They built, step by step, a foundation on which Ginsburg, on behalf of the Women’s Rights Project, could be successful in arguing sex discrimination cases. Part V concludes with a summary of their friendship, outside of Kenyon and Murray’s activism.

Transcript of Abortion Pill Hearing Released

NPR has posted the full transcript of the Texas hearing Judge Matthew Kacsmaryk held last Wednesday in the Alliance for Hippocratic Medicine v. FDA case challenging the agency's 2000 approval of mifepristone. 

Jessica Valenti, the author of "Abortion Every Day" has an excellent explainer of the lawsuit and its implications (authored by researcher Grace Haley). The explainer outlines the anti-abortion strategy, the bio of Judge Kacsmaryk, the groups behind the litigation, and the possible outcomes of the case.  

Gendered Interruptions at Supreme Court Oral Argument and the Role of the Chief Judge

Tonja Jacobi & Matthew Sag, Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice, 103 Boston U. Law Review (2023)

 Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices has improved in recent years, and whether the structural change in argument has helped. It shows that interruptions went down during the pandemic but have resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for the first time in years it no longer shows any gender disparity. Thus, the structural change to oral argument has had mixed results.

The problem of gendered interruptions at Supreme Court oral argument has led to calls for the Chief Justice to take a more active role at oral argument. This Article also addresses whether and how Chief Justice Roberts has responded to this call. It shows that the Chief has been intervening more, not in response to the increasing number of interruptions, but in response to the gender disparity growing more severe. Further, he has directed his interventions at supporting those most interrupted, disrupting those making the most interruptions, and, significantly, using his interventions to recognize and combat interruptions of the female Justices. When it comes to interruptions at the Court, the Chief Justice is no longer simply the first among equals but has a new role, as a referee, attempting to address a social and institutional problem.

ND Supreme Court Blocks Abortion Ban

N Dakota Supreme Court Blocks Abortion Ban: Says Constitution Protects Procedure 

North Dakota’s Supreme Court upheld a lower court’s decision to block a ban on abortions in the state, and said the state Constitution protects abortion rights in some situations.

The ruling means abortion in the state remains legal until nearly 22 weeks after a women’s last period, while the case proceeds in a lower court.

Though the state Supreme Court’s decision is not the final word on the matter, it is notable for its analysis of the state Constitution. The court went beyond the narrow question it was asked: whether the lower court judge had overstepped his power in blocking the ban.

In a majority opinion, the ruling said that judge was within his rights but added that the state Constitution protects “the right to enjoy and defend life and a right to pursue and obtain safety,” which includes the right of a pregnant woman to “obtain an abortion to preserve her life or her health.” ***

So far, two state Supreme Courts have made final decisions, and they were split: South Carolina ruled abortion was included in its constitutional protections; Idaho ruled its Constitution did not protect the procedure.

Ohio Supreme Court to Review Procedural Issues Related to Abortion Challenge

Ohio Supreme Court to Review Legal Questions on Abortion, Not Whether Constitution Protects It

The Ohio Supreme Court agreed to review a couple of legal questions about whether abortion clinics can challenge the state's ban on most abortions, but not the underlying question of whether the Ohio Constitution creates a right to abortion.

In a 4-3 decision, justices on Tuesday decided to review two legal questions:

• Whether the Ohio attorney general can appeal orders preliminarily blocking state laws.
• Whether abortion clinics can challenge the state’s 2019 ban on most abortions on behalf of clients.

The Ohio Supreme Court will not review whether the Ohio Constitution creates a right to abortion. Three Republican justices, Chief Justice Sharon Kennedy, Justice Pat DeWine and sitting Judge Matthew Byrne, wanted the court to review that issue, too. The three Democratic justices dissented.

New Book Her Honor: Stories of Challenge and Triumph from Women Judges

Lauren Stiller Rikleen ed., Her Honor: Stories of Challenge & Triumph from Women Judges (2023)

At a time when surveys reveal declining trust in our courts, this book offers reasons for hope and even pride. Her Honor features a collection of personal stories by and about some of the country's most respected female judges. Each chapter author openly shares nuanced stories of challenges and successes, including the inequality, bias, and other barriers they faced and overcame in their lives.

The 25 judges featured in Her Honor are from all levels of the state and federal courts, including Chief Judges and two Supreme Court Justices. Their moving stories will be all too recognizable by women who may currently be experiencing similar challenges and biases in their own careers.

Her Honor also demonstrates how the best of our judges share a passion for ensuring an accessible and fair system of justice, without a political agenda. They reveal a deep compassion for humanity along with an abiding respect for the law, respecting precedent but acting with courage if the law offers a way forward.

All the judges in this book have lived lives of deep influence. The stories shared will extend that influence further and inspire future generations to persevere in their careers during even the most difficult time

Virginia Judge Cites 19th Century Slavery Law in Holding Frozen Embryos are Chattel

Judge Richard Gardiner, a Fairfax County Circuit Court Judge, has made national headlines by ruling that frozen embryos are legal chattel. 

The preliminary opinion by a Fairfax county circuit court judge, Richard Gardiner, which he delivered in a long-running dispute between a divorced husband and wife, is being criticized by some for wrongly and unnecessarily delving into a time in Virginia history when it was legal to own human beings.

 

Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African American lawyers, called Gardiner’s ruling troubling.

 

“I would like to think that the bench and the bar would be seeking more modern precedent,” he said.

 

Gardiner did not return a call to his chambers on Wednesday. His decision, issued last month, is not final: he has not yet ruled on other arguments in the case involving Honeyhline and Jason Heidemann, a divorced couple fighting over two frozen embryos that remain in storage.

Here is a link to the full opinion. The ruling file format does not allow for pasting into this blog, however, the reasoning on pages 7-8 is worth a read.