Gender and the Law Prof Blog

A Mourning Mom Identifies Cause of SIDS

Scary Mommy tells a powerful story of how a grieving mother and scientist has identified the cause of Sudden Infant Death Syndrome. The findings were published in the June 2022 publication of The Lancet. The publication provides the following contextual summary of the research: 

Evidence before this study

Despite the effectiveness of public health campaigns in reducing the incidence of Sudden Infant Death Syndrome (SIDS), SIDS remains the major cause of infant death in western countries. The “triple risk model” hypothesises that SIDS deaths result from coincident occurrence of a vulnerable infant, a critical developmental period, and an exogenous stressor. Despite intensive research, identification of any specific vulnerability prior to the sudden death has remained elusive. And, while autonomic dysfunction has long been considered a candidate for this vulnerability, studies have been hampered by reliance on post-mortem samples.

Added value of this study

We found that Butyrylcholinesterase Activity, measured in dried blood spots taken 2-3 days after birth, was significantly lower in babies who subsequently died of SIDS compared to living controls and other Non-SIDS infant deaths. This study identifies a biochemical marker that differentiates SIDS infants from control cases and those dying from other causes, prior to their death. We postulate that this decreased activity of Butyrylcholineserase represents an autonomic cholinergic dysfunction and therefore an inherent vulnerability of the SIDS infants.

Implications of all the available evidence

This finding represents the possibility for the identification of infants at risk for SIDS infants prior to death and opens new avenues for future research into specific
interventions.

These findings have implications for the patchwork of state laws governing SIDS throughout the country. 

 

 

Infant Formula Crisis

The infant formula crisis continues in the United States as covered by Reuters and numerous media outlets. Here's a look at the cities in which supplies are the most depleted from Bloomberg. Consumer safety groups and pediatricians are warning consumers not to try to make products at home. Attention is focused on what the government can do to offer support. Reuters previews: 

The U.S. Food & Drug Administration (FDA) will announce new steps in the coming days regarding importing certain infant formula products from abroad, the White House said, and Biden has asked the Federal Trade Commission (FTC) to probe reports of predatory conduct such as price gouging.

The House will also hold a hearing on the crisis  on May 25.  

The Atlantic Monthly does a deep dive on what is behind the shortage and the role of law and policy. 

FDA regulation of formula is so stringent that most of the stuff that comes out of Europe is illegal to buy here due to technicalities like labeling requirements. Nevertheless, one study found that many European formulas meet the FDA nutritional guidelines—and, in some ways, might even be better than American formula, because the European Union bans certain sugars, such as corn syrup, and requires formulas to have a higher share of lactose. * * * 

U.S. policy also restricts the importation of formula that does meet FDA requirements. At high volumes, the tax on formula imports can exceed 17 percent. And under President Donald Trump, the U.S. entered into a new North American trade agreement that actively discourages formula imports from our largest trading partner, Canada.

America’s formula policy warps the industry in one more way. The Department of Agriculture has a special group called WIC—short for Special Supplemental Nutrition Program for Women, Infants, and Children—that provides a variety of services to pregnant and breastfeeding women and their young children. It is also the largest purchaser of infant formula in the United States, awarding contracts to a small number of approved formula companies.  As a result, the U.S. baby formula industry is minuscule, by design. A 2011 analysis by USDA reported that three companies accounted for practically all U.S. formula sales: Abbott, Mead Johnson, and Gerber.

 

Italy's Highest Court Rules Children to be Given Surnames of Both Mother and Father

NYT, Italy's Highest Court Rules Children to be Given Mother's and Father's Surnames

The ruling overturns decades of patriarchal family legacy, which largely left women out of the decision-making process.

Italy’s top court ruled on Wednesday that children born in the country will be given their mother’s and father’s surnames at birth, declaring the automatic practice of only giving children their father’s surname “constitutionally illegitimate.”

Parents will be able to choose the order of surnames or decide to use only one, a statement on the ruling from Italy’s Constitutional Court read, citing principles of equality and the children’s interest. Except in certain circumstances, Italian families have been unable to give their children their mother’s surname alone.

“Both parents should be able to share the choice of a surname, which is a fundamental element for one’s personal identity,” the court wrote.

Compared with other European countries where both surnames can be used for children, like France, Germany and Spain, Italy has been slow in embracing the recognition of the mother’s family name.

“The Constitutional Court canceled the last patriarchal legacy in family law,” Cecilia D’Elia, a member of Parliament and a leader on women’s issues in the Democratic Party, wrote on Twitter. “The mother’s name will have the same dignity as the father’s, a sign of civilization.”***

In Italy, wives used to take their husbands’ names and be solely responsible for children before the law. Though norms have since changed, the law automatically giving children their father’s surname has stayed, causing the European Court of Human Rights to rebuke Italy for discrimination.

Dara Purvis on "Frozen Embryos, Male Consent, and Masculinities"

Dara E. Purvis has published her article Frozen Embryos, Male Consent, and Masculinities in volume 97 of the Indiana Law Journal. The abstract previews:

Picture two men facing the possibility of unwanted fatherhood. One man agreed to go through in vitro fertilization (IVF) with his partner, but years later has changed his mind. Despite the fact that the embryos created through IVF are his partner’s last chance to be a genetic parent, a court allows him to block her use of the embryos.

 

By contrast, another couple’s sexual relationship broke the law. The woman was a legal adult, and her partner was a child under the age of eighteen. Their encounter was thus statutory rape. Her crime led to pregnancy, and after she gave birth, she sued the teenager for child support. Despite his protest that he did not consent to the sexual activity that led to the child’s birth, the court affirms the child support order.

 

As a practical matter, this inconsistency in treatment of unwanted fatherhood may instinctively make sense, applying two different rules for two very different contexts. A deeper examination of the cases, however, reveals much more going on. This Article uses the frame of masculinities theories to dive further into the inconsistency and uncovers two groundbreaking implications that stretch far beyond the specific circumstances. First, the varying treatment of embryo disposition disputes and the characterization of male victims of statutory rape have one constant: a dismissal and rejection of men’s emotions. Second, exploring the inconsistent treatment of men’s consent to become fathers in sexual reproduction versus stored embryos reveals a clear rejection by courts of the personhood concept that embryos are human life. These revelations inform not only how embryo disposition disputes should be resolved, but also fetal personhood and family law’s treatment of fathers.

The article concludes: 

When frozen embryo disputes are viewed in isolation, they appear to be extremely specialized. Such disagreements only arise in a relatively specialized medical circumstance, and the raw numbers and reported cases are both quite small. It might be hard to imagine, at least on first exposure, that analysis of such litigation would generate conclusions beyond an opinion about how to solve the very particular problem of embryo disposition disputes.

 

Similarly, statutory rape of boys is a minority of statutory rape cases, and such assaults are under-reported and under-prosecuted. Only a fraction of such events will result in a pregnancy that is brought to term, and few challenges to paternity determinations make their way into court.

 

When these two seemingly narrow corners of family law are set against each other, however, the inconsistency in how the law treats consent to become a father is striking. When that inconsistency is viewed through the lens of masculinities theories, the threads of commonality become even easier to identify. From seemingly discordant questions emerge far-reaching implications not only for how embryo disposition disputes should be resolved, but broader issues of reproductive rights, abortion, and the law’s conception of fatherhood.

The Future of Roe and the Gender Pay Gap: An Empirical Assessment

The Future of Roe and the Gender Pay Gap: An Empirical Assessment

By: Itay Ravid and Jonathan Zandberg

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court is currently considering a Mississippi law that prohibits nearly all abortions after the 15th week of pregnancy, in direct contradiction to the holding in Roe v. Wade. Among the many arguments raised in Dobbs in an attempt to overturn Roe, the State of Mississippi argues that due to “the march of progress” in women’s role in society, abortion rights are no longer necessary for women to participate equally in economic life. It has also been argued that there is no empirical support to the causal relationship between abortion rights and women’s economic success in society.

This Article is the first to empirically examine both these arguments, and it provides compelling evidence to reject each of them. To do so, we adopt a novel methodology that utilizes the enforcement of Targeted Regulation of Abortion Providers (TRAP Laws) as proxies for abortion restrictions. We study the effects of over forty years of legislation on the participation of American women in the labor market.

The results are striking. Our findings strongly and consistently show that the introduction of TRAP laws has widened the gender pay gap between women at childbearing age and the rest of the population. We also reveal the role of TRAP laws in pushing these women out of the labor force – or at least into choosing lower-paying jobs – as possible explanations for this gap. Ultimately, these findings foreshadow the future landscape of gender inequality in the United States if Roe is overturned.

Ayesha Rasheed on "Confronting Problematic Legal Fictions in Gestational Surrogacy"

Ayesha Rasheed has published Confronting Problematic Legal Fictions in Gestational Surrogacy, 24 J. Health Care L. & Pol'y 179 (2022). The abstract previews: 

Infertility is a hot topic for investors and entrepreneurs in the United States, and recent years have seen a sharp rise of interest in various assisted reproductive technologies. Gestational surrogacy, a form of assisted reproduction where the surrogate mother is not (as) genetically related to the child she is carrying, is now the most popular form of surrogacy in the United States. It costs between $75,000-150,000 per attempt, and results in the live births of hundreds of babies each year.

 

Alone amongst developed nations, the United States has left this vast industry largely unregulated. No federal laws address the practice or regulate the companies that facilitate it, while a patchwork of extant state laws run the gamut from criminalization and bans of commercial surrogacy to wholesale authorization of it. In the rare instances where courts have been asked to decide issues related to the same, they have been likewise brief and varied in their approaches.

Overall, when courts and lawmakers have addressed gestational surrogacy, they often oversimplify a complex biological phenomenon and cultural experience in favor of idealized fictions about reproductive biology and family life. As a result, policies surrounding gestational surrogacy do not align well with what actually happens to the mind and body during pregnancy, or how the surrogacy industry currently operates. A better understanding of the science of gestational pregnancy has the potential to animate legal policy that allocates rights amongst the parties involved more equitably, and in a way that reflects the reality of the physiological and psychological risks borne during the surrogacy process.

Cash Aid to Poor Mothers Increases Brain Activity in Babies, Study Finds, Possible Policy Implications

Cash Aid to Poor Mothers Increases Brain Activity in Babies, Study Finds

A study that provided poor mothers with cash stipends for the first year of their children’s lives appears to have changed the babies’ brain activity in ways associated with stronger cognitive development, a finding with potential implications for safety net policy.

The differences were modest — researchers likened them in statistical magnitude to moving to the 75th position in a line of 100 from the 81st — and it remains to be seen if changes in brain patterns will translate to higher skills, as other research offers reason to expect.

Still, evidence that a single year of subsidies could alter something as profound as brain functioning highlights the role that money may play in child development and comes as President Biden is pushing for a much larger program of subsidies for families with children.

“This is a big scientific finding,” said Martha J. Farah, a neuroscientist at the University of Pennsylvania, who conducted a review of the study for the Proceedings of the National Academies of Sciences, where it was published on Monday. “It’s proof that just giving the families more money, even a modest amount of more money, leads to better brain development.”

Another researcher, Charles A. Nelson III of Harvard, reacted more cautiously, noting the full effect of the payments — $333 a month — would not be clear until the children took cognitive tests. While the brain patterns documented in the study are often associated with higher cognitive skills, he said, that is not always the case.

“It’s potentially a groundbreaking study,” said Dr. Nelson, who served as a consultant to the study. “If I was a policymaker, I’d pay attention to this, but it would be premature of me to pass a bill that gives every family $300 a month.”

A temporary federal program of near-universal children’s subsidies — up to $300 a month per child through an expanded child tax credit — expired this month after Mr. Biden failed to unite Democrats behind a large social policy bill that would have extended it. Most Republicans oppose the monthly grants, citing the cost and warning that unconditional aid, which they describe as welfare, discourages parents from working.

Senators are pushing to reauthorize the Violence Against Women Act. Will it help Indigenous communities?

Senators are pushing to reauthorize the Violence Against Women Act. Will it help Indigenous communities?

On any given day, Annita Lucchesi might be ordering casket sprays, prepping food for a wake, buying school supplies for a child with a missing parent or booking a motel for a woman escaping domestic violence.

Some days, she said, she will drive up to 300 miles through southeastern Montana and the surrounding areas in her work as the executive director of Sovereign Bodies Institute, a grass-roots organization that does community-based research on gender and sexual violence against Indigenous people as well as provides services to those affected.

Her grim professional docket is a reflection of the scale of the crisis of violence facing Indigenous people, as well as long-standing negligence by the federal government and law enforcement when it comes to Indigenous people’s safety, she said.

“The reality is that the only people doing any of this work are grass-roots folks,” Lucchesi said. “If we as community members didn’t step up to do it, it literally wouldn’t get done.”

Lucchesi, who is of Cheyenne descent, said that as a survivor of domestic violence, sexual assault and trafficking who has loved ones who are missing or murdered, this work has never felt like a choice. She said that just in her small community of about 3,000 people, she has tracked more than 100 unsolved cases of missing and murdered people in the last couple of decades by following news reports and talking to community members. This winter alone, she said, there have been three murders she has tracked using these methods.

“It’s personal to me,” said. “At what point does our local cemetery become a mass grave?”

. . .

Lucchesi’s experiences with violence are not uncommon. More than 84 percent of Indigenous women have experienced violence in their lifetime, according to a 2016 National Institute of Justice report. In some counties, the U.S. Department of Justice found, Indigenous women are murdered at a rate 10 times higher than the national average. Indigenous men face disproportionately high rates of violence, and while data collection on transgender and two-spirit Indigenous people is often lacking, Lucchesi said they too face overwhelmingly high rates of violence.

Lucchesi added that these shocking numbers, however, are probably undercounts — of the oft-cited statistic that one in three Indigenous women have been raped, she said she has an aunt who says skeptically: “Show me the other two.”

The majority of sexual assault cases in the United States go unreported, according to an analysis by the Justice Department. Poor data collection on gender-based violence among Indigenous people, including misclassifications of homicides as suicides or accidents, paired with a difficult-to-access legal system probably make this worse for Indigenous people, women’s rights experts say. Last year, Deb Haaland, the first Native American sworn in as U.S. interior secretary, announced a new Missing & Murdered Unit (MMU) within the Bureau of Indian Affairs to try to tackle some of these issues.

It is a problem that a bipartisan group of lawmakers says they’re also hoping to address this month by pushing to reauthorize the 1994 Violence Against Women Act for the first time in almost a decade. The updated version of the bill, led by Sens. Lisa Murkowski (R-Ala.), Dianne Feinstein (D-Calif.), Joni Ernst (R-Iowa) and Richard J. Durbin (D-Ill.), would include provisions expanding tribal jurisdiction over gendered violence.

How Judges Should Apply the Exceptions to the Hague Abduction Convention to Protect Victims of Domestic Violence

Merle Hope Weiner, You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence, 28 UCLA Women's L. J. 223 (forthcoming)

This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return. The trial judge decides whether a child is returned to the place from which the domestic violence victim fled or whether a child is allowed to remain in the United States pursuant to an exception to the Hague Convention’s remedy of return. This Article canvases the arguments that attorneys make to defeat the application of article 13(b), and refutes them by drawing upon social science, the Guide to Good Practice, its sanctioned Australian Bench Book, case law, and common sense. The Article also argues that if a trial judge cannot grant the article 13(b) exception solely because of unwarranted legal obstacles, the judge should disregard the law. This part of the Article builds upon Jeffrey Brand-Ballard’s book, Limits of Legality: The Ethics of Lawless Judging

Stereotypes, Sexism, and Superhuman Faculty

 Teneille R. Brown has posted Stereotypes, Sexism, and Superhuman Faculty on SSRN. This article is a preprint of a work forthcoming in volume 16 of the Florida International Law Review.  This is a powerful and personal read capturing many important takeaways of pandemic teaching as its hardships have mapped on to gender, race, and parental status. 

Despite our relative privilege, lawyers are not immune to the pandemic’s breathtaking ability to expose gender inequality. While working moms in other industries are afforded far fewer supports, and often cannot work from home, the lack of support offered by law schools and law firms has still been appalling. We risk losing much of the fragile equality we have won, as women scale back their pursuit of leadership positions, and have less focused time to spend researching cases, preparing for class, giving talks, or writing. The data are in: women lawyers’ productivity plummeted during the pandemic. This carried over to academic writing generally, where women’s submissions nosedived in the spring and summer. Women with children have lost 500 hours of research time, which makes them “disproportionately less likely to be promoted in rank and perhaps even more likely to drop out of academia altogether.” 

* * * 

As it might be clear by now, treating people as superhuman is an insidious and hollow form of adulation. Even though it seems positively valenced, it nonetheless reflects a form of dehumanization.  

 * * *  

Law faculty are not superhumans, and there is no virtue in regarding ourselves as such. We are individuals—empowered with the full range of complex thoughts and emotional vulnerabilities. This is not to say that all humans experience emotions to the same degree, or that we all draw from the same emotional depth or complexity. But for some, denying our emotional experience is a rejection of the self. Further, treating faculty as superhumans leads to workplace environments that are cold, uncaring, and discriminatory.

 

Unfortunately, the depth and complexity of the problem is disheartening, and there are no easy solutions. It is not enough to have women in leadership roles if those women espouse ambivalent sexism in their speech or policies. And it is not enough to respond to requests by working moms for accommodations, as those requests will often render those asking for them less competent. Research does suggest that women take less of a hit to their competence if they frame requests as advocating for others, and when they explicitly draw attention to sexist stereotypes. Thus, by making colleagues and administrators aware of the [Stereotype Content Model] and the deep social psychological roots of ambivalent sexism, we can begin to open their eyes. But because of the blow we take to competence when we mention our caregiving roles, professional women cannot make systemic change alone.

Examining Intersections of Menopause and the Law of Anti-Discrimination

Bridget Crawford, Emily Gold Waldman, Naomi Cahn, Working Through Menopause, Washington U. L. Rev. (forthcoming)

There are over thirty million people ages 44 to 55 in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers inevitably will experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic, because of cultural stigmas and attitudes about aging and gender. Yet menopause raises critical issues at the intersections of gender equity, disability, aging, transgender rights, and reproductive justice. This Article imagines how the law would change if it accounted for menopause and the associated unequal burdens imposed.

This Article makes four contributions to legal scholarship. First, it identifies the intersections of menopause and the law in a way that counters the larger culture of silence, stigma, and shame. Second, it analyzes the uneasy fit between menopause and existing U.S. anti-discrimination doctrines. Third, the Article uses a comparative lens to explore how and why menopause is becoming a priority issue for the government, private employers, and workers in the United Kingdom. Finally, the Article situates menopause in U.S. equality jurisprudence broadly and suggests a place for menopause in employment law in particular. It sets out a normative vision for menopause equity in the workplace and suggests possible pathways for achieving it.

Do Reason-Based Abortion Bans Prevent Eugenics?

Do Reason-Based Abortion Bans Prevent Eugenics?

By: Sital Kalantry

Published in: Cornell Law Review, Vol. 107, No. 1, 2021

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.

Vulnerable Bodies and Invisible Work

Ellen Gordon-Bouvier has published an article titled Vulnerable bodies and invisible work: The Covid-19 pandemic and social reproduction in volume 21 of the International Journal of Discrimination and the Law. The introduction situates the project within Martha Fineman's influential Vulnerability Theory and reveals the urgency of new approaches involving the Responsive State (internal citations omitted): 

Seldom has an event so clearly illustrated the core tenets of Martha Fineman’s vulnerability theory as the global Covid-19 pandemic has – that, as embodied beings, we share a constant and inescapable vulnerability, our fragile bodies living with ‘the ever-present possibility of harm and injury’ . * * *  

In this paper, I critically analyse the UK’s response to the pandemic through a vulnerability lens. In particular, I examine how the pandemic has affected the visibility and status of socially reproductive work, as well as the impact on those who perform it. Social reproduction, defined as ‘the maintenance of life on a daily basis and intergenerationally’ , includes a wide range of labour, including supporting and nurturing those who undertake paid work, caring for infant, elderly, sick, and disabled populations (either paid or unpaid), food preparation, and domestic work in the home. * * * Yet, the state consistently devalues social reproduction, denying its essential nature and society’s reliance upon it. * * * Instead, the state organises its institutions, including law, around an artificial image of autonomous liberal personhood, whereby the individual is imagined as rational, self-interested, and economically self-sufficient.

 

I argue in this paper that the pandemic has shattered the illusion of autonomous individualism that underlies the liberal state’s actions. Socially reproductive labour and society’s undeniable reliance on it have come into public view after being concealed for so long. In this sense, an image of an embodied ‘vulnerable subject’  has been forced to the forefront of the public imagination, also revealing the state’s ultimate control (and the individual’s corresponding lack of control) over the production of resilience against vulnerability. * * *

 

* * *  Unfortunately, as I argue, the UK’s response has retained a commitment to the autonomous liberal ideal and has been inadequate and ineffective as a consequence. Despite this, I suggest that the atmosphere of exceptionality and crisis generated by the pandemic has provided a glimmer of hope that a different way forward is possible. In particular, the state’s new willingness to consider non-means tested basic income schemes could be used to improve the conditions of those who perform socially reproductive labour. However, such measures must take care to avoid further perpetuating gender inequalities.

Pennsylvania's Abortion Case

Greer Donley wrote an Op. Ed on December 9 for the Pittsburgh Post Gazette stressing the importance of a pending Pennsylvania abortion case, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services. This case considers, among other issues, whether "the Pennsylvania Medicaid abortion coverage ban violate[s] the Pennsylvania Constitution’s explicit guarantee of equality on the basis of sex contained in Pa. Const. art. I, § 28 and its separate equal protection guarantee contained in Pa. Const. art. I, §§ 1, 26 & art. III, § 32?" Greer summarizes: 

The case challenges a Pennsylvania law that bans Medicaid funds from being used to cover abortion except in the case of rape, incest or to save the pregnant person’s life.

Importantly, the litigants are asking the court to recognize the right to abortion under the Pennsylvania Constitution. If the court recognizes this right — which it has not previously recognized — then even if Roe is overturned, the Pennsylvania Constitution will step up to protect the right to abortion in our state.

Moreover, this protection will survive even if voters elect a Republican governor who is willing to sign a strict abortion ban into law. Why? Because that theoretical ban would be unconstitutional under our Constitution even if it is no longer unconstitutional under the federal Constitution.* * *

[P]regnant people need more than the right to abortion; they need the ability to access it. If the Pennsylvania Supreme Court also invalidates the state law banning Medicaid funds from being used for abortion, it would help poor women access the abortion care they need.

The full Women's Law Project Brief is available here. This case is a powerful example of professors on the ground in Pennsylvania working actively with non-profits to seek law reform. 

First Law of "Momnibus" Mothers' Legislation Passed by Congress, The Protecting Moms Who Served Act

First "Momnibus" Bill Signed Into Law, and Others Could Follow

The day she introduced the “Momnibus” in March 2020, Rep. Lauren Underwood (D-Ill.) warned of a public health crisis that would not abate unless lawmakers took action: Black birthing parents were dying at unacceptable rates, she said.

 

“While maternal mortality rates continue to drop around the world, they are rising in the U.S., leaving behind devastated families and children who will never grow up knowing their moms,” Underwood said in a statement introducing the Black Maternal Health Momnibus, a legislative package with an unprecedented focus on Black moms.

 

“This crisis demands urgent attention and serious action to save the lives of Black mothers and all women across the country,” Underwood added.

 

When Underwood made those remarks on Monday, March 9, 2020, she was unaware that in two days, the entire landscape of public health in America would change. By Wednesday night, the World Health Organization had declared covid-19 a pandemic, prompting cities to ban large gatherings, close schools and send many office workers home.

 

Still, Underwood and other members of the Black Maternal Health Caucus, which was established in 2019 and assembled the wide-ranging Momnibus, kept their eye on maternal care. They continued trying to lobby the 12 bills and weave in maternal health resources within other covid relief packages, Underwood said.

 

Now, they’re celebrating a big first step.

 

Last Tuesday, nearly 17 months after the Momnibus was unveiled, the first bill from the package was signed into law by President Biden: the Protecting Moms Who Served Act, which puts $15 million into boosting maternity care for military veterans. The bill’s co-sponsors included 41 Democrats and two Republicans. (Biden signed three other bills supporting the country’s veterans that day.)

 

Even bigger strides could be on the horizon. The Build Back Better Act, the president’s social spending and climate bill, includes many provisions from the Momnibus, including setting up grant programs, establishing research and training programs, as well as expanding and diversifying the perinatal health workforce.

Dobbs v. Jackson Women’s Health Organization, regarding Mississippi abortion law, to be heard by SCOTUS on December 1

Explainer: Abortion At the Supreme Court

On Wednesday, the U.S. Supreme Court will hear a case out of Mississippi that could eliminate a pregnant person’s constitutional right to an abortion. The law in question bans abortion at 15 weeks gestation, significantly before viability. With this case as a vehicle, the Mississippi attorney general has explicitly called on the high court to strike down Roe v. Wade. 

The case, Dobbs v. Jackson Women’s Health Organization, turns on the issue of viability. Supreme Court precedent protects the right to abortion before a fetus can survive outside of the womb, usually around 24 weeks; states can’t pass laws that present an “undue burden” for someone seeking an abortion before that point. While a total ban before viability would undermine Roe, many experts think the Supreme Court might allow it anyway. Because the one clinic in Mississippi only performs abortions up to 16 weeks, lawyers may argue, a 15-week ban does not constitute an undue burden.

. . .

Between the Texas and Mississippi cases, this is an unprecedented term for abortion on the Supreme Court.

Kellogg's (UK) to Give Staff Menopause, Fertility, and Miscarriage Leave

BBC, Kellogg's (UK) To Give Staff Fertility, Menopause and Miscarriage Leave

Cereals manufacturer Kellogg's has announced it will provide more support to staff experiencing the menopause, pregnancy loss or fertility treatment.

 

The firm said about 1,500 workers at its factories in Trafford and Wrexham and its Salford headquarters would benefit from a number of new measures.

 

They include extra paid leave for those undergoing fertility treatment or staff who suffer the loss of a pregnancy.

 

It said it was aiming to help staff feel "psychologically safe" at work.

 

The announcement was made as MPs are due to vote on a private members' bill later that, if passed, would make hormone replacement therapy free for those going through the menopause in England.***

 

Under the plans, managers will be trained on how to talk about the menopause and pregnancy loss and paid leave for pregnancy loss will be given without the need for a doctor's note.

 

It also intends to give staff going through fertility treatment three blocks of leave each year as well as access to a private space to administer treatment if necessary.

 

The firm's Europe vice-president in human resources Sam Thomas-Berry said it was "launching several new workplace policies for even better equity and inclusion".

Veterans Day from a Gender & Law Perspective: Equality, Discrimination, Preferences, Family, Health, Assault, and the Draft

Here is an overview of some of the scholarship and current legal movements regarding gender, veterans, and the miltiary:

The Supreme Court's classic case upholding veterans' preferences despite their disparate impact against women. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).

United States v. Virginia (VMI), 518 U.S. 515 (1996) (Ginsburg, J.) (requiring state male-only military college to admit women equally to VMI)

US v. Briggs,  592 U.S. ___ (Dec. 10, 2020) (holding that military rape cases have no statute of limitations)

Gender & the Law Prof Blog, SCOTUS Refuses to Hear Challenge to Male-Only Draft but 3 Justices Dissent (June 15, 2021)

Gender & the Law Prof Blog, Federal Judge Holds Male-Only Military Draft Violates Equal Protection (Feb. 26, 2019)

Gender & the Law Prof Blog, 9th Circuit Hears Challenge to Men Only Draft

Gender & the Law Prof Blog, Senate Overwhelming Votes to Require Women to Register for Draft (2016)

Gender & the Law Prof Blog, Justice Ginsburg's Legacy and the Draft Case

EEOC, Policy Guidance on Veterans' Preferences Under Title VII

Jamie Abrams, editor at the Gender & Law Prof blog, Examining Entrenched Masculinities Within the Republican Government Tradition,  114 West Va. L. Rev. (2011). 

Jamie Abrams & Nickole Durbin, Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLawNOW 93 (2021). 

Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).

Melissa Murray, Made With Men in Mind: The GI Bill and the Reinforcement of Gendered Work After World War II, in Feminist Legal History (Tracy Thomas & Tracey Jean Boisseau eds. 2012).

Congress' Deborah Sampson Act Signed Into Law (2021):  to improve the benefits and services provided by the Department of Veterans Affairs to women veterans, and for other purposes.

H.R. 2982, Women Veterans Health Care Accountability Act: To direct the Secretary of Veterans Affairs to conduct a study of the barriers for women veterans to health care from the Department of Veterans Affairs.

Gender & the Law Prof Blog, How to Reduce Discrimination in Veterans' Preferences Laws, featuring Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)

Gender & the Law Prof Blog, Bills Introduced in Congress to Allow Professional Licenses of One State to be Valid in State to Which Military Spouse is Relocated  

Gender & the Law Prof Blog, Parental Right Issues in Military Academies Disproportionately Harms Women 

Gender & the Law Prof Blog, Study on Military Sexual Assaults Concludes that Rate of Assaults is Lower, Rate of Prosecution Higher, and Victims Report More Often than in Civilian Society (May 2021)

Proposed Reconciliation Plan and Paid Leave

Progressives push back on decision to shrink Biden's paid family leave program

Progressive Democrats in the Senate and House are pushing back against a preliminary decision by President Biden and Democratic leaders to significantly cut funding for a national family paid leave program from the budget reconciliation bill.

 

A group of 15 Senate Democrats led by Sen. Kirsten Gillibrand (D-N.Y.) on Wednesday sent a letter to Biden, Senate Majority Leader Charles Schumer (D-N.Y.) and Speaker Nancy Pelosi (D-Calif.) urging them to include a more robust family and medical paid leave program in the legislation.

 

“We urge you to include a national paid leave program that is meaningful, comprehensive and permanent in the Build Back Better Act. It must be universal to cover all workers, provide progressive wage replacement to help the lowest wage earners, and cover all existing types of leave with parity,” the senators wrote.

 

The letter was also signed by Sens. Richard Blumenthal (D-Conn.), Jeanne Shaheen (D-N.H.), Mazie Hirono (D-Hawaii), Tammy Duckworth (D-Ill.), Tammy Baldwin (D-Wis.), Elizabeth Warren (D-Mass.), Tina Smith (D-Minn.), Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Maggie Hassan (D-N.H.), Alex Padilla (D-Calif.), Amy Klobuchar (D-Minn.), Jacky Rosen (D-Nev.) and Ben Cardin (D-Md.).

 

It comes a day after Biden informed liberal Democrats at a White House meeting Wednesday that the emerging legislation will only provide four weeks of paid leave benefits instead of the 12 weeks initially discussed by lawmakers.

 

The program is also expected to be means tested to be limited to lower-income families. 

 

This proposed cut isn’t sitting well with Democratic senators who argue that funding a generous national paid leave program will boost the economy and address what they say is a child care crisis.

 

“Paid leave is a critical policy to improve the economic security of families, support businesses, and increase economic growth,” they wrote.

 

“The pandemic has exposed an acute emergency on top of an ongoing, chronic caregiving crisis for working people and employers alike. We cannot emerge from this crisis and remain one of the only countries in the world with no form of national paid leave. Now is the time to make a bold and robust investment in our nation’s working families,” they argued.  

Forced Marriage: Law and Practice in Pakistan

Forced Marriage: Law and Practice in Pakistan

By: Sania Islam

This research examines the reasons why and the circumstances in which Pakistani women began a common-law relationship against their will, and the role played by their families. A recent national survey shows that 4.1 percent of indigenous women were obliged to marry and 4.8 percent were sold. This practice is conceptualized as an expression of both family and partner violence against women, but it is not often labelled and recognized as such. Forced marriage is associated with women’s transgression of traditional gender roles and rape, as well as traditions and practices that consider women’s opinions and consent as unnecessary. Forced marriages are less common now than they were in the past because of the greater awareness of women’s rights. But the practice persists. The link between non-consensual marriages and intimate partner violence is discussed, and public policy implications are presented. Forced marriage is frequently portrayed as an issue which only affects South Asian women and girls, however, this is not correct. Forced marriage affects a wide range of communities, including Irish Traveller, Turkish, Roma, Afghan, South Asian, Kurdish, Iranian, Arab and African communities. There are no religions which support or advocate the practice of forced marriage. Forced marriage can happen to anyone from any background, regardless of social class, financial status and sexuality, which include people who identify as lesbian, bi-sexual, gay and transgender, or are perceived as such. In a UK context, the needs and experiences of some affected groups are often less visible, and only specific groups are highlighted. It is important to be aware that forced marriage disproportionately impacts women and girls and is therefore recognized as a form of violence against women and girls. When a forced marriage occurs, several human rights are breached. Women’s experience of abuse often does not end with the pressure to marry. Many women are also subjected to different forms of abuse within the context of their marriage. This can range from emotional, psychological and financial abuse to sexual and physical violence.