Gender and the Law Blog

Care Post-Roe Study Findings

Advancing New Standards in Reproductive Health has published an updated report in September 2024 on Care Post-Roe: Documenting Cases of Poor-Quality Care Since the Dobbs Decision.  The Executive Summary is excerpted here: 

 

This report presents the findings of the Care PostRoe Study to date. Between September 2022 and August 2024, we received 86 submissions from health care providers describing detailed cases of care that deviated from the usual standard due to new laws restricting abortion. The patients described in the narrative submissions lived in one of 19 states that banned abortion following Dobbs. Patients described in the narratives submitted by health care providers represent a range of different ages, income levels, and racial and ethnic backgrounds, with a notable proportion involving patients reported to be Black or Latinx, populations that often face more barriers to care.

 

Cases in the narratives fell into several categories: 1. Obstetric complications in the second trimester prior to fetal viability, including preterm prelabor rupture of membranes, hemorrhage, cervical dilation, and hypertension; 2. Ectopic pregnancy, including cesarean scar ectopic; 3. Underlying medical conditions that made continuing a pregnancy dangerous; 4. Severe fetal anomalies or other fetal compromise; 5. Miscarriage; 6. Extreme delays in obtaining abortion care; 7. Intersection with the carceral system; 8. Difficulty obtaining post-abortion care; and 9. Delays obtaining medical care unrelated to abortion.

 

The post-Dobbs laws and their interpretations altered the standard of care across these scenarios in ways that contributed to delays, worsened health outcomes, and increased the cost and logistic complexity of care. In several cases, patients experienced preventable complications, such as severe infection or having the placenta grow deep into the uterine wall and surrounding structures, because clinicians reported their “hands were tied,” making it impossible for them to provide treatment sooner. One physician described a case of a patient who had ruptured membranes at 16-18 weeks’ gestation but was denied an abortion because of a new state law. She was sent home and developed a severe infection requiring management in the intensive care unit. The patient subsequently delivered her fetus but required a procedure to remove her placenta. The physician wrote, “The anesthesiologist cries on the phone when discussing the case with me—if the patient needs to be intubated, no one thinks she will make it out of the OR.” Health care providers described feeling moral distress when they were unable to provide evidencebased care, and some reported considering moving their practices to a state where abortion remains legal. 

Gender, Family and Domestic Innovation in Postwar America

Jorge L. Contreras, Mrs. Aronson’s Patent: Gender, Family and Domestic Innovation in Postwar America" 
62 Houston Law Review (2024, Forthcoming)

This article unearths the curious and hitherto unexplored history of Aronson v. Quick Point Pencil Co. (U.S. 1979). Though the case occupies an important niche in the jurisprudence of patent misuse and preemption, its history illuminates broader issues surrounding innovation policy and gender that are increasingly relevant today. First, Aronson tells a story of domestic innovation-common sense ingenuity that emerges far from university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better: the legal system is there, in the form of patents, to help them transact on an equal footing with corporate entities. But Aronson also highlights the very real gender disparities that continue to burden the innovation economy. This account thus joins other recent expositions of the prejudices and hurdles faced by mid-twentieth century American women in the sciences and engineering. Like these accounts, Aronson shows that women inventors were at a serious disadvantage compared to their male counterparts-not only when dealing with governmental agencies, but also within the social structures imposed by their familial relationships. Relying on personal interviews and extensive archival research, this article explores both the history and implications of Aronson. It is hoped that its historical insights will support efforts aimed at addressing these persistent issues today.

Gender, Family and Domestic Innovation in Postwar America

Jorge L. Contreras, Mrs. Aronson’s Patent: Gender, Family and Domestic Innovation in Postwar America" 
62 Houston Law Review (2024, Forthcoming)

This article unearths the curious and hitherto unexplored history of Aronson v. Quick Point Pencil Co. (U.S. 1979). Though the case occupies an important niche in the jurisprudence of patent misuse and preemption, its history illuminates broader issues surrounding innovation policy and gender that are increasingly relevant today. First, Aronson tells a story of domestic innovation-common sense ingenuity that emerges far from university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better: the legal system is there, in the form of patents, to help them transact on an equal footing with corporate entities. But Aronson also highlights the very real gender disparities that continue to burden the innovation economy. This account thus joins other recent expositions of the prejudices and hurdles faced by mid-twentieth century American women in the sciences and engineering. Like these accounts, Aronson shows that women inventors were at a serious disadvantage compared to their male counterparts-not only when dealing with governmental agencies, but also within the social structures imposed by their familial relationships. Relying on personal interviews and extensive archival research, this article explores both the history and implications of Aronson. It is hoped that its historical insights will support efforts aimed at addressing these persistent issues today.

New Book, The Sentimental State: How Women-Led Reform Built the American Welfare State

Interview with Elizabeth Garner Masarik on her Book, The Sentimental State: How Women-Led Reform Built the American Welfare State (Univ. Georgia Press 2024)

I got the chance to speak with historian Elizabeth Garner Masarik about her new book The Sentimental State: How Women-Led Reform Built the American Welfare State. An assistant professor of history at SUNY Brockport, Elizabeth is a scholar of American women’s history, the Gilded Age and Progressive Era, and the administrative state. Her new project is on American spiritualism, and she was also eager to discuss her findings on women and the history of welfare networks, charity, and maternalist sentiment. Dr. Masarik defines “sentimentalism,” or feelings surrounding motherhood and child-rearing, as one of the chief drivers behind the push for women-led public health and social initiatives in the nineteenth century.

Your new book is a fascinating examination of the intersection of women’s state-building and the politics of domesticity. Can you talk a little bit about the origins of the book? Was it part of your dissertation? What new directions did you go in as you wrote?

Yes, this book came out of my dissertation. I took a women’s history course with sexuality, gender and sports scholar Susan Cahn during the first semester of my MA program and was hooked. I really latched on to the U.S. maternalist movement of the late 19^th and early 20^th centuries and dove headfirst into learning about the early formation of the U.S. welfare state. Additionally, the primary sources I found where women were speaking about, and grieving over, the death of their infants and young children just hit me; after becoming a mother myself, I couldn’t fathom being able to go on with life if one of my children died. And so, in a way, examining child and infant mortality became a kind of masochistic way for me to study history while also feeling this immense empathy for my subjects. I didn’t set out to focus on infant and child death at the beginning, but the connections between emotions and state-building became so glaringly obvious that I couldn’t look away. It was a subject that spoke to me as a mother and as a recipient of welfare. It felt very personal. When I revised the dissertation into book form I focused more heavily on sentimentalism as a cultural phenomenon of the nineteenth century and how I found that bleeding into the twentieth century.

Legislating Flexibility in the Post-Pandemic Workplace

Madeleine Gyory, "Legislating Flexibility in the Post-pandemic Workplace, Villanova L. Rev. (forthcoming)  

Working parents and caregivers in the United States struggle to balance the dual demands of work and care. Many working caregivers need flexible work arrangements (“FWAs”)—changes to their hours, schedule, or location—to allow them to balance work and care. But access to flexibility remains out of reach for many workers and is least accessible to the most marginalized. The COVID-19 pandemic underscored this problem, as huge numbers of women dropped out of the workforce to care for family. While no federal or state law requires employers to grant FWAs to caregivers, several states and localities have passed “right to request” laws, which establish steps employers must follow when workers ask for flexibility. Several cities go further to provide caregivers with limited rights to FWAs. One city, San Francisco, responded to the pandemic by granting caregivers robust legal rights to flexible work arrangements.

This Article offers the first analysis of FWA laws since the start of the pandemic and since passage of the nation’s strongest FWA law in San Francisco. The Article uses three case studies to interrogate how FWA statutes across the country protect or fail working caregivers and exposes gaps in protection. Using San Francisco’s law as a model, the Article argues that other states and cities should respond to the crisis of care exposed by the pandemic by passing comprehensive flexible workplace laws. The Article offers a roadmap for legislative action, recommending that future FWA laws should go beyond the right to request and grant broad substantive protections that cover a diverse array of workers. Building on prior scholarship advocating for accommodation of caregivers in the workplace, the Article argues that legislative intervention is needed to ensure access to flexibility irrespective of income, education, race, or gender.

Re-envisioning Family Law in Light of the Change in the Public/Private Home

"The Public/Private Home" 
110 Cornell Law Review (2025), Forthcoming
U of Alabama Legal Studies Research Paper No. 4920594

CLARE RYAN, University of Alabama School of Law
Email: [email protected]

Families today are more private and more public than traditional family law doctrine ever envisioned. This Article reveals how many elements of family life, which the law often assumes will occur in public—work, school, social life—have moved into the private sphere of the home. While at the same time, private family life has become increasingly visible and public through social media and continuous data collection within the home.

The balance of public and private life has shifted with profound implications for the field of family law, especially as it governs the parent-child relationship. Transformations in home life have the potential to ameliorate deep inequities inherent in modern family privacy law. But these transformations also risk exacerbating issues of family violence, oppressive state intervention, and inequality. Deploying vital critiques of family privacy arising from feminist theory, queer theory, and other critical traditions, this Article unpacks three foundational assumptions about the home: 1) What happens within the home is protected from outside view; 2) The home is separate from the market; and 3) Provision of public goods happens outside of the home. I argue that these assumptions present a doctrinal vision of family life that is starkly at odds with lived experience.

This Article proposes that parental rights should be untethered from the private home. Instead, law governing parent’s decisions about their children should be grounded in a core element of the parent-child relationship: parents’ duty to protect their children’s wellbeing.

Updated #WeCount Data Released

The Society of Family Planning released its next installment of #WeCount data. #WeCount measures "monthly abortion utilization, nationally and by state."  Its findings are excerpted below. The full report is available here. 

• Abortion volume was higher in 2024 than it was in 2023 or 2022, as captured by #WeCount. Abortion volume continues to vary modestly month-to-month, consistent with prior #WeCount findings (Table 1-2022, 1-2023, and 1-2024).
• For the first time since #WeCount began, the national monthly total number of abortions has exceeded 100,000. In the three most recent months of data collection, January 2024 to March 2024, we observed between 94,670 and 102,350 abortions per month, with a monthly average of 98,990 (Figure 1).
• Analysis of monthly abortion volume in the US from April 2022 through March 2024 (Figure 2) illustrates both the seasonality of abortion provision and increases throughout 2023 and 2024. Part of the increase, starting in July 2023, is due to the provision of abortions under shield laws. These abortions may have previously occurred outside the formal healthcare system prior to the use of shield laws.
• Even excluding abortions provided under shield laws, we still observe more abortions per month in January-March 2024 (monthly average of 89,770 abortions) as compared to the same period January-March 2023 (monthly average of 86,967 abortions), a 3% increase.
• This increase in the national totals appears to be driven by the increase in telehealth abortions. Excluding abortions provided under shield laws and by brick-and-mortar Page 3 of 34 clinics (as collection of these data by #WeCount began in July of 2023), the national monthly number of telehealth abortions in January-March 2024 is 28% higher than the national monthly number of telehealth abortions in January-March 2023. The national monthly number of in-person abortions in January-March 2024 is about the same (1% lower) than the national monthly number of in-person abortions in January-March 2023.

 

 

Intent as the Basis for Parenthood and Fetal Rights

Laura D. Hermer, Intentional Parenthood, Contingent Fetal Personhood, and the Right to Reproductive Self-Determination, 57.2 University of Michigan J. Law Reform (2024)

This Article argues that intent should govern legal parenthood, regardless of the method of conception, the person’s biological or genetic relationship to the resulting embryo/fetus, or the person’s gender. While that proposition is not new, this Article adds to scholarly discourse by extending the concept: Intent should not just determine parenthood, but also fetal rights. When a pregnant person establishes their procreational intent (or lack thereof) prior to birth, then both the existence (or lack thereof) of legal protections for the embryo/fetus and the gestator’s rights and duties (or lack thereof) should flow from this intent. Non gestating gamete contributors would do the same, to different legal effect.

Establishing intent-based parenthood would end automatic legal parenthood. It would also clearly condition most legal rights that a fetus might enjoy on its gestator’s intent, and support other rights on the intent of other gamete-contributors. The article proposes a normative framework for the conceptions of legal parenthood and legal fetal personhood under an intentional approach. It further offers some preliminary suggestions regarding how an intentional approach could solve some latent, thorny issues in bioethics, family law, and civil rights.

Signaling Sexual Harassment

Emily Suski published Signaling Sexual Harassment in the Emory Law Journal. The abstract is excerpted here: 

Following the Supreme Court’s decision to eliminate the right to abortion in Dobbs v. Jackson Women’s Health Organization, Title IX stands as a potentially powerful statutory bulwark against further erosions of sex and gender equality rights. Title IX’s purpose is to protect against and eradicate sex discrimination of all forms, including sexual harassment, in education. Yet, it rarely fulfills this purpose. Although the Supreme Court has said that sexual harassment is a form of sex discrimination proscribed by Title IX, it has failed to define sexual harassment or provide more than the barest of guidance on how severe it must be to qualify for Title IX’s protection. The lower courts have consequently filled those gaps, and they have done so reductively. Their evaluations regularly exclude all but the most extreme forms of sexual harassment from Title IX’s protection. They thus leave much of the sexual harassment that students suffer in school unchecked by the law designed to expunge it.

 

Further, these reductive evaluations of students’ Title IX sexual harassment claims have three significant signaling effects. First, with these decisions, courts signal that much of the sexual harassment that occurs in school is acceptable, or the norm. Second, courts signal that schools can teach this sexual harassment norm through what sociologists call the hidden curriculum. Third, courts signal that this sexual harassment norm can pervade democratic and social structures. With these decisions, then, the lower courts do not just allow sexual harassment to occur unabated in school, but they also effectively reinforce it in schools and more broadly.

 

To reinvigorate Title IX’s purpose, this Article proposes a comprehensive definition of sexual harassment for courts to use in assessing Title IX sexual harassment claims. It also recommends a test for determining the severity of sexual harassment as well as a framework for applying that test that centers students’ experiences of sexual harassment. Together, these reforms would require courts to recognize more sexual harassment under Title IX and therefore restore its power to eliminate sexual harassment in schools.

Debunking the Motherhood Myth of Why Women are Underrepresented in Traditional Law Firm Partnership

Paula Schaefer, The Motherhood Myth, Traditional Firms, and the Underrepresentation of Women 

This Article makes the case that the motherhood narrative-that women are underrepresented in partnership and leadership ranks of law firms because they are their children's primary caregivers-is a myth. After detailing how the motherhood myth has been used as an excuse for a lack of meaningful change, the Article provides evidence of an alternative narrative: "traditional firms" are structurally and culturally antagonistic to women. These firms are characterized by extreme work expectations and heavy reliance on the unpaid labor of stay-at-home spouses (SAHSs). Traditional firms' dependence upon SAHSs is central to maintaining the firm status quo and driving out women. Next, the Article describes how firm modernization would allow women to gain parity in firm partnership and leadership ranks. The Article argues that modernization should be measured in terms of firm reliance on SAHSs and then responds to counter-arguments that modernization is not possible in the service of clients and is unlikely to improve the retention of women. Finally, the Article explains how three different groups-bar associations and other organizations, firms, and attorneys-should collect and analyze data about firm reliance on SAHSs as a first step towards change.

Texas Sues Biden Administration Over Teenage Access to Birth Control

Texas Sues Biden Administration Over Teenage Access to Birth Control, Wash Post

Texas Attorney General Ken Paxton (R) is suing the Biden administration over a policy that allows adolescents to access birth control without their parents’ consent, arguing that the rule violates state law requiring guardians to consent to their children’s use of contraceptives.

Paxton said in a statement that he was protecting parental rights, a popular GOP rallying cry used by Republicans to talk about culture-war issues such as education and transgender care.

“By attempting to force Texas health care providers to offer contraceptives to children without parental consent, the Biden administration continues to prove they will do anything to implement their extremist agenda — even undermine the Constitution and violate the law,” Paxton said in a statement.

The lawsuit, filed Thursday in a division of the Northern District of Texas that has one federal judge, is unlikely to change much in the state, analysts said. That’s because a similar case ended in March with a ruling that required Texas providers to begin obtaining parental consent this spring without wholly striking down the rule.

But it is the latest conservative effort to challenge the Biden administration’s reproductive health-care policies and Title X, a half-century-old family-planning program.

 

 

Ohio Appellate Court Says Frozen Embryos are Life and Awards to Wife in Divorce Case

Bryce Buyakie, Akron Beacon J., Do Ohio courts consider frozen embryos property or life, July 2, 2024

Recently in Ohio, Ninth District Court of Appeals Judge Donna Carr ruled in a divorce case that frozen embryos are "life, or the potential for life," though legal experts say the court still treated embryos as marital property.

Reproductive freedom advocates are concerned such a decision could limit access to IVF and other medical care.

For legal experts, this ruling emphasizes Ohio's complicated relationship with frozen embryos, which state law views as property.

Why are embryos considered property in Ohio?

Ohio treats embryos as property, not life, which means a person who owns an embryo can do what they want with it — gestate, destroy, donate or give it away for research.

This has been the precedent for much of Ohio's history, said Tracy Thomas, a professor of constitutional law and gender equality law at the University of Akron.

"Historically, it wasn't a thing at all," she said about the personhood debate. "It's genetic material, but even disconnected from that, they treated it like an organ donation."

Frozen embryos most often appear in divorce cases, where one or both parties are seeking ownership of the embryos produced during their relationship. Instead of diving into a custody dispute, Ohio courts historically have distributed the embryos as property.

How do courts treat pre-IVF contracts?

Before undergoing IVF, patients sign a pre-IVF agreement, which describes what happens to frozen embryos if one or both parents die or in the event of a divorce, Thomas said.

"The whole point of contracts is to leave no open question and to avoid litigation," Thomas said. "It's so you supposedly have the best idea of what you want to happen in a [divorce or death]."

Contracts should specify who can use the frozen embryos, or the parties agree to destroy or donate to another couple or research, she said.

If there is no contract or an ambiguous contract, the courts decide on how to proceed.

What did the Ninth District Court of Appeals' ruling say about frozen embryos?

A recent Summit County case in the Ninth District Court of Appeals lacked a clear contract, so the judges balanced the interests of the divorcing wife and husband when they couldn't agree on how to distribute the embryos, Thomas said.

The husband wanted the embryos to be used by other couples, but not by his wife, as he didn't want to have biological children with her, according to the ruling. The wife wanted to use the embryos.

In the decision giving the wife all 14 embryos, Carr wrote that the chances of achieving pregnancy "will only decrease" as the wife ages.

The decision, Thomas said, protects the wife's reproductive freedom as she wants to become pregnant.

The case is E.B.N. v. R.N. (Ohio App. 9th Dist. April 17, 2024).

Boone and McMichael on "Reproductive Objectification"

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

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

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

 

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

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

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

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

Robin R. Runge on "Safe Leave from Work Post-Dobbs"

Robin R. Runge published Safe Leave from Work Post-Dobbs in Volume 28 of the Employee Rights and Employment Policy Journal.  The abstract is excerpted here: 

Given the increasing restrictions on how and where a person who becomes pregnant may seek abortion care, and the large number of workers who experience reproductive coercion including birth control interference, and/or pregnancy related abuse, who may need to seek abortion related services, it is important to examine their rights as workers to take leave from work to seek these services without fear of job loss.

 

Domestic violence impacts a high percentage of working women and people who become pregnant every year. Pregnancy-related abuse, reproductive coercion, birth control sabotage, and interference with abortion-related decisionmaking are common forms of gender-based violence and harassment that may lead a survivor to seek abortion-related medical care. Without access to leave from work for this purpose, many victims of domestic and sexual violence may not seek the services necessary to ensure their health and their safety. Survivors should be able to take job guaranteed time off from work, ideally paid, to seek medical care for a dangerous pregnancy and/or seek other pregnancy related health care including abortion care, which may require travel to another state if their state prohibits abortions, without fear of job loss.

 

This essay examines how state laws providing leave from work to victims of gender-based violence and harassment may be utilized to obtain necessary medical services, including abortion care, to address pregnancy-related abuse and reproductive coercion, birth control sabotage, and interference with abortion-related decision-making that is increasingly necessary post-Dobbs.

Elizabeth Tobin-Tyler on "Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families"

Elizabeth Tobin-Tyler published Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families in Volume 51 of the Journal of Law, Medicine & Ethics. The conclusion is excerpted below: 

 

The Dobbs decision has profound implications for women, children, families and communities in states that have banned or severely restricted access. In states with large Black populations that have banned abortion and a long legacy of racial injustice and parsimonious safety nets for low-income families, the consequences will be most dire. With abortion outlawed, state lawmakers and child welfare system agency administrators have to decide if they will act to support family health and well-being or continue punitive policies that tear families apart based on poverty and deprivation. So far, state policymakers seem to be either ignoring the post-Dobbs consequences for families altogether or proposing policy solutions that will only exacerbate existing injustices — such as expanding the foster care system as proposed by the Mississippi House Speaker. With the Supreme Court and federal and state policymakers undermining reproductive and racial justice, advocates will be more vital than ever in helping to mitigate the harms, particularly to Black families, that are coming.

 

 

Tobin-Tyler on "Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families"

Elizabeth Tobin-Tyler has published Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families in volume 51 of the Journal of Law, Medicine & Ethics. Here is an excerpt on how to advocate for Black families post-Dobbs:

Abortion rights organizations are now working to support women living in states with bans or restrictions to obtain abortions in states where abortion is still legal and to access self-managed medication abortion. But many women will be unable to obtain an abortion when they want or need one. Given this fact, an advocacy agenda must be built around supporting mothers and children, defending them from unjust CPS intervention, and promoting access to reproductive healthcare. This agenda should be grounded in reproductive justice which accounts for and calls out racism and other forms of oppression that trample human rights and affirms that women not only have the right to decide if and when to have children, but also “to parent the children they have in safe and sustainable communities.” This includes freedom from state removal of their children due to structural racism and poverty.

Now that anti-abortion policymakers have achieved their wish, they must be held accountable for the effects of abortion bans on women, children and communities. Reproductive justice requires an intersectional approach to the myriad ways in which policy choices affect marginalized people. The voices of affected women who can speak to the reality of what abortion bans mean--including the impact of forced birth, parenting an unwanted child in poverty, experiencing CPS involvement and child removal--should be prioritized and promoted by advocates. Building coalitions with those seeking economic justice and child welfare system reform will broaden the constituency base and call attention to the ramifications of failing to enact policies that invest in families. Academic researchers and policy analysts should support community-based advocates by tracking the evidence linking abortion bans to increases in poverty and CPS caseloads.

* * * Ultimately, reform will only be possible through acknowledgement of the structural racism inherent in multiple systems, most profoundly, the child welfare system. * * * Post-Dobbs, the call to action to replace the current child welfare system with one framed by reproductive justice--which encompasses racial justice, gender justice, economic justice, and human rights--is more important than ever.

 

 

New Book, Father Time, How and Why Men are Biologically Transformed When They Care for Babies

Sarah Blaffer Hrdy, Father Time: A Natural History of Men and Babies

A sweeping account of male nurturing, explaining how and why men are biologically transformed when they care for babies

It has long seemed self-evident that women care for babies and men do other things. Hasn’t it always been so? When evolutionary science came along, it rubber-stamped this venerable division of labor: mammalian males evolved to compete for status and mates, while females were purpose-built to gestate, suckle, and otherwise nurture the victors’ offspring. But come the twenty-first century, increasing numbers of men are tending babies, sometimes right from birth. How can this be happening? Puzzled and dazzled by the tender expertise of new fathers around the world—several in her own family—celebrated evolutionary anthropologist and primatologist Sarah Blaffer Hrdy set out to trace the deep history of male nurturing and explain a surprising departure from everything she had assumed to be “normal.”

In Father Time, Hrdy draws on a wealth of research to argue that this ongoing transformation in men is not only cultural, but profoundly biological. Men in prolonged intimate contact with babies exhibit responses nearly identical to those in the bodies and brains of mothers. They develop caring potential few realized men possessed. In her quest to explain how men came to nurture babies, Hrdy travels back through millions of years of human, primate, and mammalian evolution, then back further still to the earliest vertebrates—all while taking into account recent economic and social trends and technological innovations and incorporating new findings from neuroscience, genetics, endocrinology, and more. The result is a masterful synthesis of evolutionary and historical perspectives that expands our understanding of what it means to be a man—and what the implications might be for society and our species.

Final Rule Published Implementing the Pregnant Workers Fairness Act

The EEOC published its Final Rule implementing the Pregnant Workers Fairness Act. The Final Rule and its interpretive guidance are available here. The EEOC's announcement highlighted the following key points of the Final Rule: 

• Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.

• Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.

• Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.

• Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.

• Explanation of when an accommodation would impose an undue hardship on an employer and its business.

• Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.

The EEOC also provides the following guidance: What You Should Know about the Pregnant Workers Fairness Act.

 

Ohio (Finally) Eliminates Archaic Common Law Marital Rape Exception

Ohio Senate Unanimously Passes Bill to Eliminate Loophole on Spousal Rape in State Law

After decades of efforts to change a provision of state law shielding people who rape their spouses from prosecution, the Ohio Senate has voted unanimously to remove that loophole.

House Bill 161 would eliminate exceptions in the law on rape, sexual battery and other sexual offenses that apply when the victim and the attacker are married.

Efforts to close the spousal rape loophole go back to 1985, with a minority of lawmakers over the years expressing concerns about rape allegations being used as wedges in divorce cases.

Sen. Stephanie Kunze (R-Hilliard) said the gap in the law has suggested that either spousal rape isn’t taken as seriously as other sexual violence or that it doesn’t ever happen.

“This is especially concerning, as a spouse should be the most trusted person in a marriage," Kunze said on the Senate floor. "And it is even more egregious to think that in our state in 2024, it is lawful to to rape your spouse.”

Senate Minority Leader Nickie Antonio (D-Lakewood), the bill's joint sponsor who’s introduced measures to close the spousal rape loophole twice before, said the state has taken "a step forward in eliminating this archaic loophole."

“I recall it first coming to my attention that Ohio needed a spousal rape bill and to address that actually in the early nineties. And while Ohio addressed parts of the law, then this loophole remained," Antonio said.

After passing the House in November with only one “no” vote – from Rep. Bill Dean (R-Xenia) – the bill now goes to Gov. Mike DeWine for his signature.