Gender and the Law Blog

S. Lisa Washington on "Time and Punishment"

S. Lisa Washington has published "Time and Punishment" in volume 134 of the Yale Law Journal (2024). The abstract is excerpted below: 

Every three minutes, state agents remove a child from their home. Once a family is separated, impacted parents are up against a quickly approaching deadline—permanent legal separation looms at the end. In fact, impacted parents navigate three interrelated temporal dimensions: the race to permanent legal separation through the termination of parental rights, the time-consuming process of having to prove that they are fit parents, and the possibility that tomorrow, the state’s concerns will drastically change. The family regulation system—the system that has the power to separate families in this way—has been the subject of sustained critique by both academics and directly impacted families. One major critique is that instead of helping children and their parents, the system further marginalizes them. This Feature introduces an underexplored layer of marginalization in the family regulation system: time.

This Feature argues that the construction of time in the system is not merely a benign force but instead profoundly shapes the family regulation process. Conceptions of time that are neutral fail to account for the ways temporal marginalization fixes parents in time, devalues time as a resource, reproduces social stratification, and privileges the state while disadvantaging families already at the margins. This Feature builds on an emerging literature that critically examines time in legal systems. Drawing on multidisciplinary frameworks that conceptualize the relationship between time and power, this Feature provides an aerial view of the abstract problem of regulating parent-child relationships through a temporal frame, as well as the concrete legal timelines, procedures, and court processes that combine to exacerbate an already-conflictual relationship between the state and marginalized families.

 

Time and Punishment is the first article to bring the rich conversation on time and power to the family regulation context. This Feature makes two central contributions. One, it identifies and discusses three temporal dimensions in the system—constriction, stretching, and indeterminacy—and addresses their combined impacts, as well as the legal frameworks that underlie them. Second, it brings two sets of literature into conversation: family regulation scholarship and multidisciplinary research on time, power, and marginalization. In this way, it offers an epistemic intervention that complicates managerial conceptions of time and offers insights that are fruitful beyond the family regulation context. Ultimately, this Feature concludes that taking account of time as experienced by impacted families is one step toward fully understanding and responding to temporal marginalization.

Carbone and Huntington on "Fatherhood, Family Law, and the Crisis of Boys and Men"

June Carbone and Clare Huntington have published "Fatherhood, Family Law, and the Crisis of Boys and Men" in volume 124 of the Columbia Law Review. The abstract is excerpted below: 

Boys and men in all racial and ethnic groups and across most socioeconomic groups are struggling on many fronts, including education, employment, physical and mental health, and social integration. In these areas and more, boys and men are much worse off than they were only a few decades ago. The crisis--which is concentrated among men without college degrees--is rooted in large-scale structural changes to the economy that have decimated jobs for this group and policy choices that emphasize incarceration while doing little to address economic inequality.

The decline in male well-being is not just a problem for boys and men. It is a problem for families. Men’s economic prospects have a profound impact on whether couples will commit to each other. Men without steady work--and with behaviors that often accompany unemployment, including a higher frequency of intimate partner violence--have trouble sustaining long-term relationships, and many do not marry. They often have children, but once romantic relationships end, unmarried men tend to drift away from the family. Many fathers want a larger role in their children’s lives, but this is possible only if they can strengthen their relationship with mothers. Many mothers also want fathers to be more involved, but they are concerned about issues fathers bring to the family. And children want a relationship with both parents.

Family law is part of the problem, contributing to the familial isolation of men without college degrees. In recent decades, family law has undergone a significant transformation, but this transformation primarily benefits married couples. The legal system now seeks to create “postdivorce families”--that is, families in which both parents are cooperative, active caregivers, notwithstanding the end of the parents’ romantic relationship. To this end, custody laws encourage shared parenting, and family courts offer alternative dispute resolution processes, counseling, and other assistance that strengthen fathers’ active membership in the family. But men facing economic precarity are unlikely to be married and thus need not go to court when a romantic relationship ends. Accordingly, these men do not benefit from this transformation in custody rules and processes, and they are unlikely to access the supportive services. The child support system makes things worse by imposing unrealistic orders on low-income fathers that alienate men from their families. And the family regulation system, also known as the child welfare system, treats these fathers as incompetent caregivers or, even worse, as threats.

Family law may relegate men in crisis to the periphery of family life, but it can also help bring them back. The goal is not to restore men’s patriarchal authority but rather to extend the model of cooperative parenting to more families. To this end, this Essay proposes far-reaching reforms to custody rules and processes, child support, and family regulation. In each of these problematic areas of family law, the proposed reforms give families greater autonomy in shaping agreements about family relationships, support to make these bargains workable, and opportunities for men to be active fathers.

History of The Men's Rights Movement and American Politics, 1960-2005

 Theresa M. Iker, Before the Red Pill: The Men's Rights Movement and American Politics, 1960-2005, Stanford Dep't of History, PhD Dissertation (2023).

"Before the Red Pill" [reference to "The Matrix"] traces the American men's rights movement (MRM) from its roots in the early 1960s to its growing influence in mainstream national politics by the early 2000s. Examining both MRM leadership efforts and grassroots organizing across the United States, this dissertation utilizes organizational papers, activist correspondence, oral histories, movement newsletters, advice literature and memoirs, and mainstream press coverage.

The dissertation reveals the complex dynamics of gender, race, and politics in the growth of the MRM. The experience of divorce radicalized men's rights activists, who began organizing in the 1960s to reform family law. Rather than a mere backlash against feminism, men's rights thinkers adapted some of their most important insights and strategies from second-wave feminists throughout the 1970s, before becoming militantly misogynistic by the 1990s. Both conservative women intellectuals and second wives of divorced men's rights activists played critical roles during this era, softening the movement's public image and aiding in the development of a fathers' rights sub-movement devoted to child custody and support reforms. Overwhelmingly white themselves, men's rights thinkers made selective allusions to race to compare their politics to the Black freedom struggle, yet they distanced themselves from potential Black members amid the racialized politics of the 1980s and 1990s.

By the turn of the twenty-first century, men's rights activists devoted themselves to undermining feminist organizing against rape, domestic violence, and sexual harassment while claiming that men, rather than women, were the true victims of gendered violence. The simultaneous intensification of antifeminist and anti-state sentiments among activists pushed the movement further rightward into conservative partisan politics. Understanding the men's rights movement helps explain the emotive roles of masculinity, grievance, and entitlement in mobilizing the far Right base and maintaining persistent inequalities in the contemporary United States.

Peleg on "Conversion Therapy and Children's Rights"

Noam Peleg has published Conversion Therapy and Children's Rights on SSRN. The abstract is excerpted below:

Conversion therapy is an umbrella term used to describe a range of practices that have one goal: making LGBTQ + children straight and/or cis-gendered. When it comes to children, conversion therapy is offered by adults to other adults, primarily parents, with the promise to transform children' s sexual orientation, gender identity or gender expressions. As the recipients of these practices, children are usually, but not always, coerced to attend these so-called therapeutic sessions by their parents. Conversion therapy has been subject to extensive debates in law and policy over the last couple of years, with some countries banning all, or some forms, of these practices, while others have stopped short of regulating it. Most, if not all, of the discussions about the legality of these practices centre on adults, their rights and interests, whether it is human or civil rights frameworks, such as discussing parents or providers right to religious freedom or to free speech, or their legal positionalities under other bodies of the law such as tort law, to name one example. But while children are victimized by  conversion therapy, their rights and interests are oft en overlooked and forgotten, let alone being front and centre of the discussion about the legality of these practices. This chapter seeks to centre children in the discussions about the legality of  conversion therapy  by taking a child-centred approach to analyze conversion therapy from a children's rights.

Three States Pass Ballot Measures to Protect Marriage Equality

Three States Pass Ballot Measures to Further Protect LGBTQ+ Marriage

Voters in three progressive states have voted to codify marriage equality. California, Colorado and Hawaii all had ballot measures to protect the right of people of all genders to marry under state law. The moves will provide comfort to some who see incoming President Donald Trump as hostile to LGBTQ+ rights.

The Supreme Court granted same-sex couples the right to marry nationwide in its historic Obergefell v. Hodges decision in 2015. But many LGBTQ+ rights advocates have worried about the vulnerability of marriage equality: Some Supreme Court justices have expressed an interest in overturning the landmark ruling in legal opinions, and the court overturned its own precedent on abortion with the 2022 case Dobbs v. Jackson Women’s Health Organization. 

Most states (35 total) still have a constitutional ban or a statute outlawing same-sex marriage. While the 2015 Obergefell decision currently supersedes those bans, they would come back into play if the Supreme Court ever revisited its 2015 decision (three, including Hawaii, are technically unenforceable). 

Seventh Circuit Upholds IN Ban on Gender Affirming Care

Split 7th Circuit OKs Indiana Law Banning Youth Transgender Treatment

A split three-judge panel in the Seventh Circuit Wednesday greenlit Indiana's ban on gender-affirming care for minors.

The measure prohibits youth hormone therapy, puberty blockers and gender reassignment surgery. Indiana's Republican Governor Eric Holcomb signed it into law in April 2023, but before it could take effect that July, U.S. District Judge James Patrick Hanlon, a Donald Trump appointee, issued a preliminary injunction against most of its components.

Hanlon, ruling in a suit brought by a class of transgender youth represented by attorneys from the Indiana ACLU, suspended the moratorium on most gender-affirming medical procedures, though he allowed the ban on gender reassignment surgery to stand. He also blocked a provision of the law which would allow the state to prosecute medical practitioners who help trans youth access those procedures elsewhere.

The decision prompted an appeal to the Seventh Circuit, which heard arguments in February. Eleven days later, in a precursor to Wednesday's ruling, the appeals court lifted Hanlon’s injunction.

In its final ruling, the Seventh Circuit panel said that the lower court erred in finding that plaintiffs affected by the ban faced irreparable harm.

The decision is here: KC v. Individual Members of the Medical Licensing Board of Indiana

New Book, Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition

Marie-Amélie George, Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition (Cambridge 2024)

    From the Publisher:

In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled that same-sex couples had the fundamental right to marry. In the span of two generations, American law underwent a dramatic transformation. Though the fight for marriage equality has received a considerable amount of attention from scholars and the media, it was only a small part of the more than half-century struggle for queer family rights. Family Matters uncovers these decades of advocacy, which reshaped the place of same-sex sexuality in American law and society – and ultimately made marriage equality possible. This book, however, is more than a history of queer rights. Marie-Amélie George reveals that national legal change resulted from shifts at the state and local levels, where the central figures were everyday people without legal training. Consequently, she offers a new way of understanding how minority groups were able to secure meaningful legal change

Ohio Supreme Court Declines to Hear Case Over IVF Embryos at Divorce that Held Embryos are "Life or Potential for Life"

Ohio Supreme Court Declines to Hear Couple's Fight Over IVF Embryos

Ohio Supreme Court justices will not hear a divorcing couple's fight over their IVF-created frozen embryos, citing jurisdiction. Justices Patrick Fischer and Jennifer Brunner dissented.

Instead, the seven-member court republished the 9th District Court of Appeals decision from Summit County, which upheld that all frozen embryos be granted to the wife so she might use them to become pregnant.

Although the Summit County decision did not firmly rule on whether frozen embryos have the same rights as people, it did determine that embryos are not marital property but are "life or the potential for life."

For Tracy Thomas, a University of Akron law professor, the Ohio Supreme Court's decision not to hear the case left many questions unanswered. Until those questions are answered, the decision will likely not induce a wave of sweeping changes across the Buckeye State.

"The appellate court's decision stays as good precedent in that district and is persuasive to the rest of (Ohio's) appellate courts," Thomas explained.***

At the heart of the case was an IVF contract signed by the wife, E.B., and husband, R.N. Both parties argued the contract allowed them to do what they wanted with 14 frozen embryos once they decided to divorce.

A Summit County trial court ruled that the embryos should be split equally between the two parties, citing the contract. On appeal, the wife argued the contract was vague and did not account for her situation.

Appeals Judge Donna Carr ruled in favor of the wife, granting all 14 embryos to her.

The trial court, Carr wrote, should have considered the parties' intent and wishes instead of relying on an ambiguous contract.

"The express public policy of the State of Ohio is to prefer the preservation and continuation of life whenever constitutionally permissible," Carr wrote. "While the statute specifically addresses abortion, it is nonetheless telling and instructive to courts addressing what should become of frozen embryos caught up in the midst of a divorce proceeding."

At the same time, Carr acknowledged the Ohio constitutional right to contraception, fertility treatment, continuing one's pregnancy, miscarriage care and abortion.

Thomas said this part of the ruling likely would not stand up under review by the Ohio Supreme Court. She argued that it conflicts with Ohio's constitutional reproductive rights amendment, which says life begins when a fetus can live outside the womb, also known as fetal viability.

The case decided by three women judges is E.B. v. R.N., 2024-Ohio-1455 (Ohio App. 9th Dist. April 2024)

 

The Reasonable Pregnant Worker under the Pregnant Workers Fairness Act

Madeleine Gyory, The Reasonable Pregnant Worker, 113 Calif. L. Rev. ___ (forthcoming 2025)

Pregnant workers often need changes to their work responsibilities to stay healthy during pregnancy while earning a needed paycheck. Congress passed the Pregnant Workers Fairness Act (PWFA) in December 2022, entitling many workers for the first time to "reasonable accommodations" for their pregnancy, childbirth, and related medical conditions, so long as they do not impose an "undue hardship" on their employer. The PWFA dictates that the law's key terms, "reasonable accommodation" and "undue hardship," should be construed as they are under the Americans with Disabilities Act (ADA), ADA caselaw, and new PWFA regulations issued by the Equal Employment Opportunity Commission (EEOC) in April 2024. But what if these sources conflict? ADA caselaw frequently departs from the ADA's statutory and regulatory text, and is in tension with the EEOC's new PWFA regulations, producing a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants. 

This Article is the first to address how the chaotic ADA doctrine will impact implementation of the PWFA and to consider how ADA caselaw should be read in conjunction with the EEOC's new PWFA rule. Anticipating future litigation, this Article proposes a framework for litigants and courts assessing reasonable accommodation claims under the PWFA that adapts ADA precedent to account for the PWFA regulations. It argues that the PWFA rule is entitled to some deference under Loper Bright Enterprises v. Raimondo because Congress delegated specific authority to the EEOC to interpret the phrase "reasonable accommodation." Finally, this Article demonstrates why, under its proposed framework, the PWFA will often require employers to accommodate temporary transfers, remote work, and leave, notwithstanding conflicting ADA caselaw

 

New Book by Pamela Laufer-Ukeles on "Families, Relational Attachments, and the Law of Collaborative Family-Making"

Pamela Laufer-Ukeles has published a new book with Routledge titled "Families, Relational Attachments, and the Law of Collaborative Family-Making." Available here. 

This book points to a crisis at the heart of modern family law’s treatment of “collaborative family-making”: gamete contributions, surrogate motherhood, adoption, functional parenthood, foster care, and kin caregiving. Born of inequality and anchored by exclusivity and secrecy, the dominant legal framework governing collaborative family-making focuses on the acquisition of collaborative services by legal and intended parents without expecting or fostering any lasting bonds between them. This acquisitional framework is starkly disconnected from empirical accounts of the lived experience of collaborations, which demonstrate complex and ongoing relational attachments that extend beyond a transactional moment. At the intersection of law and sociology, the book challenges the law to account for relational realities that fail to conform to neat legal categories of parent and stranger, asking: How should the law reflect the complex interconnections between families and family-making collaborators? Should collaborators be treated as legal strangers? Who is impacted by the lack of legal status possessed by family-making collaborators? Who benefits and who loses? Ultimately, this is a work of optimism that seeks to facilitate family-making collaborations in more ethical ways by insisting that family law recognize and support family-making collaborators. It introduces a bold new legal framework of interconnection and guides the reader in implementing practical legal and contractual changes that promote human dignity, uphold children’s right to identity, and support ongoing relational attachments with adults who are fundamental to children’s lives. The volume provides deep and accessible insight into families and family law for legal practitioners, academics, students, and laypersons interested in family-making collaboration.

ND Federal District Court Holds Catholic Employers Do Not Have to Follow EEOC Rule to Accommodate Workers for IVF or Abortion

Judge Rules Catholic Employers Can Now Deny Workers Time Off For Abortion or IVF 

More than 8,000 Catholic employers across the country will not be required to provide accommodations for workers needing abortion or fertility care following a ruling in North Dakota. 

The Pregnant Workers Fairness Act took effect in June 2023, granting workers — many of them low-wage women — protections if they needed time off from work for pregnancy-related conditions. Earlier this year, the Equal Employment Opportunity Commission, which enforces the law, released rules that broadly defined pregnancy-related conditions to include anything from morning sickness to an abortion or fertility care. Under the rules, workers could request time off to get an abortion or for an IVF procedure, for example, and employers must work in good faith to provide the accommodation. 

But the Catholic Benefits Association and the Diocese of Bismarck sued the EEOC this summer, arguing that a broad interpretation of the law that included abortion and fertility protections would be violating Catholic employers’ religious freedom. 

The EEOC, the complaint said, “hijacked this statute and demanded that Catholic and other employers affirmatively accommodate abortion and immoral fertility treatments.”  

The EEOC rules don’t require employers to pay for the care, just to provide time off to allow workers to seek it. 

The Eighth Circuit, where North Dakota is located, is also hearing a case challenging the entirety of the EEOC Accommodation Rule issued pursuant to the Pregnancy Fairness Act. See Gender Law Blog, Eighth Circuit First to Consider EEOC Rule Including Abortion-Related Worker Accommodations.

Lots going on in North Dakota these days. See also North Dakota Abortion Ban Overturned as Vague and Violating Women's Fundamental Rights To Choice and Medical Freedom

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.