Gender and the Law Prof Blog

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.

Parental Rights Issue in Military Academies Disproportionately Harms Women

Melissa Hemphill wrote a powerful Washington Post Op-Ed on Friday detailing issues with parental rights in military academies. She explains the impossible choices that she and her partner had to make as cadets: 

Because we were students at a military academy, Anthony and I were subject to a harsh, antiquated policy that does not allow cadets to have dependents. This meant, and still means, that cadets in our position either must terminate the pregnancy or permanently sever their parental rights to graduate and commission as officers. If Anthony and I wanted to keep our child and our parental rights, we had to resign or face expulsion.

We were determined to honor our commitments to both our future family and the Air Force Academy. But to do so, we had to negotiate a costly and circuitous legal maze.I left the academy for a year and gave birth to Oliver while Anthony remained a cadet and severed his parental rights so that he could graduate. Once he commissioned, he adopted Oliver and I severed my parental rights. Anthony and Oliver moved to Florida for Anthony’s first assignment, and I returned to the academy.

After I commissioned and graduated, I finally adopted the baby to whom I had given birth the previous year. In all, we spent nearly $20,000 on legal fees — while being repeatedly warned that there was no guarantee we would be able to get back our parental rights.

The “no dependents” policy understandably reflects the difficulty of reconciling parenthood with the intense demands of a military academy. But requiring cadets to fully relinquish their children is cruel and unnecessary. While this terminated our legal relationship, it did not terminate our emotional connection and love for Oliver. I sobbed through my relinquishment hearing, having to verbally affirm that I willingly was giving up my rights as a mother with no intention of getting them back.

The Op. Ed describes relevant pending legislation to fix this issue with bipartisan support. 

The broader military community already has a solution to the dilemma of service members confronted with conflicting military and family responsibilities. It is the Family Care Plan, which establishes temporary guardianship for dependents in the rare cases that a single parent — or, in a dual-military family, both parents — have duties that would not permit them to care for the day-to-day needs of their children. The Defense Department could simply alter its policy to permit such family care plans at service academies.

Recently, Sens. Ted Cruz (R-Tex.) and Kirsten Gillibrand (D-N.Y.) introduced bipartisan legislation, the Candidates Afforded Dignity, Equality and Training (CADET) Act, which would prohibit the forced termination of parental rights by military academies and instead offer more practical alternatives, including the family care plans. Nothing about academy life would change; it would simply make a really hard situation more humane.

Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships

Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships

By: Nausica Palazzo

Published in: Columbia Journal of Gender and Law, Forthcoming

Same-sex marriage is now recognized in several jurisdictions in the West. This result is ascribable to the untiring work of LGBTQ groups, that have utilized much of their energies to attain it. Pervasive forms of discrimination because of one’s sexual orientation are still in place, such as legislation restricting access to foster and adoption services. But there is little doubt that marriage equality constituted a watershed moment for LGBTQ politics. As Justice Roberts’ immortal words in Obergefell attest to, “[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union two people become something greater than once they were.” After the Supreme Court’s decision in Obergefell, gay and lesbian couples could also finally create the most profound of all unions, and cease being second-class citizens. Since marriage was seen by many as “the final stop for ‘full equality’ for lesbians and gay men,” a question lurked behind these events: “what now?” The question has various ramifications. “What now?” within the LGBTQ movement? Since the final objective has now been reached, the structure, financing, and strategies of the LGBTQ movement are inevitably changing. It will thus be interesting to see which battles the movement will prioritize in the next decades. A second, more crucial “what now?” bears upon the future of family law and policy. It concerns the fate of nonmarital statuses, that have been erased at the stroke of a pen after marriage equality.

. . .

Nonmarital statuses can promote a more pluralistic model of relationship recognition, and, as I will argue, offer legal protection to families that eschew the paradigm of the traditional marital family. The case of jurisdictions that have adopted nonmarital statuses as an alternative to marriage compellingly demonstrates this point. A nonmarital status is considered as an alternative to marriage when both opposite and same-sex partners can sign up. The rationale of alternative statuses is not that of offering a separate-but-equal regime for same-sex couples but a distinct regime that any couple can choose in lieu of marriage. Examples of jurisdictions adopting these laws are Illinois, Hawaii, and Colorado and, outside of the U.S., France, Belgium, The Netherlands, and Luxemburg. Interestingly, in these countries, not only are nonmarital statuses being preserved but they are also becoming increasingly popular amongst heterosexual couples. 

Pennsylvania Bill Seeks "Dignity for Incarcerated Women"

Pennsylvania has introduced a bill seeking dignity for incarcerated women. The bill was sent to the House Judiciary Committee on September 21.  An accompanying memo from bill sponsors explains to the members of the house that:  

Over the past three decades Pennsylvania has seen a significant increase in the number of incarcerated women. While we believe in supporting a system that serves justice, women who are incarcerated face a number of unique issues regarding their heath and the health of their children. Despite being incarcerated, these women are still our mothers, wives, sisters, and daughters, and it is in everyone’s best interest to ensure we treat them with dignity.  

Through extensive consultation and collaboration with our state Department of Corrections, county wardens, corrections officers, various interest groups, and subject matter experts, we have identified a number of best practices, many of which are already in place, that we believe will not only benefit incarcerated women, but their children, families, and society as a whole. Specifically, our bill will provide for the following well vetted provisions at both the state and county level, with necessary oversight from children and youth services, and limited exceptions where extenuating circumstances and/or capacity constraints prevent safe practice and enforcement.  With common sense exceptions in all cases, the bill:

                1. Prohibits the shackling of pregnant women.  
                2. Prohibits solitary confinement of pregnant women.  
                3. Provides for trauma informed care training of corrections officers interacting with pregnant and postpartum women. 
                4. Provides for up to three days of post-delivery bonding time between mother and new born child.  
                5. Provides for accommodation of adequate visitation time between minor children and incarcerated individuals (male or female) who were the sole legal guardian of those minor children at the time of their arrest. 
                6. Prohibits full body searches of incarcerated females by male guards.  
                7. Provides for appropriate amount of feminine hygiene products at no cost to incarcerated women. 
                8. Provides for limited coverage of cost to transport individuals to a safe location upon release.   

The full text of the bill is available here. 

Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?

Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?

By: Linda C. McClain

Published in: Family Court Review (Forthcoming)

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.

. . .

This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.

 

 

Coverture Analysis in Insurance Coverage Case

The Kentucky Court of Appeals published an interesting decision of note on September 3 in Bratcher v. State Farm Fire and Casualty Co., et. al.  The plaintiff was injured in a motorcycle accident and filed a claim for benefits under her parents' policy listed as "Bratcher, Don & Tina." The plaintiff lived in her parents' rental property. The plaintiff's mother had separated from her father and moved into the rental property with the plaintiff just before the accident. The insurance coverage would include the plaintiff only if she was a "resident relative" defined as a person who lives "primarily with the first person shown as a named insured on the Declarations Page and who is [related to that "person"]" (emphasis in original). Person is defined as "a human being." State Farm moved for summary judgment arguing that she did not reside primarily with the person on the Declarations Page because that was only her father.  The Circuit Court agreed. The plaintiff argued on appeal that the parties were listed together as husband and wife and held equal status as named insureds. The Court of Appeals agreed and held that both mom and dad were first-named insureds on the policy. Because Mom had just moved in with the plaintiff, there was a genuine issue of material fact as to whether the plaintiff was a resident relative, so the case was remanded for proceedings consistent with the decision. 

Judge Dixon's Concurring Opinion is particularly interesting in how it draws out the historical points on coverture (emphasis in original). 

It is within this context of history I turn to State Farm’s denotation of Don as the first-named insured. While much has changed in the past 50 years, apparently much stays the same.

The law governing family relationships has developed significantly during the latter half of the 20th Century; married women are generally accorded the same rights as unmarried women, and strides toward recognizing the equality of women and men have been made and are continuing. Nevertheless, there remain vestiges of the historical treatment of women generally, and married women in particular, within our law, a treatment which at common law merged the married woman’s identity into that of her husband. 5 WILLISTON ON CONTRACTS § 11:1 (4th ed. 2021). Has Tina’s identity herein been merged with that of her husband? The uncontested proof indicates Appellant’s mother, Tina, purchased these insurance policies and paid the premiums for them. Under normal contractual circumstances, Tina would be considered the owner of the policies. Yet, State Farm representatives unilaterally chose to list the “insured” as “Bratcher, Don & Tina L,” conducting a credit check only on Don. Why not Tina? Is her credit irrelevant and insignificant? In fact, Tina was the only one between the two with actual employment. Does she have no independent identity? Nevertheless, due to the most random of circumstances, State Farm contends that because Tina, not Don, resided with Appellant in a home owned jointly by Tina and Don, their daughter–Appellant–is excluded from coverage solely because Don is the first-named insured. Thus, presumably, if Don were residing with Appellant instead of Tina, she would be covered by the policies in question. Such certainly smacks of the sex discrimination of a bygone era. Why else would State Farm choose a man as first-named insured over his wife who actually purchased the insurance policies herein and who paid all of the premiums for the policies? State Farm should not be allowed to benefit from such action.

As Seen through the Eye of the Camera: A Portrayal of How Cultural Changes, Societal Shifts, and the Fight for Gender Equality Transformed the Law of Divorce

As Seen through the Eye of the Camera: A Portrayal of How Cultural Changes, Societal Shifts, and the Fight for Gender Equality Transformed the Law of Divorce

By: Taylor Simpson-Wood

Published in: 42 Women's Rts. L. Rep. 1 (2020).

This article explores how changing societal forces and cultural mores have configured to mold the law of divorce from the turn of the Twentieth Century though the rise of no-fault divorce in 1970. It highlights that, irrespective of the varying, contemporaneous views of divorce of different eras, there is one common theme which runs beneath and unites the six decades, gender inequality. To illustrate this premise, it employs representative films for each covered time period to paint a picture of the cultural influences and forces that gave rise to that era’s perspective about divorce as it strove to make a better society.

Specifically, the essay traces the key components of film censorship implemented via the Hays Code in the 1930s and explores how divorce was transformed post-Code from being an anathema to an accepted, if not expected, part of mainstream American life. It also confronts the continuing myth that the 1950s constituted the golden age of the American family. The “ideal” family portrayed each evening on the television was not a documentary and, despite cinematic representations of life during the 1950s, the era was a time of great stress for both spouses. Husbands faced the specter of becoming an “organization man,” while many homemakers were suffering from “the problem that has no name.” The rise of new social mores is often a counter-reaction to those of the immediately preceding time period. This was certainly the case in the 1960s, when the rejection of the values of the 1950s led to a psychological shift resulting in the birth of a new “divorce culture” premised on the idea that when a spouse is unfulfilled due to an unsatisfying the marital relationship, divorce is not only justified, but paves the road to self-realization.

Integrating National Violent Death Reporting System Data Into Maternal Mortality Review Committees

Jennifer M. Miller and Susan Rensing have published Integrating National Violent Death Reporting System Data into Maternal Mortality Review Committees in the Journal of Women's Health.  The abstract explains that: 

With the Maternal Mortality Review Information Application (MMRIA) data system, the Centers for Disease Control and Prevention (CDC), alongside Maternal Mortality Review Committees (MMRCs), are developing comprehensive and uniform data collection to eradicate preventable maternal deaths. However, MMRIA is primarily focused on pregnancy-related deaths, and not pregnancy-associated deaths. Currently, the National Violent Death Reporting System Restricted Access Data (NVDRS-RAD) on pregnancy-associated homicides and suicides are not included in MMRIA and by extension the work of most MMRCs. This study examined the NVDRS-RAD data from 2014 to 2017 and argues that the data for pregnancy-associated maternal deaths should be integrated into the work of MMRCs. * * * 

Their findings indicate that: 

pregnancy and the postpartum period show increased risk for homicide and suicide. Pregnant women were found to be five times more likely to die by homicide than their nonpregnant peers who died by violent means. The relationships between periods of pregnancy and manner of death were all found to be significantly associated although the association was weak.

Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion

Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson  allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion.  President Biden has called on Congress to act.  House Speaker Nancy Pelosi has similarly called for action.  And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021.  It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment. 

The Supreme Court too, has periodically suggested this option.  For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).  

Except that it might not be that easy.  The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare.  Congress must rely on a source of power specifically articulated in the Constitution. 

Here are some options under the Supreme Court’s existing precedent.  It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.  

1. Commerce Clause

Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act.  Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.”  There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).

The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case.  In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause.  It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance.  Inactivity, the Court said, was not economic activity.

The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock.  Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”

The Commerce Clause power also requires that a regulate activity be “economic.”  This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity.  “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison.  While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity.  The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.

The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power.  The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause.  Abortion services is an economic activity.  It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.  

The abortion context also seems more clearly interstate.  With bans and restrictions on abortion, patients travel out of state to other providers.  They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality.  If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard.  Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court.  It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.

2. Section 5 of the Fourteenth Amendment

A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment.  This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws. 

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion.  But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary.[1]  Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court. 

That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law.  FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors.  If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.

However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way.  Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5.  Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison. 

Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs.  In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality.  The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct.  In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished.  It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation.  In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.

The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right.  This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt).  These are rights that would not necessarily be struck down if Roe is overturned.  There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion.  There might also be an argument to connect to the provider’s right to work or profession.

A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination.  Hibbs provides good precedential support here.  In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process.  See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).

3. The Necessary and Proper Clause

Congress has also cited the Necessary and Proper Clause for authority to legislate abortion.  The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case.  The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.  

4. The Taxing Power

Following Sebelius, Congress could structure the abortion legislation as a tax.  In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power.  The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.

A Roe tax might tax the states which impose bans or regulations on abortion.  That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.

5. The Ninth Amendment

Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion.  That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause.  Another possible source of recognizing the right is the Ninth Amendment.  In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution.  A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment.  See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).  The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.

 

[1] Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with Boerne.  See Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote).  See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).

Second-Trimester Abortion Dangertalk

Second-Trimester Abortion Dangertalk

By: Greer Donley and Jill Wieber Lens

Forthcoming in: Boston College Law Review, Vol. 62, Forthcoming

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale — the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling in cases of life-limiting fetal conditions. This Article discusses the paternalism and traditional gender stereotypes underlying these newer abortion restrictions and uses empirical studies to discredit the woman-protective rationale justifying them. The Article also suggests a radical, new response to claims that women need protection from second-trimester abortion: the embrace of second-trimester abortion “danger-talk.” First introduced in medical literature by abortion providers, danger-talk refers to the uncomfortable truths about abortion that supporters often avoid. These topics include the nature of second-trimester abortion procedures and the emotional complexity that can especially accompany second-trimester abortion. This Article advocates for greater openness about these topics, arguing that silence only capitulates the narrative of second-trimester abortion to those opposing abortion rights. The Article envisions second-trimester abortion care that better recognizes these realities and provides women with more choices that might make second-trimester abortion easier, including alternative procedures and the option of memory-making to process difficult emotions, like grief. Finally, this Article argues that more transparency about these difficult subjects will help rebut the woman-protective rationale used to justify second-trimester abortion restrictions.

Free Market Feminism: Re-Reconsidering Surrogacy

Free Market Feminism: Re-Reconsidering Surrogacy

By: Alexandra Holmstrom-Smith

Published in: University of Pennsylvania Journal of Law and Social Change, Volume 24, Number 3 (2021)

The COVID-19 pandemic has thrown the global surrogacy industry into chaos, stranding surrogates,infants, and their caretakers across the world from the intended parents. As surrogates and staff are left caring for infants that are strangers to them by law, the emotional toll of commercial surrogacy is more visible than ever before. In this article, I argue that this moment is ripe for reconsidering our laissez faire approach to for-profit reproduction. When the Baby M case hit the news in 1988, it set off a chorus of alarm among feminists (and others). Many states subsequently passed laws banning commercial surrogacy. Yet in the years since then, the dominant feminist position has quietly shifted. Surrogacy is now seen as a choice, one that expands women’s possibilities both as workers and as mothers. Surrogacy is also seen as an LGBT rights issue, as it provides a way for gay men to have children that are genetically related to them. However, the issues of gender, race, and exploitation that inflamed feminists in the1980s and 1990s are no less relevant today. As renewed concern with economic justice has made a resurgence on the national stage, I argue that it is time for socialist-feminist perspectives on surrogacy to reemerge. Eschewing freedom of contract as an illusory freedom that serves the ruling class, such a politics would demand social policy that limits commodification and promotes reproductive justice and freedom for all, not just the wealthy few.

Pandemic Practice - The Disparate Impact on Female Attorneys

Liane Jackson, How Pandemic Practice Left Lawyer-moms Facing Burnout, ABA Journal, August/September Issue (2021).

This article explores the pandemic’s effect on the “participation gap in the labor market” between women and men, and posits that “hard-won gains are disappearing,” “the gap is widening,” and experts posit that the effects “will be felt in the legal industry for years to come.”

It will come as no surprise that “women are America’s default social safety net” and have therefore “taken on the lion’s share of pandemic parenting,” as numerous studies have already shown.  This is due to a number of social pressures and norms, which this article addresses.  Of particular note is the “idealized version of intensive motherhood” which sets a standard by which “women are expected to sacrifice their careers, their well-being, their sleep, [and] their mental health for the good of their children.”  Competing with this social construct, is another equally pervasive standard to which female lawyers are held “of total commitment . . . this ideal worker norm that says you’re supposed to sacrifice everything for your job.”  It is no wonder, in this zero sum game, that increased drinking, stress, desire to leave the profession, and mental health issues are being reported in higher percentages of women than men as a result of a pandemic which left parents with few childcare options and a lead role in their children’s education. “The pandemic has disproportionately affected women and minority attorneys, with female lawyers of color feeling increased isolation and stress.”

So what can we do to alleviate the disadvantage experienced by female attorneys as we begin to return from pandemic-induced remote work environments?  Liane Jackson argues that flexible work options need to be accompanied by a genuine commitment to not allowing those options to come with a conscious or unconscious institutional/advancement penalty.  This requires a “recognizing that family has a value, households have a value and people have a value outside the workplace.”  To do otherwise will “continue[] to threaten retention rates.” We must be intentional as we begin to emerge from this pandemic to not penalize female attorneys whose "productivity" (as traditionally measured) may have fallen below that of male counterparts due to the unequal sharing of pandemic pressures discussed above.  Employers should focus on retention and advancement standards that are equitable to female attorneys who continue to be marginalized by disparate and competing social pressures.  “Women are still being marginalized, and they don’t always have the power base to fight back.” We must do better.

The Right to Express Milk

The Right to Express Milk

By: Mathilde Cohen

Published in: Yale Journal of Law & Feminism, Vol. 33, 2021

Breastfeeding in public has become more accepted, but milk expression—defined as removing milk from the breasts manually or using a breast pump—continues to be seen as a distasteful bodily function analogous to urination or sex, which should be confined to the private sphere. Few states explicitly exempt milk expression from their indecent exposure and obscenity laws. Yet, far from being a marginal activity, milk expression is often a necessary component of successful lactation. It allows parents with disabilities that challenge feeding at the breast to produce milk. It is instrumental in feeding babies who are unable to suckle at the breast or those who are temporarily separated from their parents, whether because the parents are ill, must report to work, have shared custody, or need to participate in political, social, and other aspects of life. In other words, milk expression is vital for human milk feeding in numerous circumstances and necessary for lactating parents to enjoy equal citizenship on par with non-lactating people.

Legal scholarship is growing in the field of lactation law, but work that specifically focuses on milk expression and its legal implications beyond the workplace—from the regulation of breast pumps as medical devices to the question of whether public milk expression should be protected—is missing. This Article contributes to the literature by arguing that milk expression should be recognized as part of a reproductive justice-based right to breastfeed through a combination of civil rights, FDA law, insurance law, health law, tax law, and work law. Parents need paid parental leave, paid lactation breaks, and access to affordable, high-quality, and culturally competent healthcare and lactation counseling and technology. In addition, they should have the right to express milk in every space where they have the right to be present.

Institutional Embeddedness of Mumpreneurship in the UK: A Career Narrative Approach

Institutional Embeddedness of Mumpreneurship in the UK: A Career Narrative Approach

By: Shandana Sheikh and Shumaila Y. Yousafzai

Published on SSRN 

The recent rise in the number of mothers who have started a business from home along with an increase in publicly available profiles of these women has led to the trend of mumpreneurship, i.e., women who set up and manage a business around their child caring role. This research employs a career narrative approach to examine the stories told by a group of 12 British mumpreneurs within the context of UK’s regulatory institutions. The findings suggest that despite having dual responsibility of motherhood and business ownership, mumpreneurs work hard to achieve their aspirations and career objectives. However, their ability to do so is severely constrained by the institutional support, more specifically in terms of child-care provisions and training and financial support.

This study employs a career narrative approach to examine the stories told by a group of 12 mumpreneurs within the context of UK’s regulatory institutional context, specifically the family policies framework. In the UK, while there are current family policies such as childcare benefits, tax credits, maternity leaves and parental allowances, the impact of these policies on mumpreneurship has not been studied. Our objective is to explore how mumpreneurs construct their experiences of moving into entrepreneurship and how regulatory family policies support or constrain them in simultaneously balancing their dual responsibility of business ownership and motherhood.

Working While Mothering During the Pandemic and Beyond

Nicole Buonocore Porter has published Working While Mothering During the Pandemic and Beyond in volume 78 of the Washington & Lee Law Review Online (2021).   

Although combining work and family has never been easy for women, working while mothering during the pandemic was close to impossible. When COVID-19 caused most workplaces to shut down, many women were laid off. But many women were forced to work from home alongside their children, who could not attend daycare or school. Mothers tried valiantly to combine a full day’s work on top of caring for young children and helping school-aged children with remote school. But many found this balance difficult, leading to women’s lowest workforce participation rate in over forty years. And even women who did not quit nevertheless suffered workplace consequences from logging many fewer work hours than before the pandemic. The exact magnitude of this toll, in terms of costs and careers, will not be known for years, if ever. This Article explores the challenges working mothers faced during the pandemic and sketches an outline of what solutions might have mitigated the difficulties during the pandemic and could make a difference in the lives of working mothers moving forward.

This article is an important time-capsule of sorts as it documents the COVID-19 hardships families have faced, mothers particularly, as they have balanced work and family. The article surveys a broad range of next steps to mitigate these hardships and reveals how these challenges are rooted so deeply in our workplace cultures and our societal structures. 

American Medical Association Report Recommends Removing Gender Designation from Birth Certificates

Remove ‘male’ and ‘female’ from birth certificates? Here’s why the country’s largest group of physicians recommends it

Now, the American Medical Association, the country’s largest association of physicians, has taken a significant step in easing that burden. In a June report, the AMA’s LGBTQ advisory committee advised the organization to push for removing sex labels from the public part of the birth certificate.

 

Assigning either a “male” or “female” sex at birth, the authors wrote, “fails to recognize the medical spectrum of gender identity.”

 

“Participation by the medical profession and the government in assigning sex is often used as evidence supporting this binary view” of gender, the report continued. Not only does that stifle a person’s ability to express and identify themselves, it can lead to “marginalization and minoritization.”

 

For nearly two months, the recommendation went largely unrecognized by supporters and detractors alike, but it resurfaced recently after the popular medical website WebMD shared an article about the decision on its social media accounts.

New Book: Jesus and John Wayne, How Patriarchy and Toxic Masculinity are Perpetuated by the Church

The author lets the research speak for itself as she explores the modern cultural manifestations of patriarchy, militant masculinity, and the church's role in sexism.

Wash Post, "Jesus and John Wayne": How a Book About Evangelicals Became a Best Seller

As journalists and academics tried to explain how evangelicals could bring themselves to vote for Trump, Du Mez argued that evangelical support was not a shocking aberration from their views but a culmination of evangelicals’ long-standing embrace of militant masculinity, presenting the man as protector and warrior.

“In 2016, many observers were stunned at evangelicals’ apparent betrayal of their own values,” Du Mez wrote. “In reality, evangelicals did not cast their vote despite their beliefs, but because of them.”***

Du Mez, who teaches at Calvin University in Grand Rapids, Mich., wrote that mainstream evangelical leaders such as John Piper, James Dobson and John Eldredge, preached a “mutually reinforcing vision of Christian masculinity — of patriarchy and submission, sex and power.”

“The militant Christian masculinity they practiced and preached did indelibly shape both family and nation,” Du Mez wrote.