Monday, March 4, 2024

Kenya Court Affirmed the Right to Respectful Maternal Care

The Center for Reproductive Rights reports on a victory in Kenya's Court of Appeals. The facts of the case are excerpted from the opinion here: 

a. She was admitted to the hospital – and the hospital was overstretched to the extent that she had to share a bed with another patient;

b. She had to purchase her own drugs and cotton wool despite the government policy and Presidential directive that maternity services were free of charge;

c. She gave birth on the floor, in the corridor of the hospital, and without assistance;

d. She underwent physical and verbal abuse at the hands of the two nurses who attended to her when she fell unconscious on the floor;

e. She was forced to carry her un-expelled placenta back to the delivery room in further act of cruelty and humiliation;

f. She was not informed of the process she could use to file any grievance she had. 

The court held: 

28.The inevitable conclusion is that, upon an independent review of the evidence presented to the trial court, Josephine sufficiently proved her factual claims. The question that follows this conclusion is whether the facts, as proved, demonstrated constitutional violations to entitle her to the declarations the court made in her favour and against the appellants.


29.It is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution. That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of the right that must be realizable immediately and not progressively. The minimum core of a woman’s right to respectful maternal care during child birth must, as the trial court expounded, include

a. The right to be free from physical violence and verbal abuse during labour and childbirth;

b. The right to be free from discrimination during labour and childbirth;

c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.

March 4, 2024 in Courts, Family, Healthcare, International, Reproductive Rights | Permalink | Comments (0)

Thursday, February 29, 2024

Judge Enjoins Pregnant Workers Fairness Act Finding it Violates Constitution's Quorum Clause

Pregnant Workers Fairness Act Blocked in Texas as Unconstitutional

A federal judge in Texas this week dealt a blow to a landmark piece of legislation protecting pregnant workers, ruling that there was no quorum in the U.S. House when the law passed, making it unenforceable.

The Pregnant Workers Fairness Act, which requires employers to make reasonable accommodations for pregnant workers, was part of a $1.7 trillion spending package that Congress passed in late 2022. U.S. Sen. Bob Casey (D-Pa.), first introduced the bill in 2012, and worked for more than a decade to get it passed.

“Texas: Won’t let you have an abortion but also won’t do anything to help you have a safe and healthy pregnancy,” Casey said in a statement to the Capital-Star on Wednesday. “This is Republican governance at its finest and downright insulting to women in Texas and beyond who want and need to continue working safely through pregnancy.”

Last February, Texas Attorney General Ken Paxton sued the Biden administration arguing that since members of Congress were allowed to vote by proxy for the spending package, there were not enough members physically present to form the quorum required in the Constitution. 

Then-Speaker of the House Nancy Pelosi regularly allowed House members to vote by proxy during the COVID-19 pandemic.


US Judge in Texas Rules Congressional Passage of 2022 Spending Bill Unconstitutional, Reuters

A federal judge in Texas on Tuesday ruled that a $1.7 trillion government funding bill was unconstitutionally passed in 2022 through a pandemic-era rule that allowed lawmakers in the U.S. House of Representatives to vote by proxy rather than in person.
U.S. District Judge James Wesley Hendrix in Lubbock reached that conclusion as he granted Republican Texas Attorney General Ken Paxton's request to block a provision of that bill that gave pregnant workers stronger legal protections.
The judge, an appointee of Republican former President Donald Trump, called the scope of his ruling "limited," and said it did not block all of the spending law. Texas had only sought to block two provisions ultimately.
Hendrix blocked one provision, the Pregnant Workers Fairness Act, from being enforced against the state after finding the bill was wrongly passed. That law requires employers to provide pregnant workers with reasonable accommodations.

February 29, 2024 in Constitutional, Family, Legislation, Pregnancy | Permalink | Comments (0)

Monday, February 26, 2024

Ziegler, Cahn, and Suter on "The Massive Legal Fallout from Alabama's IVF Ruling"

Mary Ziegler, Naomi Cahn, and Sonia Suter have published a commentary with MSNBC titled The Massive Legal Fallout from Alabama's IVF Ruling is Just the Beginning. The full published opinion from the Alabama Supreme Court can be accessed here. The Court held that "[t]he central question . . . is whether the Act contains an unwritten exception to that rule for extrauterine children -- that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location."

Ziegler, Cahn, and Suter preview the problematic breadth of this holding. Here is an excerpt: 

Increasingly, since the Dobbs ruling, states like Alabama put a high price tag on pursuing justice for reproductive harms. While the unintentional destruction of embryos that occurred in this case was well-suited to some sort of legal remedy, it seems perverse to choose between a punitive vision of fetal rights and restitution for those grieving the loss of potential parenthood. There are remedies that don’t go all the way to personhood. Even in the Alabama case, the plaintiffs had other claims unrelated to personhood. Others have claimed breach of contract, malpractice, and even loss of the right to become a parent. 


Instead, the state court turned a case about three couples’ grief into an opportunity to proclaim the close relationship between Christianity and state constitutional law — and to advance an idea of personhood that so-called abolitionists in the anti-abortion movement argue requires the punishment of women themselves. Strikingly absent from the court’s decision, however, is a meaningful discussion of what the decision means for those who seek to become parents – or for those who don’t. 

February 26, 2024 in Abortion, Courts, Family, Healthcare, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

Friday, February 23, 2024

Challenging the Misuse of Women’s Legal History to Support Anti-Abortion Regulation

It looks like it is time again to reup this article I wrote over a decade ago disputing the use of women’s legal history to claim that nineteenth-century feminist pioneers like Elizabeth Cady Stanton advocated against abortion. Tracy Thomas, Misappropriating Women's History in the Law & Politics of Abortion, 36 Seattle L. Rev. 1 (2012). I also discuss the issue further in my book, Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Post-Dobbs, anti-choice writers have once again resurrected the erroneous claim that Stanton, and other historical feminists like Victoria Woodhull, actively opposed abortion. Erika Bachiochi & Rachel Morrison, Dobbs, Equality and the Contested Meaning of Women's Rights (Texas Review of Law & Politics, forthcoming).

My conclusion as to Stanton was to the contrary. I found that a close look at the historical record shows that Stanton supported—not opposed—women’s right to engage in voluntary, enlightened motherhood by choice. And she opposed state regulation of women’s private decisions and autonomy. Stanton actually said very little about abortion at all, a handful of comments over fifty years, in contrast to her thousands of speeches, writings, and interviews advocating many other demands for women’s rights for social, political, family, and economic citizenship. Instead, Stanton merely used the public debate swirling around abortion triggered by the new criminalization of abortion in the late 1860s as an avenue to voice her other demands for women’s equality, enfranchisement, autonomy, and opportunity.

February 23, 2024 in Abortion, Constitutional, Family, Legal History, Reproductive Rights | Permalink | Comments (0)

Tuesday, December 12, 2023

Frontier Airlines Settles Pregnancy and Breastfeeding Discrimination Lawsuit

Frontier Airlines Settles Pregnancy, Breastfeeding Discrimination Lawsuit

Frontier Airlines will settle a federal lawsuit filed by five pilots who accused the Denver-based airline of discriminating against them during pregnancy and while breastfeeding.

Through the settlement, Frontier will allow pilots to pump breastmilk in the cockpit during noncritical phases of a flight and will update or comply with existing policies that impact pregnant and lactating employees.

It is one of the first airlines to allow pilots to pump during flights, according to a Monday news release from the American Civil Liberties Union, ACLU of Colorado, Denver-based legal nonprofit Towards Justice and the firm Holwell Shuster & Goldberg.

Settling the lawsuit filed in December 2019 “does not admit any liability” by Frontier, according to the news release.

In a statement, ACLU Center for Liberty staff attorney Aditi Fruitwala said the organization is proud to come to an agreement that will benefit pregnant and lactating workers now and in the future.

December 12, 2023 in Business, Equal Employment, Family | Permalink | Comments (0)

Monday, November 6, 2023

Tarek Z. Ismail on "Family Policing and the Fourth Amendment"

Tarik Z. Ismail has published Family Policing and the Fourth Amendment in volume 111 of the California Law Review (2023). The article includes numerous threads about the regulation of Black mothers, including vignettes revealing the regulation of race and gender woven throughout the scholarship. The abstract is excerpted here.  

Each year, Child Protective Services (CPS) investigates over one million families. Every CPS investigation includes a thorough, room-by-room search of the family home, designed to uncover evidence of maltreatment. Most seek evidence of poverty-related allegations of neglect; few ever substantiate the allegations. Despite what in many cities amounts to dozens of daily home invasions by government agents, the most remarkable feature of CPS home searches is how uncommon it has been for courts to clarify their legal parameters. More surprising than the relative dearth of case law and scholarship on the subject is the conclusion some courts have reached that these investigations are outside the familiar rules regulating law enforcement searches of homes.


This Article examines how CPS home searches have escaped meaningful Fourth Amendment scrutiny for the past fifty years, despite their explicitly suspicion-based, investigative design. The few courts examining CPS home searches have distinguished them from traditional police investigations. These courts have situated CPS home searches within the “administrative search doctrine”—a confusing web of Fourth Amendment exceptions that the Supreme Court created in the late 1960s for non-law enforcement searches. But when they were created in the 1970s, CPS agencies assumed policing powers initially held by traditional law enforcement—including the powers to investigate maltreatment and to remove children. The co-emergence of the administrative search doctrine and CPS as a new investigative agency with old policing powers resulted in half a century of unnecessary confusion.


This Article seeks to resolve that confusion. It provides a brief description of the statutorily required CPS home search, an overview of its legal framework, and a critical analysis of the consequences of CPS searches on the families who experience them. The Article then situates the emergence of the CPS home search within the contemporary Fourth Amendment doctrinal edifice. It analyzes how a government agency conducting millions of suspicion-based home searches could slip through the cracks and demonstrates how none of the administrative search exceptions apply. Finally, the Article suggests a path forward through universal application of traditional Fourth Amendment principles. In so doing, the Article highlights CPS’s unique coercive power, related to—but wholly distinct from—the criminal police. It sets the stage for engagement based on support, not coercion.


November 6, 2023 in Family, Race | Permalink | Comments (0)

Infant Mortality Rate Rises by 3%

The National Center for Health Statistics released data on infant mortality for 2022. The infant mortality rate in the United States rose from 2021 to 2022. Roni Caryn Rabin of the New York Times reports on these findings (November 1, 2023): 

The infant mortality rate — defined as the number of babies who die before they are a year old for every 1,000 live births — [] increased by a statistically significant 3 percent last year, to 5.6 infant deaths per 1,000 live births, up from 5.44 deaths per 1,000 live births in 2021 . . .

The mortality rate of babies who were between 4 weeks and a year old increased by 4 percent, while neonatal mortality rates — that of babies less than a month old — increased by 3 percent.

Rates increased significantly among both premature babies born before 37 weeks of gestation and those born extremely early, at less than 34 weeks of gestation.

Overall, the statistically significant increases in mortality rates were seen only among male infants, whose survival rates have always been slightly lower than those among females.

Black infants have the highest mortality rate in the United States, rising slightly last year to 10.86 deaths per 1,000 live births, from 10.55 deaths per 1,000 live births in 2021, an increase that was not statistically significant.

By contrast, the infant mortality rates of both white and Native American and Alaska Native babies increased by statistically significant amounts last year.

November 6, 2023 in Family, Healthcare, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Tuesday, October 31, 2023

The Implications of Dobbs to the Fundamental Rights of Family Privacy

Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, 61 Duquesne U. L. Rev. (2023)  

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s reasoning and the impact the decision may have in the future.

October 31, 2023 in Abortion, Constitutional, Family, SCOTUS | Permalink | Comments (0)

Monday, October 30, 2023

Malinda L. Seymore on "Social Costs of Dobbs' Pro-Adoption Agenda"

Malinda L. Seymore has posted Social Costs of Dobbs' Pro-Adoption Agenda on SSRN. This article is forthcoming in volume 57 of the U.C. Davis Law Review in 2023. Here is an excerpt from the abstract. 

Abortion opponents have long claimed that women denied access to abortion can simply give their children up for adoption. * * * Of course, this claim assumes away the burdens of the pregnancy itself, which can result in economic strife, domestic violence, health risks, and potentially death in childbirth. But even on its own terms, the argument that adoption is an adequate substitute for abortion access makes normative assumptions about adoption as a social good in and of itself, ignoring the social costs of adoption for birth parents and adoptees. Idealizing adoption then influences decisions about what constitutes a valid adoption, with courts minimizing the requirements for voluntary consent. In a new post-Roe landscape that narrows choices for those facing an unplanned or unwanted pregnancy, what reforms are necessary to ensure that birth parents are not coerced into adoptions they do not want?

First, this Article looks to patterns of adoption placement before and after Roe v. Wade legalized abortion, and relies on newly available empirical data since Dobbs, to paint a picture of the adoption landscape in a post-Roe world. It concludes that the Dobbs ruling will not appreciably increase the “domestic supply of infants” for adoption . . . . Second, drawing upon insights from psychosocial literature the Article explains how pregnant persons make the decision about adoption, who relinquishes for adoption, and the salience of abortion to that decision; thus informing our understanding of laws and practices of consent in adoption. Third, the Article outlines many of the potentially coercive tactics that have been employed by adoption professionals to persuade birth parents to relinquish their constitutionally-protected parental rights, including high-tech targeting ofpotential birth parents, the use of crisis pregnancy centers to steer pregnant persons to adoption, manipulating the emotional stress of pregnancy to procure consent, and taking advantage of the duress of circumstances of poverty. Fourth, the Article proposes reforms to adoption that give enhanced meaning to the requirement of consent: increased regulation of adoption agencies, independent options counseling, recognition of duress of circumstances as vitiating consent, greater procedural protection to include appointment of counsel, and judicial education about the realities of adoption.

October 30, 2023 in Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, October 25, 2023

Gender, Health and the Constitution Conference at the Center for Con Law at Akron



Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas GenetinMike GentithesDr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

October 25, 2023 in Abortion, Conferences, Constitutional, Family, Gender, Healthcare, Law schools, LGBT, Pregnancy, Race, Reproductive Rights, Science, SCOTUS, Sports | Permalink | Comments (0)

Friday, October 20, 2023

California Passes New Reproductive Loss Leave Law

California Establishes New Leave for Reproductive Loss

On Oct. 11, California Gov. Gavin Newsom signed a bill into law allowing for up to five days of time off work for reproductive-related losses.

Senate Bill 848 makes it an unlawful employment practice for an employer to refuse to grant an eligible employee's request to take up to five days of unpaid leave following a reproductive loss event.

Previously, California law required employers to provide bereavement leave upon the death of an employee's family member. Reproductive-related losses, however, largely remained unaddressed. Such losses are a common occurrence with more than 1 in 4 pregnancies resulting in miscarriage, and they may result in post-traumatic stress disorder (with almost 1 in 3 women developing pos-traumatic stress disorder after a miscarriage).

What Does this New Leave Require?

SB 848 acts as a subset of California's bereavement leave law and increases an employee's leave entitlements for a reproductive loss event, which is defined as "the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction." Covered employers must provide up to five days of leave for reproductive loss events.

The law limits the amount of reproductive loss leave to a maximum of 20 days within a 12-month period.  Thus, although an employee may be subject to multiple reproductive loss events in a 12-month period, an employer is not required to provide more than 20 days of reproductive loss leave.

Like many other California leave laws, SB 848 prohibits employers from retaliating against any employee for requesting or taking leave for a reproductive loss.

California employers with five or more employees are covered under the law

October 20, 2023 in Family, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, October 19, 2023

Domestic Violence and the Functional Parent Doctrines

Courtney Joslin & Douglas NeJaime, Domestic Violence and Functional Parent Doctrines, 30 Virginia J. Soc. Pol'y & Law 67 (2023)  

Today, approximately two-thirds of the states have a functional parent doctrine. Under these doctrines, a court can extend parental rights based on the conduct of forming a parental relationship with a child, regardless of whether the person is the child’s biological or adoptive parent. In recent years, these functional parent doctrines have garnered significant attention. Some critics fear that perpetrators of domestic violence will misuse functional parent doctrines to abuse, harass, and coerce their victims. These critics often imagine a paradigmatic case — one involving a former nonmarital different-sex partner who has a limited relationship with the child and uses the doctrine in a post-dissolution custody action as a way to continue to harass and control his former partner, the child’s mother.

Drawing upon relevant findings from our empirical study of all electronically available decisions issued in the last forty years applying functional parent doctrines, this Article sheds light on these fears by reporting what we know about allegations of domestic violence in cases decided under these doctrines. Ultimately, our findings reveal that the paradigmatic case that critics envision is quite rare. Former nonmarital different-sex partners constitute only a small share of the functional parent claim-ants. Instead, the population of claimants is characterized by diversity. Indeed, our study includes more than twice as many relatives — a group routinely overlooked in conversations about functional parent doctrines — than different-sex nonmarital partners. Even as allegations of domestic violence are more common in cases involving intimate partners, they are hardly a common feature. Moreover, even the small share of cases that would seem to be of most concern — those involving allegations of domestic violence against only the functional parent — rarely present the straightforward facts that structure objections to functional parent doctrines.

Rather than finding that functional parent doctrines are routinely used in ways that disrupt children’s lives, we find that the doctrines often function to provide stability and security for children. Our account raises questions about opposing functional parent doctrines altogether based on fears that male ex-partners will use the doctrines for abusive ends. Instead, given the important benefits of functional parent doctrines for children, we conclude that concerns about domestic violence, which are in-disputably serious and must be taken into consideration, should be addressed within functional parent doctrines, as some states recently have done.

October 19, 2023 in Family, Gender, Violence Against Women | Permalink | Comments (0)

Thursday, October 12, 2023

Nobel Prize in Economics Awarded to Claudia Goldin for Work on the Gender Pay Gap

The Nobel Prize explains the relevance of her research:

Historically, much of the gender gap in earnings could be explained by differences in education and occupational choices. However, this year’s economic sciences laureate Claudia Goldin has shown that the bulk of this earnings difference is now between men and women in the same occupation, and that it largely arises with the birth of the first child. 


By trawling through the archives and compiling and correcting historical data, this year’s economic sciences laureate Claudia Goldin has been able to present new and often surprising facts. She has also given us a deeper understanding of the factors that affect women’s opportunities in the labour market and how much their work has been in demand. The fact that women’s choices have often been, and remain, limited by marriage and responsibility for the home and family is at the heart of her analyses and explanatory models. Goldin’s studies have also taught us that change takes time, because choices that affect entire careers are based on expectations that may later prove to be false. Her insights reach far outside the borders of the US and similar patterns have been observed in many other countries. Her research brings us a better understanding of the labour markets of yesterday, today and tomorrow.

UChicago Alum Claudia Goldin Wins Nobel Prize for Research on Gender and Labor

        Detailing Goldin's work and books.

Podcast, Claudia Goldin: Why do Women Still Make Less Than Men?, Harvard Magazine.


October 12, 2023 in Business, Equal Employment, Family, Gender, Work/life | Permalink | Comments (0)

Thursday, September 28, 2023

Ageism and Senior Women

Alan Gutterman, Ageism and Older Women,  

According to estimates based on data compiled and analyzed by the World Bank, the global population of women aged 65 and over as of 2020 was 397 million (an increase of 106 million from a decade earlier), representing 55% of the total global population of persons aged 65 and over (722 million) and 10.35% of the world’s total female population (compared to 8.5% a decade earlier). In 2009, the UN projected that the number of older women living in less developed regions would increase by 600 million within the period 2010 to 2050. When just five years is added to the definition of “older women” the size of the group becomes even more impressive, with data showing that the global population of women age 60+ was 605 million as of 2020 and is expected to reach 1.14 billion by 2050.

The World Health Organization has called the “feminization of aging” one of the central challenges to be addressed by its program of “active aging”, noting that while women have the advantage in length of life, they are more likely than men to experience domestic violence and discrimination in access to education, income, food, meaningful work, health care, inheritances, social security measures and political power, and thus more likely than men to be poor and to suffer disabilities in older age. The UN Independent Expert on the Enjoyment of All Human Rights by Older Persons has observed that the combination of ageism and sexism has a unique and aggravating effect on discrimination and inequality which leads to older women being disproportionately affected by some health conditions, including depression, and suffering from the impact of gender inequalities in older age that manifest in multiple aspects, including legal status, access and control of property and land, access to credit, and inheritance rights.

There is no international treaty or convention that specifically covers the human rights of older persons, but older women have been called out for special attention in various human rights instruments and declarations. Of course, older women are entitled to all of the rights enshrined in the UN Convention on the Elimination of Discrimination against Women, which are applicable to all stages of a woman’s life, and the UN Committee on the Elimination of Discrimination against Women has argued that full development and advancement of women, including the enjoyment of human rights by older women, can only be achieved through a “life-cycle approach that recognizes and addresses the different stages of women’s lives −from childhood through adolescence, adulthood and old age−“, since the cumulative impact of those stages is so readily apparent when assessing the lives and needs of older women from a human rights perspective.

This work discusses ageism and gender and realization of the human rights of older women and covers a range of subjects including legal and policy frameworks; health; housing; work; education and lifelong learning; participation in political and decision-making processes; poverty, economic empowerment and property rights; participation in community activities; gender stereotyping and ageist myths; caregiving and families; abuse, violence and neglect; access to justice; emergencies; older women as members of various vulnerable sub-groups (e.g., rural older women, refugees and older lesbian, bisexual, transgender and intersex women); intergenerational solidarity; and the role of businesses and entrepreneurs in the realization of the human rights of older women.

September 28, 2023 in Family, Gender | Permalink | Comments (0)

Friday, September 22, 2023

Personal Responsibility Laws after Covid and Dobbs, Doubling Down on Privacy

Susan Frelich Appleton & Laura Rosenbury, Reflections on “Personal Responsibility” after COVID and Dobbs: Doubling Down on Privacy, 72 WASH. U. J.L. & POL’Y 129 (2023)

This essay uses lenses of gender, race, marriage, and work to trace understandings of “personal responsibility” in laws, policies, and conversations about public support in the United States over three time periods: (I) the pre-COVID era, from the beginning of the American “welfare state” through the start of the Trump administration; (II) the pandemic years; and (III) the present post-pandemic period. We sought to explore the possibility that COVID and the assistance programs it inspired might have reshaped the notion of personal responsibility and unsettled assumptions about privacy and dependency. In fact, a mixed picture emerges. On the one hand, the Supreme Court has rejected longstanding constitutional protection for abortion, and campaigns for “parental rights” have gained traction in several states. On the other hand, innovative forms of public support for families have appeared at state and local levels. In developing these conclusions, we highlight familiar challenges to the public/private divide while also exposing new cracks in doctrine that purports to distinguish intentional discrimination from disparate impact and to protect negative but not positive rights.

September 22, 2023 in Constitutional, Family, SCOTUS | Permalink | Comments (0)

Tuesday, September 12, 2023

Analyzing the New Federal Pregnant Workers Fairness Act

Deborah Widiss, The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America, Employee Rgts & Employment Policy J (2023)  

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

September 12, 2023 in Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

The Supreme Court's Rhetoric of Motherhood

Lucy Williams, Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood, 102 N.C. L. Rev. (forthcoming 2024)  

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language.

My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently.

These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

September 12, 2023 in Abortion, Family, Gender, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, September 5, 2023

Dobbs Impact on the Constitutional Rights of Family Privacy

Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, 61 Duquesne L. Rev. (2023) 

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s reasoning and the impact the decision may have in the future.

September 5, 2023 in Abortion, Constitutional, Family, SCOTUS | Permalink | Comments (0)

TX is the Latest State to Drop the Tampon Tax, Bringing the Total States Now to 24

NYT, TX Drops the "Tampon Tax," the Latest State to Do So

On Friday, a bipartisan Texas bill that eliminates sales taxes on menstrual products went into effect, making it the 24th state in the country, as well as District of Columbia, to remove what is colloquially known as the “tampon tax.”

Before the shift, Texas had classified period products, including pads, tampons, menstrual cups, discs and sponges, as optional or luxury items and applied a 6.25 percent tax. Opponents of the tampon tax have long claimed that because other items — like contact lenses and over-the-counter medications in most states — are categorized as necessary and therefore sold tax-free, the tax on period products is discriminatory against those who menstruate.

“Every woman knows that these products are not optional,” Republican State Senator Joan Huffman, who spearheaded the bill in the Senate, said in a statement. “They are essential to our health and well-being and should be tax exempt.”

The new law also eliminates taxes on adult and children’s diapers, baby wipes, bottles, maternity clothes and breast pumps. Sales taxes on period products, which can cost up to $20 every month, vary by state but they range from 4 to roughly 7 percent.

Dropping the tampon tax is part of a broader effort by student activists and lawmakers to make these products more accessible, echoing efforts in other countries, like Scotland, where period products are available for free. In the United States, 26 states and the District of Columbia have laws to offer free menstrual products in schools, and 25 states have laws to provide them in prisons. A new law introduced in Congress this year, the Menstrual Equity for All Act, proposes mandating Medicaid coverage of period products.

There are 21 states in which menstrual products are taxed, while other products, like Viagra, candies and condoms, are generally not, Ms. Herman said. (The remaining five states don’t have sales taxes on anything.)

The first state in the country to drop the tampon tax was Minnesota in 1981, but the issue had been “largely ignored” elsewhere for decades, said Laura Strausfeld, founder and executive director of Period Law.

September 5, 2023 in Family, Gender, Legislation | Permalink | Comments (0)

Ohio Constitutional Amendment to Protect Choice of Abortion Triggering Significant Misinformation

An update on the Ohio abortion amendment on the ballot this fall, including some of my thoughts.

ABCNews, Julie Carr Smyth & Christine Fernando, An Ohio Ballot Measure Seeks to Protect Abortion. Opponents Messaging is on Parental Rights, AP, ABCNews &   Politico

The wording of a proposed constitutional amendment on Ohio's fall ballot to ensure abortion rights seems straightforward: It would enshrine the right “to make and carry out one's own reproductive decisions.”

Yet as the campaigning for and against the nation's latest tug-of-war over abortion begins in earnest this weekend, voters are getting a different message from the measure's opponents. They are characterizing it as threatening a wide range of parental rights.***

To try to reverse their string of losses, anti-abortion groups are using the Ohio campaign to test arguments over parental rights and gender-related health care as potentially a winning counterpunch.

“It’s clear that the misinformation about abortion is not winning,” said Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights. “It didn’t win in Michigan. It didn’t win in Vermont. It didn’t win in Kansas. It didn’t win in Kentucky. So instead, we are seeing anti-abortion factions in search for that new, winning talking point.”***

Ohio already has a parental consent law governing minors' access to abortion. Cooke said the amendment's wording means that would become unconstitutional, along with possible new laws aimed at restricting minors' access to gender-related health care.

Tracy Thomas, a University of Akron law professor who directs the school’s Center for Constitutional Law, was among several legal scholars who said that reading of the amendment is a stretch.

“It is a straw argument, a false argument that they're setting up,” she said. “Children do have constitutional rights, but we have lots of examples in the law, both state and federal, where these children’s rights are limited. Marriage is a good example.”

And a different, expanded version of the article is here, Ohio Votes on Abortion Rights This Fall. Misinformation About the Proposal is Already Spreading

Independent legal experts say it’s a stretch to suggest that also means gender-related health care. That legal theory has not been attempted in other states.

Tracy Thomas, a University of Akron law professor who directs the school’s Center for Constitutional Law, said the term “decision” could be essential in interpreting the language.

“A reproductive decision to me, is a decision to reproduce or not to reproduce,” she said. “The only word there that might arguably be raised (as tied to gender-related care) is fertility treatment. I think fertility treatment is IVF. It means treatment for the purpose of reproducing.”

September 5, 2023 in Abortion, Constitutional, Family, Legislation, Reproductive Rights | Permalink | Comments (0)