Gender and the Law Prof Blog

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.

Using Vulnerability Theory to Address Family and Elder Caregiving and the State's Resistance to Support

Jessica Dixon Weaver, The Perfect Storm: Coronavirus and The Elder Catch,
96 Tul. L. Rev. __ (forthcoming 2021)

The global COVID-19 pandemic has exacerbated an already growing phenomenon: the Elder Catch. This term defines the caregiving dilemma faced by adults who are simultaneously working, caring for elder parents or relatives, and in some cases, raising children at the same time. Few scholars have explored how the state uses the traditional family framework to resist providing comprehensive government support for elder care. Women typically bear the brunt of caregiving costs within the family and become physically and mentally vulnerable in the process. COVID-19 has pushed women caught in the Elder Catch to the brink while sheltering at home, and has illuminated the disparities between genders regarding the high level of expectation society places on the availability of unpaid family caregiving. Coronavirus has also highlighted racial inequities for African American and Latino families, where female caregivers are more likely to be essential workers forced to work outside the home, and therefore more likely to contract and spread the virus within their family and surrounding communities. This article uses vulnerability theory to address the caregiving void that American women are facing. By introducing a new term, resistant assets, within the taxonomy of vulnerability theory, this article introduces a diagnostic tool for scholars and policy makers to analyze why it is so difficult to change state and market dependence on unpaid family caregiving and challenge government opposition to expanding social support of the family. Resistant assets are frameworks used by the state to reinforce the status quo and maintain a posture of legal and social non-intervention. The normative and extended family are resistant assets that prevent a revision of the American Social Contract. This article fills a gap in family law scholarship by exploring how analysis of resistant assets within vulnerability theory can contribute to the development of a theoretical foundation for legal change to support family caregivers.

New Book: The Man Who Hated Women, on the Comstock Laws and the Women Prosecuted Under Them

NPR, Fresh Air, How an Anti-Vice Crusader Sabotaged the Early Birth Control Movement

In 1873, Congress passed a law outlawing the distribution, sale, mailing and possession of "obscene" materials — including contraception.

 

The Comstock Act, as it became known, was named after Anthony Comstock, an anti-vice crusader who later became a special agent to the U.S. Post Office, giving him the power to enforce the law. In her new book, The Man Who Hated Women, author Amy Sohn writes about Comstock — as well as eight women charged with violating the Comstock Act.

 

While working for the post office, Sohn says, Comstock "decoyed people" by using the mail to solicit obscenity and contraception.

 

"[Comstock] was given that [post office] title so that he could have the power to inspect the mail and over time it was expanded to be able to come into people's houses and seize items," she says. "It was a very broad, broad definition of what someone affiliated with the post office could do with regards to individual civil liberties."

 

Over time, the scope of the Comstock law expanded: "Its heart was in the mail, but ... it became much broader than that," Sohn says. "Even oral information, which reasonable people believed was constitutionally protected, turned out that it wasn't."

 

In 1916, feminist activist Emma Goldman was arrested in New York City just before giving a lecture on family planning. One year earlier, birth control advocate Margaret Sanger had been charged with violating the law. Goldman and Sanger are just two of the eight women profiled in Sohn's book. Others include nurses and health practitioners, spiritualists and women in the so-called free love movement.

 

The Comstock Act lasted until 1965 when the Supreme Court ruled it violated the right to marital privacy. "It was in Griswold v. Connecticut that married women could finally have the right to receive contraception from their doctors," Sohn says.

 

As for single women? They didn't get the same rights until the 1972 Eisenstadt v. Baird ruling — 99 years after the passage of the Comstock Act.

Study Shows Benevolent Sexism in Judges in More Favorable Decisions for Women in Child Custody Relocation and Criminal Sentencing Cases

Jeffrey Rachlinski & Judge Andrew Wistrich, Benevolent Sexism in Judges, 58 San Diego L. Rev. 101 (2021)

  Previous research suggests that judges make more favorable rulings for female litigants in family court cases and in criminal sentencing. Although such trends might arise from real differences between men and women, they might also arise from stereotypes that cause judges to favor mothers over fathers and to show leniency towards female defendants. We tested for benevolent sexism among 714 sitting trial judges with two experiments in which we presented judges with hypothetical cases in which we only varied the gender of the litigants. In a family court case, we found judges were more apt to grant a request to allow relocation by a mother than by an otherwise identical father. In a criminal case, we found that judges sentenced a female defendant to less prison time than an otherwise identical male defendant. The results demonstrate that judges engage in benevolent sexism towards female litigants in common legal settings.

Evaluating the Ten Years of the Federal Law, Break Time for Nursing Mothers

Liz Morris & Jessica Lee, Compliance or Complaints? The Impact of Private Enforceability of Lactation Break Time and Space Laws 

The Break Time for Nursing Mothers requirement has been federal law for over a decade, requiring employers to provide reasonable break time and private space to employees for expressing breast milk. However, non-compliance remains a problem, driven in large part by the lack of enforcement incentive to become educated about and follow the law. Legislation to remedy the enforcement gap in existing law is pending. This report examines an important question policymakers consider when assessing attempts to reform the law: whether and to what extent adding a private enforcement mechanism to a lactation break time and space law impacts litigation rates.

We conducted an in-depth review of lawsuits filed against employers in the four jurisdictions with privately enforceable break time and space laws to examine the likelihood that employers will be sued. Our research identified only 6 lawsuits filed against employers in the jurisdictions over the combined 47 years that the laws have been in effect. All of the lawsuits were brought by employees alleging actual economic damages, typically job loss. Given the small number of cases, the annual likelihood a private company will be sued under an enforceable lactation break time and space law is essentially zero (0.0002%).

WorkLife Law’s data show that allowing employees to enforce lactation break time and space laws in court does not lead to a meaningful increase in litigation.

The Role of Contract Theory and Doctrine in Feminist Legal Theory

Martha Ertman, Contract's Influence on Feminism and Vice Versa, Handbook of Feminism and Law in the U.S. (Debora Burke, Martha Chamallas & Verna Williams eds., forthcoming)

This book chapter for an Oxford Handbook on U.S. Feminist Legal Theory describes the role of contract theory and doctrine in feminist legal theory. After a brief discussion of its roots in political theory re: the social contract, sets out examples of feminist theory that portray contract as a route to gender equality, others that signal dangers of contract colluding with gender subordination, and finally an intermediate approach that views contract as a private law laboratory of sorts to try out new forms of relation that eventually can mature to public law rules that recognize gender equality. It concludes by identifying ways that feminist legal theorists have injected feminist insights into traditional contract law via doctrines such as good faith in employment contracts, debtor rights in lending relationships, and defenses such as unconscionability and duress. Throughout, this chapter focuses on topics that have generated the most feminist legal attention, which often relate to families.

The Legal History of the Involuntary Sterilization of Native American Women

Sophia Shepherd, The Enemy is the Knife: Native Americans, Medical Genocide, and the Prohibition of Nonconsensual Sterilizations, 27 Michigan J. Race & L (forthcoming 2021) 

In the early 1970s, Tribal Nations learned that doctors at Indian Health Service (IHS) hospitals were sterilizing at least 25 percent of Native American women of childbearing age. Most of the women were sterilized without their knowledge or without giving valid consent. This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It explains the obstacles that Native activists faced when confronting the sterilizations, including the widespread acceptance of eugenic sterilizations, federal legislation that gave doctors economic incentives to perform the procedures, and paternalistic views about the reproductive choices of women, and especially women of color. Finally, this Article describes the long-lasting impacts of the federally-sponsored sterilization of Native women. The sterilizations devastated many women, reduced tribal populations, and terminated the bloodlines of some Tribal Nations. In the last decade, living victims of nonconsensual sterilization programs in other parts of the country have received compensation for their losses. Native American women deserve them too.

 

Equalizing Parental Leave

Deborah Widiss, Equalizing Parental Leave, 105 Minnisota Law Review 1275 (2021)

The United States is the only developed country that fails to guarantee paid time off work to new parents. Just 21% of American workers— and just 9% of the lowest quartile of earners—receive paid parental or family leave from their employers. As a result, many new parents, particularly low-wage workers, are forced to go back to work extremely soon after a birth or adoption. Fortunately, a growing number of states have stepped into the breach, enacting their own laws to provide this paid time off to new parents. Additionally, in December 2019, Congress passed a law providing paid parental leave to most federal workers, and the coronavirus pandemic has heightened calls for a more comprehensive federal solution. The new laws are a significant step forward from the prior baseline of no paid leave, but their structure systematically disadvantages nonmarital families and thus exacerbates inequality on the basis of class, race, and sex.

The unequal treatment of nonmarital families under parental leave laws has been overlooked—in both academic scholarship and policy debate—because in America, leave is typically assessed from the perspective of parents, not families or children. Under the state and federal laws, each parent of a new child receives income replacement during time taken off work to provide care. Mothers and fathers receive the same benefits; this structure is intended to encourage fathers to play a hands-on role in infant care. This is an important objective. Among married different-sex couples, women often curtail paid work when children are born, which has long-term ramifications on married women’s economic and social status. The pandemic has intensified this concern, with women being far more likely than men to disrupt their own work to meet children’s needs—or to have dropped out of the workforce entirely for at least a period of time.

Early evidence from states with paid parental leave programs suggests the gender-neutral structure, which provides equal benefits to each parent, is helping achieve better gender parity. Men are claiming benefits at relatively high rates. However, every step forward in achieving the gender equality envisioned by these laws—that is, the aspiration that both mothers and fathers will fully utilize their benefits—will widen the gap between families with one parent and families with two.

This is a significant issue. Nearly 40% of new mothers in the United States are unmarried; nonmarital birth rates are much higher for women who lack a college degree, as well as for certain racial minorities. This is the result of a large and growing “marriage gap” in our country. When unmarried parents are living together, or otherwise both involved in childcare, it makes sense that each should be able to take parental leave. But many nonmarital children are cared for by a single parent, usually their mother. This is particularly true for Black women; almost one-third of Black women with children under the age of one are the sole adult in their household—unmarried, un-partnered, and not living with extended family. Most single mothers will ultimately bear primary responsibility for both breadwinning and caregiving. But because the state and federal leave laws provide benefits to individual parents, single-parent families are eligible for only half as much support as two-parent families. In other words, the new laws disadvantage the families that are likely to need them the most.

This Article exposes the structural inequality built into paid leave laws and then proposes potential solutions. In the process, the Article makes several contributions. The first are descriptive and doctrinal. The emergence of the state paid family and medical leave laws, and the policy for federal workers, address a major gap in American labor and social welfare policy. A few articles in the legal literature have touched upon these new laws, but this Article provides a far more detailed description of their structure. It then breaks new ground by analyzing how the parental leave laws interact with the state laws that establish legal parentage and custodial responsibility, and shows that this has the—likely unintended—consequence of disadvantaging nonmarital families.

Second, the Article uses this analysis to suggest that our current theoretical approach to assessing “equality” in the context of parental leave laws is incomplete. Parental leave policies implicate foundational questions of sex discrimination doctrine and theory because they respond to key biological and social differences between (cisgender) men and women. American law adopts a formal equality approach, requiring equal benefits for each parent. Most other countries, by contrast, provide maternity leaves that are much longer than paternity leaves, specifically permitting such “special” treatment of mothers under their sex discrimination doctrine. There are merits to both approaches. But the myopic focus on what constitutes “equal” treatment of parents obscures other important vectors of analysis, such as equal treatment of children or families. Further, by shortchanging single parents, disproportionately women of color, the American structure perpetuates other forms of inequality. In this respect, the Article builds on other scholarship that has exposed how labor policies privileging ideals of formal equality may disadvantage women and exacerbate class and race-based disparities.

Finally, the Article applies this expanded theoretical frame to suggest policy reforms that would address the inequitable treatment of single-parent families without abandoning the aspects of the current structure that are helping shift gender norms around caretaking in two-parent families. Drawing on models used in other countries, the Article proposes that sole parents (which could be defined according to legal parentage, legal custody, or the use of other factors to gauge the level of involvement by a second-parent) would be able to access an extended period of benefits, or that a broader range of family members be able to claim benefits to care for a newly-born, newly-adopted, or newly-fostered child. It also suggests that leave policies be structured to provide medical benefits separate from newborn bonding benefits, which helps ensure that a mother with medical needs during pregnancy still has access to paid time off after the birth; this is important for all birth mothers, but it is particularly essential for single parents. These solutions could be readily achieved without unduly burdening any individual employer because the costs of benefits are spread through an insurance-based approach.

Sidlining Women in the Global Pandemic from the Lack of Childcare

Jessica Fink, Sidelined Again: How the Government Abandoned Working Women Amidst a Global Pandemic  
Utah Law Review, Forthcoming 2022

Among the weaknesses within American society exposed by the COVID pandemic, almost none has emerged more starkly than the government’s failure to provide meaningful and affordable childcare to working families – and, in particular, to working women. As the pandemic unfolded in the spring of 2020, state and local governments shuttered schools and daycare facilities and directed nannies and other babysitters to “stay at home.” Women quickly found themselves filling this domestic void, providing the overwhelming majority of childcare, educational support for their children, and management of household duties, often to the detriment of their careers. As of March 2021, more than 5 million American women had lost their jobs, with 2.3 million women no longer even looking for work. Countless other women continue to struggle with the unsustainable demands of performing their paid jobs while simultaneously providing close to full time domestic services at home. On all of these metrics, women of color have found themselves even more acutely affected.

Importantly, this need not have been the case: With a reasonable amount of planning and expense, federal, state, and local governmental resources could have been mobilized to create a solution to this crisis. By establishing and providing funding for “learning pods” throughout the country, the government could have served the needs of countless working families (especially working mothers) by filling this childcare void, while also providing employment assistance to a host of other workers who lost their jobs during the pandemic. In fact, the government could have turned to its own experience – providing childcare to working mothers during World War II and continuing to operate high-quality and affordable childcare for military families today – to deliver this type of childcare assistance to all families currently in need. In declining to do so, the government not only has exacerbated the COVID crisis for innumerable working families, but also has further relegated women to the professional sidelines – a decision destined to have immeasurable and long-term consequences for millions of working women, for the organizations that employ them, and for society as a whole.

Equality and Family Autonomy: Disputing the Functional Approach to Family Law

Katharine Baker, Equality and Family Autonomy, Forthcoming Univ. of Pa. J of Con. Law

Contemporary family law scholarship and a growing body of doctrine often assume that a functional approach to family law – treating those who have acted like family as family – is the best way to secure equal treatment for people who live in relationships that have not been recognized legally as familial. This article argues that these functional claims, made in the name of equality, inevitably disrupt the very protection they are asking for because they undermine principles of family privacy and autonomy. In unpacking the benefits of a robust family autonomy doctrine – benefits that are crucially important to communities of color and LGBTQ communities - this article challenges not only the functional turn in family law, but feminist scholarship that has been critical of family autonomy and privacy doctrine. Building on the consistent defense of privacy that emanates from women scholars of color, this article demonstrates how functional analyses demand interference and judgement that is likely to tear at the fabric of minority communities. Functional approaches vest judges with the power to define who a family is and what it should look like. This article shows how when judges do this in the parental area, they reify dyadic, heteronormative, usually white middle class notions of parenthood. When they do it in the context of cohabitation, they reify gender roles and a morality that assumes the ubiquity of long-term conjugal relationships. Thus, the functional turn, hailed as progressive, actually re-inscribes traditional understandings of family relationships.