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)

Thursday, August 24, 2023

Sologamy, The Increasingly Important Social Identity of Singlehood


Naomi Cahn, Singlehood, Wash. U. J. Law & Policy (forthcoming 2024)

Singlehood is becoming an increasingly important social identity category. Thousands of people are members of Facebook groups such as I am my Own Soulmate or Community of Single People. Sologamy, marrying oneself is on the rise. The growing social movement to bring attention to voluntarily single people is creating pressure on the law.

Single people are also highly visible when it comes to categories for the allocation of government benefits: eligibility requirements may well differ based on whether an applicant is single or married. This occurs, for example, in the qualifications for long-term care under Medicaid or various public welfare benefits, the availability of portability in utilizing the estate and gift tax, or even in the choices for filing income tax returns. This categorization reflects core assumptions about the privatization of dependency during marriage rather than taking singlehood seriously.

Nonetheless, this legal treatment and the growing number of voluntarily single people lead to questions about whether singlehood should be a distinct legal category, a basis for analyzing legal distinctions. Indeed, single people are still not yet adequately explored in legal scholarship. This may be a reflection of cultural (and legal) images of single people that are often negative: single people are lonely, have not yet met the right person, are reluctantly un-partnered, singlehood status is seen as something that is temporary and subject to control—or a reflection that singlehood is such an indeterminate legal category, difficult to define, that it would be too difficult to establish it as a distinct category.

August 24, 2023 in Family, Pop Culture, Theory | Permalink | Comments (0)

Thursday, June 22, 2023

OH Court Overturns Conviction of Pregnant Woman for Drug Use

Michelle Onello, Ohio Court Overturns Conviction of Pregnant Woman for Drug Use

An Ohio court of appeals unanimously overturned a pregnant woman’s conviction under the state’s “Corrupting Another with Drugs” law earlier this month, in a rare post-Dobbs win for the rights of pregnant people.

Extensive evidence shows criminalizing pregnant women for substance abuse endangers them and jeopardizes their babies’ well-being. Even still, prosecutors in Ohio—and elsewhere—have increasingly sought to “protect” fetuses by prosecuting pregnant women for their actions, manipulating state laws initially passed to protect pregnant people themselves from harm.

The Ohio case involved Tara Hollingshead, who voluntarily admitted to using fentanyl while in labor at an Ohio hospital. Prosecutors took the aggressive step of charging Hollingshead under an Ohio law that dictates no person shall “by any means, furnish or administer a controlled substance to a pregnant woman or induce or cause a pregnant woman to use a controlled substance, when the offender knows that the woman is pregnant or is reckless in that regard.”

The move marks the first time that Ohio prosecutors used this law to prosecute a pregnant person for the personal use of controlled substances. Prosecutors made the novel argument that, even though the law is entitled “Corrupting Another with Drugs,” the law was applicable to pregnant people who administered the drugs to themselves. A jury had previously convicted Hollingshead of a first-degree felony in April 2022, sentencing her to a mandatory eight to 12 years in prison.

Hollingshead appealed her conviction, arguing that the law was misapplied to criminalize pregnant people who were never intended to be covered under the law. The three-judge panel agreed, holding that personal drug use was outside the scope of the law and that the prosecutor’s interpretation of the statute was unreasonable, as it requires “use of the terms administer, furnish, induce and cause in ways that are inconsistent with common usage.” Further, the prosecutor’s interpretation would make Hollingshead both an offender and simultaneously a victim, thus entitled to restitution from herself, which the court acknowledged would be an “absurd result.”

Prosecutor Ron Welch vowed to appeal the ruling: “We were hoping that by use of this law we could be able to limit some of the mothers that continually have drug-addicted babies.” He also called on lawmakers to “untie” law enforcement’s hands, since the “laws that we have in place right now just are not good enough.”


June 22, 2023 in Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, June 1, 2023

Analyzing the Privatization of Family Leave Through Insurance

Deborah A. Widiss, Privatizing Family Leave Policy: Assessing the New Opt-in Insurance Model, Seton Hall L. Review (forthcoming)

Federal law fails to guarantee new parents or family caregivers paid time off from work. A growing number of blue-leaning states have addressed this gap by enacting comprehensive, paid family and medical leave laws, typically funded by a small payroll tax. A new—and quite different—approach is expanding rapidly in red-leaning states: authorization of commercial “Family Leave Insurance” to be marketed to employers. In other words, this is an opt-in privatized approach to family leave policy.

This Article, written for a symposium held by the Seton Hall Law Review, offers the first analysis in the legal literature of opt-in Family Leave Insurance laws. These laws anticipate that insurance companies will likely add “family leave” to group short-term disability policies (an existing insurance product that provides partial salary reimbursement to employees who take time off work for medical needs). However, only about 40% of American workers, and just 22% of low-wage workers, receive short-term disability benefits from their employers—and most policies replace only 50-60% of regular wages. Providing paid leave at the low reimbursement rate typical of short-term disability policies can actually exacerbate inequality by making it easier for relatively affluent workers to take extended time off but still failing to provide sufficient support for low-wage workers to do so. By contrast, states that have enacted comprehensive paid leave laws, funded by a payroll tax, typically cover virtually all workers, and most replace 80-95% of regular wages, up to a cap set around the median wage.

This Article analyzes the new privatized Family Leave Insurance model, then suggests provisions that would help opt-in policies actually meet the needs of new parents and family caregivers. These include specifying a reasonably ample period of benefits and level of wage replacement, and ensuring that definitions of “family” reflect the diversity of contemporary families. The Article also explores potential adverse selection challenges—both within workplaces and across workplaces—that may arise under an opt-in approach. Because the risk pool will almost certainly be less varied than under a public program, private Family Leave Insurance may well provide less generous benefits at a higher per-person cost than fully-public policies. Authorization of opt-in insurance is better than nothing, but, as this Article demonstrates, it is likely that both workers and businesses are better served by comprehensive paid leave laws.

June 1, 2023 in Business, Equal Employment, Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

SCOTUS Unwed Parents Cases Retain Anachronistic Gendered Hierarchies as a Matter of Constitutional Law

Albertina Antognini, Unwed Parents: The Limits of Constitution, 35 J. Am. Acad. Matrim. Law. 425 (2023)

As marriage has evolved to become a more egalitarian institution in both form and substance, nonmarriage remains full of antiquated norms and gendered hierarchies. In constitutional terms, while equality and due process considerations have forged an increasingly open and equal marital relation, these gains have largely been limited to marriage. The Constitution has failed to reform nonmarriage in similar ways and, as a consequence, it continues to contain “stunningly anachronistic” laws and principles.
Nonmarriage is by definition broad, encompassing the many activities and statuses that take place outside of marriage. The nonmarital cases this essay addresses involve unwed parents, which constitute a small but important slice of the legal issues that arise in the nonmarital domain. The Supreme Court has had occasion to interpret the Constitution's applicability to nonmarriage in a series of cases addressing unwed fathers; these decisions range from considering whether notice ought to be provided to an unwed father as a constitutional matter before placing his biological child for adoption, to whether disparate requirements for unwed fathers and unwed mothers in transmitting citizenship violate equal protection. Throughout, the Court has repeatedly upheld dissimilar treatment where it finds the existence of “real” differences between men and women. Reasoning from the “fact of conception” and “proof” of paternity, the Court has consistently concluded that men and women are not “similarly situated” when it comes to their roles as mothers and fathers. These facts that purportedly distinguish mothers from fathers as a general matter, gain legal significance only outside of the status of marriage.
The most recent of the unwed fathers cases, decided in 2017, is Sessions v. Morales-Santana. In an opinion authored by Justice Ginsburg, the Court struck down the different residency lengths required of unwed mothers and unwed fathers prior to transmitting citizenship to their children. The decision has been lauded for eliminating one of the few remaining facial sex-based distinctions, and criticized for the remedy it issued in response. This essay does neither. Instead, it argues that Morales-Santana signals a clear break from the unwed fathers cases by identifying the role that law plays in constructing what had previously been presented as unassailable fact. This essay engages in a close reading of Morales-Santana to show exactly how the Court exposes a set of ostensibly factual observations as legal judgments that rely on outdated notions of fathers and mothers, and which continue to prop up laws that differentiate between parents on the basis of sex to this day.
To be sure, analyzing the Court's reasoning is not necessarily important as a matter of predicting what the Court will do in future cases addressing the constitutional rights of nonmarital families - that has been largely pre-determined by the Court's most recent appointees. The opinion is also, in many ways, dated, part of a different legal landscape, one in which women and pregnant persons had more rights - to equality, to dignity, to bodily autonomy. The point of this essay then is to reveal the mechanisms by which value judgments become hardened into constitutional axioms in order to recover them as contingent, and therefore contestable, opinions. The nonmarital cases exist in the register of indisputable observation, yet they are based on archaic beliefs about the abilities of men and women that reflect, and continue to reproduce, gender inequality

June 1, 2023 in Constitutional, Family, Gender, SCOTUS | Permalink | Comments (0)

Friday, May 26, 2023

Book The Cambridge Companion to Gender and the Law Asks To What Extent is the Legal Subject Gendered

Stéphanie Hennette Vauchez & Ruth Rubio-Marín, eds.,  The Cambridge Companion to Gender and the Law  (Cambridge U. Press 2023)

To what extent is the legal subject gendered? Using illustrative examples from a range of jurisdictions and thematically organised chapters, this volume offers a comprehensive consideration of this question. With a systematic, accessible approach, it argues that law and gender work to co-produce the legal subject. Cumulatively, the volume's chapters provide a systematic evaluation of the key facets of the legal subject: the corporeal, the functional and the communal. Exploring aspects of the legal subject from the ways in which it is sexed and sexualised to its national and familial dimensions, this volume develops a complete account of the various processes through which legal orders produce gendered subjects. Across its chapters, each theoretically ambitious in its own right, this volume outlines how the law not only acts on the social world, but genders it.

May 26, 2023 in Books, Family, International, Theory | Permalink | Comments (0)

Wednesday, May 17, 2023

Rethinking the Infrastructure of Childbirth and Perinatal Health Inequity

Elizabeth Kukura, Rethinking the Infrastructure of Childbirth, 91 UMKC L. Rev. 497 (2023)

This Article applies the concept of infrastructure to analyze gaps in the maternity care system that shape where and how people give birth in the United States. It argues that we must understand how structural factors, including law and regulation, shape modern childbirth in order to advance perinatal health equity and improve health outcomes.

Specifically, the Article unpacks the concept of maternity care deserts as an infrastructure problem in three distinct but related ways. First, it describes the OB/GYN workforce shortage, including how the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is likely to compound this shortage in certain areas of the country.

Next, the Article describes the limited access to midwifery care in the United States and the current regulatory barriers to increasing the midwifery workforce and making midwifery care more available. It argues that greater midwife involvement in United States perinatal care will be essential in order to address the deepening gaps in access to care, and that the medical profession should abandon its opposition to liberalized midwifery licensure and regulation in favor of both midwifery promotion and greater interprofessional collaboration to meet the needs of pregnant people. Experimentation during the COVID-19 crisis with relaxed interstate licensure rules and interprofessional collaboration among physicians, midwives, nurses, and doulas to ensure safe childbirth provide examples for reimagining the relationships among birth professionals in ways that promote positive health outcomes.

Finally, the Article addresses existing barriers to community birth—meaning birth at home and in freestanding birth centers—and how lack of access to community birth, which is typically attended by midwives, both contributes to maternity care deserts and forces some people to birth in hospitals where their needs are not adequately met. Drawing on experiences during the pandemic, when record numbers of pregnant people sought community birth options in order to avoid delivering in hospitals overwhelmed by COVID-19, the Article argues that investing in more freestanding birth centers and reducing barriers to home birth are sensible, necessary strategies for closing gaps in access to maternity care and ensuring that pregnant people who do not feel safe or cannot have their needs addressed in hospitals have options for delivering in a community setting.

May 17, 2023 in Family, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, May 16, 2023

Gendered Barriers to Access for Legal Aid Programs in Canada

Gillian Petit & Lindsay Tedds, Systematic Barriers to Justice: Financial Eligibility for Legal Aid- A Gendered Analysis 

Provinces and territories across Canada offer legal aid programs to facilitate access to justice for those who are economically disadvantaged. While requirements differ by province/territory, eligibility for legal aid is dependent on having a case of merit and having income and assets below a certain threshold. In this paper, we focus on income thresholds for legal aid, and empirically measure their impact on gendered access to family legal aid. We find that legal aid income thresholds pose a higher access barrier to single women living in MBM poverty in BC, Alberta, and Ontario compared to single men living in MBM poverty, families with children living in MBM poverty, and residents of Quebec. We show this is due to different distributions of income and the placement of the legal aid income threshold. This analysis is an example of how GBA+ should be applied to examine systematic barriers to program access.

May 16, 2023 in Family, Gender, International, Poverty | Permalink | Comments (0)

Tuesday, May 9, 2023

Federal PUMP Act for Nursing Parents Goes Into Effect

The 19th, The Full Pump Act is Now in Effect. Here's What it Does for Lactating Parents

The PUMP Act, a bill designed to extend workplace protections to an additional 9 million nursing parents, goes into full effect on Friday. 

Now, workers will be able to sue their employers if they are not compliant with the law, which requires businesses to provide a private space that’s not a bathroom and adequate break time for workers to express breastmilk. The bill passed Congress with bipartisan support in December.

The PUMP Act will close loopholes and “unintentional” mistakes in a 2010 bill, the Break Time for Nursing Mothers Act, said Liz Morris, the deputy director of the Center for WorkLife Law, which helped draft the model legislation the PUMP Act is based on. Previously, protections only extended to hourly workers who qualified for overtime, but even then, it restricted any restitution workers could seek. If workers wanted to sue their employer, there was no legal mechanism to do so. Now, the majority of those covered has expanded to also include salaried workers, such as teachers and nurses, most of whom are women. 

May 9, 2023 in Business, Family, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, May 8, 2023

Legal Challenge to Oklahoma's Ban on Gender-Affirming Care

Lambda Legal, the ACLU, and Jenner & Block have filed a suit challenging the constitutionality of Oklahoma's new law banning gender-affirming medical care for transgender youth. Excerpts of the Complaint reveal the key legal theories: 

13. The Health Care Ban not only gravely threatens the health and wellbeing of transgender adolescents in Oklahoma; it also is unconstitutional. The Health Care Ban violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates against the Minor Plaintiffs on the basis of sex and transgender status by prohibiting any “health care provider” from “knowingly provid[ing] gender transition procedures to any child.”


14. The Health Care Ban also discriminates against the Parent Plaintiffs in the exercise of their fundamental right to make decisions concerning the care, custody, and control of their children by prohibiting them from seeking and following medical advice to protect the health and wellbeing of their minor children. By preventing parents from seeking the medical care for their children that medical and mental health providers have recommended, the Health Care Ban violates the right to parental autonomy guaranteed by the Due Process Clause of the Fourteenth Amendment.  

Read the full complaint here

May 8, 2023 in Constitutional, Family, Healthcare, Legislation | Permalink | Comments (0)