Gender and the Law Blog

Why Gender Bias in College Admissions Still Favors Men

Beyond Affirmative Action: Why Gender Bias in College Admissions Still Favors Men

The recent Supreme Court ruling striking down affirmative action in college admissions was heralded as a victory for “merit-based” selection. The ruling has, however, left an implicit discriminatory practice intact: Male applicants continue to be prioritized over female applicants when needed to balance out the student population. This is no coincidence. It’s the result of a deeply ingrained, albeit often unacknowledged, bias in the admissions process that dates back decades.

Title IX—legislation that prohibits sex-based discrimination in any federally funded education program or activity—was introduced in 1972, a time when women faced markedly higher expectations than men for admission to universities, if they were permitted to attend at all. At the time the legislation was proposed, Yale capped female enrollment at only 250 in their first-year undergraduate class, accepting 1000 men, and the Cornell School of Agriculture required women to have an SAT score of at least 30 to 40 points higher than the average male admit. Universities feared that by accepting more women, their alumni donations would decrease as would their academic standards.***

Today, the impacts of this exemption go largely unnoticed but are widely practiced. Coeducational private institutions continue to prefer and admit a relatively equal ratio of male to female students. On paper, this seems equitable. In reality, it is troubling that the ratio is not budging when women are consistently outperforming men in secondary schools. Since the 1970s women have outnumbered men in gifted and talented programs, women are around 25 percent more likely than men to participate in Advanced Placement (AP) classes, and female students on average have consistently higher grade point averages.

Moreover, more women are applying to and enrolling in college to begin with. In 2021, 8.9 million women pursued college degrees as opposed to 6.5 million men, with female students making up 58 percent of the undergraduate population. Some universities reflect this statistic. Women make up 58.5 percent of Oberlin College, 61.4 percent of Tulane University, 57.8 percent of the University of Georgia, and 60.5 percent of the University of California Los Angeles (UCLA), to name a few. For many, it’s a crisis, and for others, it’s dryly ironic.

Is it that universities such as Dartmouth, whose alumni once begged, “For God’s sake, for Dartmouth’s sake, and for everyone’s sake, keep the damned women out,” are again discriminating against women, this time by practicing affirmative action for men?

Proposed Citizenship Voting Act May Create Barriers to Married Women Voting if They Have Changed Their Birth Name

The proposed federal SAVE Act would require voters to show some valid citizenship document with the matching legal name in order to vote. This could be a birth certificate, passport, or Real ID drivers' license. The catch for married women who  changed their legal birth name to a married name is that their legal name will not match their birth certificate.  Thus, a married woman with a changed named would need a passport or Real ID. Maybe Congress will fix this gap in authorized documents, but maybe it won't as it will be seen as inconsistent with the purpose of the proposed law to tightly control voter registration for citizens.

If a married women with a marital surname is concerned, practically she should get a passport or Real ID drivers' license (the one required for flying).  But of course these present additional administrative and financial barriers to voting for women.

There is some related history of using married names to disenfranchise women voters. In the 1960s/1970s some states automatically unenrolled registered women voters when they married. Ohio for example tracked registrations for marriage licenses and then automatically deleted the woman's name from the voting roles. The pretext was that at marriage, women's new legal name no longer matched the name of the legally registered voter and thus was not valid. A married women would show up to the polls and be told she was not a registered voter.  Even women who proved and showed they had not changed their last name -- it was after all the time of women's lib. And the state did not notify women that they had been disenrolled. So married women had to re-register with their marital name, often missing the election for that time period.  The intent was general suppression of liberal voters and the rise of the women vote increasingly growing more liberal with the advent of the feminist movement.

Newsweek, Married Women Could be Stopped From Voting

Glamour, The SAVE Act Could Stop Millions of Women from Voting

Brennan Center for Justice, The Effects of Requiring Documentary Proof of Citizenship

Danielle Keats Citron and Ari Ezra Waldman on "Rethinking Youth Privacy"

Danielle Keats Citron and Ari Ezra Waldman have posted "Rethinking Youth Privacy." This article is forthcoming in volume 111 of the Virginia Law Review.  The abstract is excerpted here: 

Congress and state legislatures are showing renewed interest in youth privacy, proposing myriad new laws to address data extraction, addiction, manipulation, and more. Almost all of their proposals and all of youth privacy law in general follows what we call the parental control model. The model is erected in the name of children, but it mostly ignores their expressed privacy interests. Under the model, parents are asked to provide consent for corporate collection of children's data, to check on the handling of that data, and to protect children from online dangers. Because parental control dominates policymaking and scholarly discourse, it goes unquestioned. This Article challenges the status quo. Parental control risks harm to vulnerable children, overburdens caregivers (who are more often women), and denies youth the intimate privacy that they need to grow and develop close relationships, including, ironically, with their parents. The parental control model disserves nearly everyone involved except companies that press for its adoption because it earns them massive advertising profits without costly responsibilities for youth safety and privacy. The time is now to reimagine the youth privacy project. We need to shed the yoke of exclusive parental control and protect the intimate privacy that youth want, expect, and deserve. Our proposal foregrounds youth voices and intimate privacy interests. It calls for policymakers to place responsibility on corporate shoulders where it belongs, which accords with what young people say they want. Companies are best situated to secure youth privacy and to minimize risks to child safety. Beyond law, parents should be encouraged to act more as partners with their children in the effort to protect their intimate privacy. That personal imperative will redound to parents' and children's benefit and engender trust and love.

Locating Family Law and the Status of Women in the Norms of Middle Class Economy

June Carbone & Naomi Cahn, Economic History and The Remaking of Family Law,  J. Am. Acad. Matrim. Law (forthcoming)

In looking at the history of family law, we locate family law – and the status of women and children within it – as a function of political economy. That is, family law is shaped by a societal system that allocates access to, and control of, sources of wealth, decision-making power, and responsibility for dependents. As the nature of family assets has changed from land to male wage labor to two incomes and a complex set of complementary employer and state-provided benefits, so too have family dynamics and, ultimately, family law. They have evolved into the contemporary system, with a distinct allocation of decision-making power necessary to channel greater investment into children, manage the relationship between two more financially independent adults, and coordinate the investments in more complex family relationships.

While these legal changes govern all families, families do not necessarily interact with the legal system in the same ways. As a practical matter, couples with assets tend to drive the legal changes as they are more likely to bring cases that produce precedent-setting legal developments or engage in the political lobbying necessary to enact legislative changes. At the same time, couples without assets often form families, dissolve them, and form new ones without necessarily interacting with the legal system at all. This makes family law, that is, the body of statutes and decided cases, “middle class family law,” reflecting and reinforcing the norms of those with assets.

In this article, we trace both the evolution of the dominant family law of the middle class as these doctrines have changed in response to new economic systems, and the ways that families without assets have emerged from the shadows of the law, becoming more visible over time and thus posing more of a challenge to mainstream doctrines.

Call for Papers: International Society of Family Law, Hosted in Philadelphia on June 16

International Society of Family Law – North American Regional Conference
Family Law in an Age of Political Contestation

Philadelphia, June 16, 2025

CALL FOR PAPERS

The ISFL North American Regional Conference will take place at the Temple University Beasley School of Law in Philadelphia on June 16, 2025. The theme of the conference is “Family Law in an Age of Political Contestation.”

We encourage papers that approach family law from the lens of critical theory, intersectional analysis, abolitionism, and/or law and economic inequality. We especially welcome proposals that focus on the impact of the current political moment on families who are vulnerable or otherwise marginalized due to their members’ identities (LGBTQIA+, immigration status, race, disability, income status, for example).

Please submit abstracts of maximum 1000 words here. When doing so, please also include your current position and institutional affiliation. The deadline for submissions is February 1, 2025. We will notify those whose papers have been selected shortly thereafter.

You are also invited to attend without giving a paper. If you wish to do so, please check the box next to the “Attend, but not present scholarship” option at the submission website. If you are interested in serving as a moderator or commentator on a panel, please register for the conference and check the appropriate box on the submission form by February 1, 2025.  

There may be a modest registration fee (no more than $30). Unfortunately, we cannot offer any financial support for our speakers, but we nevertheless hope that we will be able to welcome you in Philadelphia in June 2025. Please email [email protected] with any questions.

Conveners:
Prof. Sarah Katz (Temple University School of Law)
Prof. Dara Purvis (Temple University School of Law)
Dean Rachel Rebouche (Temple University School of Law)
Prof. Emily Stolzenberg (Villanova University School of Law)

S. Lisa Washington on "Time and Punishment"

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Peleg on "Conversion Therapy and Children's Rights"

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

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

Three States Pass Ballot Measures to Protect Marriage Equality

Three States Pass Ballot Measures to Further Protect LGBTQ+ Marriage

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

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

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

Seventh Circuit Upholds IN Ban on Gender Affirming Care

Split 7th Circuit OKs Indiana Law Banning Youth Transgender Treatment

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

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

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

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

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

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

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

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

    From the Publisher:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Reasonable Pregnant Worker under the Pregnant Workers Fairness Act

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Care Post-Roe Study Findings

Advancing New Standards in Reproductive Health has published an updated report in September 2024 on Care Post-Roe: Documenting Cases of Poor-Quality Care Since the Dobbs Decision.  The Executive Summary is excerpted here: 

 

This report presents the findings of the Care PostRoe Study to date. Between September 2022 and August 2024, we received 86 submissions from health care providers describing detailed cases of care that deviated from the usual standard due to new laws restricting abortion. The patients described in the narrative submissions lived in one of 19 states that banned abortion following Dobbs. Patients described in the narratives submitted by health care providers represent a range of different ages, income levels, and racial and ethnic backgrounds, with a notable proportion involving patients reported to be Black or Latinx, populations that often face more barriers to care.

 

Cases in the narratives fell into several categories: 1. Obstetric complications in the second trimester prior to fetal viability, including preterm prelabor rupture of membranes, hemorrhage, cervical dilation, and hypertension; 2. Ectopic pregnancy, including cesarean scar ectopic; 3. Underlying medical conditions that made continuing a pregnancy dangerous; 4. Severe fetal anomalies or other fetal compromise; 5. Miscarriage; 6. Extreme delays in obtaining abortion care; 7. Intersection with the carceral system; 8. Difficulty obtaining post-abortion care; and 9. Delays obtaining medical care unrelated to abortion.

 

The post-Dobbs laws and their interpretations altered the standard of care across these scenarios in ways that contributed to delays, worsened health outcomes, and increased the cost and logistic complexity of care. In several cases, patients experienced preventable complications, such as severe infection or having the placenta grow deep into the uterine wall and surrounding structures, because clinicians reported their “hands were tied,” making it impossible for them to provide treatment sooner. One physician described a case of a patient who had ruptured membranes at 16-18 weeks’ gestation but was denied an abortion because of a new state law. She was sent home and developed a severe infection requiring management in the intensive care unit. The patient subsequently delivered her fetus but required a procedure to remove her placenta. The physician wrote, “The anesthesiologist cries on the phone when discussing the case with me—if the patient needs to be intubated, no one thinks she will make it out of the OR.” Health care providers described feeling moral distress when they were unable to provide evidencebased care, and some reported considering moving their practices to a state where abortion remains legal. 

Gender, Family and Domestic Innovation in Postwar America

Jorge L. Contreras, Mrs. Aronson’s Patent: Gender, Family and Domestic Innovation in Postwar America" 
62 Houston Law Review (2024, Forthcoming)

This article unearths the curious and hitherto unexplored history of Aronson v. Quick Point Pencil Co. (U.S. 1979). Though the case occupies an important niche in the jurisprudence of patent misuse and preemption, its history illuminates broader issues surrounding innovation policy and gender that are increasingly relevant today. First, Aronson tells a story of domestic innovation-common sense ingenuity that emerges far from university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better: the legal system is there, in the form of patents, to help them transact on an equal footing with corporate entities. But Aronson also highlights the very real gender disparities that continue to burden the innovation economy. This account thus joins other recent expositions of the prejudices and hurdles faced by mid-twentieth century American women in the sciences and engineering. Like these accounts, Aronson shows that women inventors were at a serious disadvantage compared to their male counterparts-not only when dealing with governmental agencies, but also within the social structures imposed by their familial relationships. Relying on personal interviews and extensive archival research, this article explores both the history and implications of Aronson. It is hoped that its historical insights will support efforts aimed at addressing these persistent issues today.

Gender, Family and Domestic Innovation in Postwar America

Jorge L. Contreras, Mrs. Aronson’s Patent: Gender, Family and Domestic Innovation in Postwar America" 
62 Houston Law Review (2024, Forthcoming)

This article unearths the curious and hitherto unexplored history of Aronson v. Quick Point Pencil Co. (U.S. 1979). Though the case occupies an important niche in the jurisprudence of patent misuse and preemption, its history illuminates broader issues surrounding innovation policy and gender that are increasingly relevant today. First, Aronson tells a story of domestic innovation-common sense ingenuity that emerges far from university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better: the legal system is there, in the form of patents, to help them transact on an equal footing with corporate entities. But Aronson also highlights the very real gender disparities that continue to burden the innovation economy. This account thus joins other recent expositions of the prejudices and hurdles faced by mid-twentieth century American women in the sciences and engineering. Like these accounts, Aronson shows that women inventors were at a serious disadvantage compared to their male counterparts-not only when dealing with governmental agencies, but also within the social structures imposed by their familial relationships. Relying on personal interviews and extensive archival research, this article explores both the history and implications of Aronson. It is hoped that its historical insights will support efforts aimed at addressing these persistent issues today.

New Book, The Sentimental State: How Women-Led Reform Built the American Welfare State

Interview with Elizabeth Garner Masarik on her Book, The Sentimental State: How Women-Led Reform Built the American Welfare State (Univ. Georgia Press 2024)

I got the chance to speak with historian Elizabeth Garner Masarik about her new book The Sentimental State: How Women-Led Reform Built the American Welfare State. An assistant professor of history at SUNY Brockport, Elizabeth is a scholar of American women’s history, the Gilded Age and Progressive Era, and the administrative state. Her new project is on American spiritualism, and she was also eager to discuss her findings on women and the history of welfare networks, charity, and maternalist sentiment. Dr. Masarik defines “sentimentalism,” or feelings surrounding motherhood and child-rearing, as one of the chief drivers behind the push for women-led public health and social initiatives in the nineteenth century.

Your new book is a fascinating examination of the intersection of women’s state-building and the politics of domesticity. Can you talk a little bit about the origins of the book? Was it part of your dissertation? What new directions did you go in as you wrote?

Yes, this book came out of my dissertation. I took a women’s history course with sexuality, gender and sports scholar Susan Cahn during the first semester of my MA program and was hooked. I really latched on to the U.S. maternalist movement of the late 19^th and early 20^th centuries and dove headfirst into learning about the early formation of the U.S. welfare state. Additionally, the primary sources I found where women were speaking about, and grieving over, the death of their infants and young children just hit me; after becoming a mother myself, I couldn’t fathom being able to go on with life if one of my children died. And so, in a way, examining child and infant mortality became a kind of masochistic way for me to study history while also feeling this immense empathy for my subjects. I didn’t set out to focus on infant and child death at the beginning, but the connections between emotions and state-building became so glaringly obvious that I couldn’t look away. It was a subject that spoke to me as a mother and as a recipient of welfare. It felt very personal. When I revised the dissertation into book form I focused more heavily on sentimentalism as a cultural phenomenon of the nineteenth century and how I found that bleeding into the twentieth century.