Gender and the Law Blog

Report on "The Legal Assault on Pregnant People's Personhood"

Pregnancy Justice has published a new report in September 2024 on "The Legal Assault on Pregnant People's Personhood." This report is packed with valuable information and state law surveys. Here are its recommendations excerpted: 

Undoing the harms of the fetal personhood movement will require a comprehensive strategy, including significant federal and state legal and policy reforms, as well as vigilance in tracking and responding to emerging policy proposals and legislative bills.

 

Repeal Fetal Personhood Laws and Constitutional Amendments:

 

We must repeal existing fetal personhood laws and policies and reject any new measures that establish or reinforce fetal personhood. Instead, legislative efforts must prioritize the needs and rights of pregnant people. To that end, any bills designed to support pregnant people’s access to healthcare or alleviate financial burdens associated with pregnancy should explicitly avoid defining embryos and fetuses as people with independent rights. * * * Additionally, we must counter proposals that classify fetuses or embryos as tax-deductible dependents—thus broadening legal recognition of fetal personhood—with alternative language that focuses on the actual and expanding needs of people during pregnancy. Navigating the delicate balance between advocating for pregnant people’s rights and access to resources and rejecting fetal personhood will reinforce support for pregnant people without undermining their broader legal protections.

 

Reject and Repeal Personhood Measures That Criminalize Pregnant and Postpartum People:

 

In addition to fighting fetal personhood in civil laws and constitutional amendments, we must develop and advocate for legislation that explicitly rejects fetal personhood in criminal law and prevents criminalization of pregnancy. Criminal codes should clearly state that fetuses are not people to prevent their misuse in criminal cases. State codes should also include explicit immunities protecting people from prosecution for pregnancy-related charges. Rejecting personhood ensures ambiguous legal language cannot be exploited to prosecute pregnant people unfairly.We must also reject measures that could criminalize pregnancy, such as statutes that fail to distinguish a fetus from a person in cases involving charges like abuse of a corpse.

 

Foreclose Tort Claims Against Pregnant and Postpartum People:

 

Tort claims against pregnant and postpartum people should be foreclosed, while their rights are directly supported. Laws could allow claims for pregnancy loss framed around the emotional loss of potential parenthood, without invoking fetal personhood or labeling such losses as “wrongful deaths.” To that end, legislation must clearly differentiate between a person and a fetus to avoid conflating the two in legal interpretations. * * * 

 

Connect Fetal Personhood to Threats to Maternal Health:

 

Fetal personhood opens the door to pregnancy criminalization, erodes trust between patients, and promotes the denial of emergency obstetric care and abortion care. These fetal personhood promoting policies directly imperil maternal and infant health outcomes. Until fetal personhood is decisively rejected, the nation will not see meaningful improvements in its maternal health crisis.

 

Connect Fetal Personhood to Threats to Democracy:

 

The surveillance and criminalization of women and people with the capacity for pregnancy under the doctrine of fetal personhood diminishes the ability of half the population to participate in public and civic life. Subjecting pregnant people (and potentially anyone with the capacity for pregnancy) to heightened surveillance and criminal consequences, including incarceration, creates a climate that limits their freedom of movement, expression, and engagement in society. These recommendations underscore the need to center the lives of pregnant and postpartum people, safeguard their rights, and prevent the erosion of hardwon legal protections. 

Susan Ayres on "A Crazy Quilt: Infanticide in the United States"

Susan Ayres posted a book chapter on SSRN titled "A Crazy Quilt: Infanticide in the United States." The chapter is from the larger project, 100 Years of the Infanticide Act: Legacy, Impact and Future Directions (Karen Brennan and Emma Milne, eds., Bloomsbury Publishing, 2023). The abstract is here: 

This chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust and irrational approach that ignores women’s vulnerabilities and fails to acknowledge the patterned nature of these cases.

Online Talk Featuring Khiara M. Bridges on "Expecting Inequity: Race, Class, and Reproductive Justice"

See the below announcement of an online program hosted by The Gibson-Banks Center for Race and the Law and the Law & Health Care Program at University of Maryland Carey School of Law. The event features Khiara M. Bridges, Professor of Law, UC Berkeley School of Law, speaking about "Expecting Inequity: Race, Class, and Reproductive Justice." The link to register is here. 

Professor Bridges has written many articles concerning race, class, reproductive rights, and the intersection of the three. Her scholarship has appeared in the Harvard Law Review, Stanford Law Review, the Columbia Law Review, the California Law Review, the NYU Law Review, and the Virginia Law Review, among others. She is also the author of three books: Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization (2011), The Poverty of Privacy Rights (2017), and Critical Race Theory: A Primer (2019). She is a coeditor of a reproductive justice book series that is published under the imprint of the University of California Press. She is currently writing her forthcoming book, Expecting Inequity: Race, Class, and Reproductive Justice.

This event is free, but registration is required. You will receive information on how to access the event in a separate email 48 hours before the webinar begins. If you have questions, please contact Gehan Girguis at [email protected]. This event will be recorded.

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

North Dakota Abortion Ban Overturned as Vague and Violating Women's Fundamental Rights To Choice and Medical Freedom

Washington Post, Judge Overturns North Dakota's Near-Total Abortion Ban

A North Dakota judge struck down the state’s near-total ban on abortion Thursday, saying the state constitution gives women a “fundamental right to choose abortion” before fetal viability. Restrictions on the right is “a violation on medical freedom,” he ruled.

State District Judge Bruce Romanick declared the law, enacted by the legislature last year, “unconstitutionally void for vagueness.” The statute made the procedure illegal in all cases except rape or incest when the woman has been pregnant for less than six weeks or when the pregnancy poses a serious physical health threat. Doctors and other health care professionals found to be in violation of the law could be charged with a felony — and then face up to five years in prison and a maximum fine of $10,000.

In the conservative state, where lawmakers have twice passed bans that courts subsequently ruled against, the victory for abortion rights supporters was a bittersweet one. North Dakota no longer has any abortion clinics; its onetime sole provider and plaintiff in the lawsuit, the Red River Women’s Clinic, moved from Fargo to Moorhead, Minn., in 2022.

IVF After Dobbs, and Statutory Distinctions of Pregnancy Versus External Embryos

Kerry Lynn Macintosh, Dobbs, Abortion Laws, and in Vitro Fertilization, 26 J. Health Care Law & Policy (2023)  

Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion. The Supreme Court distinguished abortion from other constitutionally-protected conduct on the ground that abortion destroys potential life. Given that outcome and rationale, it is timely to review the legal status of in vitro fertilization (IVF), a medical procedure in which human embryos are often lost and multiple fetuses sometimes reduced. This Article canvasses abortion laws and finds that most do not reach IVF and related practices. However, legislatures may enact future laws that ban or restrict IVF in order to protect embryos and fetuses. Thus, this Article evaluates the constitutionality of such laws after Dobbs. It concludes that bans on IVF are unconstitutional as applied to individuals who cannot procreate coitally. However, courts may uphold laws that restrict IVF-related practices that endanger or kill embryos or fetuses.

Report on "Deepening the Divide: Abortion Bans Further Harm Immigrant Communities"

A new fact sheet has been published on the harms of abortion bans to immigrant communities. This report was authored by Lucie Arvallo, Hannah Liu, Suma Setty, Priya Pandey, Salen Andrews, National Latina Institute for Reproductive Justice, and the Center for Law and Social Policy. The introduction is excerpted here: 

Im/migrants, especially those who are undocumented and those in mixed-status families, are particularly vulnerable to the harmful impacts of abortion bans due to the barriers they face in accessing health care and the increased risk of criminalization based on immigration status. These barriers and risks include arbitrary Customs and Border Protection (CBP) checkpoints, a five-year waiting period for legal permanent residents to enroll in public health insurance programs, agreements between local law enforcement and federal immigration authorities, and increasing anti-immigrant state policies. Individuals in immigration detention face additional threats to their reproductive health and overall well-being, including medically unnecessary gynecological procedures like forced hysterectomies and denial of abortion care. This fact sheet highlights how Dobbs compounded pre-existing barriers to abortion care for im/migrants. We propose a set of concrete recommendations for Congress and the administration to support im/migrant access to abortion.

Lofaso and Kiner on "The Dobbs Effect on West Virginia"

Anne Marie Lofaso and Cameron Kiner have published The Dobbs Effect on West Virginia in Volume 125 of the West Virginia Law Review. The abstract is excerpted below:  

Humans have practiced birth control, including abortion, for thousands of years. Pregnant individuals have sought abortions for many reasons even though the abortion procedure itself has often been dangerous to the pregnant person’s life. Moreover, a stable consensus concerning the debate about when life begins and other questions surrounding abortion has rarely if ever been attained. Notwithstanding the numerous questions raised by this indisputably controversial subject, this article is quite limited in scope. In Section I, we review the development and retrenchment of an individual’s right to terminate their pregnancy starting on January 22, 1973, the day that the United States Supreme Court held in Roe v. Wade that women have a legal right to terminate their pregnancies—a right that individual states could not override in some circumstances. In Section II, we trace the development and retrenchment of that right in West Virginia. We conclude by observing that the post-Dobbs world is fraught with political subterfuge, making legislative consensus difficult even where there is actual agreement.

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. 

March of Dimes Report on Maternal Care Deserts

The March of Dimes has published a report titled Nowhere to Go: Maternity Care Deserts Across the US. Excerpts from the Executive Summary are below: 

Our latest national report on maternity care access in the United States (US) reveals a stark reality; where you live matters when it comes to the options available for maternity care. While some progress has been made to increase access to care, such as expanding and extending Medicaid, we continue to witness steady reports of obstetric unit closures and workforce shortages. In fact, 1 in every 25 obstetric units in the US shuttered their doors in the last 2 years, resulting in fewer choices, increased stress, and greater travel times for birthing people. The 2024 Nowhere to Go: Maternity Care Deserts in the US report reveals that over 35% of counties are considered maternity care deserts. This means that in 1,104 US counties, there is not a single birthing facility or obstetric clinician. These counties are home to over 2.3 million women of reproductive age and are the resident county of women who gave birth to over 150,000 babies in 2022.

 

Our most comprehensive analysis to date confirms that women living in maternity care deserts and counties with low access to care have poorer health before pregnancy, receive less prenatal care, and experience higher rates of preterm birth. Our analysis revealed an excess of over 10,000 preterm births among those living in maternity care deserts and limited access counties in 2020-2022. These findings affirm that US systems, policies, and environments are failing moms and babies.

 

Over 1 in 3 US counties lack a single obstetric clinician, and in many parts of the country obstetriciansgynecologists (OB-GYNs) and family physicians who deliver babies are leaving the workforce. Moreover, while midwives could supplement the obstetric workforce, 23 states have policies that inhibit them from administering the level of care they were trained to provide. Furthermore, 70% of birth centers in the US are within just 10 states. Our report examines policies that reduce barriers to integrating midwives into the healthcare system and make opening and sustaining birth centers more attainable. Both could provide more options for birthing people, decrease health expenditures, and improve satisfaction and birth outcomes. In addition, the report offers insights into how low insurance reimbursement rates and payment structures contribute to hospital closures, especially in rural areas. 

An International Analysis of Online Representation of Medical Risks and Incentives in Egg Donation

Lara Jacxsens and Catherine Coveney, et. al.  have published The representation of medical risks and incentives concerning egg donation: an analysis of the websites of fertility clinics of Belgium, Spain and the UK in volume 27 of Human Fertility (2024). The abstract is excerpted below. 

Considering the growing demand for egg donation (ED) and the scarcity of women coming forward as donors to meet this demand, scholars have expressed concerns that clinics may (initially) misrepresent risks to recruit more donors. Additionally, (non-)monetary incentives might be used to try to influence potential donors, which may pressure these women or cause them to dismiss their concerns. Since the internet is often the first source of information and first impressions influence individuals' choices, we examined the websites of fertility clinics to explore how they present medical risks, incentives and emotional appeals. Content Analysis and Frame Analysis were used to analyze a sample of Belgian, Spanish and UK clinic websites. The data show that the websites mainly focus on extreme and dangerous risks and side effects (e.g. severe OHSS) even though it is highly relevant for donors to be informed about less severe but more frequently occurring risks and side effects (e.g. bloating), since those influence donors' daily functioning. The altruistic narrative of ED in Europe was dominant in the data, although some (hidden) financial incentives were found on Spanish and UK websites. Nonetheless, all information about financial incentives still were presented subtly or in combination with altruistic incentives.

 

 

Wilkins v. Austin Eliminates Discriminatory HIV Barrier to Military Service

Lambda Legal challenged the United States Military's prohibition on the enlistment of people living with HIV in Wilkins v. Austin. Here are excerpts from Lambda's press release describing the case: 

The lawsuit, Wilkins v. Austin, was filed on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status. Minority Veterans of America (“MVA”) is also an organizational plaintiff. MVA advances the interests of its civilian members who are living with HIV and wish to serve in the military.  

The filing followed the Biden administration’s announcement in July 2022 that it would no longer defend discriminatory restrictions that prevented servicemembers living with HIV from deploying and commissioning as officers. Instead of appealing the decision of the district court declaring these restrictions unlawful and unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, which stated that individuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no medical restrictions applied to their deployability or to their ability to commission while a servicemember based on their HIV-positive status.    

Before the July 2022 announcement, a federal district court handed down one of the most substantial judicial rulings in over two decades for people living with HIV in two cases—Harrison v. Austin and Roe & Voe v. Austin.  The rulings ordered the Department of Defense (DOD)—the world’s largest employer—to stop discriminating against servicemembers living with HIV and to allow them to deploy and commission as officers in the U.S. military. That groundbreaking ruling represented a landmark moment in the fight to advance the rights of people living with HIV. It reflected the reality that HIV is a chronic, treatable condition, not a reason to discriminate.   

Here are Lambda's selected excerpts from the successful opinion in Wilkins v. Austin striking down the policy: 

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious. Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals." 

“Modern science has transformed the treatment of HIV, and this Court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment. Now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction.”  

Updated #WeCount Data Released

The Society of Family Planning released its next installment of #WeCount data. #WeCount measures "monthly abortion utilization, nationally and by state."  Its findings are excerpted below. The full report is available here. 

• Abortion volume was higher in 2024 than it was in 2023 or 2022, as captured by #WeCount. Abortion volume continues to vary modestly month-to-month, consistent with prior #WeCount findings (Table 1-2022, 1-2023, and 1-2024).
• For the first time since #WeCount began, the national monthly total number of abortions has exceeded 100,000. In the three most recent months of data collection, January 2024 to March 2024, we observed between 94,670 and 102,350 abortions per month, with a monthly average of 98,990 (Figure 1).
• Analysis of monthly abortion volume in the US from April 2022 through March 2024 (Figure 2) illustrates both the seasonality of abortion provision and increases throughout 2023 and 2024. Part of the increase, starting in July 2023, is due to the provision of abortions under shield laws. These abortions may have previously occurred outside the formal healthcare system prior to the use of shield laws.
• Even excluding abortions provided under shield laws, we still observe more abortions per month in January-March 2024 (monthly average of 89,770 abortions) as compared to the same period January-March 2023 (monthly average of 86,967 abortions), a 3% increase.
• This increase in the national totals appears to be driven by the increase in telehealth abortions. Excluding abortions provided under shield laws and by brick-and-mortar Page 3 of 34 clinics (as collection of these data by #WeCount began in July of 2023), the national monthly number of telehealth abortions in January-March 2024 is 28% higher than the national monthly number of telehealth abortions in January-March 2023. The national monthly number of in-person abortions in January-March 2024 is about the same (1% lower) than the national monthly number of in-person abortions in January-March 2023.

 

 

Intent as the Basis for Parenthood and Fetal Rights

Laura D. Hermer, Intentional Parenthood, Contingent Fetal Personhood, and the Right to Reproductive Self-Determination, 57.2 University of Michigan J. Law Reform (2024)

This Article argues that intent should govern legal parenthood, regardless of the method of conception, the person’s biological or genetic relationship to the resulting embryo/fetus, or the person’s gender. While that proposition is not new, this Article adds to scholarly discourse by extending the concept: Intent should not just determine parenthood, but also fetal rights. When a pregnant person establishes their procreational intent (or lack thereof) prior to birth, then both the existence (or lack thereof) of legal protections for the embryo/fetus and the gestator’s rights and duties (or lack thereof) should flow from this intent. Non gestating gamete contributors would do the same, to different legal effect.

Establishing intent-based parenthood would end automatic legal parenthood. It would also clearly condition most legal rights that a fetus might enjoy on its gestator’s intent, and support other rights on the intent of other gamete-contributors. The article proposes a normative framework for the conceptions of legal parenthood and legal fetal personhood under an intentional approach. It further offers some preliminary suggestions regarding how an intentional approach could solve some latent, thorny issues in bioethics, family law, and civil rights.

Signaling Sexual Harassment

Emily Suski published Signaling Sexual Harassment in the Emory Law Journal. The abstract is excerpted here: 

Following the Supreme Court’s decision to eliminate the right to abortion in Dobbs v. Jackson Women’s Health Organization, Title IX stands as a potentially powerful statutory bulwark against further erosions of sex and gender equality rights. Title IX’s purpose is to protect against and eradicate sex discrimination of all forms, including sexual harassment, in education. Yet, it rarely fulfills this purpose. Although the Supreme Court has said that sexual harassment is a form of sex discrimination proscribed by Title IX, it has failed to define sexual harassment or provide more than the barest of guidance on how severe it must be to qualify for Title IX’s protection. The lower courts have consequently filled those gaps, and they have done so reductively. Their evaluations regularly exclude all but the most extreme forms of sexual harassment from Title IX’s protection. They thus leave much of the sexual harassment that students suffer in school unchecked by the law designed to expunge it.

 

Further, these reductive evaluations of students’ Title IX sexual harassment claims have three significant signaling effects. First, with these decisions, courts signal that much of the sexual harassment that occurs in school is acceptable, or the norm. Second, courts signal that schools can teach this sexual harassment norm through what sociologists call the hidden curriculum. Third, courts signal that this sexual harassment norm can pervade democratic and social structures. With these decisions, then, the lower courts do not just allow sexual harassment to occur unabated in school, but they also effectively reinforce it in schools and more broadly.

 

To reinvigorate Title IX’s purpose, this Article proposes a comprehensive definition of sexual harassment for courts to use in assessing Title IX sexual harassment claims. It also recommends a test for determining the severity of sexual harassment as well as a framework for applying that test that centers students’ experiences of sexual harassment. Together, these reforms would require courts to recognize more sexual harassment under Title IX and therefore restore its power to eliminate sexual harassment in schools.

Ohio Judge Upholds Ban on Gender-Affirming Care for Minors and Ban on Transgender Girls in School and College Sports

Wash Post, Ohio Judge Upholds Ban on Gender-Affirming Care for Minors

A judge upheld a law Tuesday that bans gender-affirming care for minors in Ohio, keeping it among the nearly two-dozen states that have levied similar restrictions in recent years and drawing criticism from advocates who say the statute infringes on transgender peoples’ rights.

Franklin County Judge Michael J. Holbrook wrote in the ruling that recourse for those “dissatisfied with the General Assembly’s determinations must be exercised through their vote as opposed to the judicial system.”

Families of trans youth will not be able to access treatments in Ohio to support gender-affirming care such as puberty blockers and hormone therapy — although a grandfather clause allows residents already on such treatments to continue. The law also blocks transgender girls and women from playing on school or college sports teams designated for girls or women. The court’s decision clears the way for the law to take effect.

 

 

New Study of Children's Brains Shows How Sex and Gender are Different

CNN, A Detailed Look at Children's Brains Might Show How Sex and Gender are Different, New Study Says

Sex and gender are often conflated or equated in everyday conversations, and most American adults believe a person’s gender is determined by sex assigned at birth. But a new study of nearly 5,000 9- and 10-year-olds found that sex and gender map onto largely distinct parts of the brain.

The research gives a first insight into how sex and gender may have “measurable and unique influences” on the brain, study authors said, just as other experiences have been shown to shape the brain.

“Moving forward, we really need to consider both sexes and genders separately if we better want to understand the brain,” said Dr. Elvisha Dhamala, an assistant professor of psychiatry at the Feinstein Institutes for Medical Research and the Zucker Hillside Hospital in Glen Oaks, California, and a co-author of the study, published Friday in the journal Science Advances.

The researchers on the new study defined sex as what was assigned to the child at birth. In the US, clinicians make this assignment based on genitalia. Most people are assigned either female or male, according to the research; the rest are intersex, a person whose sexual or reproductive anatomy doesn’t fit this male/female binary.

The researchers defined gender as an individual’s attitude, feelings and behaviors, as well as socially constructed roles. They noted specifically that gender is not binary, meaning not all people identify as either female or male.

Both sex and gender are a core part of human experience. They’re key to how people perceive others and how they understand themselves. Both can influence behavior as well as health, the study authors say.***

The authors used a kind of artificial intelligence called machine learning that built a model that could predict a child’s sex and reported gender from their brain scan. When the researchers looked the children’s brain scans, the results seemed to show that sex influenced different regions of the brain that are involved in visual processing, sensory processing and motor control and some regions involved in executive function, which lets an individual organize and integrate information across time.

Gender seems to influence some of the more sensory-specific networks that are associated with sex, but it also seems to have a broader influence and can be detected on different brain networks involved in executive function, including things like attention, social cognition and emotional processing.

Report on Medicaid Coverage of Telehealth Abortion Services in Six States

The National Health Law Program has published a report on Medicaid Coverage of Telehealth Abortion Services in Six States (IL, MN, NM, NY, RI, WA). Here is a summary of the report scope: 

In 2022, the National Health Law Program started a project to comprehensively map the Medicaid coverage and reimbursement policies that impact access to telehealth medication abortion (TMAB) services. We published an in-depth report investigating the policy landscape in six states that use their own funding to provide abortion coverage for Medicaid enrollees. You can find that report and fact sheets for the six states here.

 

This report is the next installment in that series, examining the policies and regulations in a new set of states: Illinois, Minnesota, New Mexico, New York, Rhode Island, and Washington. This issue brief provides a thorough analysis of the major policies impacting coverage and reimbursement of TMAB, including detailing the major trends and highlighting policy barriers that impede comprehensive coverage and thus access to TMAB for Medicaid enrollees. It concludes with a discussion of the importance of Medicaid coverage of TMAB and highlight forthcoming work.

 

Here is the report conclusion: 

Comprehensive coverage of TMAB can combat travel and resource obstacles, facilitate faster access to care, and address privacy concerns. The costs associated with seeking an abortion in the post-Dobbs landscape disproportionately harm people facing structural barriers to care, like Black, Indigenous, and other people of color, LGTBQ+ individuals, people living in rural areas, young people, individuals with disabilities, and those struggling to make ends meet. This research shows that Medicaid coverage of TMAB has improved significantly, as states have established more robust coverage of the full spectrum of telehealth modalities, enhanced telehealth payment parity policies, and removed some restrictions around sites of care and patient-provider relationships. But gaps remain and the National Health Law Program will continue our research and advocacy to ensure that Medicaid enrollees have equitable access to all models of TMAB and in-person care.

Abortion's New Criminalization--A History and Tradition Test Right to Healthcare Access After Dobbs

Reva Siegel & Mary Ziegler, Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term  

Since Dobbs v. Jackson Women's Health Organization reversed Roe v. Wade as contrary to the nation's history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before. Cases in the Court's 2023 Term, Moyle v. United States and Food and Drug Administration v. Alliance for Hippocratic Medicine, demonstrate these trends. Under Dobbs, do abortion bans that break with history and tradition in obstructing access to urgently needed health care violate liberty guarantees of state or federal constitutions?

We present evidence that the nation has long had a tradition of exempting health care from criminalization that extended to abortion law and was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. This tradition demarcated quite self-conscious limits on state action that were reiterated across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically understood as a right. We show that courts in states with abortion bans view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend this account of our law against an originalist reading of Dobbs advanced by Professor Stephen Sachs asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s reading conflicts with important aspects of Glucksberg and Dobbs, misconstrues Dobbs’s reasons for turning to history and tradition, and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. Posing concrete questions of Dobbs illustrates how much of Dobbs has yet to be written, showing the many senses in which, as Justice Barrett writes in Vidal v. Elster, “a rule rendering tradition dispositive is itself a judge-made test.” 

Prashasti Bhatnagar on "The Pregnant Workers Fairness Act Leaves Agricultural Workers Behind"

Prashasti Bhatnagar has published The Pregnant Workers Fairness Act Leaves Agricultural Workers Behind in volume 52 of the Journal of Law, Medicine, and Ethics. The conclusion is excerpted here: 

Employment conditions contribute to workers’ ability to be healthy, particularly for immigrant pregnant workers. This article highlights how laws like PWFA often do not protect pregnant immigrant workers in the agricultural industry, resulting in health inequities. Advocacy efforts by immigrant workers and grassroots organizations have resulted in some protections, but there are still gaps. Therefore, future efforts geared towards eliminating pregnancy discrimination and the resulting health inequities must center the lived experiences of immigrant workers and understand workplace pregnancy discrimination as an immigrant justice issue. In order to achieve health justice, governments should engage with workers and grassroots organizations to build community power and create systems that invest in joy, well-being, safety, and liberation.