Far from being “great equalizers,” diseases reflect and reinforce preexisting hierarchies. Structural inequalities in wealth, housing, health care, employment, and social capital place the poor and the socially vulnerable at a higher risk of infection and death. At the same time, the fear and suspicion engendered by epidemics exacerbate the vulnerabilities of those perceived as “other” or “outsiders,” populations whose survival and dignity are already compromised by social exclusion mechanisms such as legal invisibility, geographic ghettoization, and social ostracism. For refugees resettling in South Asia, our area of focus in this paper, these forms of marginalization are an everyday reality. The denial of a viable and effective legal identity precludes the ability to even claim rights in states that already fail in their obligations to provide them.
Citizenship, in both its legal and social sense, represents, we argue, an unearned form of social power and capital. Where, as is the case in India, Pakistan, and Bangladesh, prevailing international law protecting refugees has not been ratified, forced migrants are left without the secure legal status awarded to recognized refugees, a deficit that magnifies the challenge of accessing state protection and securing social capital within the host community. The status of these forced migrants is thus best captured by the notion of de facto statelessness, which signals their lack of access to the protective responsibility of any sovereign nation. De facto statelessness in South Asia is a perilous status at the best of times, given the central role of the state as a dispenser of fundamental services and protections. It is a particularly challenging status during a global pandemic such as COVID-19, when hostility toward outsiders is exacerbated, the availability of essential humanitarian services is compromised, and an informal labor market generating subsistence income is brought to a halt.
To the impacts of de facto statelessness must be added those of other critical social determinants of health and well-being, including gender, which intersect to multiply the risks of stigmatization and exclusion. The entrenched exploitation and control of female sexuality, as a commodity to be exchanged or dominated, accelerates during times of distress, as it has during this pandemic. This paper explores the gendered impact of COVID-19 on forced female migrants in South Asia, who already face strong exclusionary pressures because of their status as noncitizens of the broader polity.
Monday, May 16, 2022
Scary Mommy tells a powerful story of how a grieving mother and scientist has identified the cause of Sudden Infant Death Syndrome. The findings were published in the June 2022 publication of The Lancet. The publication provides the following contextual summary of the research:
Evidence before this study
Despite the effectiveness of public health campaigns in reducing the incidence of Sudden Infant Death Syndrome (SIDS), SIDS remains the major cause of infant death in western countries. The “triple risk model” hypothesises that SIDS deaths result from coincident occurrence of a vulnerable infant, a critical developmental period, and an exogenous stressor. Despite intensive research, identification of any specific vulnerability prior to the sudden death has remained elusive. And, while autonomic dysfunction has long been considered a candidate for this vulnerability, studies have been hampered by reliance on post-mortem samples.
Added value of this study
We found that Butyrylcholinesterase Activity, measured in dried blood spots taken 2-3 days after birth, was significantly lower in babies who subsequently died of SIDS compared to living controls and other Non-SIDS infant deaths. This study identifies a biochemical marker that differentiates SIDS infants from control cases and those dying from other causes, prior to their death. We postulate that this decreased activity of Butyrylcholineserase represents an autonomic cholinergic dysfunction and therefore an inherent vulnerability of the SIDS infants.
Implications of all the available evidence
This finding represents the possibility for the identification of infants at risk for SIDS infants prior to death and opens new avenues for future research into specific
These findings have implications for the patchwork of state laws governing SIDS throughout the country.
The infant formula crisis continues in the United States as covered by Reuters and numerous media outlets. Here's a look at the cities in which supplies are the most depleted from Bloomberg. Consumer safety groups and pediatricians are warning consumers not to try to make products at home. Attention is focused on what the government can do to offer support. Reuters previews:
The U.S. Food & Drug Administration (FDA) will announce new steps in the coming days regarding importing certain infant formula products from abroad, the White House said, and Biden has asked the Federal Trade Commission (FTC) to probe reports of predatory conduct such as price gouging.
The House will also hold a hearing on the crisis on May 25.
The Atlantic Monthly does a deep dive on what is behind the shortage and the role of law and policy.
FDA regulation of formula is so stringent that most of the stuff that comes out of Europe is illegal to buy here due to technicalities like labeling requirements. Nevertheless, one study found that many European formulas meet the FDA nutritional guidelines—and, in some ways, might even be better than American formula, because the European Union bans certain sugars, such as corn syrup, and requires formulas to have a higher share of lactose. * * *
U.S. policy also restricts the importation of formula that does meet FDA requirements. At high volumes, the tax on formula imports can exceed 17 percent. And under President Donald Trump, the U.S. entered into a new North American trade agreement that actively discourages formula imports from our largest trading partner, Canada.
America’s formula policy warps the industry in one more way. The Department of Agriculture has a special group called WIC—short for Special Supplemental Nutrition Program for Women, Infants, and Children—that provides a variety of services to pregnant and breastfeeding women and their young children. It is also the largest purchaser of infant formula in the United States, awarding contracts to a small number of approved formula companies. As a result, the U.S. baby formula industry is minuscule, by design. A 2011 analysis by USDA reported that three companies accounted for practically all U.S. formula sales: Abbott, Mead Johnson, and Gerber.
Monday, April 25, 2022
If/When/How has prepared a vital information guide for medical providers in Texas. The guide is titled "What You Need to Know: Mandatory Reporting Requirements, Law Enforcement, and Patient Confidentiality in Texas." It is available on the organization's website. The fact sheet "gives an overview of some of the major mandatory reporting requirements and where they may intersect with patient privacy - with a specific focus on self-managed abortion." If/When/How intends this fact sheet to "help reduce hospital-site criminalization of pregnancy outcomes by helping providers understand what type of reporting the law requires." Stay tuned to the If/When How website for future updates in a rapidly evolving legal environment.
Monday, April 11, 2022
Study on Financial Instability and Delays in Access to Sexual and Reproductive Health Care Due to COVID
Megan Kavanaugh, Zoe H. Pleasure, Emma Pliskin, Mia Zolna, and Katrina MacFarlane have published their study, Financial Instability and Delays in Access to Sexual and Reproductive Health Care Due to Covid-19, in the Journal of Women's Health. They explain the significance of their study as follows:
While data at the national level regarding impacts of the COVID-19 pandemic and its fallout on people's SRH help to provide an overall picture of what is happening in the United States, they may also mask important variation at the state level due to state-specific context regarding the pandemic and response. In addition, data on delays to accessing SRH care from 2020 may overstate the extent to which clinic-level closures or reductions in SRH services in the early months of the pandemic may have led to patient-level delays. Our study builds on previous national-level evidence of delays in access to SRH care experienced early in the COVID-19 pandemic by examining the extent to which individuals experienced delays over the course of a year into the pandemic in three states, each with a different COVID-19 epidemiological context and governmental response.
They conclude that:
Access to contraception and broader SRH care was curtailed during the COVID-19 pandemic, and for residents of Arizona, Iowa, and Wisconsin, who were experiencing concurrent employment and financial instability, these delays were heightened. The majority of Arizonan family planning patients experienced delays in accessing SRH care due to COVID-19, with Iowans and Wisconsinites experiencing similar and less frequent experiences of these delays (about 30%–40%) than Arizonans. These differing levels of impact may reflect the varying levels of COVID-19 community spread and varying government responses for disease mitigation across these state contexts, as well as the different time periods of the pandemic during which respondents from each state participated in the study.
Our findings covering a year of the pandemic indicate that evidence of access barriers early in the pandemic was a harbinger of more sustained contraceptive access issues for patients, especially for those with the fewest resources to navigate these barriers. Particularly for users of long- and short-acting hormonal methods of contraception that commonly require a visit to a health care provider, which represent between 1/4 and 1/3 of all method use in these three states, long-term access delays to obtaining and/or refilling one's method can seriously inhibit individuals' ability to prevent pregnancy over a year.
* * *
In addition, given that the SRH care visit is the primary source of all medical care for over 2/3 of individuals seeking this care at publicly supported health facilities, delays in access to that care can have broader consequences for individuals' overall physical and mental health.
Graham Ferris has published Law Students Wellbeing and Vulnerability in volume 56 of The Law Teacher. Here is the article abstract:
There is compelling evidence that law students in the UK, USA, and Australia are subject to low levels of wellbeing. * * * Low wellbeing is produced by difficulties responding to stressors and life events, or low resilience. Therefore, law students are a subgroup of a larger group of young people with low resilience, however, law students have lower self-reported wellbeing than the overall student group. The trend for student wellbeing is downwards. Vulnerability theory offers a theoretically coherent heuristic that can enable us to think constructively about the problems of law students and students generally and to generate ideas for potentially beneficial courses of action. With such widespread phenomena, for law students across three continents and over many years, it is unrealistic to posit individualistic explanations as causes. Resilience, and consequent wellbeing, is not best understood as a characteristic of individuals but as generated or degraded by life histories, family and community resources, institutional supports or stressors, and social factors. We need to look at institutional and cultural factors if our response is to be coherent and effective. We need to seek a responsive law school in a responsive university in a responsive state.
The article emphasizes the importance of a legal curriculum that recognizes vulnerability.
All of these suggestions share a common characteristic, they are reactions to assumptions in the curriculum about the characteristics of the ideal hyper-rational, masculine, autonomous, competitive, liberal subject. Being autonomous and competitive they neglect collective action. Being hyper-rational and autonomous they have no emotional needs and are happy if left at liberty to pursue their own pre-given ends. Being masculine they are primarily the recipients of care, not care givers. Neo-liberalism reduces all values to money and market choices. The law exists to sustain markets, not to impose collective values upon markets. Vulnerability theory rejects this world view and asserts the importance of social reproduction, of the vulnerable individual, and the need for collective responses to deficiencies in resilience. A legal curriculum that recognizes vulnerability as fundamental to law and justice would provide a counterbalance to the current pervasive drift towards neo-liberal paradigms.
Thursday, April 7, 2022
Laura Kessler, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law 108 Cornell L. Rev. (forthcoming)
This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen to twenty-five percent will end in miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States.
The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with job-protected, unpaid leave for personal or family illness. The Americans with Disabilities Act of 1990 mandates both nondiscrimination and reasonable accommodations for employees with disabilities. The Occupational Safety and Health Act of 1970 is supposed to ensure that American workplaces are free of recognized hazards that may cause serious physical harm to workers. However, as this Article demonstrates, none of these laws clearly addresses the experience of miscarriage. Moreover, courts and agencies often refuse to interpret these statutes in obvious and reasonable ways to provide meaningful equality to workers when they suffer the common experience of miscarriage.
Many scholars have examined the limitations of employment law with regard to pregnancy. This Article is the first to comprehensively examine this problem as it specifically relates to miscarriage. In addition to bringing attention to this important issue, which silently affects so many workers, this Article provides an opportunity to challenge the artificial conceptual separation of employment and health law, as well as to consider the problem of pregnancy discrimination through the broader lens of reproductive justice.
Thursday, March 31, 2022
Carliss Chatman, We Shouldn't Need Roe, UCLA Women's L J. (forthcoming)
In the face of state-by-state attacks on the right to choose, which result in regular challenges to Roe v. Wade in the Supreme Court, this essay asks whether Roe is needed at all. Building on prior works that challenge the premise of fetal personhood and highlighting the status of Roe-based rights after decades of challenges, this essay proposes an alternative solution to Roe. Decades of state law encroachments cause Roe to fail to properly protect the right to choose. Federal legislative and executive efforts, including the Women’s Health Protection Act, are necessary to ensure the constitutionally guaranteed right to choose remains accessible to all pregnant persons.
Patients who have felt that their symptoms were inappropriately dismissed as minor or primarily psychological by doctors are using the term “medical gaslighting” to describe their experiences and sharing their stories on sites like Instagram. The term derives from a play called “Gaslight” about a husband’s attempt to drive his wife insane. And many patients, particularly women and people of color, describe the search for accurate diagnosis and treatment as maddening.
“We know that women, and especially women of color, are often diagnosed and treated differently by doctors than men are, even when they have the same health conditions,” said Karen Lutfey Spencer, a researcher who studies medical decision-making at the University of Colorado, Denver.
Studies have shown that compared with men, women face longer waits to be diagnosed with cancer and heart disease, are treated less aggressively for traumatic brain injury, and are less likely to be offered pain medications. People of color often receive poorer quality care, too; and doctors are more likely to describe Black patients as uncooperative or non-compliant, which research suggests can affect treatment quality.***
Women say doctors frequently blame their health problems on their mental health, weight or a lack of self-care, which can delay effective treatment. For instance, Dr. Spencer’s research suggests that women are twice as likely as men to be diagnosed with a mental illness when their symptoms are consistent with heart disease.***
Women may be misdiagnosed more often than men, in part, because scientists know far less about the female body than they do about the male body, even though “there are biological differences that go down to the cellular level,” said Chloe Bird, a senior sociologist at Pardee RAND Graduate School who studies women’s health.
In 1977, the U.S. Food and Drug Administration began recommending that scientists exclude women of childbearing years from early clinical drug trials, fearing that if enrolled women became pregnant, the research could potentially harm their fetuses. Researchers were also concerned that hormonal fluctuations could muddle study results.
Today — thanks in large part to a law passed in 1993 that mandated that women and minorities be included in medical research funded by the National Institutes of Health — women are more systematically included in studies, yet there are still huge knowledge gaps.
Monday, March 28, 2022
The National Birth Equity Collaborative has launched its "Respectful Maternity Care Initiative." It describes the work as follows:
The maternal health crisis in the U.S. is worsening, and we need a culture of Respectful Maternity Care to change it. Maternal health inequities weigh on Black and Indigenous communities, and data shows that it is due to structural and interpersonal racism. We need to be honest about how Black women are treated during maternity care.
Systems acknowledging the ways racism affects birth outcomes requires exploring innovative anti-racist models and tools for quality improvement. Despite the prevalence of racist microaggressions and bias fueling disrespect in labor and delivery care in the U.S., there are limited tools that can measure disrespect or that support provider behavior change. Health systems are ready for accountability and quality improvement measures for racism, starting with obstetric racism.
Read its report titled The Cycle to Respectful Care: A Qualitative Approach to the Creation of an Actionable Framework to Address Maternal Outcome Disparities to learn more about this issue. The abstract is excerpted here:
Despite persistent disparities in maternity care outcomes, there are limited resources to guide clinical practice and clinician behavior to dismantle biased practices and beliefs, structural and institutional racism, and the policies that perpetuate racism. Focus groups and interviews were held in communities in the United States identified as having higher density of Black births. Focus group and interview themes and codes illuminated Black birthing individual’s experience with labor and delivery in the hospital setting. Using an iterative process to refine and incorporate qualitative themes, we created a framework in close collaboration with birth equity stakeholders. This is an actionable, cyclical framework for training on anti-racist maternity care. The Cycle to Respectful Care acknowledges the development and perpetuation of biased healthcare delivery, while providing a solution for dismantling healthcare providers’ socialization that results in biased and discriminatory care. The Cycle to Respectful Care is an actionable tool to liberate patients, by way of their healthcare providers, from biased practices and beliefs, structural and institutional racism, and the policies that perpetuate racism.
The National Birth Equity Collaborative is hosting a webinar on Tuesday, March 29th at 9:30 a.m. to launch the initiative. Register here.
Monday, March 21, 2022
Maybell Romero has posted the forthcoming article "Ruined" on SSRN. This article will be published in the Georgetown Law Review. The abstract previews:
Judges play a critical role in one of the most important states of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants. This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.” The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.
In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment. However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article considers at how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing. I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.
Tuesday, March 8, 2022
By: Itay Ravid and Jonathan Zandberg
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court is currently considering a Mississippi law that prohibits nearly all abortions after the 15th week of pregnancy, in direct contradiction to the holding in Roe v. Wade. Among the many arguments raised in Dobbs in an attempt to overturn Roe, the State of Mississippi argues that due to “the march of progress” in women’s role in society, abortion rights are no longer necessary for women to participate equally in economic life. It has also been argued that there is no empirical support to the causal relationship between abortion rights and women’s economic success in society.
This Article is the first to empirically examine both these arguments, and it provides compelling evidence to reject each of them. To do so, we adopt a novel methodology that utilizes the enforcement of Targeted Regulation of Abortion Providers (TRAP Laws) as proxies for abortion restrictions. We study the effects of over forty years of legislation on the participation of American women in the labor market.
The results are striking. Our findings strongly and consistently show that the introduction of TRAP laws has widened the gender pay gap between women at childbearing age and the rest of the population. We also reveal the role of TRAP laws in pushing these women out of the labor force – or at least into choosing lower-paying jobs – as possible explanations for this gap. Ultimately, these findings foreshadow the future landscape of gender inequality in the United States if Roe is overturned.
Monday, March 7, 2022
Elizabeth T. Tyler on "Black Mothers Matter: The Social, Political, and Legal Determinants of Black Maternal Health Across the Lifespan"
Elizabeth T. Tyler has published Black Mothers Matter: The Social, Political and Legal Determinants of Black Maternal Health Across the Lifespan in volume 25 of the Journal of Health Care Law & Policy.
The abstract previews:
Black maternal health disparities have existed for decades. But with America’s recent “racial reckoning,” the public health and medical communities are increasingly focused on understanding the pathways that lead to higher rates of Black maternal morbidity and mortality, and policymakers are exploring legal and policy approaches to reducing inequities. While most of the attention is on reducing racial disparities in mortality during pregnancy, childbirth and postpartum, this article investigates the problem from a life course perspective. Applying public health and medical literature that details the role of allostatic load and weathering in adult and maternal health, this article examines how multiple compounding and intersecting social, political, and legal structures drive poor health outcomes for Black mothers. These structures include the particular social status of Black mothers in American history and society, the political disempowerment and scapegoating of Black mothers that has shaped harmful public policies, and the poorly designed and enforced laws and systems that not only fail to protect Black mothers from discrimination but, at times, exacerbate it. This article reviews and assesses current state and federal proposals for legal and policy reform aimed at addressing the Black maternal health crisis and subsequently proposes the need for a comprehensive multisectoral approach.
Monday, February 14, 2022
"Fault Lines of Refugee Exclusion: Statelessness, Gender, and COVID-19 in South Asia" by Chakraborty & Bhabha
Roshni Chakraborty and Jacqueline Bhabha published their work, Fault Lines of Refugee Exclusion: Statelessness, Gender, and COVID-19 in South Asia, in volume 23 the Health and Human Rights Journal. The introduction to the article is excerpted here:
Monday, February 7, 2022
Ayesha Rasheed has published Confronting Problematic Legal Fictions in Gestational Surrogacy, 24 J. Health Care L. & Pol'y 179 (2022). The abstract previews:
Infertility is a hot topic for investors and entrepreneurs in the United States, and recent years have seen a sharp rise of interest in various assisted reproductive technologies. Gestational surrogacy, a form of assisted reproduction where the surrogate mother is not (as) genetically related to the child she is carrying, is now the most popular form of surrogacy in the United States. It costs between $75,000-150,000 per attempt, and results in the live births of hundreds of babies each year.
Alone amongst developed nations, the United States has left this vast industry largely unregulated. No federal laws address the practice or regulate the companies that facilitate it, while a patchwork of extant state laws run the gamut from criminalization and bans of commercial surrogacy to wholesale authorization of it. In the rare instances where courts have been asked to decide issues related to the same, they have been likewise brief and varied in their approaches.
Overall, when courts and lawmakers have addressed gestational surrogacy, they often oversimplify a complex biological phenomenon and cultural experience in favor of idealized fictions about reproductive biology and family life. As a result, policies surrounding gestational surrogacy do not align well with what actually happens to the mind and body during pregnancy, or how the surrogacy industry currently operates. A better understanding of the science of gestational pregnancy has the potential to animate legal policy that allocates rights amongst the parties involved more equitably, and in a way that reflects the reality of the physiological and psychological risks borne during the surrogacy process.
Monday, January 31, 2022
Emily Gold Waldman has published her article Compared to What? Menstruation, Pregnancy, and the Complexities of Comparison in volume 41 of the Columbia Journal of Gender and Law. The abstract summarizes :
When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York’s tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a “double standard” when deciding which products would be considered tax-free medical items and which would not. Similar arguments were made in the subsequent challenge to Florida's tampon tax. In both cases, the arguments had powerful rhetorical force, helping to effectuate legislative repeal of the tampon taxes in those states.
This piece explores the complexities of the comparative model as applied to sex discrimination claims that are connected to female biology. On the one hand, comparisons can be a useful and precise way to pinpoint discrimination. But the model also contains two traps. First, almost no comparison is perfect. There is often some potential for distinguishing and line-drawing, some way to argue that the comparison does not fully hold up. Second, the comparative model is itself inherently limiting. The biological processes of menstruation, menopause, and pregnancy (along with breastfeeding, which this piece does not address) are closely intertwined with female sex, with no obvious analogues. Indeed, these processes impose specific challenges and needs that are not borne equally across the sexes. Yet the comparative model reductively suggests that if no products receive tax-exempt status, or if no employees receive accommodations for their inability to work, there is no sex discrimination issue at all. Although advocates cannot escape the current comparative framework within which they must work—and indeed should use it to their advantage when possible—we should all remain mindful of the framework’s ultimate limitations.
The piece begins by analyzing Young v. United Parcel Service, Inc., the 2015 Supreme Court case that grappled with how to apply the PDA’s comparison-based standard. I discuss how Young illustrates the complexities of comparison, and unpack the compromise approach that emerged. I then consider the potential usefulness of the Young approach to the tampon tax cases, while acknowledging that they arise under the Equal Protection Clause rather than Title VII. I conclude with some broader reflections.
Monday, January 24, 2022
Join the Center for Reproductive Rights this Wednesday at 9:00 a.m. EST for a virtual panel discussion on the impact of litigation in advancing sexual and reproductive health and rights (SRHR) worldwide.
Although SRHR are essential to gender equality, millions of women and girls still lack legal protections for these fundamental rights. Strategic litigation before international and regional bodies has proven to be a powerful tool for creating accountability for SRHR violations and generating progress at the national-level.
In a new report, the Center studied landmark cases and how they’ve transformed the legal landscape on SRHR, reverberating across borders and strengthening legal guarantees for millions of people around the world. The report, titled “Across Borders: How International and Regional Reproductive Rights Cases Influence Jurisprudence Worldwide,” will be launched at the webinar.
Panelists from the Center and leading organizations will discuss how the cases at the heart of the study – some in countries and regions with the most restrictive reproductive rights laws in the world – have advanced access to abortion services, maternal health care, assisted reproduction and other reproductive and human rights. In addition, they will share insights on the future role of litigation to advance SRHR and how advocates and other stakeholders can leverage this critical tool to accelerate progress.
The ACLU summarizes the legal issues raised in Brandt v. Rutledge (Eighth Circuit) and their importance to the plaintiffs:
Four families of transgender youth and two doctors have challenged an Arkansas law that would prohibit healthcare professionals from providing or even referring transgender young people for medically necessary health care. The law would also bar any state funds or insurance coverage for gender-affirming health care for transgender people under 18, and it would allow private insurers to refuse to cover gender-affirming care for people of any age. The lawsuit, filed in federal court, alleges that House Bill 1570 is a violation of the U.S. Constitution.
Some of the families who have sued the state are considering leaving their homes, their jobs, their extended families, and their communities, to ensure their children are able to access gender-affirming care. The care that would be banned by the Arkansas law has been shown in recent studies to dramatically reduce depression and suicidal ideation in transgender young people with gender dysphoria.
The N.Y. Times gave in-depth coverage of the plaintiffs and the uncertainties and anxieties that the underlying statute has created in their day-to-day lives. The Eastern District of Arkansas had enjoined the law concluding that:
The Court finds the Act's ban of services and referrals by healthcare providers is not substantially related to the regulation of the ethics of the medical profession in Arkansas. Gender-affirming treatment is supported by medical evidence that has been subject to rigorous study. Every major expert medical association recognizes that gender-affirming care for transgender minors may be medically appropriate and necessary to improve the physical and mental health of transgender people. Act 626 prohibits most of these treatments. Further, the State's goal of ensuring the ethics of Arkansas healthcare providers is not attained by interfering with the patient-physician relationship, unnecessarily regulating the evidence-based practice of medicine and subjecting physicians who deliver safe, legal, and medically necessary care to civil liability and loss of licensing. If the Act is not enjoined, healthcare providers in this State will not be able to consider the recognized standard of care for adolescent gender dysphoria.
This week, amicus briefs were filed in the matter, including one filed by bioethicists and health law scholars and one filed by Lambda Law and numerous women's rights organizations.
Monday, January 17, 2022
Join the ERA Coalition on Wednesday, January 19th at 4:00 for a town hall focused on "prioritizing Black mothers in the fight for health equity, and the ways forward."
- Rep. Lauren Underwood (D-Il), Co-Chair, Black Maternal Health Caucus
- Rep. Alma Adams (D-NC), Co-Chair Black Maternal Health Caucus
- Breanna Lipscomb, Senior Advisor of Maternal Health & Rights, Center for Reproductive Rights
- Charles Johnson, Founder, 4 Kira 4 Moms
- Linda Villarosa, Writer on Black maternal health, NYT Magazine
Wednesday, January 12, 2022
Bridget Crawford, Emily Gold Waldman, Naomi Cahn, Working Through Menopause, Washington U. L. Rev. (forthcoming)
There are over thirty million people ages 44 to 55 in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers inevitably will experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic, because of cultural stigmas and attitudes about aging and gender. Yet menopause raises critical issues at the intersections of gender equity, disability, aging, transgender rights, and reproductive justice. This Article imagines how the law would change if it accounted for menopause and the associated unequal burdens imposed.
This Article makes four contributions to legal scholarship. First, it identifies the intersections of menopause and the law in a way that counters the larger culture of silence, stigma, and shame. Second, it analyzes the uneasy fit between menopause and existing U.S. anti-discrimination doctrines. Third, the Article uses a comparative lens to explore how and why menopause is becoming a priority issue for the government, private employers, and workers in the United Kingdom. Finally, the Article situates menopause in U.S. equality jurisprudence broadly and suggests a place for menopause in employment law in particular. It sets out a normative vision for menopause equity in the workplace and suggests possible pathways for achieving it.
Diane Hoffman & Katherine Goodman, Allocating Scarce Medical Resources During a Pandemic: Can States and Healthcare Systems Consider Sex? Should They?,
University of Maryland Legal Studies Research Paper No. 2021-13
Nearly two years into the pandemic, COVID-19 has touched all U.S. states and populations. However, severe outcomes and deaths have not been borne equally. As is now well recognized, there have been significant demographic disparities by age and race: nearly 80% of all U.S. COVID-19 deaths have been among persons aged 65 or older, and hospitalization and death rates for Black and Hispanic patients with COVID-19 are two to three times higher than the rate for White patients. What has received much less attention, however, is an additional demographic disparity evident in the COVID-19 pandemic — sex. Nationally there are 20% more COVID-19 deaths among men, and men have higher COVID-19 mortality rates in every U.S. state with publicly available data. Numerous studies have established that male sex imposes an independent, approximately 30 percent higher risk of death, even when accounting for other risk factors, such as hypertension and obesity, that are more common among men.
While there has been a significant amount of discussion in the press and the academic literature regarding the role that race can or should play in decisions to allocate scarce medical resources such as vaccines, there has been much less attention paid to the role of sex in the allocation of early-intervention treatments, such as monoclonal antibodies (mAbs) and the soon-to-be-authorized oral antivirals. In this article, we seek to remedy this gap in the literature. We use a hypothetical but realistic scenario in which states have available to them a treatment that is very similar to currently available mAbs and in which therapeutic demand greatly exceeds the available supply. Even if limited to individuals over the age of 65 with one or more comorbidities, there is not enough of the therapy to treat these high-risk individuals and some sort of further triaging would be necessary. Given the strong data that male sex is an independent risk factor for poor COVID-19 outcomes, we speculate that states and/or hospital systems might wish to use sex as one risk factor, among many, in an algorithm to calculate a patient’s probability of experiencing hospitalization or death from COVID-19. These estimates, in turn, would be used to allocate this scarce medical resource to highest-risk individuals. We then ask two questions: (1) whether, as a legal matter, sex would be a permissible factor to incorporate into allocation criteria; and (2) whether, as a normative matter, sex should be considered in allocation of early-intervention therapies for COVID-19.
In answering the legal question, we first look at the possibility of successful challenges under the Equal Protection Clause of the 14th Amendment and then at possible challenges under Section 1557 (the antidiscrimination provision) of the Affordable Care Act. As to the former, we conclude that constitutionality could depend upon whether the federal courts view the basis for differential treatment as one based primarily upon biology, or upon a combination of biology and socio-cultural factors. Although we believe there is room for the courts to find that either basis is constitutionally valid, courts would be more likely to find it so if they analyzed it as a biological difference.
Under the Affordable Care Act, we conclude that it is much more difficult to predict how a federal court would rule. Section 1557 prohibits discrimination “on the basis of sex” in healthcare facilities and in the administration of healthcare. The statute permits the importation of Title IX jurisprudence in interpreting this provision. Courts, in interpreting Title IX, have also looked to Title VII case law. Each of these Titles have exceptions that permit distinctions “on the basis of sex” under certain circumstances. Whether courts would apply Title VII jurisprudence to Section 1557 is an unknown, even if it has been imported to Title IX. Additionally, whether courts would apply the exceptions provided in Title IX and Title VII to Sec. 1557, and how they would apply those exceptions, is difficult to predict. We argue that because of the flexibility the Court possesses in applying the relatively new Section 1557, as a normative matter, the Court should permit the use of sex as a factor in allocating early treatments that can prevent severe COVID-19 outcomes. We believe such a conclusion is justified by both a utilitarian framework of maximizing lives saved and stewarding scarce medical resources and by an egalitarian framework of providing individuals with the resources they need to achieve the same or similar outcomes.