Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, January 26, 2021

Normalizing Menopause and Finding the Appropriate Legal Frameworks

Naomi Cahn, Justice for the Menopause: A Research Agenda,  Columbia Journal of Gender and Law, vol. 41 (forthcoming 2021)

This short essay, prepared for a symposium on menstruation, is an initial effort to catalogue various legal approaches to menopause and to set out areas for further analysis. It argues for consideration of menopause in the movement for menstrual and gender justice. It briefly explores cultural images of menopause and post-menopausal women, including the ubiquitous hot flashes and a sexuality, analyzes potential legal claims based on age, sex, and disability for menopausal justice, and suggests the interrelationship between such approaches and social attitudes towards menopause, menstruation, and gender. It suggests that “normalizing” menopause, acknowledging its realities, is one means for removing the associated stigma and disabilities and might result in reinterpreting existing laws and future legal reforms.

January 26, 2021 in Equal Employment, Family, Gender, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, January 13, 2021

The Disparate Impact of COVID on Single Mother Families and the Argument for Human Rights Protections

Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison McNulty, "Shelter from the Storm: Human Rights Protections for Single Mother Families in the Time of COVID-19"  , 27 Wm. & Mary J. Race, Gender & Soc. Justice ___ (2021 Forthcoming)

This Article assesses the effects in the US of COVID-19, with particular attention to its impact on single mother families. It scrutinizes decades of deliberate legal and policy choices that have left them financially vulnerable and exposed to enormous risks to their health and well-being. To remedy this situation, this Article argues for adopting a human rights framework that can reverse this disastrous course.


This Article conveys the pandemic experiences of some single mothers and their place in larger demographic trends. It identifies the disparate impacts that the pandemic has had on single mother families and the laws and policies that have either supported these individuals and their families or left them adrift. The Article then examines the structure of employment and family assistance laws and policies. Inadequate employment discrimination protections contribute to the financial vulnerability of single mother households. These vulnerabilities force some single mothers into welfare and other assistance programs that are materially inadequate and purposefully humiliating. Government officials have used sexist and racist tropes to vilify single mothers as immoral, lazy and opportunistic to justify this denigration. After reviewing this statutory framework, the Article briefly explains why constitutional law has not provided an adequate remedy. It reviews the Supreme Court’s use of extremely deferential standards of review of government decisions that negatively and disparately affect single mothers, including BIPOC single mothers, regarding employment laws and social and welfare programs. Finally, to address these problems the Article proposes use of a human rights framework. Such a framework would bring the US in line with most other developed states that have embraced these principles. More importantly, it would help protect against multiple forms of discrimination that currently fall outside of constitutional protection and help ensure adequate provision of material resources to the most vulnerable among us.

January 13, 2021 in Family, Healthcare | Permalink | Comments (0)

In Another Shadow Docket Order, SCOTUS Stays Abortion In-Person Medication Requirement During COVID Found Unconstitutional by District Court

In another shadow docket ruling, the Supreme Court stayed a district court's preliminary injunction enjoining the unconstitutional application of a Covid abortion requirement that women seeking medicated abortions appear in person.

The order is here,  FDA v. American College of OB/GYNS (Jan. 12, 2021), with concurrence by Justice Roberts and dissent by Justice Sotomayor.

NYT, Supreme Court Revives Abortion Pill Restriction

In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

January 13, 2021 in Abortion, Constitutional, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, January 12, 2021

Symposium: COVID Care Crisis and the Impact on Women in Legal Academia

Symposium, COVID Care Crisis, Jan. 14 & 15 (Zoom) (registration free)

In the months since the start of the COVID-19 pandemic, women’s scholarly output and publications have dropped in various disciplines, while service and care responsibilities that fall disproportionately on junior or marginalized faculty and staff have likely increased. Compounding these pressures, Black faculty and faculty of color more generally have also been coping with the emotional effects of the police killings of George Floyd and others, at the same time that COVID-19’s health effects are concentrating along lines of race and inequality in these communities specifically. All of these factors threaten the output, visibility, status and participation of women and other primary caregiving faculty and staff in legal academia.

Left unaddressed, these disparities also have the potential to alter the landscape of legal academia and further marginalize women and the perspectives they bring to legal scholarship, education, and public dialogue. This symposium seeks to raise awareness of the current COVID care crisis and its impacts on academia, and to begin a dialogue on concrete and innovative responses to this crisis.

January 12, 2021 in Conferences, Equal Employment, Healthcare, Law schools, Women lawyers, Work/life | Permalink | Comments (0)

COVID, Abortion Restrictions, and Public Health in the Culture Wars

Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, 47 Mitchell Hamline L.Rev. (2020)  

At the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled.

The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy.

Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion.

January 12, 2021 in Abortion, Courts, Healthcare, Reproductive Rights | Permalink | Comments (0)

Monday, November 23, 2020

How Sex Discrimination in Medical Research is Thwarting a Cure for COVID

Lori Andrews, Is Sex Discrimination in Medical Research Thwarting a Cure for COVID?

Despite the knowledge we might gain about COVID-19 and other infectious diseases from research on women, most medical research focuses on men.

  • A study of heart disease—the leading cause of death among women—was undertaken on 22,000 men and  no women. 
  • A federal study on health and aging proceeded for twenty years with only male subjects. 
  • Absurdly, even though women account for 80 percent of autoimmune disorder patients, the main research subjects are—you guessed it—men. 
  • Even basic biological research is done mainly with male mice!  

Male-Centered Research is Killing Us

The dangers from male-centered research are profound.  Even though women consume 80 percent of medications in the U.S., drug research is still predominantly conducted on men and fails to consider how drugs act over the course of a woman’s menstrual cycle.  Consequently, drugs can reach the market that are actually harmful to women.  In fact, eight of the ten dangerous drugs removed from the market between 1997 and 2000 caused greater harm and fatalities for women. 

 

A wide range of medications, including some antihistamines, gastrointestinal drugs, antibiotics and antipsychotics trigger potentially fatal heart arrhythmias more often in women than men.  

 

In 1993, Congress adopted a law designed to ensure that women were allowed to participate in medical research. 

 

When discrimination persisted, the National Institutes of Health in 2016 announced guidelines requiring federally-funded scientists to enroll women in studies, to disaggregate medical research data by sex, and to study female animals and female cells as well.

 

Then along came COVID-19, with its tsunami of scientific articles.  By May 13, 2020, there were more than 23,000 papers published on COVID-19 with the number of articles doubling every twenty days. 

 

When I analyzed the burgeoning medical research literature about COVID-19 along with my team at the Institute for Science, Law and Technology at Chicago-Kent College of Law, we found that the historical discrimination against women in medical research still exists. 

 

Only a few scientific articles about COVID-19 analyze the difference in symptoms between men and women.  Most not only fail to break down the symptoms by sex, but also erroneously assume that the death rate of men and women is the same—ignoring the numerous studies that already demonstrated that men with COVID-19 die at a higher rate than women.

 

The fact that, in 2020, researchers would blindly assume women’s bodies behave like men’s is troubling.

November 23, 2020 in Gender, Healthcare, Pop Culture, Science | Permalink | Comments (0)

Monday, November 2, 2020

Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett

I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court.  Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court.  The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.

Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court

 

November 2, 2020 in Abortion, Constitutional, Courts, Healthcare, Judges, LGBT, Same-sex marriage, SCOTUS, Women lawyers | Permalink | Comments (0)

Friday, October 2, 2020

New Book Podcast: Michele Goodwin's Policing the Womb: Invisible Women and the Criminalization of Motherhood

Michelle Goodwin, Podcast, New Books in Law: Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge Press 2020)

Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020) a brilliant but shocking account of the criminalization of all aspects of reproduction, pregnancy, abortion, birth, and motherhood in the United States. In her extensively researched monograph, Michele Goodwin recounts the horrific contemporary situation, which includes, for example, mothers giving birth shackled in leg irons, in solitary confinement, even in prison toilets, and in some states, women being coerced by the State into sterilization, in exchange for reduced sentences. She contextualises the modern day situation in America’s history of slavery and oppression, and also in relation to its place in the world. Goodwin shows how prosecutors abuse laws, and medical professionals are complicit in a system that disproportionally impacts the poor and women of color. However, Goodwin warns that these women are just the canaries in the coalmine. In the context of both the Black Lives Matter movement, and in the lead up to the 2020 Presidential election, her book could not be more timely; Not only is the United States the deadliest country in the developed world for pregnant women, but the severe lack of protections for reproductive rights and motherhood is compounding racial and indigent disparities.

October 2, 2020 in Books, Healthcare, Poverty, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Tuesday, September 22, 2020

Gendered Complications of Covid-19: Towards a Feminist Recovery Plan

Naomi Cahn & Linda McClain, Gendered Complications of Covid-19: Towards a Feminist Recovery Plan, Georgetown Journal of Gender and the Law, 2020

Gendered inequalities are on the frontlines of Covid-19. The catalogue of Covid-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. The pandemic has exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly Black, Latina, and Native American, are at the intersection of the inequities in the emerging stay-at-home economy. This Article argues that Covid-19 is likely to have complex implications for gender equality and gender equity as state and local governments, the federal government, and private actors focus on recovery plans. The negative impact includes hundreds of thousands of deaths, lingering health complications for many among the several million people who have already contracted the virus, massive economic disruption and loss for individuals, families, and communities and the exacerbation of structural inequalities. The creative policy responses prompted by the devastating impact of Covid-19 provide promise for building a more transformative and equitable future. Indeed, any roadmap to resilience is incomplete without addressing the gender inequities in our social infrastructure. Proposing a feminist recovery plan, this Article focuses on a set of issues relating to gender inequities concerning work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly, women of color— in providing essential but undervalued care work.

September 22, 2020 in Equal Employment, Family, Gender, Healthcare, Work/life | Permalink | Comments (0)

Wednesday, July 8, 2020

SCOTUS Holds that Employer's Religious Liberty Trumps Women's Right to Healthcare and Birth Control

The U.S. Supreme Court decided Little Sisters of the Poor v. Pennsylvania (July 8, 2020), in a split opinion, with the majority written by Justice Thomas.  Justices Kagan and Breyer concurred in the judgment.

Justice Ginsburg strongly dissented,. recognizing the threat to not just women's healthcare, but women's equality.

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. *** Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services. 

July 8, 2020 in Healthcare, Religion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, July 6, 2020

Book Invisible Women: Data Bias in a Male World

  Caroline Criedo Perez, Invisible Women: Data Bias in a World Designed for Men

Data is fundamental to the modern world. From economic development, to healthcare, to education and public policy, we rely on numbers to allocate resources and make crucial decisions. But because so much data fails to take into account gender, because it treats men as the default and women as atypical, bias and discrimination are baked into our systems. And women pay tremendous costs for this bias, in time, money, and often with their lives.

Celebrated feminist advocate Caroline Criado Perez investigates the shocking root cause of gender inequality and research in Invisible Women​, diving into women’s lives at home, the workplace, the public square, the doctor’s office, and more. Built on hundreds of studies in the US, the UK, and around the world, and written with energy, wit, and sparkling intelligence, this is a groundbreaking, unforgettable exposé that will change the way you look at the world.

From Goodreads:

Imagine a world where your phone is too big for your hand, where your doctor prescribes a drug that is wrong for your body, where in a car accident you are 47% more likely to be seriously injured, where every week the countless hours of work you do are not recognised or valued. If any of this sounds familiar, chances are that you're a woman.

Invisible Women shows us how, in a world largely built for and by men, we are systematically ignoring half the population. It exposes the gender data gap – a gap in our knowledge that is at the root of perpetual, systemic discrimination against women, and that has created a pervasive but invisible bias with a profound effect on women’s lives.

Award-winning campaigner and writer Caroline Criado Perez brings together for the first time an impressive range of case studies, stories and new research from across the world that illustrate the hidden ways in which women are forgotten, and the impact this has on their health and well-being. From government policy and medical research, to technology, workplaces, urban planning and the media, Invisible Women reveals the biased data that excludes women. In making the case for change, this powerful and provocative book will make you see the world anew.
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July 6, 2020 in Books, Business, Gender, Healthcare, Science | Permalink | Comments (0)

Tuesday, June 9, 2020

New Study Reports on Prison System's Failure to Address Women's Health and Safety Behind Bars

The attorney featured in this ABA story, Julie Abbate, and I were colleagues many years ago at the law firm of Covington & Burling. There we worked together on a class action pro bono case, along with Caroline Brown, Leecia Eve, Peter Nickles, and National Women's Law Center attorneys Debbie Brake and Brenda Smith. Glad to see she is still working on these issues.

The case we brought on behalf of the women prisoners of DC raised claims of unconstitutional conditions, pregnancy and healthcare, sexual assault and harassment, and inequalities in education and employment.  Women Prisoners of DC Dep't of Corrections v. DC (filed 1993).  Ultimately, through the appeal to the DC Circuit, we won most of the claims--except healthcare. Women Prisoners v. DC, 93 F.3d 910 (D.C. Circ. 1996).

ABA J, New Study Looks at the Prison System's Failure to Address Women's Health and Safety Behind Bars

The number of incarcerated women is growing, and with it the unique and pressing needs of female prisoners in the system. In response, the U.S. Commission on Civil Rights did an 18-month investigation. It released a report, Women in Prison: Seeking Justice Behind Bars, in February.

 

The population of women in prison has increased dramatically since the 1980s, according to the report, and the rate of increase has outpaced that of men. In 2017, women accounted for approximately 225,000 of the slightly more than 2 million people in local, state and federal facilities in this country, according to the Sentencing Project, which tracks incarceration statistics.

 

The Women in Prison report cites disciplinary disparities between men and women—with a particularly negative impact on LGBT-identified women and women of color—and notes that many prisons do not meet the health, prenatal and personal hygiene needs of female inmates. It stresses the impact of women being incarcerated far from home with limited visitation access and having their parental rights terminated.

 

The commission is calling on the Department of Justice to expand its investigation capacity and continue to litigate enforcement of incarcerated women’s civil rights in states that violate them; it asks Congress to enact stricter penalties for noncompliance with the Prison Rape Elimination Act, focused on inmate safety, and to consistently appropriate funding sufficient to ensure correctional agencies comply; and it urges institutions to provide more mental health treatment programs.***

 

Given the COVID-19 pandemic, “If ever there was a time to focus on lowering the prison population and looking at who could be [housed] in less restrictive settings, it is now,” says Judith Resnik, a Yale Law School professor and founding director of its Arthur Liman Center for Public Interest Law.

 

She calls the coronavirus crisis “an early cri de coeur [a passionate outcry] that makes that plain many women do not need to be in prison.” And she adds, “There is nothing in the law saying that people can be sentenced to the risk of serious illness or death.”

 

In an effort to mitigate virus risks after some staff members and inmates tested positive, Decatur Correctional Center in Illinois released several mothers and babies in March.

 

Attorney Julie Abbate observes, “Prison systems were not built with women in mind.”

 

Abbate, national advocacy director of Just Detention International in Washington, D.C., has been a relentless fighter for the rights of female prisoners. She is the former deputy chief in the Special Litigation Section of the Civil Rights Division, a member of the ABA Criminal Justice Section, and she testified before the commission in hearings about the study.

 

She drafted a resolution adopted by the ABA House of Delegates in 2019, urging governments to enact legislation, and correctional and detention facilities to enact policies that provide female prisoners with unrestricted access to free toilet paper and a range of free feminine hygiene products. Since then, she has been working with state correctional agencies and county sheriffs to help implement the ABA policy.

 

Abbate says disparate prison disciplinary rules are also a particular concern.

 

“For men, an assault in prison usually involves a violent fight. For women, it could be pushing or hair-pulling. For both, it’s punished as assault,” she says, adding that women are particularly at risk of violence and sexual abuse in prison. “Whenever you have scarcity and deprivation, it creates power over women. An unscrupulous correctional officer could pressure a woman to perform a sexual act on him [and say,] ‘Do it, or I’ll put you in isolation.’ The fear of being separated from her children drives a woman to comply.”

 

The report also notes solitary confinement for minor violations denies women good-time credits and shorter sentences.

 

The commission is calling on prisons to implement evidence-based, trauma-informed discipline policies to avoid harsh punishments for minor infractions.

 

In some states, things seem to be improving, albeit slowly. Lhamon points to recent disciplinary changes under guidelines adopted and enforced by the Alabama Department of Corrections and MCI-Framingham, a women’s medium-security facility in Massachusetts. She says data showed “astonishing progress” in inmate safety after those institutions implemented a gender-responsive trauma-informed disciplinary policy.

 

Those policies are informed by studies on the different characteristics and pre-incarceration experiences of men and women (particularly trauma), and generate information on how to meet the unique needs and challenges of female inmates.

 

Data after implementation of those policies has shown “extraordinary, just jaw-dropping” improvements, she says, adding that the new disciplinary policies could be models for other states to follow.

 

Lhamon says the commission is working with Sen. Brian Schatz (D-Hawaii) on his bipartisan efforts with Sen. John Cornyn (R-Texas) urging better oversight of Prison Rape Elimination Act compliance. The commission is also working with U.S. Rep. Pramila Jayapal (D-Wash.) on the Dignity for Incarcerated Women Act, which she co-sponsored with U.S. Rep. Karen Bass (D-Calif.). The bill addresses many issues raised in the commission’s report, and companion legislation was reintroduced in the Senate last year by Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.).

June 9, 2020 in Healthcare, Legislation | Permalink | Comments (0)

Monday, June 1, 2020

Contracting Pregnancy and the Laws of Regulating Surrogacy

Rachel Rebouche, Contracting Pregnancy, 105 Iowa L. Rev. (2020)

Several states recently have passed laws that permit and regulate gestational surrogacy, changing course from the prohibitions that characterized an earlier era. These statutes require mental health counseling before pregnancy and legal representation for all parties to the contract. Scholars and practitioners alike herald this legislation as the way forward in protecting the interests of both intended parents and surrogates. State law, however, may not resolve a recurrent tension over who controls prenatal decision making in gestational surrogacy agreements. Intended parents want authority to make decisions regarding the pregnancy. Contract provisions cater to that desire and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to manage their prenatal care.

Analyzing the most controversial terms of surrogacy contracts—those governing prenatal testing, prenatal behavior, and abortion—this Article demonstrates that neither statutory rights nor contractual remedies adequately address disputes over prenatal care. Rather, mental health professionals who provide pre-pregnancy counseling and lawyers who draft surrogacy contracts have greater effect on parties’ expectations and conduct. Lawyers, in implementing surrogacy contracts, help build trust between parties that induces compliance with otherwise unenforceable terms. When there is a conflict between the parties, lawyers diffuse it.

This Article identifies the consequences of relational contracting for surrogacy, including shielding parties’ behavior from view and entrenching the power of fertility agencies and brokers. It concludes by suggesting how law might challenge the dominance of professionals and agencies by opening the fertility market to a broader population of participants.

June 1, 2020 in Abortion, Family, Healthcare, Pregnancy | Permalink | Comments (0)

United Nations Working Group Declares Eight US States In Breach for COVID Restrictions on Abortion

US States Manipulating Covid-19 Pandemic to Restrict Abortion Access, Rights Experts Charge

Members of the UN Working Group on Discrimination against Women and Girls issued a statement on Wednesday expressing regret that states such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee “appear to be manipulating the crisis” to curb women’s reproductive rights.

 

UN experts are concerned some US states – such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee – appear to be manipulating crisis measures to restrict access to essential. services.

 

“This situation is also the latest example illustrating a pattern of restrictions and retrogressions in access to legal abortion care across the country. We fear that, without clear political will to reverse such restrictive and regressive trends, states will continue pursuing this pattern,” said Elizabeth Broderick, Vice-Chair of the Working Group.***

 

The Working Group was also extremely concerned by the US insistence to remove references to “sexual and reproductive health and its derivatives” from the Global Humanitarian Response Plan (HRP) on COVID-19, as expressed through a letter on 18 May from USAID to the UN Secretary-General.

 

“We reiterate that sexual and reproductive health services, including access to safe and legal abortion, are essential and must remain a key component of the UN’s priorities in its responses to the COVID-19 pandemic,” said Ms. Broderick.

 

“Removing references to sexual and reproductive health from the HRP will have devastating consequences for women worldwide. It will seriously undermine the international community’s joint effort to respond to women’s health needs in this time of crisis.”

 

Global Times, US Women's Rights Breach

Some US states are exploiting the coronavirus crisis to restrict access to abortion, a group of independent United Nations (UN) rights experts said on Wednesday.

Eight states have used COVID-19 emergency orders - which suspend medical procedures not deemed immediately necessary - to limit access to pregnancy terminations, said the UN Working Group on Discrimination against Women and Girls.

The group singled out Alabama, Arkansas, Iowa, Louisiana, Ohio, Oklahoma, Tennessee and Texas.

"We regret that the above-mentioned states, with a long history of restrictive practices against abortion, appear to be manipulating the crisis to severely restrict women's reproductive rights," said the group's vice-chair Elizabeth Broderick.

The independent experts do not speak for the UN but report their findings to the world body.

 

"For many women in the US, bans on abortion during this pandemic will delay abortion care beyond the legal time limit or render abortion services completely inaccessible," said Broderick.

Those who do seek termination services will be forced to travel interstate, thereby risking their own health and disregarding public health guidelines, the experts said.

"Abortion care constitutes essential health care and must remain available during the COVID-19 crisis," Broderick added.

"Restrictions on access to comprehensive reproductive health information and services, including abortion as well as contraception, constitute human rights violations and can cause irreversible harm."

The group said it was "inherently discriminatory" to women to deny them access to services only they require.

June 1, 2020 in Abortion, Healthcare, International | Permalink | Comments (0)

Thursday, May 28, 2020

Doctors File Lawsuit to Lift Restrictions on Abortion Pill During Pandemic

Lawsuit Asks FDA to Lift Restrictions on Abortion Pill During Pandemic

Reproductive rights advocates are suing the Trump administration, asking a federal court to suspend restrictions on the abortion drug mifepristone during the coronavirus pandemic.

 

The drug mifepristone was approved by the U.S. Food and Drug Administration 20 years ago for use in medication abortions in early pregnancy. It's also used to help manage miscarriages for some women trying to avoid surgery.

 

In a federal lawsuit filed in Maryland on behalf of the American College of Obstetricians and Gynecologists (ACOG) and other groups, the American Civil Liberties Union requests an emergency order lifting regulations requiring patients in the United States to pick up the drug at a hospital or medical facility.

 

Julia Kaye, an attorney with the American Civil Liberties Union, said that requirement is putting patients at risk during the COVID-19 pandemic.

 

"A patient who has already been evaluated by a clinician, either through telemedicine or at a prior in person visit, still must make this entirely unnecessary trip just to pick up their prescription," Kaye said during a conference call announcing the lawsuit.

 

ACOG supports lifting the restrictions, called the Risk Evaluation and Mitigation Strategy or REMS, and has said they are medically unnecessary to preserve patient safety. In 2017, the ACLU filed a federal lawsuit in Hawaii, seeking to force the FDA to remove the REMS for mifepristone.

 

But this new lawsuit is more narrow, Kaye said, in asking the court to suspend the rules during the pandemic only. The lawsuit asks for an emergency order allowing the mifepristone to be dispensed through the mail or by pharmacies. It notes that in other areas of medicine, federal agencies "have taken substantial action ... to encourage telemedicine use" and "forego unnecessary in-person visits" during the coronavirus crisis.

May 28, 2020 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Wednesday, May 20, 2020

Call for Papers Columbia Journal of Gender & Law: Symposium "Are You There Law, It's Me, Menstruation"

Feminist Law Profs, CFP Columbia Journal of Gender & Law Symposium: Are You There, Law? It's Me, Menstruation

Columbia Journal of Gender & Law: Symposium Announcement and Call for Papers

Are You There, Law? It’s Me, Menstruation

The Columbia Journal of Gender & Law is pleased to announce a call for papers for its Spring 2021 symposium: Are You There, Law? It’s Me, Menstruation.

 

This symposium explores the intersection of law and menstruation. Over half the population menstruates for a large portion of their lives, but the law has mostly been silent on the issue. Virtually all people with female biology menstruate, although not all who menstruate are girls or women. A truly inclusive law reform movement will take all who menstruate into account, without regard to race, economic class, age, or gender identity. A legal system that takes into account the biology of over half the population is the foundation for a more just society. 

 

Judy Blume’s young adult classic, Are You There God? It’s Me, Margaret, first captured readers’ attention fifty years ago, but only recently have periods entered the public discourse. The “tampon tax”—the state sales tax on menstrual products—is currently the subject of multi-state litigation and legislative advocacy. Public awareness of the unfairness of the tax has inspired many people to start speaking and mobilizing about other obstacles, including the lack of employment-related accommodations for menstrual needs, the lack of access to safe and affordable products (particularly in schools and prisons), and the anxiety and harassment that menstruating students can face at school.  Increasingly, litigation is being brought about some of these issues, and some states and localities are also taking action on their own, notably by requiring free menstrual products in settings like prisons, schools, and shelters. “Period poverty”—being unable to afford menstrual products—remains an obstacle to school, work and full participation in public life. 

 

The Symposium will be held at Columbia Law School on April 9, 2021. The conference will include a full day of panel discussions and will be open to the public. The program concludes with a reception celebrating the journal’s thirtieth anniversary.

 

Papers

To be considered for a paper presentation at the symposium, please submit an abstract of your proposed paper by 5:00 p.m. on August 15, 2020 to columbia.jgl.submissions@gmail.com. Abstracts should be no longer than 500 words and should relate to the conference theme.  Possible topics might include:

  • Affordability, availability, or safety of menstrual products.
  • Challenging the state sales tax on menstrual products.
  • Menstruation-related discrimination and harassment in employment, education, and/or other contexts.
  • Menstrual education in schools.
  • Menstruation-related challenges unique to prisoners, incarcerated people, and visitors and employees in carceral facilities.
  • Menstruation-related needs of homeless and low-income individuals and families.
  • Cultural stigmas and taboos related to menstruation.
  • Lawyering and social movements that are inclusive of all who menstruate, including trans boys and men, people with gender fluid identities, and people with non-binary gender identities.
  • Research related to health issues connected with menstruation and menstrual products.
  • Environmental issues related to menstruation, including access to water, disposal of menstrual products, and toxic chemicals used in menstrual products.
  • Alternatives to commercial menstrual products, including micro-lending for financing of menstruation-related small businesses.
  • Human rights concerns, including the right to dignity, the right to education, and/or the right to employment, and their connection to menstruation.
  • The relationship of popular culture, including Judy Blume’s Are You There God? It’s Me, Margaret, to the understanding of menstruation.
  • The use of female empowerment and feminist messaging in selling menstrual products and menstrual education.
  • Menstrual-related activism, including litigation and legislative reform.
  • Coalition-building between and among groups around issues related to menstruation.

Successful proposals will include a discussion of how the selected topic relates to the law. Interdisciplinary approaches and perspectives from outside the legal academy are very welcome.

Selected speakers will be notified by September 15, 2020.

 

Publication Opportunity

The selected speakers from this Call for Papers will have the opportunity to publish their papers in a special symposium issue of CJGL.  All such papers will be due by February 1, 2020.  They must be no more than 3,000 words and should be lightly-footnoted.  The abstracts will be posted to CJGL’s public website, and the complete versions may be made available prior to the symposium on a password-protected site to all symposium participants.

 

Registration and Transportation

There is no registration fee associated with the conference.  There are funds available to cover the reasonable transportation costs and accommodations for speakers coming from outside the New York metropolitan area. 

 

Short On-Line Essays

In connection with the symposium, CJGL invites expressions of interest in contributing short essays (100-500 words, including footnotes) on any aspect of law and menstruation, or reflections on the influence of Judy Blume’s book and its legacy for generations of readers. Essays will be hosted on the CJGL website beginning in early 2021 and are intended to be written for a general audience. We warmly welcome contributions from students, faculty, attorneys, activists, artists and others.  Contributions may take the form of personal reflections, cultural critiques or other menstruation-related topics of the author’s choice. Short essays do not have to be in a traditional academic format.

To be considered for contribution of a short essay, please submit a short (2-4) sentence proposal by 5:00 p.m. on August 15, 2020 to columbia.jgl.submissions@gmail.com. Selected contributors will be notified by September 15, 2020.

Final versions of short on-line essays will be due November 1, 2020.

 

Questions?

Questions about logistics of the program can be directed to CJGL Symposium Editor Jenna Rae Lauter: jrl2156@columbia.edu

Other questions can be directed to the Symposium’s faculty conveners: Professor Bridget Crawford (Elisabeth Haub School of Law at Pace University) bcrawford@law.pace.edu; Professor Emily Gold Waldman (Elisabeth Haub School of Law at Pace University) ewaldman@pace.edu; and Professor Margaret Johnson (University of Baltimore School of Law) majohnson@ubalt.edu.

May 20, 2020 in Call for Papers, Conferences, Gender, Healthcare | Permalink | Comments (0)

Thursday, April 2, 2020

CFP: Pandemics and the Constitution (Deadline 4/19)

Call for Papers

Pandemics and the Constitution

In response to the COVID-19 outbreak, governments have rapidly imposed restrictions on everyday life that would have seemed unthinkable only a few weeks ago. While as late as mid-March media was repeating the line that draconian measures to contain the virus like those taken in Wuhan, China, could not occur in the United States, Americans have very quickly adjusted to tight restrictions on daily life. Commentary about the constitutionality of coronavirus-related restrictions by legal scholars has just begun to appear in the popular media. Existing jurisprudence has been characterized as recognizing a “seemingly unlimited power to quarantine” on the parts of states.  Much of this legal precedent, however, is over a century old, predating many shifts in thinking in legal thinking and constitutional law on civil liberties, procedural due process, and the role of the federal government.

Because scholarship on this subject will be a vital guide to the public and legal community in the months ahead, ConLawNOW is seeking to publish, on an expedited timeline, a written symposium of short essays (preferably 5–10,000 words, about 10 published pages) on the constitutional boundaries of government response to pandemics.  Topics may include, but are not limited to, constitutional permissibility of restrictions on movement and travel, legitimacy of closing and limits on commerce, the proper scope of state power to act for the public health, constitutionality of the suspension of fundamental rights like abortion or gun rights, constitutional implications of delays in courts, trials, and juries, First Amendment parameters of restrictions on gatherings and religious services, permissibility of mandated medical testing, surveillance, and tracking, government ability to delay or cancel elections, and Eighth Amendment implications for inmates.

Submissions will be considered and published on a rolling basis.  Papers submitted prior to April 19 will receive priority consideration.  To submit, please email your manuscript to conlawjournal@uakron.edu.  Questions may be directed to conlawjournal@uakron.edu or editor David Belfiglio at dsb82@zips.uakron.edu.

 ConLawNOW is an online journal sponsored by the Congressionally-established Center for Constitutional Law and the Akron Law Review.   It is an open access journal, also indexed in Westlaw, Lexis, and Hein.

April 2, 2020 in Call for Papers, Constitutional, Healthcare, Pop Culture | Permalink | Comments (0)

Tuesday, March 31, 2020

Federal Courts Enjoin States' Attempts to Prohibit Exercise of Abortion Rights During Coronavirus Pandemic

Reuters, US Judges Stop Texas, Ohio, Alabama From Curbing Abortions During Coronavirus 

Federal judges on Monday blocked officials in Texas, Ohio and Alabama from banning most abortions in those states as part of their orders to postpone surgeries and other procedures deemed not medically necessary during the coronavirus crisis.

 

U.S. District Judge Lee Yeakel in Austin ruled that Paxton’s action “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”

 

The Texas lawsuit was filed last Wednesday after clinics said they were forced to cancel hundreds of appointments for abortions across the state.

 

“Abortion is essential healthcare, and it’s a time-sensitive service, especially during a public health crisis,” said Amy Hagstrom Miller, president of Whole Woman’s Health, an abortion provider with three clinics in Texas and a plaintiff in the case.

Dahlia Lithwick, Federal Judges Block Texas and Ohio Coronavirus Abortion Bans

There was bad news on Monday for states trying to use the coronavirus pandemic to halt abortions: Two federal judges ruled that pretextual pretexts are just pretexts. Clinics in Ohio and Texas will remain open, at least for the time being. As my colleague Christina Cauterucci reported last week, Republican governors in both Ohio and Texas tried opportunistically to halt abortions in their states by claiming that the procedures are not-essential and that states should redirect personal protective equipment, including masks and gloves, away from clinics so they can better serve coronavirus patients. Of course, women actually need abortion services even more during such crises, clinics don’t use most of the essential medical equipment necessary to fight the virus, and most abortions are time-sensitive procedures that can’t be delayed indefinitely.

 
Texas and Ohio weren’t alone, though. Iowa, Mississippi, Alabama, and Oklahoma had all recently moved to suspend abortion access using the same excuses. The Texas guidance, which was particularly draconian, would have applied to “any type of abortion that is not medically necessary to preserve the life of the mother,” and violations would include a $1,000 fine or up to 180 days in jail. Meanwhile, Ohio’s deputy attorney general, Jonathan Fulkerson, had sent letters to a handful of abortion clinics accusing them of violating the Ohio order, but the clinics had replied that they were in compliance and continued to perform procedures.
 
 
Two of these suits have already paid dividends. On Monday, U.S. District Judge Lee Yeakel lifted Texas’ restriction on abortion just a few hours before Senior U.S. District Judge Michael Barrett enjoined Ohio officials from implementing their ban. In his opinion judge Yeakel, a George W. Bush appointee, found that Texas’ attempt to shut down abortions would cause “irreparable harm” to abortion clinics and their patients, and rested his decision in the constitutional right to terminate a pregnancy: “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.” 

WSJ, Judges Block States From Limiting Access to Abortion During Coronavirus Pandemic [pay wall]

Federal judges for now blocked Texas, Ohio and Alabama from curbing most abortions amid the new coronavirus pandemic, after the states recently cited the need to preserve medical equipment and public health as reasons to halt the procedure.

Coronavirus in Ohio: Judge Temporarily Blocks State Health Order Blocking Abortions During Coronavirus 

U.S. District Court Judge Michael Barrett ruled that Ohio's abortion clinics could perform surgical abortions if they could not be delayed because of a medical condition or the delay would prevent the abortion under Ohio law. 

 

The Ohio Department of Health had threatened to apply the ban on all elective surgeries to surgical abortions, effectively banning all abortions after 10 weeks gestation, according to a motion filed by Ohio's surgical abortion clinics, including Planned Parenthood of Southwest Ohio, on Monday. 

 

Barrett, who granted the temporary restraining order later for 14 days, said the state had not proven that performing surgical abortions would "result in any beneficial amount of net saving of PPE (personal protective equipment) in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion," Barrett wrote.

Iowa, Ohio Sued Over Abortion Bans During Coronavirus Crisis

State officials in Iowa and Ohio were hit with lawsuits on Monday over their decisions to ban abortion during the coronavirus outbreak. 

 

Both states recently deemed abortion a nonessential surgical procedure that must be deferred or canceled in order to preserve medical supplies for the pandemic.

 

Planned Parenthood Federation of America and the American Civil Liberties Union of Iowa and Ohio are asking district courts to immediately restore abortion access, arguing that it’s an essential, time-sensitive procedure that has been improperly categorized as elective.

 

A growing number of states largely governed by Republicans are using the coronavirus outbreak to crack down on abortion. In addition to Ohio and Iowa, Texas and Mississippi have ordered health care facilities to stop providing abortions.***

 

Leading medical experts, such as the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology have urged state leaders to classify abortion as a time-sensitive, essential medical procedure that cannot be delayed.

March 31, 2020 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Monday, March 30, 2020

During Coronavirus Shutdowns, Guns are Essential, Abortions are Not

Are Gun Stores "Essential" During Coronavirus Outbreak?

More than 200 million people in about half of the states are under orders to stay indoors to slow the transmission of the coronavirus.

 

Under those decrees, businesses have closed unless deemed "essential," which has sparked a nationwide debate among state and local leaders: Should gun stores be considered essential?

 

"A lot of people may find themselves in situations where they may need to be their own first responders," said Michael Cargill, who runs Central Texas Gun Works in Austin.

 

Gun owners, he said, "want to protect their family in case things go the other way." .  . . .

 

"Guns will not make Americans safer in the face of COVID-19," Feinblatt said. "Gun stores do not deserve special treatment. In fact, a surge in gun sales will put many communities at greater risk if guns aren't stored securely and if background checks aren't completed."

 

Increasing concerns for gun control advocates are reports of people using firearms out of fear created by the coronavirus crisis. In Alpharetta, Ga., for instance, a man was arrested for allegedly pulling out a gun on two women wearing medical masks at a post office because he worried they had the coronavirus.

 

Gun and ammo sales have rocketed since the outbreak surfaced. And some of the panic driving the purchases is also present because of what gun rights advocates see as preserving their constitutional right to bear arms. They argue short-term emergency restrictions on gun sales could erode their enshrined rights.

 

"Just because we're in a pandemic, American rights do not go away," Mark Oliva, a spokesman for the National Shooting Sports Foundation, told NPR. "There are disparate interpretations on how people want to view these orders, but the Second Amendment is unequivocal."

State Officials are Battling Over a Push to Suspend Abortions During Medical Supply Shortage

State officials in Kentucky and Oklahoma are among a growing number of Republican officials who say abortion is a nonessential procedure that should be put on hold during the coronavirus pandemic.

 

Kentucky Attorney General Daniel Cameron and Oklahoma Gov. Kevin Stitt have joined the list of officials calling for a suspension of most abortions in their states as part of a larger effort to help free up protective equipment for healthcare workers caring for COVID-19 patients.

 

In a statement, Cameron said abortion providers "should join the thousands of other medical professionals across the state in ceasing elective procedures, unless the life of the mother is at risk."

 

Reproductive health groups say abortion is an essential, time-sensitive procedure that should not be delayed, and that doing so can jeopardize the health and well-being of pregnant women.

March 30, 2020 in Constitutional, Healthcare, Pop Culture | Permalink | Comments (0)

The Gendered Impact of the Coronavirus: Physical and Social Differences

Why the New Coronavirus May Kill More Men than Women

Men are more likely to die from new virus

New research from China has found that men, particularly middle-aged and older men, are having a harder time fighting off the virus than women. Chinese researchers found that while the infection rate among men and women is the same, the death rate among men is 2.8% compared with 1.7% for women.

According to Sabra Klein, a scientist at the Johns Hopkins Bloomberg School of Public Health, the pattern—men faring worse than women—is consistent with other viral respiratory infections. "Women fight them off better," she said.

Officials noticed this gender difference during the SARS and MERS outbreaks as well, according to Caryn Rabin. 

 

Why are men more likely to die from the new coronavirus?

According to researchers, there are a few reasons men are more likely to die from the new coronavirus.

Women have a heightened immune response

Research on previous outbreaks shows that women have stronger immune responses to coronaviruses.

Some researchers think the higher level of estrogen, which contributes to immunity, and the fact that women have two X chromosomes, which carry immune-related genes, could factor into women's heightened immune response ***

However, when the researchers blocked estrogen in the female mice and removed their ovaries, they were more likely to die from the virus

Men and women have different health behaviors, conditions

China has the largest population of smokers in the world at 316 million people, but while more than 50% of Chinese men smoke, only about 2% of Chinese women partake in the behavior.

Chinese men also have higher rates of high blood pressure, Type 2 diabetes, and chronic obstructive pulmonary disease than women

Akiko Iwasaki, a professor of immunology at Yale University, added that men may have a "false sense of security" about coronavirus and similar diseases. When the outbreak first started, for instance, officials recommended that people wash their hands thoroughly and often to prevent infection, but multiple studies have found that men are less likely to wash their hands and use soap than women, according to Klein.

"We make these broad sweeping assumptions that men and women are the same behaviorally, in terms of comorbidities, biology and our immune system, and we just are not," he said.

LA Times, Why is the Coronovirus so Much More Deadly for Men Than Women?

Men are faring worse than women in the coronavirus pandemic, according to statistics emerging from across the world.

On Friday, White House COVID-19 Task Force director Dr. Deborah Birx cited a report from Italy showing that men in nearly every age bracket were dying at higher rates than women. Birx called it a “concerning trend.”

The apparent gender gap in Italy echoes earlier statistics from other hard-hit countries. While preliminary, early accounts have suggested that boys and men are more likely to become seriously ill than are girls and women, and that men are more likely to die.***

The emerging picture of male vulnerability to coronavirus may be easily explained by a clear gender disparity with social and cultural roots: Across the world, men are much more likely to smoke cigarettes. That damages their lungs and primes them for inflammation and further damage when they are battling an infection.***

But that’s not the whole story, said Dr. Stanley Perlman, a pediatric infectious disease specialist at the University of Iowa who has studied coronavirus infection in mice.***

At the same time, the death rates of infected female mice shot up when their ovaries were removed, or when they got drugs that suppressed the activity of the hormone estrogen.

To Perlman, those dual findings strongly suggest that there’s something about estrogen that protects against the ravages of deadly coronaviruses — and he suspects it’s true for the new SARS-CoV-19 virus. ***

When it comes to fighting infection, he added, “we really need to study both sexes to understand susceptibility.”

The Atlantic, The Coronavirus is a Disaster for Feminism

Enough already. When people try to be cheerful about social distancing and working from home, noting that William Shakespeare and Isaac Newton did some of their best work while England was ravaged by the plague, there is an obvious response: Neither of them had child-care responsibilities.***

For those with caring responsibilities, an infectious-disease outbreak is unlikely to give them time to write King Lear or develop a theory of optics. A pandemic magnifies all existing inequalities (even as politicians insist this is not the time to talk about anything other than the immediate crisis). Working from home in a white-collar job is easier; employees with salaries and benefits will be better protected; self-isolation is less taxing in a spacious house than a cramped apartment. But one of the most striking effects of the coronavirus will be to send many couples back to the 1950s. Across the world, women’s independence will be a silent victim of the pandemic

Purely as a physical illness, the coronavirus appears to affect women less severely. But in the past few days, the conversation about the pandemic has broadened: We are not just living through a public-health crisis, but an economic one.

The evidence we do have from the Ebola and Zika outbreaks should inform the current response. In both rich and poor countries, campaigners expect domestic-violence rates to rise during lockdown periods. Stress, alcohol consumption, and financial difficulties are all considered triggers for violence in the home, and the quarantine measures being imposed around the world will increase all three. 

Researchers, including those I spoke with, are frustrated that findings like this have not made it through to policy makers, who still adopt a gender-neutral approach to pandemics. They also worry that opportunities to collect high-quality data which will be useful for the future are being missed.

The Coronavirus Crisis May Hit Women Harder Than Men

But in other, perhaps less obvious ways, the virus appears to disproportionately affect women. As the fight against COVID-19 continues, an increasing number of women around the world are on the front lines. Many of them will be expected to work longer hours, while juggling domestic responsibilities such as childcare

March 30, 2020 in Gender, Healthcare, Pop Culture | Permalink | Comments (0)