Tuesday, December 7, 2021

Women’s Law Project in Pennsylvania seeks a new leader at a key moment in the gender justice movement

Women’s Law Project seeks a new leader at a key moment in the gender justice movement

The Pennsylvania nonprofit that acted as co-counsel in the landmark Supreme Court case that affirmed a woman’s right to undergo an abortion before fetal “viability” is searching for a new leader.

After 31 years at the helm of the Women’s Law Project, Carol Tracy announced this week she will be stepping down as executive director in June.

“I’ve been an activist in the Philadelphia area for 50 years,” said Tracy, 75, who said she wants someone with “younger eyes” to take over. “I think it’s time for me to hand over the mantle to a different generation.”

. . .

Whoever becomes Tracy’s successor will be taking the reins at a critical moment in the gender justice movement.

On Wednesday, the U.S. Supreme Court’s conservative majority signaled it would uphold a Mississippi law that bans most abortions after 15 weeks. Critics of the Mississippi ban say such a decision would undermine the tenet guaranteed in Roe v. Wade, and affirmed in a case the Women’s Law Project helped argue before the Supreme Court in 1992 — Planned Parenthood v. Casey, which gave women the choice to have an abortion until the fetus can survive outside the womb, typically around 24 weeks.

Tracy said when she came to lead the Women’s Law Project, she thought abortion rights were secure. In Casey, the highest court struck down a Pennsylvania statute that required a woman to obtain her husband’s permission to get an abortion. The court determined no abortion law could place an “undue burden” on the women trying to undergo the procedure.

. . .

Tracy’s successor will also be dealing with an array of other policy issues, from fighting for women who have been fired because of a pregnancy, to athletics equity, to the continued advocacy of women who have suffered from sexual assault.

December 7, 2021 in Abortion, Constitutional, Gender, Healthcare, Reproductive Rights | Permalink | Comments (0)

Tuesday, November 30, 2021

Dobbs v. Jackson Women’s Health Organization, regarding Mississippi abortion law, to be heard by SCOTUS on December 1

Explainer: Abortion At the Supreme Court

On Wednesday, the U.S. Supreme Court will hear a case out of Mississippi that could eliminate a pregnant person’s constitutional right to an abortion. The law in question bans abortion at 15 weeks gestation, significantly before viability. With this case as a vehicle, the Mississippi attorney general has explicitly called on the high court to strike down Roe v. Wade

The case, Dobbs v. Jackson Women’s Health Organization, turns on the issue of viability. Supreme Court precedent protects the right to abortion before a fetus can survive outside of the womb, usually around 24 weeks; states can’t pass laws that present an “undue burden” for someone seeking an abortion before that point. While a total ban before viability would undermine Roe, many experts think the Supreme Court might allow it anyway. Because the one clinic in Mississippi only performs abortions up to 16 weeks, lawyers may argue, a 15-week ban does not constitute an undue burden.

. . .

Between the Texas and Mississippi cases, this is an unprecedented term for abortion on the Supreme Court.

November 30, 2021 in Abortion, Constitutional, Family, Gender, Healthcare, Legislation, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, November 29, 2021

Landmark Study on Safety of Waterbirth

A landmark study by Uplift Lab of Oregon State University, a Research and Reproductive Equity Laboratory, offers important data supporting the safety of waterbirth. The press release first explains the significance of the study and its data set: 

[The authors] compared 35,060 pregnancies from all 50 states: 17,530 water births and 17,530 non-water births. A unique aspect of the OSU study was that they were able to match pregnancies within the two groups on more than 80 covariables, such as age, education level and pregnancy characteristics. This propensity score method ensured a direct comparison between the two groups.

The authors offer a summary of the key findings here. They also offer a link to request the full study from the researchers. The press release summaries these findings: 

In the propensity-matched analysis, the only maternal outcome where water births resulted in a slightly elevated risk was postpartum uterine infection. Water births were associated with an additional six postpartum uterine infections per 10,000 water births compared with non-water births. However, there was no increase in risk of being hospitalized for infection.

 

Furthermore, water births were associated with lower risks for several other maternal outcomes, including 64 fewer hemorrhages per 10,000 births, and 28 fewer hospitalizations in the first six weeks.

 

Water births were associated with 20 additional umbilical cord avulsions per 10,000 births. Avulsions occur when the umbilical cord snaps before it can be tied off and can cause hemorrhages. However, there were no infant deaths from cord avulsions and no difference in overall death rates between the two groups. There were 26 fewer infant hospitalizations per 10,000 water births, suggesting that the midwives attending these births successfully managed cases of avulsion.

November 29, 2021 in Healthcare, Reproductive Rights, Science | Permalink | Comments (0)

Tuesday, November 23, 2021

Study: How NYC Legislation Addresses Gender Equity

Study: How NYC Legislation Addresses Gender Equity

Titled “Advancing Gender Equity through Legislation: A Compilation of Laws passed from 2014 - 2020," the study broke down New York City legislation into three areas that traditionally disadvantage non-male genders: economic mobility and opportunity, health and reproductive justice, and safety.

“One of the things that CGE had noticed before we did this report was that all of this legislation wasn’t in one place and easily accessible to people,” said Dr. Maria D’Agostino, a professor of public administration at John Jay College and the study's co-author. “And then during COVID, lots of gender issues were made worse, such as gender-based violence, so it became even more important for New Yorkers to know their rights.”

. . .

Elias and D’Agostino are founding co-directors of the Initiative for Gender Equity in the Public Sector (IGEPS), which conducted the study.

For New Yorkers, this study’s timing may be especially noteworthy as Kathy Hochul recently became the first female governor of New York state after former governor Andrew Cuomo resigned following allegations of sexual misconduct. The scandal highlighted the sexual assault and harassment that many women, transgender, and non-binary people continue to face in the workplace.

“Our partnership with IGEPS helped CGE achieve one of its key goals—to ensure that New Yorkers can readily access information on the gender equity gains made since 2014,” said Jacqueline M. Ebanks, executive director of CGE.

One key gender equity gain from the IGEPS study was a 2017 New York City law requiring agencies designated by the mayor to survey everyone whom the agency serves on their sexual orientation and gender identity. Each agency for the first time must gather this demographic information, create a report summarizing the data, and regularly review their data collection process. 

November 23, 2021 in Gender, Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, November 22, 2021

Op. Ed. on "Shameful" Trends in Maternal Health

The New York Times ran an Op. Ed. on trends in maternal health containing very useful infographics to our communities and our classrooms depicting the "shameful" status of maternal health risks, particularly by geography and race. A few key statistics from the Op. Ed.: 

  • "One of every five women of reproductive age in Southern states live in counties with a high risk of death and other poor maternal health outcomes, such as post-partum hemorrhage, pre-eclampsia and preterm birth."
  • "American Indian and Alaska Native are 2.6 times as likely as white women to live under conditions that create problems during and after pregnancy."
  • "Black women are 1.6 times as likely as white women to live under these unfavorable conditions."

The Op. Ed visually and powerfully depicts in digestible and accessible ways how "a woman’s chance of a healthy pregnancy varies greatly depending on where she lives, based on factors such as whether she has a high school diploma, her exposure to poverty, her access to OB-GYNs and midwives, and her access to abortion clinics."

 

 

November 22, 2021 in Abortion, Healthcare, Poverty, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, November 17, 2021

Kellogg's (UK) to Give Staff Menopause, Fertility, and Miscarriage Leave

BBC, Kellogg's (UK) To Give Staff Fertility, Menopause and Miscarriage Leave

Cereals manufacturer Kellogg's has announced it will provide more support to staff experiencing the menopause, pregnancy loss or fertility treatment.

 

The firm said about 1,500 workers at its factories in Trafford and Wrexham and its Salford headquarters would benefit from a number of new measures.

 

They include extra paid leave for those undergoing fertility treatment or staff who suffer the loss of a pregnancy.

 

It said it was aiming to help staff feel "psychologically safe" at work.

 

The announcement was made as MPs are due to vote on a private members' bill later that, if passed, would make hormone replacement therapy free for those going through the menopause in England.***

 

Under the plans, managers will be trained on how to talk about the menopause and pregnancy loss and paid leave for pregnancy loss will be given without the need for a doctor's note.

 

It also intends to give staff going through fertility treatment three blocks of leave each year as well as access to a private space to administer treatment if necessary.

 

The firm's Europe vice-president in human resources Sam Thomas-Berry said it was "launching several new workplace policies for even better equity and inclusion".

November 17, 2021 in Business, Equal Employment, Family, Healthcare, Reproductive Rights, Work/life, Workplace | Permalink | Comments (0)

Tuesday, November 16, 2021

First person to receive gender surgery in prison seeks $2.8M in legal fees

Inmate who sued for gender surgery seeks $2.8M in legal fees

BOISE, Idaho (AP) — A former Idaho inmate who became the first person to receive court-ordered gender confirmation surgery after suing the state Department of Correction is asking a judge to order the state to pay more than $2.8 million in attorney fees and other costs associated with the case.

The state has until Nov. 22 to respond to the motion from Adree Edmo, who is no longer in state custody. Gov. Brad Little's office declined to comment on the case because it is still moving forward in court.

Edmo sued the state of Idaho and the Idaho Department of Correction’s health care provider, Corizon Health Inc., in 2017 saying that they violated her Eighth Amendment right against cruel and unusual punishment by not providing the surgery. Prison doctors had diagnosed Edmo in 2012 with gender dysphoria, a condition in which the dissonance between a person’s gender identity and the gender they were assigned at birth is significant and hurtful. But medical professionals disagreed about whether Edmo needed gender confirmation surgery, leading to the lawsuit.

. . . 

Edmo’s legal fight didn’t end after her surgery, however, Whelan noted, it continued until October 2020, when the Supreme Court said it would allow the appellate court ruling to stand without review.

. . .

Courts generally award attorney fees to the winning party based on the “customary amount” an attorney would charge for the work. But in certain cases — such as when the case is considered “undesirable,” or especially complex, or when the attorneys have extensive experience or performed exceptionally well — the court will allow the customary amount of fees to be doubled. Edmo is asking for double the customary amounts in her case.

“Here, nothing about this case was run-of-the mill,” Whelan said. Edmo had no attorney when she started the case, and no Idaho attorneys were willing to take on the case on their own.

November 16, 2021 in Constitutional, Courts, Gender, Healthcare | Permalink | Comments (0)

Thursday, November 11, 2021

Veterans Day from a Gender & Law Perspective: Equality, Discrimination, Preferences, Family, Health, Assault, and the Draft

Here is an overview of some of the scholarship and current legal movements regarding gender, veterans, and the miltiary:

The Supreme Court's classic case upholding veterans' preferences despite their disparate impact against women. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).

United States v. Virginia (VMI), 518 U.S. 515 (1996) (Ginsburg, J.) (requiring state male-only military college to admit women equally to VMI)

US v. Briggs,  592 U.S. ___ (Dec. 10, 2020) (holding that military rape cases have no statute of limitations)

Gender & the Law Prof BlogSCOTUS Refuses to Hear Challenge to Male-Only Draft but 3 Justices Dissent (June 15, 2021)

Gender & the Law Prof Blog, Federal Judge Holds Male-Only Military Draft Violates Equal Protection (Feb. 26, 2019)

Gender & the Law Prof Blog, 9th Circuit Hears Challenge to Men Only Draft

Gender & the Law Prof Blog, Senate Overwhelming Votes to Require Women to Register for Draft (2016)

Gender & the Law Prof Blog, Justice Ginsburg's Legacy and the Draft Case

EEOC, Policy Guidance on Veterans' Preferences Under Title VII

Jamie Abrams, editor at the Gender & Law Prof blog, Examining Entrenched Masculinities Within the Republican Government Tradition,  114 West Va. L. Rev. (2011). 

Jamie Abrams & Nickole Durbin, Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLawNOW 93 (2021). 

Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).

Melissa Murray, Made With Men in Mind: The GI Bill and the Reinforcement of Gendered Work After World War II, in Feminist Legal History (Tracy Thomas & Tracey Jean Boisseau eds. 2012).

Congress' Deborah Sampson Act Signed Into Law (2021):  to improve the benefits and services provided by the Department of Veterans Affairs to women veterans, and for other purposes.

H.R. 2982, Women Veterans Health Care Accountability Act: To direct the Secretary of Veterans Affairs to conduct a study of the barriers for women veterans to health care from the Department of Veterans Affairs.

Gender & the Law Prof Blog, How to Reduce Discrimination in Veterans' Preferences Laws, featuring Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)

Gender & the Law Prof Blog, Bills Introduced in Congress to Allow Professional Licenses of One State to be Valid in State to Which Military Spouse is Relocated  

Gender & the Law Prof Blog, Parental Right Issues in Military Academies Disproportionately Harms Women 

Gender & the Law Prof Blog, Study on Military Sexual Assaults Concludes that Rate of Assaults is Lower, Rate of Prosecution Higher, and Victims Report More Often than in Civilian Society (May 2021)

November 11, 2021 in Courts, Education, Equal Employment, Family, Healthcare, Masculinities, Work/life | Permalink | Comments (0)

Monday, November 8, 2021

Justice for Victims of the Guatemalan Sexually Transmitted Disease Experiments

Susan S. Lee & Aurora J. Grutman have published a new article Seeking Justice for Victims of the Guatemalan Sexually Transmitted Disease Experiments 1946-1948 in Volume 39 of the Columbia Journal of Gender and Law. The abstract states that: 

Between 1946 and 1948, researchers sponsored by the United States government intentionally exposed more than 1,300 Guatemalan men and women to sexually transmitted diseases without their informed consent. Many of the surviving victims and their descendants suffer from the effects of untreated syphilis, gonorrhea, and similar illnesses. But the general public did not become aware of these non-consensual human experiments for more than sixty years. After a researcher uncovered the experiments, the United States government apologized to the Guatemalan victims, but the victims received no compensation for their injuries. So far, the efforts of the victims to receive legal redress for their injuries have been unsuccessful.
 
This Article has two aims—one descriptive and the other conceptual. First, it seeks to bring awareness to the history and legacy of the Guatemalan sexually transmitted disease experiments. Second, it argues that litigation—even if unsuccessful—can play a role in amplifying the victims’ voices in a way that acknowledges their pain and helps to repair harm that was done. Even if the United States government is immune from formal legal liability, the government and the corporate interests that benefitted from the Guatemalan experiments, have a moral obligation to compensate the victims. The lens of reproductive justice makes clear this obligation. By critically investigating the Guatemalan sexually transmitted disease experiments and their legacy, one can better understand how gender, race, socioeconomic class, geopolitical power, and even geography informed the initial decision to conduct non-consensual human experimentation in that country and why the victims have been unable to obtain formal legal recognition for their suffering. 
 

November 8, 2021 in Gender, Healthcare, International, Legal History, Race, Reproductive Rights, Science | Permalink | Comments (0)

Wednesday, October 27, 2021

Sex Discrimination in Medical Research and its Impact on COVID

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

This piece is part of “Women on the Frontlines: COVID and Beyond,” an online symposium examining the political, economic, social and legal status of women.

Sponsored by the Cornell Law Review with the Center for Biotechnology and Global Health Policy and co-hosted by Ms. and others, the symposium brings to light the ways women labor and lead at the forefront of society, constituting the foundation of essential workers, and performing critical services from child to medical care. But during the pandemic, women (especially women of color) suffer persistent economic constraints; health and death disparities; obstruction of rights; and the troubling perceptions of expendability. Watch “Women on the Frontlines: COVID and Beyond” for a discourse about the role of women and pathways toward a more just society.

When I read that men are twice as likely to die from COVID-19 as women, I thought of science fiction books that posit pandemics that wipe out men.  Only men. ***

 

Such scenarios could plausibly exist, given the biological differences between men and women.  Women have a more aggressive immune response than do men.  Women’s hormones, too, play a role in fighting infections by slowing the process that causes tissue damage, while testosterone can help an infection enter the cells. 

 

During previous pandemics, including the 1918 Spanish flu and the SARS outbreak, men died at higher rates than women did—even when, as was the case with SARS, women had higher rates of infection.

 

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.

October 27, 2021 in Gender, Healthcare, Science | Permalink | Comments (0)

Monday, October 18, 2021

Henrietta Lacks Honored by World Health Organization

The World Health Organization honored Henrietta Lacks this month. 

Henrietta Lacks, a Black American woman and a young mother, died from cervical cancer on October 4, 1951—just eight months after her cancer diagnosis. She was 31 years old. Although her life was cut short, her legacy lives on through an “immortal” line of cells, known as HeLa cells.

During her treatment, researchers took samples of Mrs. Lacks’ tumour without her knowledge or consent. For two decades, Mrs. Lacks’ cells were commercialized and distributed across the globe unknown to her family.

Contributing to nearly 75 000 studies, Henrietta Lacks' cells have paved the way for advancements from HPV and polio vaccines to medications for HIV/AIDS and breakthroughs including  in vitro fertilization. In addition, HeLa cells are currently used in vital research for COVID-19 response efforts. * * *

In recognizing Henrietta Lacks’ enduring legacy, WHO acknowledges her story—one of inequity—and looks forward to collectively rectifying unjust disparities in global health.

 The story of Henrietta Lacks is featured in many law casebooks and her story is an important lens into the intersections of race and gender in informed consent. Readers might accordingly be interested in this recognition. 

October 18, 2021 in Healthcare, Race, Science | Permalink | Comments (0)

Monday, October 4, 2021

California Assembly Passes Menstrual Equity for All Act

The California Assembly has passed the Menstrual Equity for All Act. It is awaiting the Governor's signature. Current law requires feminine hygiene products be provided in schools that meet a 40% public poverty threshold.  The Legislative Counsel's Digest summarizes that: 

This bill would enact the Menstrual Equity for All Act of 2021, which would require a public school, as provided, maintaining any combination of classes from grades 6 to 12, inclusive, to stock the school’s restrooms with an adequate supply of free menstrual products, as defined, available and accessible, free of cost, in all women’s restrooms and all-gender restrooms, and in at least one men’s restroom, at all times, and to post a designated notice, on or before the start of the 2022–23 school year, as prescribed.
 
This bill would require the California State University and each community college district, and would encourage the Regents of the University of California and private universities, colleges, and institutions of higher learning, to stock an adequate supply of menstrual products, available and accessible, free of cost, at no fewer than one designated and accessible central location on each campus and to post a designated notice, as provided.
This bill was authored and championed by Assemblywoman Cristina Garcia. It expands the 2017 law that she also authored. The bill received widespread bipartisan support.  

October 4, 2021 in Education, Healthcare, Legislation | Permalink | Comments (0)

Pennsylvania Bill Seeks "Dignity for Incarcerated Women"

Pennsylvania has introduced a bill seeking dignity for incarcerated women. The bill was sent to the House Judiciary Committee on September 21.  An accompanying memo from bill sponsors explains to the members of the house that:  

Over the past three decades Pennsylvania has seen a significant increase in the number of incarcerated women. While we believe in supporting a system that serves justice, women who are incarcerated face a number of unique issues regarding their heath and the health of their children. Despite being incarcerated, these women are still our mothers, wives, sisters, and daughters, and it is in everyone’s best interest to ensure we treat them with dignity.  

Through extensive consultation and collaboration with our state Department of Corrections, county wardens, corrections officers, various interest groups, and subject matter experts, we have identified a number of best practices, many of which are already in place, that we believe will not only benefit incarcerated women, but their children, families, and society as a whole. Specifically, our bill will provide for the following well vetted provisions at both the state and county level, with necessary oversight from children and youth services, and limited exceptions where extenuating circumstances and/or capacity constraints prevent safe practice and enforcement.  With common sense exceptions in all cases, the bill:

                1. Prohibits the shackling of pregnant women.  
                2. Prohibits solitary confinement of pregnant women.  
                3. Provides for trauma informed care training of corrections officers interacting with pregnant and postpartum women. 
                4. Provides for up to three days of post-delivery bonding time between mother and new born child.  
                5. Provides for accommodation of adequate visitation time between minor children and incarcerated individuals (male or female) who were the sole legal guardian of those minor children at the time of their arrest. 
                6. Prohibits full body searches of incarcerated females by male guards.  
                7. Provides for appropriate amount of feminine hygiene products at no cost to incarcerated women. 
                8. Provides for limited coverage of cost to transport individuals to a safe location upon release.   

The full text of the bill is available here

October 4, 2021 in Constitutional, Family, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, September 28, 2021

Eighth Amendment Jurisprudence and Transgender Inmates: The “WPATH” to Evolving Standards of Decency

Eighth Amendment Jurisprudence and Transgender Inmates: The “WPATH” to Evolving Standards of Decency

By: Bryce Daniels

Published in: Michigan State Law Review, Vol. 2021, No. 1, 2021

There has never been a greater opportunity in American history to address the challenges facing gender dysphoric inmates than now. Gender dysphoria is a mental illness characterized by severe distress at the incongruence between one’s sex and one’s internalized gender identity.

Federal courts have signaled a willingness to consider the unique mental health challenges facing gender dysphoric people incarcerated in state and federal prisons as covered under “cruel and unusual punishments” jurisprudence requiring “adequate medical care.” One such remedy federal courts have been called upon to require is “sex reassignment surgery” (“SRS”). Such surgery would change the petitioning inmate’s anatomy or secondary sex characteristics to more closely align with [their] internalized gender identity.

The sister circuit split between the 1st Circuit, 5th Circuit, and 9th Circuit illuminates the diverse analytical methodologies that courts and petitioners have implemented to adjudicate and resolve challenged institutional “deliberate indifference” to gender dysphoric inmates’ medical necessities.

However, there is a notable commonality between all three circuits—the reliance on the World Professional Association for Transgender Health (“WPATH”) Standards of Care (“Standards”). The Standards are compared against existing jurisprudence for determining the scope of the Eighth Amendment, and the juxtaposition leaves much to be legally desired by petitioners seeking prison-provided SRS.
The reality of federal jurisprudential reliance on states’ actions, laws, and regulations to determine the scope of the Eighth Amendment, while damning petitioners’ claims, should be viewed as providing a clear path to constitutional respite and medical care for a deeply vulnerable population.

September 28, 2021 in Constitutional, Gender, Healthcare | Permalink | Comments (0)

Thursday, September 23, 2021

Symposium 10/15 Reproducing Injustice: Covid-19, Reproduction, and the Law

Reproducing Injustice: Covid-19, Reproduction, and the Law, Drexel Law School, Oct. 15

Reproductive rights are under attack in the United States, with a record number of restrictive abortion bills introduced in state legislatures this year alone. The United States continues to report high rates of maternal mortality and morbidity, with pregnant people of color at greater risk of adverse health outcomes related to childbirth and experiencing mistreatment by their health care providers at disproportionately high rates. In addition, gaps in access to health care, legal services, and other critical resources mean that many poor people and people of color face particular burdens as parents trying to raise their children in safe and healthy environments. Political divisions regarding reproduction have been exacerbated by the COVID-19 pandemic. As we look forward to a post-pandemic future, it seems important to ask: What kinds of trends do we see as we consider reproductive health and rights through the lens of the pandemic? How can lessons from the COVID-19 era inform future efforts to increase access to health services, defend reproductive rights, and promote reproductive justice? The Drexel Law Review Volume XIV presents Reproducing Injustice: COVID-19, Reproduction, and the Law, a symposium designed to facilitate a conversation about reproductive health and rights in the wake of the COVID-19 pandemic, and what we can take away from the past year and a half to advocate for reproductive justice moving forward.
 
RSVP

September 23, 2021 in Abortion, Conferences, Healthcare, Reproductive Rights | Permalink | Comments (0)

Wednesday, September 22, 2021

New Book -- Just Get on the Pill: The Uneven Balance of Reproductive Politics

Krystale Littlejohn, Just Get on the Pill: The Uneven Burden of Reproductive Politics (UC Press)

Understanding the social history and urgent social implications of gendered compulsory birth control, an unbalanced and unjust approach to pregnancy prevention.

The average person concerned about becoming pregnant spends approximately thirty years trying to prevent conception. People largely do so alone using prescription birth control, a situation often taken for granted in the United States as natural and beneficial. In Just Get On the Pill, a keenly researched and incisive examination, Krystale Littlejohn investigates how birth control becomes a fundamentally unbalanced and gendered responsibility. She uncovers how parents, peers, partners, and providers draw on narratives of male and female birth control methods to socialize cisgender women into sex and ultimately into shouldering the burden for preventing pregnancy.

 

Littlejohn draws on extensive interviews to document this gendered compulsory birth control—a phenomenon in which people who give birth are held accountable for preventing and resolving pregnancies in gender-constrained ways. She shows how this gendered approach encroaches on reproductive autonomy and poses obstacles for preventing disease. While diverse cisgender women are the focus, Littlejohn shows that they are not the only ones harmed by this dynamic. Indeed, gendered approaches to birth control also negatively impact trans, intersex, and gender nonconforming people in overlooked ways. In tracing the divisive politics of pregnancy prevention, Littlejohn demonstrates that the gendered division of labor in birth control is not natural. It is unjust

September 22, 2021 in Books, Healthcare, Reproductive Rights | Permalink | Comments (0)

Wednesday, September 8, 2021

Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion

Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson  allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion.  President Biden has called on Congress to act.  House Speaker Nancy Pelosi has similarly called for action.  And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021.  It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment. 

The Supreme Court too, has periodically suggested this option.  For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).  

Except that it might not be that easy.  The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare.  Congress must rely on a source of power specifically articulated in the Constitution. 

Here are some options under the Supreme Court’s existing precedent.  It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.  

  1. Commerce Clause

Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act.  Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.”  There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).

The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case.  In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause.  It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance.  Inactivity, the Court said, was not economic activity.

The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock.  Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”

The Commerce Clause power also requires that a regulate activity be “economic.”  This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity.  “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison.  While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity.  The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.

The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power.  The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause.  Abortion services is an economic activity.  It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.  

The abortion context also seems more clearly interstate.  With bans and restrictions on abortion, patients travel out of state to other providers.  They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality.  If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard.  Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court.  It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.

  1. Section 5 of the Fourteenth Amendment

A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment.  This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws. 

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion.  But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary.[1]  Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court. 

That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law.  FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors.  If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.

However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way.  Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5.  Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison

Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs.  In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality.  The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct.  In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished.  It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation.  In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.

The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right.  This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt).  These are rights that would not necessarily be struck down if Roe is overturned.  There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion.  There might also be an argument to connect to the provider’s right to work or profession.

A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination.  Hibbs provides good precedential support here.  In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process.  See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).

  1. The Necessary and Proper Clause

Congress has also cited the Necessary and Proper Clause for authority to legislate abortion.  The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case.  The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.  

  1. The Taxing Power

Following Sebelius, Congress could structure the abortion legislation as a tax.  In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power.  The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.

A Roe tax might tax the states which impose bans or regulations on abortion.  That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.

  1. The Ninth Amendment

Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion.  That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause.  Another possible source of recognizing the right is the Ninth Amendment.  In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution.  A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment.  See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).  The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.

 

[1] Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with BoerneSee Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote).  See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).

September 8, 2021 in Abortion, Constitutional, Family, Healthcare, Legislation, Reproductive Rights, Theory | Permalink | Comments (0)

Tuesday, September 7, 2021

Second-Trimester Abortion Dangertalk

Second-Trimester Abortion Dangertalk

By: Greer Donley and Jill Wieber Lens

Forthcoming in: Boston College Law Review, Vol. 62, Forthcoming

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale — the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling in cases of life-limiting fetal conditions. This Article discusses the paternalism and traditional gender stereotypes underlying these newer abortion restrictions and uses empirical studies to discredit the woman-protective rationale justifying them. The Article also suggests a radical, new response to claims that women need protection from second-trimester abortion: the embrace of second-trimester abortion “danger-talk.” First introduced in medical literature by abortion providers, danger-talk refers to the uncomfortable truths about abortion that supporters often avoid. These topics include the nature of second-trimester abortion procedures and the emotional complexity that can especially accompany second-trimester abortion. This Article advocates for greater openness about these topics, arguing that silence only capitulates the narrative of second-trimester abortion to those opposing abortion rights. The Article envisions second-trimester abortion care that better recognizes these realities and provides women with more choices that might make second-trimester abortion easier, including alternative procedures and the option of memory-making to process difficult emotions, like grief. Finally, this Article argues that more transparency about these difficult subjects will help rebut the woman-protective rationale used to justify second-trimester abortion restrictions.

September 7, 2021 in Abortion, Family, Gender, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Free Market Feminism: Re-Reconsidering Surrogacy

Free Market Feminism: Re-Reconsidering Surrogacy

By: Alexandra Holmstrom-Smith

Published in: University of Pennsylvania Journal of Law and Social Change, Volume 24, Number 3 (2021)

The COVID-19 pandemic has thrown the global surrogacy industry into chaos, stranding surrogates,infants, and their caretakers across the world from the intended parents. As surrogates and staff are left caring for infants that are strangers to them by law, the emotional toll of commercial surrogacy is more visible than ever before. In this article, I argue that this moment is ripe for reconsidering our laissez faire approach to for-profit reproduction. When the Baby M case hit the news in 1988, it set off a chorus of alarm among feminists (and others). Many states subsequently passed laws banning commercial surrogacy. Yet in the years since then, the dominant feminist position has quietly shifted. Surrogacy is now seen as a choice, one that expands women’s possibilities both as workers and as mothers. Surrogacy is also seen as an LGBT rights issue, as it provides a way for gay men to have children that are genetically related to them. However, the issues of gender, race, and exploitation that inflamed feminists in the1980s and 1990s are no less relevant today. As renewed concern with economic justice has made a resurgence on the national stage, I argue that it is time for socialist-feminist perspectives on surrogacy to reemerge. Eschewing freedom of contract as an illusory freedom that serves the ruling class, such a politics would demand social policy that limits commodification and promotes reproductive justice and freedom for all, not just the wealthy few.

September 7, 2021 in Family, Gender, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, August 25, 2021

Proposed Ohio Bill Expanding Doula Services Would Improve Maternal Health and Racial Disparities in Birth Outcomes

Op ed from a former fellow at the Center for Constitutional Law at Akron and research assistant to our Gender & Law Prof Blog.

Morgan Foster, Expansion of Doula Services Would Help Ohio Improve Maternal Health, Address Racial Disparities in Birth Outcomes, cleveland.com 

Sponsors drafted House Bill 142 with women of color in mind. In joint sponsor testimony, former State Rep. Erica C. Crawley and Rep. Thomas Brinkman reported that, “Black women died at a rate more than two and a half times that of white women, accounting for 34% of pregnancy-related deaths while only making up 17% of women giving birth in Ohio.

 

According to the Health Policy Institute of Ohio, only five states have a higher Black infant mortality rate than Ohio. Over the last decade, Ohio’s infant mortality disparity between Black and white infants increased by 26%. For Black women in Ohio, the preterm birth rate is 49% higher than the rate among all other women.

 

House Bill 142 would require Medicaid to cover doula services, which have proven to reduce racial disparities in birth outcomes. A doula is a trained, nonmedical professional who provides continuous physical, emotional, and informational support to a woman shortly before, during, and after her pregnancy, regardless of whether the woman’s pregnancy results in a live birth.

 

The benefits are clear. That is why New York, Oregon, and Minnesota have implemented legislation in which Medicaid will provide reimbursement for doula services. California may be the next state to take this step, and Ohio has an opportunity to join as a leader on this issue.

 

One reason more states do not cover doula services is because there is not a standard certification or registration process.

 

Ohio’s proposed bill would address this concern by creating this process with the Ohio Board of Nursing, establishing standards and procedures for issuing certificates to doulas. Once implemented, only certified doulas could call themselves such, or face penalty by the Board.

August 25, 2021 in Healthcare, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)