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)

Friday, July 9, 2021

New Book: The Man Who Hated Women, on the Comstock Laws and the Women Prosecuted Under Them

NPR, Fresh Air, How an Anti-Vice Crusader Sabotaged the Early Birth Control Movement

In 1873, Congress passed a law outlawing the distribution, sale, mailing and possession of "obscene" materials — including contraception.

 

The Comstock Act, as it became known, was named after Anthony Comstock, an anti-vice crusader who later became a special agent to the U.S. Post Office, giving him the power to enforce the law. In her new book, The Man Who Hated Women, author Amy Sohn writes about Comstock — as well as eight women charged with violating the Comstock Act.

 

While working for the post office, Sohn says, Comstock "decoyed people" by using the mail to solicit obscenity and contraception.

 

"[Comstock] was given that [post office] title so that he could have the power to inspect the mail and over time it was expanded to be able to come into people's houses and seize items," she says. "It was a very broad, broad definition of what someone affiliated with the post office could do with regards to individual civil liberties."

 

Over time, the scope of the Comstock law expanded: "Its heart was in the mail, but ... it became much broader than that," Sohn says. "Even oral information, which reasonable people believed was constitutionally protected, turned out that it wasn't."

 

In 1916, feminist activist Emma Goldman was arrested in New York City just before giving a lecture on family planning. One year earlier, birth control advocate Margaret Sanger had been charged with violating the law. Goldman and Sanger are just two of the eight women profiled in Sohn's book. Others include nurses and health practitioners, spiritualists and women in the so-called free love movement.

 

The Comstock Act lasted until 1965 when the Supreme Court ruled it violated the right to marital privacy. "It was in Griswold v. Connecticut that married women could finally have the right to receive contraception from their doctors," Sohn says.

 

As for single women? They didn't get the same rights until the 1972 Eisenstadt v. Baird ruling — 99 years after the passage of the Comstock Act.

July 9, 2021 in Books, Family, Healthcare, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 8, 2021

New Book: "Unwell Women," Misdiagnosis and Myth in a Man-Made World

NYT, Book Review, Why "Unwell Women" Have Gone Misdiagnosed for Centuries

Reviewing: Elinor Cleghorn, UNWELL WOMEN: Misdiagnosis and Myth in a Man-Made World

In order to recognize illness, you have to know what health looks like — what’s normal, and what’s not. Until recently, medical research generally calibrated “normal” on a trim white male. Such a patient, arriving in an emergency room clutching his chest as they do in the movies — and in the textbooks — would be immediately evaluated for a heart attack. But heart disease in women, inconveniently, doesn’t always come with chest pain. A woman reporting dizziness, nausea and heart-pounding breathlessness in that same E.R. might be sent home with instructions to relax, her distress dismissed as emotional rather than cardiac.

Heart disease has clear markers and proven diagnostic tools. When a woman’s symptoms are less legible or quantifiable — fatigue, vertigo, chronic pain — the tendency to be dismissive grows. In “Unwell Women,” the British scholar Elinor Cleghorn makes the insidious impact of gender bias on women’s health starkly and appallingly explicit: “Medicine has insisted on pathologizing ‘femaleness,’ and by extension womanhood.”

A woman’s purpose was to procreate; if she wasn’t well, it was probably her womb that was to blame. One Roman writer described the uterus as “an animal within an animal,” with its own appetites and the capacity to wander through the body in search of satisfaction. Most female afflictions could be reduced to “hysteria,” from the Greek word for womb. “The theory that out-of-work wombs made women mad and sad was as old as medicine itself,” Cleghorn notes. The standard cure was marriage and motherhood. As Hippocratic medicine was refracted through the lens of Christianity, the female anatomy was additionally burdened with the weight of original sin.

Moving steadily through the centuries, Cleghorn lays out the vicious circles of women’s health. Taught that their anatomy was a source of shame, women remained in ignorance of their own bodies, unable to identify or articulate their symptoms and therefore powerless to contradict a male medical establishment that wasn’t listening anyway. Menstruation and menopause were — and often still are — understood as illness rather than aspects of health; a woman’s constitution, thus compromised, could hardly sustain the effort required for scholarship or professional life.

The intersection of class and race complicates things further. As early as 1847, the Scottish physician James Young Simpson argued in favor of anesthesia during labor and delivery, contradicting the age-old belief that the pain of birth was part of God’s judgment. (To this day, women who opt for an epidural instead of “natural childbirth” can feel a nagging sense of failure.) But even liberal-minded men like Simpson believed that what he called the “civilized female” needed his revolutionary innovation more than her less privileged sisters. Black women were thought to be less sensitive to pain and working-class women were considered hardier in general; certainly no one worried about whether these women could work while menstruating.

Each scientific advance came with its own shadow. Margaret Sanger may have campaigned for contraception “as a way for women to reclaim their bodies and lives from medical and social control” — but for women of color, birth control was presented more as a duty than a right, a weapon against overpopulation and poverty requiring the policing of women.

 

 

June 8, 2021 in Books, Healthcare, Pop Culture, Race, Reproductive Rights | Permalink | Comments (0)

Wednesday, May 19, 2021

The Public Health Turn in Reproductive Rights

Rachel Rebouche, The Public Health Turn in Reproductive Rights,  78 Wash. & Lee L. Rev. (2021) 

Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects.

What might surprise even close observers of abortion policy, however, is how the federal courts, including the Supreme Court, have embraced this new wave of public health research. Recent litigation around the U.S. Food and Drug Administration’s requirement that patients collect in-person the first drug of a medication abortion – a two-drug regimen taken over two days – is an example.

Betting on courts to strike down abortion restrictions, however, is a risky wager, particularly given the current ambiguity about how the constitutional standard for evaluating abortion restrictions applies. This Article shows that abortion law is moving beyond constitutional litigation and toward building capacity for delivering care across state borders. The confluence of regulation, funding, and evidence have helped facilitate remote abortion care (or telehealth for abortion care) and self-managed abortions – overcoming legal barriers imposed by numerous states and extending abortion access despite the evisceration of constitutional rights.

This Article argues that an understudied development in abortion law suggests a way forward that hinges neither on defending nor abandoning a right to an abortion. Scholars in the field of reproductive justice have called for a move beyond constitutional doctrine for a long time. That shift, with its attention to structural and systemic inequalities, has never seemed more urgent – or more possible – than it is right now.

May 19, 2021 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Legal and Historical Examination of Obstetric Racism and the Limits of Informed Consent for Black Women

Colleen Campbell, Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women, 26 Mich. J. Race & L. 47 (2021)

This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic of biological race. Though the principle of informed consent traditionally protects the rights of autonomy, bodily integrity, and well-being, medicine nevertheless routinely subjects Black women to medically unnecessary procedures. This Essay adopts the framework of obstetric racism to analyze Black women’s overmedicalization as a site of reproductive subordination. It thus offers a critical interdisciplinary and intersectional lens to broader conversations on race in reproduction and maternal health.

May 19, 2021 in Healthcare, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Tuesday, May 4, 2021

The First Amendment and the Female Listener

Loren Jacobsen, The First Amendment and the Female Listener, 51 New Mexico L. Rev. 70 (2021)

When the Supreme Court has considered whether laws that affect women's decisions about their health and bodies violate the Free Speech Clause, it has ignored the informational needs of the very women that such laws regulate. I argue that, instead, the Supreme Court should value women's informational and decision-making needs and properly place them at the center of a First Amendment analysis of laws that affect women in particular. Towards that goal, the Supreme Court should take a listener-centered approach to laws that affect women's decision-making. There is a strong basis for a listener-centered approach in the Court's Free Speech precedents, particularly in its commercial speech cases. Following this listener-centered approach would allow the Court to apply the Free Speech Clause in a way that is consistent with these precedents, including the way in which the Court has distinguished speech compulsions and speech restraints. More important, an approach that values the female listener would accord women maximum dignity and autonomy, which is appropriate when laws involve free speech, informed consent, and the decisions women make about their bodies and their health.

May 4, 2021 in Abortion, Constitutional, Healthcare | Permalink | Comments (0)

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.
 (less)

July 6, 2020 in Books, Business, Gender, Healthcare, Science | Permalink | Comments (0)