Gender and the Law Blog

Teneille Brown on "Abortion and the Extremism of Bright Line Rules"

Teneille R. Brown has posted a copy of Abortion and the Extremism of Bright Line Rules on SSRN. The article is forthcoming in the Northwestern University Law Review. The abstract provides: 

Rather than eliding the workability or necessity of bright-line rules in certain domains, this essay is a rallying cry for epistemic humility regarding what biological criteria can and cannot say. Policymakers sometimes lean on the biosciences to offer clear-cut, “objective” solutions to thorny moral and legal issues. But descriptive biological data cannot answer normative questions on their own. Cloaking the theoretical, normative scaffolding in biological criteria is a disingenuous but common phenomenon I refer to as the “bio-legal mismatch." When we ignore the bio-legal mismatch, we undermine the fairness and legitimacy of the law by obfuscating the moral justifications with objective biological criteria.

For example, some fetal cells pulsate at roughly six weeks post-fertilization. But what does this tell us that is morally significant, vis-à-vis the relationship between the fetus, the pregnant person, and the state? How does the presence of something like a human heartbeat answer normative questions for us? The answer is that on its own, it cannot. In this essay I discuss various abortion-restrictive statutes and cases to engage with the bio-legal mismatch. Specifically, I explore the rigid use of gestational age, definitions of medical emergency, fetal anomalies, fetal pain, and the perverted way informed consent is mandated and particular medical procedures are banned. Each of these advance biologically-naive, black-and-white thinking to reinforce gender norms and dehumanize pregnant people and the complex reasons they terminate. After explaining how black-and-white thinking relies on cognitive distortions and triggers tribalism, I conclude with a non-exhaustive list of factors that legislators and judges should examine when developing policy based on biological criteria—such as in the highly contested context of abortion. The factors are geared at assessing whether the biological criteria are reliable and connected to legally and normatively relevant events, or whether they are being exploited to mask ideological extremism.

California Attorney General Sues "Crisis Pregnancy Centers"

California has sued "crisis pregnancy centers" alleging violations of consumer protection laws. The complaint is available here. The core claims are excerpted here: 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in acts or practices that constitute violations of Business and Professions Code section 17500 et seq., by making or causing to be made untrue or misleading statements with the intent to induce members of the public to undergo [Abortion Pill Reversal] APR. Defendants’ untrue and misleading representations include, but are not limited to, the following:

 

a. that APR can “reverse” a medication abortion, as well as an “effective” process that “has been shown to increase the chances of allowing the pregnancy to continue,” and that APR has a 64-68% success rate, even though no credible scientific evidence supports these claims;

 

b. that APR may be effective after a 72-hour window following administration of mifepristone by encouraging pregnant people to contact them “even if more than 72 hours have passed,” even though no credible scientific evidence supports this claim;

 

c. that the rate of birth defects following APR “is less or equal to the rate in the general population,” even though no credible scientific evidence supports these claims;

 

d. that “thousands of lives” have been saved via APR, even though no credible evidence supports this claim;

 

e. that APR may be effective following administration of misoprostol and methotrexate, even though no credible scientific evidence supports this claim; and

 

f. that APR can cause only non-life-threatening side effects, when in fact APR can cause severe, life-threatening bleeding. 

 

Defendants knew or should have known that these statements were misleading.

 

* * * 

 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in unlawful, unfair, and/or fraudulent acts or practices, which constitute unfair competition within the meaning of section 17200 of the Business and Professions Code.

 

Widiss on "The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America"

Deborah A. Widiss has published The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America on SSRN. The article is forthcoming in the Employee Rights and Employment Policy Journal in 2023. The abstract is excerpted here: 

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

Abortion Law as Protection Narrative

Lolita Buckner Inniss has published Abortion Law as Protection Narrative in volume 101 of the Oregon Law Review (2023). Here is the abstract: 

Is there value in exploring centuries-old legal historical accounts in the assessment of contemporary legal matters? If the decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization is any example, the answer is decidedly yes. In Dobbs, the Court relied upon understandings about abortion and fundamental rights that dated back to the early United States. That reliance, however, fails to address the ways that abortion law narratives have consistently been structured: most such narratives center on the idea of protection, in one form or another. Dobbs also fails to acknowledge that the notion of protection is contingent and contested. This Article centers on a key protection narrative in the history of United States abortion law: the case of the Reverend Ammi Rogers, a popular but unconventional Yale-educated Episcopalian minister. In 1820 Rogers was accused of engaging in nonmarital sex with Asenath Smith, impregnating her, and providing her with an abortion. In telling the story of Rogers’ sensational case, this Article urges analyzing the case as a protection narrative: a story whose goal is to promote the erection of defenses against attack, invasion, or injury or other loss. This Article concludes by asserting that contemporary protection narratives surrounding abortion, such as those seen in the opinion of Dobbs v. Jackson Women’s Health Organization, are still as much a part of the modern legal (and political) landscape as those protection narratives that helped to give birth to the earliest codified abortion law in the United States.

 

Center for Reproductive Rights Files Three Suits on Behalf of Pregnant Women Denied Abortion Care

The Center for Reproductive Rights filed three more suits last week on behalf of patients denied abortions while facing grave medical conditions. Here are the CRR's summaries of the cases and links to the complaints:  

Idaho—Brought on behalf of four women denied abortion care, two physicians and the Idaho Academy of Family Physicians (IAFP), Adkins v. State of Idaho challenges the limited scope of the medical exceptions to Idaho’s two abortion bans. The medical exception to Idaho’s near-total ban permits abortion only to prevent death, and its six-week ban—with “vigilante”-style civil liability provisions—similarly has a narrow medical exception. Clarifying the laws’ exceptions would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify and expand the exceptions under the two bans to ensure physicians can provide abortion care to preserve a pregnant person’s health and for cases of fatal fetal diagnoses. The case was filed in Idaho state court.

Tennessee—Brought on behalf of three women denied abortion care and two physicians, Blackmon v. State of Tennessee challenges the limited scope of the “emergent medical condition” exception to Tennessee’s total abortion ban. Such clarification would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify that the law’s exception permits abortion for cases of fatal fetal diagnoses. The case was filed in Tennessee state court.

Oklahoma—In this action, the Center filed a complaint against Oklahoma Children’s Hospital, alleging it violated the Emergency Medical Treatment and Active Labor Act (EMTALA) when it denied medically indicated abortion care to a woman suffering a life-threatening pregnancy complication. The complaint under EMTALA—a federal law requiring hospital emergency departments to provide “stabilizing treatment,” which can include abortion care—was filed with the U.S. Department of Health and Human Services (HHS).

The Biden Administration Asks the Supreme Court to Intervene in Mifepristone Litigation

The Department of Justice petitioned the U.S. Supreme Court to intervene in the Fifth Circuit's decision in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine. Here are key excerpts: 

The Fifth Circuit’s decision warrants this Court’s review because it would impose an unprecedented and profoundly disruptive result: Neither respondents nor the courts below identified any prior decision abrogating FDA’s approval of a drug or limiting a drug’s availability based on a disagreement with the agency’s judgment about safety or effectiveness much less doing so at the behest of plaintiffs with such an attenuated claim of standing and imminent harm.

In taking that step here, the Fifth Circuit countermanded a scientific judgment FDA has maintained across multiple administrations; imposed unnecessary restrictions on the distribution of a drug that has been safely used by millions of Americans over more than two decades; and upset reliance interests in a healthcare system that depends on the availability of mifepristone as an alternative to surgical abortion for women who choose to lawfully terminate their early pregnancies. At earlier stages of this case, hundreds of amici filed briefs underscoring the harmful consequences of the lower

courts’ decisions.

 

Beyond those destabilizing practical consequences, the Fifth Circuit’s decision also warrants this Court’s review because of its serious legal errors.  

For a full summary of the case, check out this coverage at SCOTUS.blog.

Lawsuit Challenges U.S. Dept. of Veteran's Affairs' Policy Limiting Access to IVF

The National Organization for Women is suing the United States Department of Veteran's Affairs over its policy limiting access to in vitro fertilization to only opposite-sex and married couples. For news coverage of the lawsuit, check out 19th News here.  The complaint alleges that the existing policy requires as follows:

6. Veterans and service members seeking coverage of IVF treatments must, together with a spouse, be able to provide their own sperm and eggs and are prohibited from using gametes from third parties (“Member Gamete Requirements”). Defendants’ policy also limits the benefit to service members and veterans who are lawfully married (“Marriage Requirements”).

 

7. Additionally, no matter how much an active-duty service member struggles with fertility, only active-duty service members with a “serious or severe” illness or injury from service can access IVF. Similarly, only veterans with infertility diagnosed as “service-connected” can receive IVF from VHA (“Service-Connection Requirements”).

 

8. The IVF policies facially exclude service members who are a) single or in an unmarried couple; b) unable to use their own eggs or sperm because of illness or injury; c) in a same-sex couple or couple with the same reproductive organs; or d) lacking a service-connected disability or Category II or III illness causing infertility.

 

The complaint alleges that this policy is discriminatory and it seeks injunctive and declaratory relief: 

9. By excluding service members and veterans from IVF coverage on the basis of sex, sexual orientation, marital status, and/or the cause of their infertility, Defendants’ discriminatory policies violate Section 1557 of the Affordable Care Act, the due process and equal protection guarantees of the Fifth Amendment of the Constitution, and the Administrative Procedure Act.

 

* * *  

 

11. NOW-NYC seeks injunctive and declaratory relief on behalf of itself and its members enjoining Defendants from enforcing the discriminatory eligibility provisions of their IVF policies and declaring those provisions unlawful, so that no service member or veteran is denied the care they need to start a family solely because of who they love, their choice whether or not to marry, or the precise source of their fertility challenges. Specifically, NOW-NYC asks that this court declare unlawful and permanently enjoin Defendants from enforcing the Marriage Requirements, the Member Gamete Requirements, and the Service-Connection Requirements (collectively, the “Discriminatory Provisions”).

 

The full complaint is available here. 

 

Bridget Crawford on "Pink Taxes and Other Tropes"

Bridget J. Crawford has published new work titled Pink Taxes and Other Tropes in volume 34 of the Yale Journal of Law & Feminism (2023). Here is an excerpt from the article's abstract:

The “pink tax” is an overarching description of related manifestations of gender inequality: the gender wage gap, gender-based pricing differences in consumer goods or services, disproportionate expenses incurred by a large portion of the population for safe travel or to maintain stereotypically “feminine” appearances, and unequal time burdens experienced by those responsible for households or caregiving. Note at the outset that the majority of existing research in the field deploys a binary understanding of gender as cis male and cis female. In relying on that research, this Article builds a more nuanced account of the complex operation of discrimination on the basis of gender. Such discrimination limits all people, regardless of whether and how they do (or do not) fit within narrow categories. This Article builds to the argument that only one manifestation of the “pink tax,” as a description for the state sales tax on menstrual products, has been well-served by a tax shorthand phrase. “Tampon tax” talk has fueled litigation and advocacy efforts; it has led to law reform in at least eleven jurisdictions, with more states expected to follow. Indeed, generalized “pink tax” rhetoric describing figurative taxes likely will not, on its own, lead directly to legal change. For that reason, at least when arguing for law reform, gender equality advocates should not over-rely on “pink tax” talk or figurative tax tropes.

Clinical Trials Have Improved on Including Women, But Still Fail to Implement the Intent of the NIH Revitalization Act 30 Years Later

Nicole Woitowich, Clinical Trials are Better at Including Women, But There's a Way to Go

The summer of 1993 was an eventful time: Prince changed his name to a symbol, “Jurassic Park” was released and Congress passed the National Institutes of Health Revitalization Act, requiring the inclusion of women in clinical research.

Most people aren’t aware of this law, which requires that women be included in research to develop drugs, therapies and treatments. For decades, women were underrepresented in or excluded from biomedical research studies because they could become pregnant or their hormones were deemed “too complicated.” This caused large gaps in our understanding of how sex and gender inform health and disease.

The Revitalization Act has just entered its fourth decade. As a biomedical scientist who studies the intersection of sex, gender and science, I know this for certain: We still have a long way to go.

For the first 20-plus years after the legislation was passed, the idea persisted that females were simply “too complicated” to study, leaving us with an often one-sided view of biology. In response, the NIH introduced a policy in 2016 requiring scientists to consider the sex of their subjects when designing experiments and reporting and analyzing their data.

Now scientists are more likely to include both sexes in their research studies, and women account for approximately 48% of NIH-supported clinical trial participants. That’s phenomenal progress, but there’s still one major problem: Scientists routinely fail to analyze their data by sex. When this happens, we have no way of knowing if males or females respond to treatments differently or if there are fundamental differences in the way they are affected by certain diseases.

Sixth Circuit Decision Upholding Ban on Gender Affirming Care for Minors is a Monumental LGBTQ Rights Case Headed to SCOTUS

A Monumental LGBTQ Rights Case is Barreling Toward the Supreme Court

In recent months, Republican lawmakers in many states enacted laws targeting LGBTQ Americans, attempting to shut down their right to free expression and even deny them medical care, among other things. Until Saturday, however, civil rights lawyers challenging these laws fared surprisingly well in federal court, convincing even many Republican judges.

The United States Court of Appeals for the Sixth Circuit’s decision in L.W. v. Skrmetti, threatens to upend all of that. Before L.W. was handed down this past weekend, there was a consensus among federal courts that the Constitution prohibits states from banning gender-affirming medical care.

L.W. destroys that consensus. It reinstated a Tennessee law, previously blocked by a federal trial court, that prohibits gender-affirming care for transgender patients under the age of 18. And the Sixth Circuit’s opinion was written by Chief Judge Jeffrey Sutton, a widely respected judge, especially among the Supreme Court’s GOP-appointed majority.

Sutton, a George W. Bush appointee, is one of the federal judiciary’s leading “feeder” judges, meaning that his law clerks are frequently hired to clerk for the Supreme Court justices — a sign that the justices are likely to pay careful attention to Sutton’s views when deciding how to resolve a case like L.W.

Federal Court in TN Issues Preliminary Injunction Blocking Ban on Gender-Affirming Care

CNN, Federal Judge Blocks Part of TN Ban on Gender Affirming Care

A federal judge on Wednesday temporarily halted the enforcement of part of Tennessee’s ban on gender-affirming care for minors in the state.

Senate Bill 1, which was signed into law by Republican Gov. Bill Lee in March and set to take effect July 1, prohibited health care providers “from performing on a minor or administering to a minor a medical procedure if the performance or administration of the procedure is for the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” ***

In Wednesday’s ruling, US District Judge Eli Richardson issued a preliminary injunction blocking the state’s enforcement of a ban on such gender-affirming treatments as hormone therapies and puberty blockers. The ruling, however, allowed Tennessee to ban gender transition surgical procedures.

“The Court realizes that today’s decision will likely stoke the already controversial fire regarding the rights of transgender individuals in American society on the one hand, and the countervailing power of states to control certain activities within their borders and to use that power to protect minors,” Richardson said in his ruling.

“If Tennessee wishes to regulate access to certain medical procedures, it must do so in a manner that does not infringe on the rights conferred by the United States Constitution, which is of course supreme to all other laws of the land,” the judge added. “With regard to SB1, Tennessee has likely failed to do just this.”

Biden Issues Executive Order on Contraception Access on Anniversary of Dobbs Decision

President Joe Biden announced that he was issuing an "Executive Order on Strengthening Access to Contraception" on the one-year anniversary of the Dobbs decision.  The Executive Order acknowledges that "[m]illions of people continue to face barriers to obtaining the contraception they need even as access has become more critical in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), to overturn Roe v. Wade, 410 U.S. 113 (1973)." It explains that "[i]n States with laws that restrict access to abortion, health clinics that provide contraception and other essential health services have shuttered, eliminating critical points of care.  Some State officials have adopted policies interfering with access to emergency contraception, including for vulnerable populations." The Order emphasizes the work that the Administration states it has already begun and vows to continue. It further asks relevant agencies to take several steps, including to "promote increased access to affordable over-the-counter contraception, including emergency contraception."

Political Equality, Gender, and Democratic Legitimation in Dobbs

Olatunde C. Johnson and Aliza Forman Rabinovici have posted their forthcoming work on Political Equality, Gender, and Democratic Legitimation in Dobbs. The work is forthcoming in Volume 46 of the Harvard Journal of Law & Gender (2023). 

The abstract is provided here: 

This Article examines the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health, showing how the Court deploys new arguments about women’s political equality—alongside longstanding arguments about federalism and judicial minimalism—to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy—such as partisan politics and gerrymandering—as well the absence of women in the legislative process. Key to the Court’s ruling is its claim that women are “not without” electoral and political power, citing data on women's equal or higher rates of voting in Mississippi. The Court’s conceptual account of political equality centers on voting while ignoring other modes of political participation as well as structural inequalities and barriers to women’s equal participation as candidates and legislators. When considering political candidacy and representation as measures of participation, a significant dimension of inequality between men and women emerges. Our investigation of the full dimensions of political inequality and the effects of anti-democratic distortions has important implications for those who wish to bring equal protection and other legal challenges to reproductive restrictions at the state level, and for ensuring inclusive and legitimate policymaking on reproductive rights and beyond. As scholars and commentators debate the proper role of the Supreme Court in democracy and argue for shifting rights determination to the legislative arena, an examination of the structure of the political process and whether legislatures are inclusive is crucial.

It concludes that: 

Given the importance of women’s representation in the political and policy-making process as a means of equally serving citizens, a keyway to ensure democratic inclusion is to increase the role of women, not just as voters but as legislators. However, currently women are underrepresented in almost every legislature in the world, with women in the United States having less representation than their counterparts in many democracies such as those in Europe.

 * * *

 

Dobbs’s contention that women participate equally as voters at the state legislative level ignores other important dimensions of political equality. In particular, women’s representation in politics as legislators also determines the extent to which women’s interests are granted substantive representation. So long as barriers exist to equal participation as representatives and women remain underrepresented in legislatures, women will be a politically disadvantaged group.

 

 

Illinois Legislature Limits Deceptive Practices of Pregnancy Centers

The Illinois legislature has passed a bill that amends its Consumer Fraud and Deception Act to limit pregnancy centers in the state from "interfer[ing] with or prevent[ing] an individual from seeking to gain entry or access to a provider of abortion or emergency contraception" or "induc[ing] an individual to enter or access to limited services pregnancy center."

The full text of the legislation is here: https://legiscan.com/IL/text/SB1909/id/2806523. 

For more on this legislative strategy, check out this coverage in NBC News. 

Wyoming Court Blocks Abortion Pill Ban in Part Because it Violates State Constitutional Right to Freedom of Choice in Health Care

In the recent decision by a Wyoming Court blocking an abortion regulation banning abortion pills, one issue debated was whether abortion is "health care." I've been writing about this issue for an upcoming article in the Journal of Law, Medicine & Ethics (Fall 2023), Protecting Abortion with Health Care Freedom of Choice about how some states have "health care freedom acts" or amendments that guarantee the right to choose health care. States in Ohio, Montana, and Wyoming have used this health freedom to declare abortion regulations unconstitutional on state grounds. The Wyoming case is Johnson v. Wyoming, No. 18732 (Wy. Dist. Ct. Aug. 10, 2022).

Wyoming Judge Temporarily Blocks State's Ban on Abortion Pills

A Wyoming judge on Thursday temporarily blocked the first state law specifically banning the use of pills for abortion, the most common method in the country.

Just over a week before the ban was scheduled to take effect, Judge Melissa Owens of Teton County District Court granted a temporary restraining order, putting the law on hold pending further court proceedings.

Ruling from the bench after a hearing that lasted about two hours, Judge Owens said that the plaintiffs, who include four health care providers, “have clearly shown probable success on the merits and that at least some of the plaintiffs will suffer possible irreparable injury” if the ban were to take effect.***

The issue of whether abortion is health care was also a significant aspect of Thursday’s hearing on the medication abortion ban. Jay Jerde, a special assistant attorney general for Wyoming, argued that even though doctors and other health providers must be involved in abortions, there are many instances when “getting the abortion doesn’t implicate health care because it’s not restoring the woman’s body from pain, physical disease or sickness.”

Judge Owens questioned Mr. Jerde’s argument. “Essentially the government under this law is making the decision for a woman,” she said, “rather than the woman making her own health care choice, which is what the overwhelming majority in Wyoming decided that we should get to do.”

 

Williams Institute Study on "Legal Penalties for Physicians Providing Gender-Affirming Care"

The Williams Institute of UCLA has published a study on Legal Penalties for Physicians Providing Gender-Affirming Care in JAMA (May 2023). The full article is available here. It highlights the increasingly hostile legal landscape for gender-affirming care at the state level in recent years. The report focuses on care for minors, but notes that other states are considering limits on care for adults too. 

 

By 2022, approximately half of US states had implemented protective state-level health policies related to gender-affirming care coverage in private and public insurance. However, despite consensus between professional medical associations regarding gender-affirming standards of care, bans on this care, particularly for minors, have gained legislative traction within the past 5 years.* * * 118 bills have been proposed [in 2023]  across 31 states related to restricting access to gender-affirming care. By April 2023, 11 of these bills had been passed into law (in Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Mississippi, South Dakota, Tennessee, Utah, and West Virginia) and 1 administrative rule was enacted in Florida. Thus, in total, 15 states have laws and policies that ban gender-affirming care for minors. Within the stipulations of state bans, physicians who continue care face 4 major direct penalties: (1) medical license disciplinary action; (2) a private right of legal action against physicians, which can include extensions on malpractice statutes of limitations; (3) civil legal action the state can take against physicians; and (4) felony provisions that enable criminal penalties against physicians.

The publication particularly emphasizes the legal and professional risks that providers face in these states, including five states that enacted private rights of action in their laws and three that have criminalized such care. 

Many of these states’ laws deem the practice of providing gender-affirming care for minors as “unprofessional conduct.” The laws in Arizona, Arkansas, Georgia, Indiana, Iowa, Tennessee, Utah, and West Virginia hold that physicians are subject to discipline by the appropriate review board. The enacted laws in Kentucky, Mississippi, and South Dakota further state that physicians who violate these laws will have their license to practice medicine revoked by the state medical board.

 

Laws in 8 states (Arizona, Arkansas, Indiana, Iowa, Mississippi, South Dakota, Tennessee, and Utah) provide a private right of legal action, allowing citizens to bring lawsuits against physicians for providing gender-affirming care. In addition, these states extend medical malpractice statutes of limitations for claims related to providing gender-affirming care for minors. Some states allow malpractice action against a physician until the patient is 25 years old (South Dakota and Utah) and other states allow lawsuits to be filed from 10 to 30 years after the patient reaches 18 years of age (Arizona, Arkansas, Indiana, Iowa, Kentucky, Mississippi, and Tennessee).

The effects of this legal landscape are quite staggering on the medical profession, including "delegitimizing informed consent and amending the very definitions of 'the practice of medicine.'” 

Center for Reproductive Rights Report Documents Poor-Quality Care After Dobbs

The Center for Reproductive Rights published a report documenting poor quality care after Dobbs. 

The Care Post-Roe Study seeks to learn about how clinical care has changed by documenting cases of care that was different from the usual standard due to abortion laws that went into effect since the Dobbs ruling. This study allows health care providers to share these narratives anonymously and confidentially, at a time when they are being forbidden by their employers or hospital leadership from speaking with the press about these cases.

* * *     
Cases in the narratives fell into several categories: 1. Obstetric complications in the second trimester prior to fetal viability, including preterm prelabor rupture of membranes, hemorrhage, cervical dilation, and hypertension; 2. Ectopic pregnancy, including cesarean scar ectopic; 3. Underlying medical conditions that made continuing a pregnancy dangerous; 4. Severe fetal anomalies; 5. Early miscarriage; 6. Extreme delays in obtaining abortion care; and 7. Delays obtaining medical care unrelated to abortion.

The post-Dobbs laws and their interpretations altered the standard of care across these scenarios in ways that contributed to delays, worsened health outcomes, and increased the cost and logistic complexity of care. In several cases, patients experienced preventable complications, such as severe infection or having the placenta grow deep into the uterine wall and surrounding structures, because clinicians reported their “hands were tied,” making it impossible for them to provide treatment sooner.   

Access the full report here. 

 

 

Transdisciplinary Coalition Publishes "Menstrual Justice: A Human Rights Vision for Australia"

A transdisciplinary coalition of scholars, activists, and policymakers have published Menstrual Justice: A Human Rights Vision for Australia. They offer policy recommendations "regarding the discrimination and mistreatment often experienced by people who menstruate in the areas of children’s rights, disability rights, gender rights, health, human rights, Indigenous women’s health, industrial relations, law, political economy, psychology, public health, sociology, and tax law and policy." 

We need laws that clearly outlaw workplace discrimination and harassment against menstruators, so no one is fired for bleeding on the job or being late to work due to period pain. We need public awareness campaigns and curricular expansion focused on health information and the eradication of menstrual stigma to curb poor menstrual health. We need access to resources and healthcare for residents in institutional settings that supports their autonomy over menstruation and menopause. We need provision of Indigenous intergenerational teaching about menstruation and menopause.

* * * 

Our recommendations include the areas of public awareness, curriculum, schools, workplaces, public buildings and housing, institutional settings and discrimination and coercion. Many of these recommendations are no cost or low cost but could have a large impact on gender equality and would improve human rights for women and other people who menstruate.

Center for Reproductive Rights publishes report on "Failures to guarantee the sexual and reproductive health and rights of refugees from Ukraine"

The Center for Reproductive Rights published a report on "Care in Crisis: Failures to guarantee the sexual and reproductive health and rights of refugees from Ukraine in Hungary, Poland, Romania, and Slovakia."  The report chronicles how millions of people, mostly women and children, have migrated from Ukraine to the EU, including Hungary, Poland, Romania and Slovakia. 

However, Hungary, Poland, Romania and Slovakia are some of the most challenging contexts in Europe when it comes to sexual and reproductive healthcare and gender-based violence support services. Decades long failures by national governments to invest in and prioritize these forms of care and support, combined with restrictive and unclear legal and policy frameworks and ongoing stigma and rollbacks on sexual and reproductive rights, heavily constrain access to good quality care.

 

As millions of women and girls from Ukraine arrived in Hungary, Poland, Romania and Slovakia, serious concerns arose regarding their ability to obtain essential forms of healthcare, services and support. It became clear that violations of fundamental rights within Ukraine were being compounded by rights violations outside of the country. There was particular concern for refugees who had suffered conflict related sexual and gender-based violence in Ukraine, including rape and other gender-based crimes.

 

Between July 2022 and April 2023, our organizations undertook in-depth, multi-country fact-finding to examine the gaps and barriers in access to sexual and reproductive healthcare and gender-based violence support services that are faced by refugees from Ukraine in Hungary, Poland, Romania and Slovakia. Over nine months, we collected information from semi-structured interviews with over 80 experts, professional stakeholders and refugees from Ukraine based across these four countries.

The article describes the legal barriers, cost barriers, and information barriers, as well as the poor quality care, stigma, and discrimination that these refugees faced in each country. The report offers concrete recommendations to each of the countries.

New Book Indigenous Justice and Gender

Marianne O. Nielsen & Karen Jarratt-Snider, eds., Indigenous Justice and Gender (U Arizona Press 2023)

This new volume offers a broad overview of topics pertaining to gender-related health, violence, and healing. Employing a strength-based approach (as opposed to a deficit model), the chapters address the resiliency of Indigenous women and two-spirit people in the face of colonial violence and structural racism.

The book centers the concept of "rematriation"--the concerted effort to place power, peace, and decision making back into the female space, land, body, and sovereignty--as a decolonial practice to combat injustice. Chapters include such topics as reproductive health, diabetes, missing and murdered Indigenous women, Indigenous women in the academy, and Indigenous women and food sovereignty.