Friday, May 24, 2024

Is International Criminal Law Feminist?

Margaret M. Deguzman & Rachel Lopez, Is International Criminal Law Feminist?, Oxford Handbook on Women and International Law (forthcoming) 

The future of international criminal law as a feminist project at its essence turns on one central question: Does international criminal law advance feminist goals? To answer this question, this chapter charts the landscape of feminist critiques of international criminal law, identifying two schools of feminist thought. On one hand, there are those who believe in the enterprise of international criminal law as a method of advancing women’s rights and on the other, those who reject the enterprise believing that it undermines them.

To aid this analysis, the chapter applies a framework conceived by Robert Cover, and elaborated by Katherine Young, of redemptive and rejectionist approaches. Feminists who adopt a redemptive frame recognize the limitations of international criminal law, but ultimately see the enterprise as redeemable—that is, they believe that with the right reforms it can be a tool for advancing women’s rights. In contrast, those who adopt a rejectionist frame, believe the premises that undergird international criminal law are so fundamentally anti-woman, that the best course is to reject it wholesale and find another tool for advancing women’s rights. The goal of this chapter is to put these schools of thought in conversation and suggest ways that feminists can work together to support their core shared goal: the advancement of women’s equality.

May 24, 2024 in International, Theory | Permalink | Comments (0)

Monday, May 20, 2024

Hannah Wilson on "The Gendered Face of Climate Change: Exploring the Impact of Climate Change on Gender-Based Violence and the Role of State and Non-State Actors in Effecting Climate Justice"

Hannah Wilson published The Gendered Face of Climate Change: Exploring the Impact of Climate Change on Gender-Based Violence and the Role of State and Non-State Actors in Effecting Climate Justice in Volume 38 of the American University International Law Review. Here is the abstract: 

Climate change affects men and women differently. While some individual women may be less vulnerable to climate change than some men, the global perpetuation of discrimination, inequality, patriarchal structures, and systematic barriers contribute to an overall higher risk of women experiencing harmful effects of climate change. International human rights law prohibits discrimination on the basis of gender. However, in practice, systematic discrimination, harmful stereotypes, and social, economic and political barriers related to gender can lead to varied climate change impacts with respect to health, food security, livelihoods and human mobility, and more, which may significantly limit women’s and girls’ adaptive ability in the face of climate change. Such barriers include limited or inequitable access to financial assets and services, education, land, resources and decision-making processes, among many others. This reality is even starker for women and girls who face multiple and intersecting forms of discrimination; particularly those of lower socio-economic status, rural women and girls, and older women. As such, climate change perpetuates gender inequality. In turn, harmful gender stereotypes and entrenched forms of structural discrimination often significantly hinder women’s ability to meaningfully participate in climate action. Addressing climate change, including its gendered impacts, is therefore essential to the promotion and protection of the rights of women and girls.

May 20, 2024 in Healthcare, International, Science | Permalink | Comments (0)

Wednesday, May 1, 2024

The Gendered Violence of Asylum Reporting Requirements

Amelia Steadman McGowan, The Gendered Violence of Asylum Reporting Requirements, Columbia Human Rgts L Review (forthcoming)  

In the past two decades, some U.S. courts have created and imposed hardline, or “per se,” reporting requirements that bar protection to asylum applicants who did not first report persecution from non-state actors to the authorities before fleeing. These requirements provide no exceptions, even in the face of undisputed evidence that reporting would have been futile, dangerous, or even impossible. While prior legal scholarship has addressed the dangers of reporting requirements generally, this Article explores the unique burdens that these requirements place on applicants with gender-based claims.

This Article applies feminist theory and an interdisciplinary approach to explore the reasons why reporting is often futile, dangerous, or impossible for women and girls fleeing gender-based violence in Guatemala, Honduras, and El Salvador—three of the top countries of origin for applicants seeking protection in the United States. This Article contends that the same misogyny that fuels gender-based violence also infuses the very government structures charged with providing protection from that violence. It argues that when U.S. courts minimize or ignore an applicant’s reasons for not reporting gender-based violence, they condone and perpetuate the same violence that the applicant fled. By using both English- and Spanish-language sources and centering the voices and experiences of Latin American scholars and advocates from and in the focus countries, this Article also challenges the hegemony of U.S. government reports in establishing country conditions in U.S. asylum proceedings. For both reasons, this Article will provide an important contribution to refugees, academics, practitioners, and policymakers working to challenge the application of reporting requirements and to fortify gender-based refugee protections.

 

May 1, 2024 in International, Violence Against Women | Permalink | Comments (0)

Monday, March 25, 2024

Abortion in China's Courts

A new article on abortion in China has been posted on SSRN, titled Contesting and Controlling Abortion in China's Courts. The article is authored by Molly Bodurtha, Benjamin Liebman, Li Chenqian, and Xiaohan Wu. The abstract previews:

 

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has brought renewed global attention to how legal systems protect and restrict women’s reproductive autonomy. Central themes have included how the rollback of reproductive rights in the United States coincides with the Court’s embrace of a broader “jurisprudence of masculinity” and the relationship between abortion restrictions and authoritarianism, as multiple countries have enacted restrictive measures while undergoing democratic backsliding. Comparative inquiry is central to the abortion debate: Dobbs’ majority opinion, Chief Justice Roberts’ concurring opinion, and the dissent all discussed abortion regulations in other countries, with the Chief Justice’s concurrence clearly associating elective abortion with authoritarian governance in China and North Korea.

Despite these comparative references, the scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China, the largest authoritarian state and a country with a high incidence of abortion. This is largely unsurprising: the central challenge facing Chinese women has not been abortion access but state-mandated birth control and abortion. Almost no prior scholarship examines how Chinese courts adjudicate disputes over abortion. This lack of attention reflects the common understanding that courts play no role in regulating reproduction and that abortion remains unproblematic in China.

Yet Chinese courts do confront and decide claims involving abortion. Drawing on a dataset of more than 30,000 civil cases discussing abortion, this article examines claims by men that their wives obtained abortions without the man’s “authorization.” Chinese courts rarely award damages explicitly on this basis. But men’s claims to have legal rights to control women’s reproductive choices are common, despite having no legal basis in Chinese law. The persistence of such claims suggests that women’s access to abortion care is more regulated in China than academic and popular accounts convey.

As China shifts toward encouraging rather than restricting births, traditional views of gender roles and the family increasingly align with the Party-state’s new pro-natalist policies. Courts may be an important venue for adjudicating reproductive rights and for enforcing such policies. China also presents an important example of how abortion and gender are contested in a legal system in which constitutional rights play little role and the legal status of abortion appears to be settled. China demonstrates that resolving the legal status of abortion does not eliminate legal conflict, but rather opens up new areas of legal contestation regarding reproductive rights. Recognizing how and when abortion is litigated in China suggests the need for scholars to place more attention on the role of private law litigation in contesting and restricting reproduction across legal systems. Men’s claims to control women’s reproductive choices in China also highlight the ways in which rights advocacy can serve regressive as well as progressive goals in democratic and authoritarian systems, and also that regime type may not dictate how legal systems address legal conflict over abortion.

March 25, 2024 in Abortion, International | Permalink | Comments (0)

Forthcoming Book on "The Feminist Legislation Project"

A new book is available for pre-orders now, The Feminist Legislation Project: Rewriting Laws for Gender-Based Justice. The book is edited by Becky Batagol, Kate Seear, Heli Askola, and Jamie Walvisch. It will be released in July 2024. The legislation is Australian-based with global applicability. Here is a summary: 

In this book, leading law academics along with lawyers, activists and others demonstrate what legislation could look like if its concern was to create justice for women.

Each chapter contains a short piece of legislation - proposed in order to address a contemporary legal problem from a feminist perspective. These range across criminal law (sexual offences, Indigenous women's experiences of criminal law, laws in relation to forced marriage, modern slavery, childcare and sentencing), civil law (aged care and housing rights, regulating the gig economy; surrogacy, gender equity in the construction industry) and constitutional law (human rights legislation, reimagining parliaments where laws are made for the benefit of women). The proposed laws are, moreover, drafted with feedback from a senior parliamentary draftsperson (providing guidance to contributors in a personal capacity), to ensure conformity with legislative rigour, as well as accompanied by an explanation of their reasons and their aims. Although the legislation is Australian-based, the issues raised by each are recognisably global, and are reflected in the legislation of most other nations.

This first feminist legislation project will appeal to scholars of feminist legal studies, gender and the law, gender studies and others studying or working in relevant legal areas.

March 25, 2024 in Books, Gender, International, Legislation, Theory | Permalink | Comments (0)

Friday, March 8, 2024

Exploring the Tension Between Culture or Religious Practice and Gender Equality

Rangita de Silva De Alwis, Customs, Culture, Courts, and Constitutions: Negotiating the Balance on Gender Equality 

The tension between culture or religious practice and gender equality is a globally pervasive challenge in human rights practice. The human rights of women and the right to culture are sometimes in opposition while at the same time, the binary distinction between women’s human rights and the right to culture are also contested. In this paper, I examine how constitutions and courts have negotiated the balance through the interpretation of women’s rights.

The goal of this paper is not to examine the exegesis of religious texts or the hermeneutics of canonical arguments which are subjects of plural interpretation, or the burgeoning social movements that are active in claiming a dynamic interpretation of religion and cultural practice. Rather it is to analyze how constitutions and national courts frame the human rights of women in light of culture, and customary traditions. The paper maps the religious and free speech clauses of each national constitution and a compendium of case law from national courts in relation to the judicial interpretation of culture, customary laws, and religion pertaining to questions on women’s rights and gender equality. Given the complex nature of the debate on culture and women’s rights, an analysis that examines the textual authority of constitutions and the jurisprudence in national case law provides insights in situations when rights may compete and gender equality hangs in the balance.

March 8, 2024 in Constitutional, Gender, International, Religion | Permalink | Comments (0)

Tuesday, March 5, 2024

A Feminist Approach to Competition Law and Policy

Kati Cseres, Feminist Competition Law, Cambridge Handbook on the Theoretical Foundations of Antitrust and Competition Law (Cambridge University Press, forthcoming 2024)

This paper takes up the challenge to show what a feminist approach to competition law and policy is, and what its contribution can be to the scholarship of competition law.

Despite increasing attention from academics and policy makers concerning the intersection of gender equality and competition law, most debates and discussions add gender to the analytical framework, economic calculation or survey, but fail to investigate the gender divisions that deeply bifurcate the structure of modern society, including legal rules, formal and informal institutions and enforcement practices. The implications of gendered lives, experiences and social realities on people’s preferences, choices and decisions in markets remain outside of such discussions. Therefore, feminist methodology and feminist social science research on gendered social realities remains a blind spot in current debates and discussions.

Remarkably, a similar blind spot exists in the diverse strands of feminist social science research, notably feminist legal and economic scholarship that has already been applied to various legal fields, but have engaged less thoroughly with the legal frameworks of market processes. Therefore, competition law has been a blind spot in these investigations so far.

By focusing on the central role of gender and women’s experiences, feminists take a contextualized lens and draw attention to the complexity of the economy, economic activities and the embeddedness of markets in broader social, economic and political contexts. Their analysis is multidimensional and pluralist, with a strong focus on human diversity and intersectionality. Feminist approaches go beyond merely adding gender to the analysis and investigate the deeper layers of legal rules, economic models and enforcement practices that entrench gendered power structures, dynamics, institutional arrangements and produce and reproduce various forms of inequalities.

From the richness of feminist methodologies, I draw on feminist legal theory, feminist (institutional) economics and feminist political economy to demonstrate how feminist approaches probe the alleged ‘neutrality’ and objectivity of competition law and to unpack the gendered nature (and impact) of its underlying legal rules, concepts and enforcement practices. I explore various assumptions embedded in existing competition rules and concepts, show which gender-based consequences the application of these rules and concepts may have and how policy makers and enforcers could implement gender into the substantive analysis of specific cases as well as into the procedures and institutional arrangements in the enforcement of competition law.

I argue that feminists’ analytical lens is, in fact, intimately related to the analytical lens of competition law. The focus of their analysis concern power structures and dynamics, investigate how various social and economic actors are impacted through these power inequalities and strive to control excessive power and change existing social, economic and political structures. However, the site and scope of their analysis differs. Competition law is concerned with market processes, structures and activities, while feminists repeatedly and forcefully called attention to those activities, processes and arrangements that lie outside of the market and the economy.

March 5, 2024 in Business, International, Theory | Permalink | Comments (0)

Monday, March 4, 2024

Kenya Court Affirmed the Right to Respectful Maternal Care

The Center for Reproductive Rights reports on a victory in Kenya's Court of Appeals. The facts of the case are excerpted from the opinion here: 

a. She was admitted to the hospital – and the hospital was overstretched to the extent that she had to share a bed with another patient;

b. She had to purchase her own drugs and cotton wool despite the government policy and Presidential directive that maternity services were free of charge;

c. She gave birth on the floor, in the corridor of the hospital, and without assistance;

d. She underwent physical and verbal abuse at the hands of the two nurses who attended to her when she fell unconscious on the floor;

e. She was forced to carry her un-expelled placenta back to the delivery room in further act of cruelty and humiliation;

f. She was not informed of the process she could use to file any grievance she had. 

The court held: 

28.The inevitable conclusion is that, upon an independent review of the evidence presented to the trial court, Josephine sufficiently proved her factual claims. The question that follows this conclusion is whether the facts, as proved, demonstrated constitutional violations to entitle her to the declarations the court made in her favour and against the appellants.

 

29.It is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution. That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of the right that must be realizable immediately and not progressively. The minimum core of a woman’s right to respectful maternal care during child birth must, as the trial court expounded, include

a. The right to be free from physical violence and verbal abuse during labour and childbirth;

b. The right to be free from discrimination during labour and childbirth;

c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.

March 4, 2024 in Courts, Family, Healthcare, International, Reproductive Rights | Permalink | Comments (0)

Thursday, February 29, 2024

Reform of Sexual Harassment Laws in Australia

Belinda Smith, Respect@Work Amendments: A Positive Reframing of Australia’s Sexual Harassment Laws,  
(2023) 36 Australian Journal of Labour Law 145

Australian law on sexual harassment has seen many changes in the past few years. This article outlines and analyses these changes in light of the findings of the inquiry that recommended them, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. The Report found that sexual harassment was pervasive, harmful and clearly not being addressed by the existing laws, which relied almost entirely on individual victims to lodge formal complaints and bear the burden of driving change. The legislative amendments serve to harmonise and improve individual protections across the Sex Discrimination Act 1984 (Cth), Fair Work Act 2009 (Cth) and work health and safety laws. The most significant change, though, is the introduction of a new duty on persons conducting a business or undertaking to take positive steps to prevent harassment and sex discrimination. While its deficiencies are acknowledged, this duty could play an important functional and symbolic role in shifting regulatory attention from victims to their employers and other duty holders, and more importantly, from redressing harm after the fact to preventing it in the first place.

February 29, 2024 in Equal Employment, International, Legislation, Work/life | Permalink | Comments (0)

Tuesday, December 12, 2023

Feminist Judgments: Immigration Opinions Rewritten

Kathleen Kim, Kevin Lapp & Jennifer Lee, Feminist Judgments: Immigration Opinions Rewritten (Introduction),  
Feminist Judgments: Immigration Law Opinions Rewritten , pp. 1 - 14, Cambridge University Press, 2023

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race, and intersectional insights to Supreme Court opinions. Feminist reason values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

December 12, 2023 in Books, International, Theory | Permalink | Comments (0)

Friday, December 8, 2023

The Critical Mass Theory of Women in Leadership as a New Model of Empowerment

Rangita de Silva de Alwis, The Critical Mass Theory of Women in Leadership: What Next?" 

This paper looks at how at the national level, a shift from a primarily equal opportunity model to equal empowerment model creates a new shift in women’s leadership paradigm. This paper posits that the new General Recommendation 40 of the Convention on the Elimination of Discrimination against Women (CEDAW) brings us close to full gender parity in leadership in public and private as the next generation model on gender equality. Further, this Article analyzes critical mass theory, namely how a representative critical mass in the political, business, and public leadership spheres can lead to critical acts, furthering representation for women on the legislative arena. This reveals a move from descriptive to substantive representation of women in public life. Although critical mass is not the same as gender parity, it can lead towards parity and equality. When the number of women in a given field reaches a critical mass, it helps to shrink tokenism, and marginalization and elevates the role model effect of women’s leadership. In the final analysis, the paper argues that 25 years after the Beijing Platform of Action established the 30 percent critical mass for women’s leadership, full gender equality in leadership is the unfinished business of our time.

The CEDAW Concluding Observation 40 is built on the human rights framework of CEDAW's Article 4 on substantive equality that helps accelerate women’s participation in decision-making and addresses a historic legacy of gender discrimination. Premised on the model of equality of result, “Temporary Special Measures” as enshrined in Article 4 of the CEDAW move away from a formal sex equality model which treats women and men as similarly situated. Despite its intentions, the formal equality model often does not produce equal results. The effects of such a legacy of discrimination are manifest in the numerous gender stereotypes that subordinate women. It is therefore necessary that gender equality paradigms go further than gender neutrality concepts that reinforce structural barriers to women’s equality. A second model, the substantive equality model, takes a different stance in attempting to remedy the effects of past discrimination by demanding that policies and laws take into account such gender differences in order to avoid unequal results. Examples of the substantive equality model include CEDAW’s Temporary Special Measures for women which are often designed to boost women’s participation in historically male dominated fields. Toward the advancement of CEDAW’s goal of equality in decision making, General Recommendation 40 of the CEDAW, underscores what was argued by David Rothkopf former, editor of Foreign Policy, that “the underrepresentation of women in positions of power is proof not so much that men still dominate the top of the pyramid as it is of a system of the most egregious, widespread, pernicious, destructive pattern of human rights abuses in the history of civilization."

As a coda, while writing this article, in September of 2023, India passed historic legislation, mandating one-third of seats in the lower house and state legislative assemblies for female candidates. As the largest democracy in the world, this is indeed a significant milestone in ongoing efforts to enhance the representation of women in political systems. After 27 years since the Bill was introduced, the passage of the Bill provides momentum to the role of the critical mass theory in women’s leadership.

December 8, 2023 in International, Legislation | Permalink | Comments (0)

Tuesday, November 7, 2023

French President Moves to Enshrine Right to Abortion in Constitution

Macron Moves to Add Abortion to France's Constitution, Reacting to US, Wash. Post

President Emmanuel Macron on Friday submitted language for an amendment that would make France the first country to enshrine a right to abortion in its constitution.

Macron has declared on social media that by next year “the right of women to choose abortion will become irreversible.”

The push comes in direct response to the restriction of abortion rights in the United States.

Abortion in France has not been similarly under threat. The French public overwhelmingly supports abortion rights. Abortion is legal for any reason through the 14th week of pregnancy and fully covered by the country’s health insurance system.

But after the U.S. Supreme Court’s Dobbs ruling that overturned Roe v. Wade last year and allowed states to outlaw abortion, French women clamored to further protect their right.

In many countries, abortion is protected by law, not court decision

“The Dobbs case was very shocking in France,” said Mathilde Philip-Gay, a law professor at Jean Moulin Lyon 3 University. “A movement was born just after the case, and women asked Parliament to act and especially to change the constitution.” She noted that polls in the summer of 2022 showed that about 80 percent of the population supported abortion rights and a similar percentage was in favor of adding a right to abortion to the constitution.

November 7, 2023 in Abortion, Constitutional, International, Reproductive Rights | Permalink | Comments (0)

Thursday, October 26, 2023

Regulating the Substantive Gender Inequalities of Artificial Intelligence

Rosel Kim & Kristen Thomasen, Submission to The Standing Committee on Industry and Technology on Bill C-27, An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts 

While AI has been touted by industry as an innovative tool that will yield benefits for the public, examining the impact of AI from a substantive equality perspective reveals profound harms. As a leading national organization with a mandate to advance substantive gender equality, LEAF urges the government to centre substantive equality and human rights as the guiding principles when regulating the growing use of AI. With this goal in mind, LEAF submits that the scope of AIDA must - at least - be substantially expanded in order to enable regulations that can protect against all present and emerging harms from AI.

October 26, 2023 in International, Legislation, Science, Technology | Permalink | Comments (0)

Wednesday, October 25, 2023

Women in Iceland Go on Strike Against Gender Inequality

NYT, Women in Iceland Go on Strike Against Gender Inequality

Tens of thousands of women and nonbinary people in Iceland were expected to join a one-day strike on Tuesday, which organizers called the country’s largest effort to protest workplace inequality in nearly five decades.

Iceland is a global leader in gender equality but still has a long way to go, said Freyja Steingrímsdóttir, a spokeswoman for the Icelandic Federation of Public Workers, the country’s largest federation of public worker unions.

“Iceland is often viewed as some sort of equality paradise,” Ms. Steingrímsdóttir, an organizer of the strike, said. “If we’re going to live up to that name, we need to move forward and really be the best we can be — and we’re not stopping until full gender equality is reached.”

Organizers urged women and nonbinary people to stop all work on Tuesday, including household errands and child care. Even Prime Minister Katrín Jakobsdóttir said she would take part, telling local news media that she would not call a cabinet meeting and that she expected other women in the cabinet to strike.

October 25, 2023 in Business, Equal Employment, International | Permalink | Comments (0)

Friday, October 20, 2023

Gender Parity and Constitutionalism in Chile

Rosalind Dixon & Marcela Prieto Rudolphy, Parity Constitutionalism, Global Constitutionalism, Forthcoming

"Never again without us", the Chilean feminist movement demanded of the constitution-making process. This demand for remedying women's historical exclusion from constitution-making ultimately translated to gender parity in the composition of the Chilean constitutional assembly. However, the constitutional draft, which included many gender-related norms, was rejected by Chileans in the exit referendum. In this article, we argue that although gender parity in constitution-making has promise and, like in the Chilean case, can be linked to substantive outcomes in terms of gender rights enshrined in the constitutional text, without political representation that is embedded in a broader party structure, those promises may fail to materialize.

October 20, 2023 in Constitutional, International | Permalink | Comments (0)

Thursday, October 19, 2023

Deep Disagreements in the Last Five Years of Equality Jurisprudence at the Supreme Court of Canada

Jennifer Koshan & Jonnette Watson Hamilton, "'Clarifications' or 'Wholesale Revisions'? The Last Five Years of Equality Jurisprudence at the Supreme Court of Canada" (2023) Supreme Court Law Review (Forthcoming)
Presented at the Asper Centre's Litigating Equality Symposium at the University of Toronto in May 2023

Over the past five years, the Supreme Court of Canada’s equality jurisprudence under the Canadian Charter of Rights and Freedoms has revealed deep disagreements within the Court. This paper reviews the six decisions that comprise that jurisprudence, drawing out the major points of contention on the role of substantive equality, the test for section 15(1), adverse effects discrimination, causation, evidence, contextualization, and positive obligations. Our argument is that while the section 15 majorities in the first three decisions – Alliance, Centrale, and Fraser – attempted to respond to the critiques of equality-seeking groups, these decisions could not paper over the profoundly ideological disagreements embedded in equality rights jurisprudence, particularly in cases of systemic discrimination. In light of the recent push-back by a significant proportion of the Court in R v CP and a majority in Sharma, we also discuss the implications of the six decisions for equality-promoting litigation strategies going forward.

October 19, 2023 in Constitutional, Courts, Gender, International, Theory | Permalink | Comments (0)

Monday, October 9, 2023

Kenyan Court Exonerates Health Care Provider and Mother of Adolescent Girl From Abortion Charges

The Center for Reproductive Rights reported on the dismissal of Republic v. Samson Mwita & Grace Wanjiku on September 25th. The Center for Reproductive Rights summarizes the case: 

The defendants, Samson Mwita and Grace Wanjiku, were arrested and charged in September 2018 when police stormed the health facility where Wanjiku’s 16-year-old daughter was being treated by Mwita for pregnancy related complications following a sexual assault as a minor.

Under the charges of procuring an abortion, Mwita and Wanjiku faced up to 14 years imprisonment under section 158 of Kenya’s Penal Code—but the Court determined that the prosecution presented no evidence to sustain the charges. Following the acquittal by the Chief Magistrates Court, neither Mwita nor Wanjiku can be charged again for the same allegations.

Kenya’s 2010 Constitution protects abortion as a fundamental right guaranteed when life or health, including mental health, are at risk, and in cases of sexual assault. Despite those protections, Kenya’s Penal Code continues to criminalize abortion, and abortion care remains almost unobtainable in most of the country, especially in rural areas. In addition, women, girls and health care providers continue to face harassment, arrest and prosecution when attempting to access or provide abortion care.

October 9, 2023 in Abortion, Constitutional, Courts, International | Permalink | Comments (0)

Tuesday, September 19, 2023

Book Review, Julie Suk, After Misogyny: Lessons from Comparative Constitutionalism

Linda McClain, Care Work, Gender Equality, and Abortion: Lessons from Comparative Constitutionalism, JOTWELL, reviewing Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It.

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment also includes a sense that transformative political and constitutional change are necessary but difficult because (as Suk and Kate Shaw recently noted) Americans have “lost the habit and muscle memory of seeking formal constitutional change” —and because of problems like polarization, gerrymandering, and restrictions on voting. Drawing on her expertise in comparative constitutional law and gender equality, Suk offers “comparative lessons” from feminist lawmaking and constitutionalism elsewhere to help move the U.S. to a democratic constitutionalism that is post-patriarchy and post-misogyny. (Pp. 212-14.) In this review, I explore some of those lessons concerning governmental commitments to supporting care and gender equality and to fostering reproductive justice.

September 19, 2023 in Abortion, Books, Constitutional, International | Permalink | Comments (0)

Monday, September 11, 2023

Australian Inquiry Into Accounts of Birth Trauma

CNN covered a recent proceeding hearing personal accounts of birth trauma in Australia in its article, "MeToo" for Mothers: Australian Inquiry Hears Troubling Accounts of Birth Trauma.

The inquiry was called after dozens of women complained about their care in one part of the state, but the deluge of submissions suggests the problem goes far wider.

 

More than 4,000 submissions were received in just six weeks, mostly from mothers who say they were ignored, belittled, and denied the opportunity to give informed consent.

 

Some lost their babies, others carried their infants home along with mental and physical trauma – for which many blame themselves.

The proceeding opened with comments like these: 

“No means no, except apparently in childbirth, and it’s time to change that,” Hannah Dahlen, a professor of midwifery at Western Sydney University, told the inquiry when it opened on Monday. “This is the MeToo movement of birth.”

The committee member who convened the proceeding told CNN: 

Committee Chair Emma Hurst says the point of the inquiry isn’t to lay blame on individuals. “It’s about finding out where the system is failing and making sure we can work towards changing those systems so it doesn’t continue to happen to other women.”  

September 11, 2023 in International, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, September 4, 2023

Jessie Allen on "Property and More-Than-Human Personhood"

Jessie Allen has posted on SSRN the forthcoming work Property and More-than-Human Personhood. The abstract previews: 

It was international news when the New Zealand Parliament, in a 2017 settlement of Māori land claims, declared that the Whanganui River “is a legal person and has all the rights, powers, duties, and liabilities of a legal person.” Such grants of non-human personhood seem peculiar. They contradict a conventional understanding that Western legal doctrine inscribes a sharp boundary between human owners of property and objects of that ownership, and only the owners have power. That anthropocentric view is part of what has made AngloAmerican property law an instrument of violent dispossession and extraction. But it is not the only way to read property doctrine. This article uses mainstream current and historical legal sources— recent U.S. case law and Blackstone’s Commentaries to tell a different story, one in which the line between persons and property has always been vanishingly thin.

Drawing on philosophical critiques of modern Western anthropocentrism and the work of Indigenous scholars, the article reveals how everyday property doctrines can accommodate a more holistic worldview. Blackstone is associated with an extreme vision of private property as exclusive individual human control over an objectified world. But viewing his canonical work through a less dualistic lens, the human subjects he describes can appear less potent than the landscape they inhabit. Blackstone’s “permanent and immoveable” land is not just a physical object, and real property combines material and “incorporeal” entities that both restrict and enable owners’ actions. This interactive more-than-human agency persists in land today, for example, in the counterintuitive doctrine of adverse possession and through servitudes that “run with the land” to shape human conduct.

This article is the first to show how traditional Western property law can be reimagined to share legal personhood – and power. Recognizing how longstanding property doctrines support more-than-human personhood matters for two main reasons: (1) It grounds novel grants of non-human personhood in a durable, widely accepted legal framework; and (2) it undermines the hierarchical anthropocentric version of property law that has facilitated and justified Western domination of both non-Western humans and non-human others. The goal is to envision a legal system that will help bring about more sustainable, morally responsible relationships among humans and between humans and others.

September 4, 2023 in International, Reproductive Rights, Theory | Permalink | Comments (0)