Gender and the Law Blog

The Argument that a Federal Abortion Ban May Violate Fifth Amendment Due Process

Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, Stanford L. Rev. (forthcoming)

For many Americans, Dobbs v. Jackson Women’s Health Organization signaled the end of things once thought secure: the constitutional right to reproductive autonomy, a vision of women as equal citizens, and the belief that the Supreme Court can rise above politics to protect cherished liberties.

To many anti-abortion groups, however, Dobbs was just the beginning. Merely permitting states to prohibit abortion was never the endgame; their goal has always been a nationwide ban. One path for accomplishing it runs through Congress in the form of a federal statutory ban. A second runs back through the Court in the form of constitutional fetal personhood, or the argument that an unborn fetus is a “person” whose life states would be compelled to protect under the Fourteenth Amendment.

In this Article, I examine the legal future of both pathways in light of the Dobbs majority’s own historical analysis. With respect to a federal abortion ban, many have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. I thus consider a different possibility: even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. For as Dobbs admits, every single state at the founding permitted abortion before quickening, at roughly 16-18 weeks of pregnancy. Dobbs’s own history and tradition test thus plausibly suggests a surprising result: a federal abortion ban may violate the Fifth Amendment Due Process Clause.

With respect to fetal personhood, Dobbs concedes that even as of the Fourteenth Amendment’s enactment in 1868, some states continued to permit abortion early in pregnancy. In truth, Dobbs severely undercounts that number: as many as 21 states, not the 9 Dobbs suggests, permitted pre-quickening abortion. This casts doubt on the fetal personhood argument because it shows that when the Amendment was ratified, most states did not understand unborn fetuses to be “persons” with respect to the precise question at hand. To recognize fetal personhood would require one to conclude that a majority of states were violating the very amendment they’d just ratified.

CFP Book Chapters, Women and Conflicts of Law

CFP Call for Chapter Proposals: Women and Conflicts of Law

Call for Book Chapters:

 Nineteenth- and Twentieth-Century Women and Conflicts of Law:

Global Perspectives, 1815-Present

EXTENDED DEADLINE AND BROADENED FOCUS

We invite chapter submission for inclusion in an edited collection on Nineteenth- and Twentieth-Century Women and Conflicts of Law.

The volume discusses the consequences for women when law systems clashed--between independent nations, colonizers and colonized, majority and minority religions, or between secular and religious laws. The nineteenth and twentieth centuries saw industrial nations draw more and more of the globe into the orbit of their law systems, and these were also the centuries in which women contested their legal positions vigorously. Thus, this period offers an ideal forum for studying the effects of legal differences across the globe. Conflicts of law were inevitable whenever people crossed borders, converted to different religions, or married/divorced someone of a different class, religion, or locality. Women were often harmed by conflicts of law, but this was not inevitable. In other words, these clashes offered both a challenge and an opportunity.

This volume has no geographical limitations; we welcome proposals from historians of all parts of the world. The most important factor for selection will be the authors’ ability to highlight women’s experiences when law systems clashed. Possible topics include, but are not limited to, the following:

• Conflicts between criminal and civil law
• Conflicts over differing national laws of marriage, divorce, and child custody
• Women in imperial law systems
• The interaction between gender and other factors such as race, class, and sexual orientation in the law courts
• Conflict between secular and religious courts
• The consequences of the lack of legal recognition for lesbian and transgender families
• The regulation and criminalization of sex work across national borders
• Women as actors in the international legal community
• Feminist efforts to eliminate women’s disabilities caused by conflicts of law
• Disputes over nationality, dual nationality, and statelessness in peace and war

The proposed schedule is as follows:

January 15, 2023 – Proposals due; these should be of no more than 300 words, accompanied by a one-page C.V.

February 15, 2023 – Authors receive notice of editorial decision.

November 15, 2023 – Full manuscripts due to the editor. Manuscripts should be standard length for journal articles, approximately 7,500-8,500 words (including notes).

Those interested in contributing should direct all correspondence to the volume editor, Dr. Ginger Frost at: gsfrost@samford.edu

Balkin on "Abortion and Partisan Entrenchment"

Jack Balkin has posted Abortion and Partisan Entrenchment on SSRN in draft format. The abstract states:  

In overturning Roe v. Wade, The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization achieved a long-sought victory of the Republican Party. Dobbs is part of a larger conservative constitutional revolution. This revolution has been achieved through a strategy of partisan entrenchment, in which political parties, led by Presidents, stock the courts with jurists allied with the party's commitments of ideology and interest.

Over time, partisan entrenchment by both parties can keep the Supreme Court's ideological center roughly aligned with the center of national public opinion. But this alignment need not occur, and the Court's current constitutional revolution reflects this fact. Moreover, if the country is highly polarized, as it is now, there is even less reason to think that the ideological center of the Supreme Court will have much relationship to the center of public opinion. It is far more likely to reflect the center of elite opinion in whichever major party currently controls the Court.

Although Republicans dominated Supreme Court appointments between 1969 to 2020, Roe v. Wade survived for half a century. This was partly due to luck. But another important reason is that members of the conservative legal movement did not constitute a majority of the Court until 2018. Once that happened, Roe's demise became almost certain. Entrenchment of movement-identified legal conservatives, and not simply Republicans, was the key to overturning Roe.

Once the conservative legal movement has achieved most of its central goals, however, it may lose cohesion, as the country faces new issues and the Republican Party continues to evolve into a Trumpist party. Different parts of the conservative legal movement may find themselves increasingly at odds. New issues will emerge for which the conservative legal movement was not organized. These new issues may create fractures among Court’s conservative majority.

Moreover, Roe's demise has created new problems for the Republican Party. Party coalitions affect the exercise of judicial review--that is the point of partisan entrenchment--but the exercise of judicial review also affects party coalitions. Judicial review can make it easier for a political party to maintain its base of voters; or, conversely, judicial review can create openings for a party’s opponents to pick off its voters and split its coalition.

Roe v. Wade made the modern Republican Party possible. Staunchly pro-life voters could join with voters who supported some abortion rights but voted Republican for other reasons. The latter could vote Republican because no matter how much Republican politicians catered to pro-life voters, Roe kept them from banning abortion completely. Dobbs made abortion prohibition possible and highly salient, and placed different parts of the Republican coalition in tension with each other. To keep their coalition together, Republican politicians may now try to change the subject. But the party's most avidly pro-life voters, who dominate primary contests, may not let them. Although the long-term electoral result is not foreordained, Dobbs has created opportunities for opposition politicians to shrink and fracture the Republican coalition.

Politicians always act in the shadow of other institutional features of the American constitutional system, including judicial review. The Court’s decisions affect political coalitions, but that is because of decisions made by political actors over whom they have no control. Supreme Court decisions may make or break political coalitions, but not as the Justices either understand or intend.

Historian's Study Uncovers Newspaper Reports of Abortion in the US from 1820 to 1860

Patricia Cohen, Married Women and Induced Abortion in the United States, 1820-1860 

Results of a study of 225 publicized abortion cases in US newspapers from 1820 to 1860; with attention to married women who comprise a small fraction of the set.

From the conclusion: 

My search for married women exercising reproductive choice produces glimpses of such women—in Luceba Parker’s and Mme Restell’s rooms and in Horatio Storer’s fevered brain. A series of inferences lend support to the trend. We know the birth rate was falling in this period, first and fastest in New England; some, maybe most of that was due to contraception, equally shunned by Storer. We know that missed menstrual periods were common and were thought to require treatment, including uterine penetration. My newspapers stories show that some doctors were willing to perform abortions, so similar to menstrual regulation techniques. And we know that early pregnancy was hard to detect and hard to prove. When done successfully and discretely, an abortion left few clues. Finally, there had to be some degree of activity by married women for Storer’s outsized claims to seem plausible.

What I am most struck by now, after having amassed all this material, are the crucial differences between then and now. In both eras, legal doors are closing. But back then, those new laws were rarely enforced. Few were prosecuted; fewer still convicted. It is clearly a very different world today, one shaped by powerful tools of surveillance, modern regulatory bureaucracy, unyielding religious beliefs, and determined enforcement.

Black Women and Voter Suppression

Carla Laroche, Black Women & Voter Suppression, 103 Boston U.L. Rev.   

Black women vote at consistently high rates during elections in the United States. States, however, have excluded Black women from voting by regulating when a person convicted of a crime may be eligible to vote. These efforts are known as felony disenfranchisement but amount to voter suppression. With the alarming rate of conviction and incarceration of Black women, criminal law intersects with civil rights to bar their involvement in the electoral process.

By reconceptualizing conviction-based voter suppression through the experiences of Black women’s access to their voting rights, this Article adds a new perspective to the rich scholarship analyzing voting rights. This Article examines the history of Black women’s exclusion from the ballot box in the United States, including how the racist legacy of Jim Crow continues through mass incarceration and voter suppression schemes. Using Florida’s disenfranchisement maze as a case study, this Article shows that while Black women and other advocates have led attempts to abolish voter suppression schemes, permanently, they have yet to succeed through the judicial, executive, and legislative branches.

The ostensible reasons for these voter suppression schemes vary, but the outcome has been the devaluing of the interests of Black women and their communities while preserving the voting priorities of white communities. This Article concludes by demanding the dismantling of these voter suppression schemes. Until then, society will continue to bar Black women from the ballot box disproportionally

New Book on the UK's Married Women's Association and Reform of Family Law in the Mid-20th Century

Sharon Thompson, Quiet Revolutionaries: The Married Women's Association and Family Law

This book tells the untold story of the Married Women's Association. Unlike more conventional histories of family law, which focus on legal actors, it highlights the little-known yet indispensable work of a dedicated group of life-long activists.

Formed in 1938, the Married Women's Association took reform of family property law as its chief focus. The name is deceptively innocuous, suggesting tea parties and charity fundraisers, but in fact the MWA was often involved in dramatic confrontations with politicians, civil servants, and Law Commissioners. The Association boasted powerful public figures, including MP Edith Summerskill, authors Vera Brittain and Dora Russell, and barrister Helena Normanton. They campaigned on matters that are still being debated in family law today.

Quiet Revolutionaries sheds new light upon legal reform then and now by challenging longstanding assumptions, showing that piecemeal legislation can be an effective stepping stone to comprehensive reform and highlighting how unsuccessful bills, though often now forgotten, can still be important triggers for change. Drawing upon interviews with members' friends and family, and thousands of archival documents, the book is compulsory reading for lawyers, legal historians, and anyone who wishes to explore histories of law reform from the ground up.

See also Sharon Thompson, The Untold Story of a Mid-20th Century Group of Women Fighting for Equality in Marriage and Why It Matters Today

In 1938, a group of feminist agitators came together in London to tackle what they saw as the most pressing issue of their time: inequality in marriage. For the Married Women’s Association, the right to vote – won for women over 30 in 1918 – was just the beginning of women’s emancipation. The legal status of housewives was next.

If you were a married woman in the early 20th century, you had no rights in your home, nor in the housekeeping money your husband gave you, nor even in the bed you slept in, unless you had used your own money to buy it.

You were also paid less than men, while all the work in the home was exclusively your domain and was unpaid. Your husband, by contrast, would be paid an inflated income to support his dependants, termed a “family wage”, to which, ironically, you had no rights to whatsoever. In the eyes of the law, you were essentially invisible.

These women’s story has long been overlooked. As I show in my new book, Quiet Revolutionaries (and accompanying podcast), what they were fighting for remains highly topical.

Justice Ginsburg's Cautious Legacy for the Equal Rights Amendment

Julie Suk, Justice Ginsburg's Cautious Legacy for the Equal Rights Amendment, 110 Georgetown L.J. 1391 (2022)

History will remember the late Justice Ruth Bader Ginsburg (RBG) as the “founding mother” of constitutional gender equality in the United States. This Article unpacks her legacy for inclusive constitutional change, unearthing her lifelong commitment to the Equal Rights Amendment (ERA), which was adopted fifty years ago by Congress in 1972. It took nearly half a century for the Amendment to be ratified by the thirty-eight states required by Article V, with Virginia becoming the last state to ratify it in 2020—the year of Justice Ginsburg’s death. Because the last three ratifications occurred decades after congressionally imposed time limits, RBG publicly expressed doubts about the viability of the ERA, as it was being disputed in Congress and in the courts. This Article unpacks RBG’s ambivalent stance toward the ERA, tracing it to her understanding of the process of constitutional change toward greater inclusion, located in her legal scholarship of the 1970s. As a scholar, RBG focused not only on sex discrimination but also on legal procedure. She was keenly aware that the procedural paths taken toward important socio-legal changes, including women’s equal citizenship, would shape their potential to endure as law.

This Article puts the spotlight on RBG’s often-neglected writings as a scholar before her judicial career. RBG’s transformative vision of constitutional gender equality had an institutional and procedural dimension that accompanied its ambitious substantive ideals. A modern constitutional democracy would fully include women in the rights and responsibilities of citizenship and power, by eliminating gender stereotypes from the law and by implementing public policies to enable the participation of people of all genders. Legislatures, rather than courts, are best equipped to complete this project. To legitimize such large-scale constitutional change, RBG viewed Congress as the appropriate institutional driver of the constitutional amendment process. Accordingly, Congress had plenary power over the procedural incidents of constitutional amendments such as the ERA, including ratification time limits and rescissions. RBG’s legislative constitutionalism on both the substance and procedure of the ERA point to cautiously viable paths forward for both the resurgent ERA and future amendments aiming to secure the inclusion of previously disempowered people in our democracy.

Book Review, Formidable: American Women and the Fight for Equality 1920-2020

Book Review, Formidable: American Women and the Fight for Equality, 1920-2020

This snapshot illustrates the merits of Elisabeth Griffith’s engaging, relevant and sweeping chronicle of women’s fight for equality in the United States — and by examining 100 years of history through a feminist lens, a pattern emerges: Each blow from the patriarchy is countered by a well-aimed and calculated retaliation from American women.

 

Books of true feminist history are rare. Rarer still are these histories intersectional; feminist history tends to be synonymous with white women’s history. Not this book. Griffith delivers a multiracial, inclusive timeline of the struggles and triumphs of both Black and white women in America. “Historically, the white press has not covered the activism of Black women,” she writes. (Her previous book centered on the life of Cady Stanton.) Despite difficult-to-find archival sources, Griffith says, “I’ve named as many women as possible.”

 

A profoundly illuminating tour de force, Griffith’s book begins with Susan B. Anthony and unfolds chronologically, sorted into chapters that track a “pink” timeline of history. “Fifty years ago, when women’s history was struggling for legitimacy in academia,” Griffith explains, “feminists divided American history into ‘blue’ and ‘pink’ timelines. Conference panels debated whether Zachary Taylor’s presidency was more relevant to women’s lives than the invention of the tin can, or whether Jacksonian democracy deserved a chapter when the suffrage campaign did not.”

 

“Formidable” is organized around major fights: voting rights, working conditions, education access, health care, racial violence, reproductive rights, race and gender discrimination, the wage gap, electoral office.

The Pre-Civil War History of Fugitive Slave Laws and its Parallel to the Battle Over State Abortion Rights

Kate Masur, What Pre-Civil War History Tells Us About the Coming Abortion Battles, Wash. Post

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and eliminated the constitutional right to an abortion, is prompting allusions to slavery and the antebellum United States. There’s talk of a new “Underground Railroad” that conjures clandestine networks helping people to flee their home states in search of the freedom to end a pregnancy. And some predict Dobbs will result in conflicts among the states of a magnitude not seen since before the Civil War.

 

Any historical comparison requires considerable care, with attention to differences as well as similarities.***

 

The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back.

 

This history doesn’t provide a blueprint for action in our own time, but it does remind us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights.***

 

The history of the 19th century reminds us that arguments for states’ rights, or for federal power, have no intrinsic political or moral valence. Northerners adopted personal liberty laws to mitigate oppressive aspects of the Constitution and federal law, while enslavers insisted on extending their jurisdiction beyond state lines and put unprecedented federal power in the service of human bondage.

 

But that doesn’t mean the best option for the country is to leave questions of fundamental rights in the hands of the states. To the contrary, history also shows that the United States has been at its best when, as in the Reconstruction amendments and federal civil rights laws, it offered federal guarantees of freedom, dignity and equality to all people. Federal guarantees not only strengthen democracy, they also tamp down conflicts among the states. Now the Supreme Court has withdrawn the 14th Amendment’s protection of reproductive freedom. No wonder we find ourselves looking for parallels to a period before the amendment existed.

Reading the Nineteenth Amendment Differently than the Fifteenth

Paula Monopoli, Gender, Voting Rights, and the Nineteenth Amendment, 20 Georgetown J. Law & Public Policy (2022)

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that 'there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment'. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.

The Theory of Constitutional Memory and its Silencing of Women's Voices and Citizenship

Reva Siegel, The Politics of Constitutional Memory, 20 Georgetown J. Law & Public Policy 19 (2022)

Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law.

 

This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law.

 

To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents.

 

But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

Historians Weigh in on All That is Wrong with the Legal History of the SCT's Abortion Decision

Patricia, The Dobbs Decision Looks to History to Rescind Roe

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Reva Siegel, The Trump Court Limited Women’s Rights Using 19th-century Standards

But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.***

Justice Alito claims that tying the meaning of the Fourteenth Amendment’s liberty guarantee to America’s “history and traditions” prevents the justices from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to 'liberty,’” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Here he echoes the late Justice Antonin Scalia, who wrote, in “Originalism: The Lesser Evil,” that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But Dobbs shows why both of these claims are wrong. A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty largely with reference to laws enacted in mid-19th-century America. During that period — conveniently enough — there was a campaign to ban abortion across the nation. (Alito includes an appendix enumerating many of these state statutes.) But consider what else was part of this period’s “history and traditions”: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tether the meaning of the Fourteenth Amendment’s liberty guarantee to laws enacted by men with such a cramped view of women’s rights? The move is unprecedented.

Jill Hasday, On Roe, Alito Cites a Judge who Treated Women as Witches and Property

There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.

Alito reports that [Judge] Hale “described abortion of a quick child who died in the womb as a ‘great crime’ ” while glossing over the key part of that passage. Hale wrote that abortion was a crime “if a woman be quick or great with child.” Note the “if.”

Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.

Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.

President Biden's Proposes New Administrative Rules on Title IX for Campus Sexual Assault and LGBTQ Protections

Chronicle, Here's How Title IX Could Change Under Biden's Proposed Rule

The U.S. Education Department on Thursday released its proposed Title IX regulations, which would reverse many Trump-era policies and restore the pro-victim approach championed by the Obama administration.

 

Specifically, the rule would:

• Enshrine protections for sexual orientation and gender identity, as well as “sex stereotypes, sex characteristics, [and] pregnancy or related conditions.”
• Permit, but no longer require, live hearings and cross examination in Title IX investigations.
• Expand the definition of sexual harassment.
• Clarify the protections students, faculty, and staff have from retaliation by their institution.
• Require colleges to confront off-campus conduct that “creates or contributes to a hostile environment.”
• Require certain campus employees to notify the Title IX office of possible sex discrimination, a return to broader mandatory-reporting requirements. If an incident involves students, anyone with “teaching” or “advising” responsibilities — in other words, most faculty members — must report it. Some professors have criticized mandatory reporting, saying it harms the trust they’ve built with their students.
• Require all other faculty and staff members to provide students with the contact information of the campus Title IX coordinator, unless they’re designated as confidential resources.

 

The changes would once again upend how colleges handle sexual-misconduct complaints. Experts who work with colleges say campus officials are exhausted by more than a decade of political Ping-Pong over Title IX, as the three most-recent presidential administrations have switched up rules and guidance, and colleges have rushed to comply.

Sweeping Title IX Would Shield Trans Students, Assault Survivors

On the 50th anniversary of Title IX, the Biden administration proposed sweeping changes to the landmark law that would bar schools, colleges and universities from discriminating against transgender students, as the battle over transgender rights moves to the front lines of the culture war.

 

The proposal would also amend the rules that govern how educational institutions investigate and resolve claims of sexual assault and sexual harassment. Over concerns that people were being wrongfully punished, President Donald Trump’s education secretary, Betsy DeVos, revised the rules to make them more accommodating to the accused. Critics assailed the changes, saying they would discourage sexual assault survivors from coming forward to report assaults or harassment.

 

“Our goal is to give full effect to the law’s reach and to deliver on its promise to protect all students from sex-based harassment and discrimination,” Education Secretary Miguel Cardona said. “Every student deserves to learn free from discrimination and harassment, regardless of their sex, sexual orientation or gender identity.”

Scottish Bill Would Pardon Thousands of Women Convicted and Executed as Witches

Thousands of Witches Could be Posthumously Pardoned in Scotland

Thousands of people were convicted of practicing witchcraft in Scotland in a hunt that spanned nearly two centuries — and the majority of those sentenced to death and executed were women. Many were also tortured.

 

Now, a bill proposed in the Scottish Parliament is trying to set the record straight, said Natalie Don, a Scottish lawmaker who introduced the proposal. It could allow for posthumous pardons to thousands of women who faced convictions hundreds of years ago.

 

The pardons would ensure they are “recognized as victims of a miscarriage of justice and are no longer recorded in history as criminals,” Don said Thursday in a video.

 

Calls for legal pardons for “witches” or “necromancers” have gathered pace in Scotland, where the country’s most senior politician, First Minister Nicola Sturgeon, issued a formal apology in March to those vilified under the Witchcraft Act. The act, which was in effect from 1563 to 1736, made practicing witchcraft punishable by death.

 

“It was injustice on a colossal scale, driven at least in part by misogyny,” Sturgeon said on International Women’s Day. “They were accused and killed because they were poor, different, vulnerable or in many cases just because they were women.”

Unequal Representation of Women in Clinical Research

Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021

Abstract:

This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.

Introduction:

The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.

On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.

However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.

These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials. 

The Legal History and Original Drafter and Advocate of Title IX, Edith Green

Wash Post, The True Mother of Title IX. And Why it Matters Now More than Ever

June 23 marks 50 years since Title IX, which prohibits sex discrimination in education, was signed into law. The anniversary has sparked discussion of Rep. Patsy Takemoto Mink (D-Hawaii) — the first woman of color elected to Congress in 1964, for whom Title IX was renamed in 2002. In fact, the media often refers to Mink as the "mother” of Title IX.

 

But while Mink strongly defended Title IX and focused on bringing about equality under the law in her 24 years in the House, she did not actually write the bill or introduce it into Congress. Rep. Edith Green (D-Ore.) wrote Title IX and worked tirelessly on Capitol Hill to pass this landmark legislation that has improved the lives of millions of women and girls over the past half-century.

 

Today, as conservative activists and politicians work to ban the teaching of certain concepts and history related to sex and race, it is important to insist on historical accuracy in our political discussions and remembrances. Mink more fully embraced the feminist and political ideals embedded in Title IX than did Green. But the true story of Green’s involvement reminds us that progress doesn’t only come from the political leaders you’d expect.

 

Green was well-poised to take on legislation like Title IX by the early 1970s. Before tackling sex discrimination in education, she led an eight-year battle to pass the Equal Pay Act of 1963 — the first legislation of its kind, even if limited in scope by today’s standards. After 15 years in the House, Green became chair of the subcommittee on higher education. She authored or influenced nearly every education bill during her tenure in the House, earning her the nickname “Mrs. Education.”

 

Green was a champion of sex equality and educational reform, but she seemed to have at least one blind spot on race. By February 1970, when she introduced the first iteration of Title IX, Green was a vocal opponent of court-ordered busing to racially integrate schools. Although Green didn’t see herself as racist, her argument that busing decisions should be left to local control was a favorite of anti-integrationists. Critics alternately referred to her as “the liberal racist,” “the sweetheart of the Southerners” and “the Nixon Democrat.”

The Controversial Origins of Father's Day and its Connection with Women's Child Custody Rights

Wash Post, Father's Day Once was Highly Political--and Could Become So Again

Sonora Smart Dodd, whose father raised her and her siblings after their mother died in childbirth, was inspired to propose the holiday in 1910 after attending a church service honoring mothers. Even so, while federal law enshrined the second Sunday in May as Mother’s Day in 1914, it took another half-century for fathers to receive similar recognition, first with Lyndon B. Johnson issuing a presidential proclamation in 1966 and then with Congress enacting an official holiday in 1972.

 

For decades, there was less political will to honor fathers, especially because many men regarded the holiday as “silly.” Such thinking continues to this day, as some men celebrate being fathers by using the holiday as a ticket to spend a day at the golf course, enjoying hours on “their” day away from their children.

 

This understanding of Father’s Day, though, misses the ways in which Americans have used the holiday as a political vehicle. In the latter decades of the 20th century, Father’s Day was a key battleground regarding parental rights and responsibilities for activists radicalized by the nation’s rapidly shifting familial landscape. At the root of this politicization of Father’s Day — maybe surprisingly — was the history of divorce.***

 

Enter Father's Day.  As some feminists came to view child support enforcement as a key women’s issue, they turned to the new holiday as an opportunity to publicize their cause. In 1971, a group of women and children from the Association for Children Deprived of Support (ACDS) picketed the home of California assemblyman, and potential gubernatorial candidate, Robert Moretti on Father’s Day to press him to champion child-support reforms.

 

Several years later, in 1975, NOW chapters in Tulsa, Pittsburgh and Hartford, Conn., all participated in “Father’s Day Actions.” The Tulsa protesters promised, in a news release, that “Fathers who are not paying child support can expect that their names and the amounts they are in arrears will be announced” and publicly “displayed by mothers, children and concerned NOW members.” The Hartford women, for their part, laid a wreath at the door of the Superior Court of Connecticut to “mourn the loss of paternal responsibility by all the fathers involved in divorce, separation, and enforcement.”

 

Some divorced fathers, however, had their own political agenda for Father’s Day.

 

Fathers’ rights advocates objected to being used as “wallets” and claimed that their ex-wives purposely kept them from seeing their children in violation of visitation orders. In 1971, the National Council for Family Preservation — one of several failed attempts by fathers’ rights advocate Richard F. Doyle to form a robust national organization like NOW — urged its member groups to hold protests on the Saturday before Father’s Day, noting that fathers might “want to be elsewhere with their children on Sunday.” In a news release, Doyle called for the recognition of the “stupid and cruel divorce laws and practices that have made this holiday a mockery for countless fathers and children.”

False Claims Continue Claiming Elizabeth Cady Stanton and Susan B Anthony as Anti-Abortion Advocates

False claims continue to abound about pioneering 19th century feminists Elizabeth Cady Stanton and Susan B. Anthony as to their views on abortion, including this week in the Wall Street Journal.

As a scholar of Stanton's work for the last twenty years studying her focus on legal and social reform of the family and marriage, I have written extensively against these false claims and tried to set the record straight by delving into the historical details (incorrectly) asserted for these claims.  I post here to refresh the recollection of that work as relevant to ongoing debates: 

First, here's the current, incorrect report, written by anti-abortion activists:

WSJ, Yes, Susan B Anthony Was Pro-Life

Early feminist icons Elizabeth Cady Stanton and Susan B. Anthony changed forever the role of women in American society. In the 19th century they tirelessly promoted public education on behalf of women’s equality and demanded that women be given the right to vote. But contrary to recent claims by advocacy groups, they were not in favor of abortion.

 

After a leaked Supreme Court draft decision appearing to overturn Roe v. Wade circulated in May, the nonprofit National Susan B. Anthony Museum and House in Rochester, N.Y., accused the Susan B. Anthony List, a pro-life political action committee, of misappropriating the famous suffragist’s name. “To suggest that Susan B. Anthony would support government intervention in a woman’s decision about a pregnancy is abhorrent,” museum president Deborah L. Hughes wrote in a post on the organization’s website.

 

The Elizabeth Cady Stanton Trust similarly claims that its namesake would have supported abortion-rights advocacy in the 21st century. The group has filed lawsuits in Michigan, New York and Rhode Island, asking courts, according to a press release, “to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment . . . in the United States Constitution.”

 

In fact, it’s the pro-choice groups that have it wrong. During their lifetimes, both women vociferously condemned abortion.

Here are links to my work challenging and disproving the historical basis on which these incorrect assumptions continue to rely:

Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012) (discussing both Stanton & Anthony)

Tracy Thomas, ECS Book Elizabeth Cady Stanton and the Feminist Foundations of Family Lawm chp. 4, The "Incidental Relation" of Mother (NYUP 2016)

Tracy Thomas, Gender & the Law Prof Blog, Elizabeth Cady Stanton was Not Against Reproductive Rights

Tracy Thomas, Gender & the Law Prof Blog, Voluntary Motherhood: What Did 19th Century Feminists Think About Abortion and Birth Control

The Atlantic, The Abortion Debate and the Legacy of Women's Suffrage (June 2019)

Tracy Thomas, National Constitution Center "We the People" Podcast, The Constitutional Legacy of Seneca Falls

Tracy Thomas, Gender & the Law Prof Blog, Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life

Tracy Thomas, Gender & the Law Prof Blog, The "Incidental Relation of Mother" and 19th Century Demands for Women's Reproductive Control

 

The Effectiveness of Dispute Resolution for Gender Discrimination Claims

Catherine Ross Dunham, Social Truths in the Workplace: How Adversarialism Undermines Discrimination Litigation 

This article explores the effectiveness of dispute resolution for gender discrimination claims in the American system of civil litigation. Adversarialism is a defining feature of the American system of civil justice, beginning with reduced trust in the quasi-inquisitorial system of Chancery in the nineteenth century and escalating with the increased importance of lawyers and public trials in the twentieth and twenty-first centuries. Although adversarialism remains of great importance in some aspects of the American system, this article questions whether the adversarial system is the best dispute resolution system to address workplace-based discrimination claims, as those claims are intimately connected to changes in social and cultural understandings within the workplace and within American society.

The tenets of our system over-rely on the assumption of a shared social context to define social truth. But that assumption is flawed in workplace discrimination litigation as workplace context varies by profession, and the worker experience varies based on the individual’s position in the hierarchy. For example, in a gender bias-driven workplace, a male supervisor may see the workplace culture as fair and merit-based, whereas his female contemporary may view the workplace culture as competitive and closed, seeing her position as that of an outsider who had to navigate her career path carefully. These varying perspectives create different social truths in the workplace, which are challenged by litigation. When the female employee claims that she was discriminated against in an unfair workplace, her social truth is thrust against the social truth of other supervisors and managers who view the workplace as fair. Litigation places those two conflicting understandings of workplace culture into direct controversy and positions the relevant parties as adversaries not only on the legal issues, but also on the issue of what is true about the workplace culture, reducing the opportunity for meaningful cultural change within and without the workplace.

This article asks what type of dispute resolution system can create a more reliable assessment of workplace social truth. By exploring options such as the quasi-inquisitorial systems of American Chancery and European conciliation, as well as the role of arbitration in American civil litigation, the article suggests that a non-adversarial approach allows for a more holistic resolution of workplace controversies. If a conflict is overseen by a judicial officer who can approach the conflict from a place of conciliation, cognizant of the relevant community and social context, resolution options can not only offer relief to the plaintiff within the subject workplace, but can also protect the relevant economic and cultural interests of the defendant. Conflict resolution which attempts to understand the competing social truths of the workplace, can offer an opportunity for voluntary change in the workplace without placing parties fully at risk, as they are in the “winner-take-all” litigation scenario. Furthermore, as our social truths evolve and change, our dispute resolution system, which de facto manages those truths through adversarial litigation, should be reconsidered for its role in creating new truths about whether the workplace is fair to all.

The History of Women-Led, Non-Lawyer Legal Aid in Boston, Chicago, and Elsewhere

From the Legal History Blog, Jeon on Women-Led, Non-Lawyer Legal Aid in Boston

Kelsea A. Jeon, the holder of an M.Phil in Socio-Legal Research from the University of Oxford, has published Legal Aid Without Lawyers: How Boston’s Nonlawyers Delivered and Shaped Justice for the Poor, 1879–1921 in the Georgetown Journal on Poverty Law & Policy:

Women nonlawyers were some of the first actors to provide organized legal aid to America’s poor. Yet, today, unauthorized practice of law statutes bar nonlawyers from providing legal help, citing concerns about malpractice and public harm. This Article uses a historical case study to challenge conceptions that nonlawyers cannot provide effective legal services to the people. The study focuses on the development of legal aid in Boston via two organizations, the nonlawyer-led Women’s Educational and Industrial Union and the lawyer-centric Boston Legal Aid Society. Although organized legal aid in Boston began with the nonlawyers at the Union, they were eventually overtaken by the lawyer-centric Legal Aid Society. This paper examines this transition in legal aid practitioners, emphasizing how nonlawyers provided effective legal help. In doing so, it challenges the modern-day conception that access to justice requires access to an attorney and serves as a powerful counter to claims that nonlawyer practitioners endanger the public.

For more on the history of women-led legal aid, see Felice Batlan,  Women and Justice for the Poor: A History of Legal Aid , 1863-1945 (Cambridge Press 2015):

This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women's history in dialogue, it demonstrates that nineteenth-century women's organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor