Gender and the Law Blog

House Votes to Amend Title IX to Prohibit Trans Girls from Women's Sports in Schools

House Votes to Amend Title IX to Ban Trans Girls from Women Sports in Schools

The House on Tuesday voted 218-206 to ban transgender girls and women from girls’ sports in federally-funded schools by amending Title IX, the federal civil rights law that prohibits sex discrimination in educational institutions. This bill, the first federal anti-trans law brought to a vote in a newly GOP-controlled Congress, is Democrats’ first test on whether they will fight an expected wave of proposed anti-trans laws under President-elect Donald Trump. 

If passed into law, this legislation would change Title IX and revoke federal funding for schools that allow trans girls and women in sports teams that align with their gender identity. Public K-12 schools would be implicated by this new rule, as well as colleges and universities. The bill was brought by Rep. Greg Steube of Florida, who reintroduced legislation he had previously tried to get through the House, alongside an identical bill in the Senate from Sen. Tommy Tuberville of Alabama. 

This legislation would change the actual statute of Title IX to explicitly exclude transgender people from a federal civil rights law — a major setback for LGBTQ+ rights that would leave trans and nonbinary students more open to discrimination and with fewer avenues to fight it. Notably, the effect of this law would go further than a recent judicial ruling in Kentucky that rolled back Title IX protections nationwide for LGBTQ+ students. 

Pre-Filed 2025 Alabama Bill Proposes Vasectomy or Castration in Cases of Rape or Incest

A pre-filed 2025 Alabama Bill seeks to empower courts to order a vasectomy or castration of a man who is convicted of rape or incest leading to a pregnancy. The proposed new language reads as follows: 

(c)(1) An abortion shall be permitted if the pregnancy is the result of an act of rape or incest.

(2) If a man is convicted of the act of rape or incest and the act results in pregnancy, the court shall require him to: (i) pay for all medical expenses associated with the resulting pregnancy and abortion; and (ii) undergo either a vasectomy or castration."

This language is likely unconstitutional under Skinner v. Oklahoma. 

The bill also proposes deleting the language defining and describing what a "serious health risk to the unborn child's mother" is, as marked out below. This, if enacted, would instead use undefined language to "preserve the health of the unborn child's mother." Removing a definition is surely a path to minimize access to health-based exceptions for the health of the pregnant person.

SERIOUS HEALTH RISK TO THE UNBORN CHILD'S MOTHER. In reasonable medical judgment, the child's mother has a condition that so complicates her medical condition that it necessitates the termination of her pregnancy to avert her death or to avert serious risk of substantial physical impairment of a major bodily function. This term does not include a condition based on a claim that the woman is suffering from an emotional condition or a mental illness which will cause her to engage in conduct that intends to result in her death or the death of her unborn child. However, the condition may exist if a second physician who is licensed in Alabama as a psychiatrist, with a minimum of three years of clinical experience, examines the woman and documents that the woman has a diagnosed serious mental illness and because of it, there is reasonable medical judgment that she will engage in conduct that could result in her death or the death of her unborn child. If the mental health diagnosis and likelihood of conduct is confirmed as provided in this chapter, and it is determined that a termination of her pregnancy is medically necessary to avoid the conduct, the termination may be performed and shall be only performed by a physician licensed in Alabama in a hospital as defined in the Alabama Administrative Code and to which he or she has admitting privileges.

Review the full bill here: https://alison.legislature.state.al.us/files/pdf/SearchableInstruments/2025RS/HB50-int.pdf.  

Previous Gender Law Blog Posts on Skrmetti Case on Transgender Rights, Being Argued Today at SCOTUS

Oral arguments are here:

Prior posts on the Gender Law Blog are here:

Marc Spindelman, Trans Sex Equality Rights After Dobbs

Deborah Brake, Why State Laws Banning Transgender Athletes are Unconstitutional

Sixth Circuit Decision Upholding Ban on Gender-affirming Care for Minors is a Monumental LGBTQ-rights Case Headed to SCOTUS

Katie Eyer, Anti-Transgender Constitutional Law

Leah Litman reviews Jessica Clarke, JOTWELL, Reviewing Sex Discrimination Formalism

 

Legislation Tracker, Anti-Trans Bills

Anti-Trans Bill Tracker

Trans Legislation Tracker is an independent research organization tracking bills that impact trans and gender-diverse people across the United States. We support academics and journalists with data and make tools that help the public follow and engage with legislation. Our growing set of resources help people understand the broader story of trans legal rights in the U.S.

Three States Pass Ballot Measures to Protect Marriage Equality

Three States Pass Ballot Measures to Further Protect LGBTQ+ Marriage

Voters in three progressive states have voted to codify marriage equality. California, Colorado and Hawaii all had ballot measures to protect the right of people of all genders to marry under state law. The moves will provide comfort to some who see incoming President Donald Trump as hostile to LGBTQ+ rights.

The Supreme Court granted same-sex couples the right to marry nationwide in its historic Obergefell v. Hodges decision in 2015. But many LGBTQ+ rights advocates have worried about the vulnerability of marriage equality: Some Supreme Court justices have expressed an interest in overturning the landmark ruling in legal opinions, and the court overturned its own precedent on abortion with the 2022 case Dobbs v. Jackson Women’s Health Organization. 

Most states (35 total) still have a constitutional ban or a statute outlawing same-sex marriage. While the 2015 Obergefell decision currently supersedes those bans, they would come back into play if the Supreme Court ever revisited its 2015 decision (three, including Hawaii, are technically unenforceable). 

Seventh Circuit Upholds IN Ban on Gender Affirming Care

Split 7th Circuit OKs Indiana Law Banning Youth Transgender Treatment

A split three-judge panel in the Seventh Circuit Wednesday greenlit Indiana's ban on gender-affirming care for minors.

The measure prohibits youth hormone therapy, puberty blockers and gender reassignment surgery. Indiana's Republican Governor Eric Holcomb signed it into law in April 2023, but before it could take effect that July, U.S. District Judge James Patrick Hanlon, a Donald Trump appointee, issued a preliminary injunction against most of its components.

Hanlon, ruling in a suit brought by a class of transgender youth represented by attorneys from the Indiana ACLU, suspended the moratorium on most gender-affirming medical procedures, though he allowed the ban on gender reassignment surgery to stand. He also blocked a provision of the law which would allow the state to prosecute medical practitioners who help trans youth access those procedures elsewhere.

The decision prompted an appeal to the Seventh Circuit, which heard arguments in February. Eleven days later, in a precursor to Wednesday's ruling, the appeals court lifted Hanlon’s injunction.

In its final ruling, the Seventh Circuit panel said that the lower court erred in finding that plaintiffs affected by the ban faced irreparable harm.

The decision is here: KC v. Individual Members of the Medical Licensing Board of Indiana

Abortion Rights Win in 7 States, But Lose in 3

Abortion Rights Advocates Win in 7 States But Lose in 3

Voters in Missouri cleared the way to undo one of the nation’s most restrictive abortion bans in one of seven victories for abortion rights advocates, while Florida, Nebraska and South Dakota defeated similar constitutional amendments, leaving bans in place.

Abortion rights amendments also passed in Arizona, Colorado, Maryland and Montana. Nevada voters also approved an amendment, but they’ll need to pass it again it 2026 for it to take effect. Another that bans discrimination on the basis of “pregnancy outcomes” prevailed in New York.***

Florida, Nebraska and South Dakota became the first states since Roe was overturned where abortion opponents prevailed on a ballot measure. Most voters supported the Florida measure, but it fell short of the required 60% to pass constitutional amendments in the state. Most states require a simple majority.

Win

AZ: Arizona Voters Approve Abortion Rights Amendment, NY Times

CO: Coloradans Approve Measure to Repeal Ban on Public Funding for Abortions

MD: Abortion Will Be Protected in the Maryland Constitution

MO: Missouri Voters Approve Constitutional Amendment Enshrining Abortion Rights

MT: Montana Voters Approve Abortion Ballot Measure

NY: New Yorkers Pass Equal Rights Amendment Tied to Abortion Access

NV: Nevadans Approve Measure to Codify Abortion Rights

Lose

FL: Florida's Abortion Amendment Fails, Leaving Six-Week Ban in Place (required supermajority of 60% to pass)

NB: Nebraska Voters Pass Measure Limiting Abortions

SD: Abortion-Rights Measure Loses in South Dakota

What's Next Now that Ohio's Six-Week Abortion Ban Has Been Ruled Unconstitutional

What's Next Now that Ohio's Six-Week Abortion Ban Has Been Ruled Unconstitutional

Ohio’s six-week abortion ban is unconstitutional, after voters approved an amendment guaranteeing abortion access and reproductive rights last year. In that ruling, Hamilton County Judge Christian Jenkins said the ban can't be enforced. But the group that brought that suit against the state in the first place is signaling the battle over the ban may not be over.

ACLU of Ohio Legal Director Freda Levenson says the court has ruled the part of the law that bans abortion when fetal cardiac activity is detected - which is as early as six weeks into pregnancy - cannot stand under the new reproductive rights amendment passed in 2023.***

But Levenson said under the Hamilton County Common Pleas Court ruling, there are ancillary issues in that law that the state might be able to appeal.

"There were other provisions in that same statute - some related to the requirement that physicians check for cardiac activity when a patient comes in for an abortion," Levenson said. "Another provision was one that required physicians to provide certain state-mandated information to a patient. Another was a state requirement that a physician provide a written record of the abortion stating that there was no fetal activity or there is fetal activity."

Levenson said those issues could go back through the court system and may end up in the Ohio Supreme Court at some point. And for those concerned about abortion, that makes the three races for Ohio Supreme Court justices on this fall's ballot important.

In a written statement, Attorney General Dave Yost's office said it is reviewing the court's order.***

Levenson said there's also the possibility that state lawmakers could just take provisions of SB 23 that were turned down and put them into law at some point in the future.

At this point, there doesn't appear to be an effort to put provisions of SB 23 into new legislation. But that could change at the end of this year when this legislature wraps up its work in a lame duck session.

Ohio Supreme Court Declines to Hear Case Over IVF Embryos at Divorce that Held Embryos are "Life or Potential for Life"

Ohio Supreme Court Declines to Hear Couple's Fight Over IVF Embryos

Ohio Supreme Court justices will not hear a divorcing couple's fight over their IVF-created frozen embryos, citing jurisdiction. Justices Patrick Fischer and Jennifer Brunner dissented.

Instead, the seven-member court republished the 9th District Court of Appeals decision from Summit County, which upheld that all frozen embryos be granted to the wife so she might use them to become pregnant.

Although the Summit County decision did not firmly rule on whether frozen embryos have the same rights as people, it did determine that embryos are not marital property but are "life or the potential for life."

For Tracy Thomas, a University of Akron law professor, the Ohio Supreme Court's decision not to hear the case left many questions unanswered. Until those questions are answered, the decision will likely not induce a wave of sweeping changes across the Buckeye State.

"The appellate court's decision stays as good precedent in that district and is persuasive to the rest of (Ohio's) appellate courts," Thomas explained.***

At the heart of the case was an IVF contract signed by the wife, E.B., and husband, R.N. Both parties argued the contract allowed them to do what they wanted with 14 frozen embryos once they decided to divorce.

A Summit County trial court ruled that the embryos should be split equally between the two parties, citing the contract. On appeal, the wife argued the contract was vague and did not account for her situation.

Appeals Judge Donna Carr ruled in favor of the wife, granting all 14 embryos to her.

The trial court, Carr wrote, should have considered the parties' intent and wishes instead of relying on an ambiguous contract.

"The express public policy of the State of Ohio is to prefer the preservation and continuation of life whenever constitutionally permissible," Carr wrote. "While the statute specifically addresses abortion, it is nonetheless telling and instructive to courts addressing what should become of frozen embryos caught up in the midst of a divorce proceeding."

At the same time, Carr acknowledged the Ohio constitutional right to contraception, fertility treatment, continuing one's pregnancy, miscarriage care and abortion.

Thomas said this part of the ruling likely would not stand up under review by the Ohio Supreme Court. She argued that it conflicts with Ohio's constitutional reproductive rights amendment, which says life begins when a fetus can live outside the womb, also known as fetal viability.

The case decided by three women judges is E.B. v. R.N., 2024-Ohio-1455 (Ohio App. 9th Dist. April 2024)

 

Justice O'Connor's Papers Show She Would Have Dissented in Chevron

CNN, What Sandra Day O'Connor's Papers Reveal About a Landmark Supreme Court Decision (April 2024)

The newly opened papers of the late Justice Sandra Day O’Connor reveal the internal deliberations of a groundbreaking Supreme Court case [Chevron v. Natural Resources Defense Council] that gave US regulators significant latitude to protect the environment and public health – and show how the ruling almost never happened.***

More broadly, O’Connor’s contemporaneous notes now open at the Library of Congress offer a view into how nine justices communicate in private, revealing personal predilections and some exasperation as they negotiate against looming deadlines.

In the Chevron case, testing the protections of the Clean Air Act, the papers reveal an overall tentativeness among justices as they struggled with statutory intricacies and worked toward compromise while teetering on the loss of a quorum (only six of the nine justices were on the final tally).***

According to O’Connor’s note from the first vote in the justices’ private conference in mid-May, only Justices Byron White and William Rehnquist wanted to grant the case. O’Connor offered a “join 3,” meaning she would provide the requisite fourth vote if three others wanted to hear the case. But there was no third vote at that point.

Powell asked that they all wait at least another week so he could continue mulling the dispute, and when the nine again voted at the end of the month, he was ready to provide a third vote. So, with O’Connor’s “join three” the case was accepted.

On the day of oral arguments, February 29, 1984, two justices happened to be out ill (Rehnquist and Thurgood Marshall). They both declined to participate in further deliberations on the case.***

In the justices-only conference after the Chevron oral arguments, the vote among the seven participating justices was a close 4-3. O’Connor recorded most of the justices as being tentative or “very shaky.”

She also appeared mildly irritated with Rehnquist’s withdrawal. He had been one of the bare-minimum votes to grant the case. O’Connor wrote on her tally sheet next to Rehnquist’s name: “out of case tho was one of 4 to grant!”

So why didn't she dissent? She recused at the last minute, post-argument:

That very same day, June 14, O’Connor revealed a potential conflict of interest.***

Back in 1984, O’Connor’s recusal reasoning was kept private, although at the end of the decision it noted that she, Marshall and Rehnquist took no part in the decision. According to her June 14 once-confidential note to colleagues, she appears to have erred on the cautious side.

“I have reviewed the petitions for certiorari in these cases and discovered that I should be recused. Since the arguments were heard, my father died,” she wrote of her father, Harry Day, who ran the family’s Lazy B ranch in Arizona.

“His estate is still unsettled, but I will have a remainder interest in a trust to be established. His estate holds stock in at least one of the parties to this action and until it is settled, I think it best that I not participate,” she added.

Dissenting in Chevron would have meant rejecting Reagan's pro-business agency interpretation. For the decision in Chevron meant upholding an interpretation of the Clean Air Act favorable to industry, requiring less regulation. Maybe that is also why Rehnquist so easily bowed out, rather than following up on his cert grant and reviewing the transcript or recording of the oral argument he missed.

The Chevron dispute began when the Reagan administration retrenched on standards for air quality and loosened state permitting requirements for new and expanded factories and power plants. . . . . After the Natural Resources Defense Council and other environmental groups sued, the DC Circuit US Court of Appeals agreed with environmentalists that the regulation conflicted with the statute and set it aside.

The Reasonable Pregnant Worker under the Pregnant Workers Fairness Act

Madeleine Gyory, The Reasonable Pregnant Worker, 113 Calif. L. Rev. ___ (forthcoming 2025)

Pregnant workers often need changes to their work responsibilities to stay healthy during pregnancy while earning a needed paycheck. Congress passed the Pregnant Workers Fairness Act (PWFA) in December 2022, entitling many workers for the first time to "reasonable accommodations" for their pregnancy, childbirth, and related medical conditions, so long as they do not impose an "undue hardship" on their employer. The PWFA dictates that the law's key terms, "reasonable accommodation" and "undue hardship," should be construed as they are under the Americans with Disabilities Act (ADA), ADA caselaw, and new PWFA regulations issued by the Equal Employment Opportunity Commission (EEOC) in April 2024. But what if these sources conflict? ADA caselaw frequently departs from the ADA's statutory and regulatory text, and is in tension with the EEOC's new PWFA regulations, producing a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants. 

This Article is the first to address how the chaotic ADA doctrine will impact implementation of the PWFA and to consider how ADA caselaw should be read in conjunction with the EEOC's new PWFA rule. Anticipating future litigation, this Article proposes a framework for litigants and courts assessing reasonable accommodation claims under the PWFA that adapts ADA precedent to account for the PWFA regulations. It argues that the PWFA rule is entitled to some deference under Loper Bright Enterprises v. Raimondo because Congress delegated specific authority to the EEOC to interpret the phrase "reasonable accommodation." Finally, this Article demonstrates why, under its proposed framework, the PWFA will often require employers to accommodate temporary transfers, remote work, and leave, notwithstanding conflicting ADA caselaw

 

The History of the Gendered Term "Congressman" and its Neutral Alternative "Representative"

You Should Call House Members "Representatives"

For most of the nation’s history, members of the U.S. House of Representatives have been addressed as “Congressman” or “Congresswoman.” By contrast, a senator is referred to as, well, “Senator.”

These gendered terms for House members dominate in journalism, everyday conversation and among members of Congress.

The name Congress refers to the entire national legislature, composed of the House of Representatives and the Senate. Gender identity aside, Congressman and Congresswoman are fundamentally inaccurate terms.

In the Constitution, Congress refers to the legislative branch as a whole. When discussing the membership of Congress, the Constitution uses “Representatives” and “Senators,” but also “Members” in reference to both. “Congressman” is nowhere in that founding document.

One of the foremost scholars of Congress, the late Richard Fenno, wrote, “a House member’s designation, as prescribed in the U.S. Constitution, is not Congressman, it is Representative.”

As a scholar of Congress and particularly the Senate, I am interested in the differences between the two chambers and how that affects American politics. In my investigation of the origins and evolution of congressman and congresswoman, I combed the records of colonial and state legislatures, as well as records related to the country’s founding and newspapers from the end of the 1700s to the mid-1900s.

Even if the current era were not one of justified sensitivity to gender neutrality and diversity, these two terms for House members are not just dated, they are wrong. Representative is the correct but rarely used term.

North Dakota Abortion Ban Overturned as Vague and Violating Women's Fundamental Rights To Choice and Medical Freedom

Washington Post, Judge Overturns North Dakota's Near-Total Abortion Ban

A North Dakota judge struck down the state’s near-total ban on abortion Thursday, saying the state constitution gives women a “fundamental right to choose abortion” before fetal viability. Restrictions on the right is “a violation on medical freedom,” he ruled.

State District Judge Bruce Romanick declared the law, enacted by the legislature last year, “unconstitutionally void for vagueness.” The statute made the procedure illegal in all cases except rape or incest when the woman has been pregnant for less than six weeks or when the pregnancy poses a serious physical health threat. Doctors and other health care professionals found to be in violation of the law could be charged with a felony — and then face up to five years in prison and a maximum fine of $10,000.

In the conservative state, where lawmakers have twice passed bans that courts subsequently ruled against, the victory for abortion rights supporters was a bittersweet one. North Dakota no longer has any abortion clinics; its onetime sole provider and plaintiff in the lawsuit, the Red River Women’s Clinic, moved from Fargo to Moorhead, Minn., in 2022.

IVF After Dobbs, and Statutory Distinctions of Pregnancy Versus External Embryos

Kerry Lynn Macintosh, Dobbs, Abortion Laws, and in Vitro Fertilization, 26 J. Health Care Law & Policy (2023)  

Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion. The Supreme Court distinguished abortion from other constitutionally-protected conduct on the ground that abortion destroys potential life. Given that outcome and rationale, it is timely to review the legal status of in vitro fertilization (IVF), a medical procedure in which human embryos are often lost and multiple fetuses sometimes reduced. This Article canvasses abortion laws and finds that most do not reach IVF and related practices. However, legislatures may enact future laws that ban or restrict IVF in order to protect embryos and fetuses. Thus, this Article evaluates the constitutionality of such laws after Dobbs. It concludes that bans on IVF are unconstitutional as applied to individuals who cannot procreate coitally. However, courts may uphold laws that restrict IVF-related practices that endanger or kill embryos or fetuses.

Report on "Deepening the Divide: Abortion Bans Further Harm Immigrant Communities"

A new fact sheet has been published on the harms of abortion bans to immigrant communities. This report was authored by Lucie Arvallo, Hannah Liu, Suma Setty, Priya Pandey, Salen Andrews, National Latina Institute for Reproductive Justice, and the Center for Law and Social Policy. The introduction is excerpted here: 

Im/migrants, especially those who are undocumented and those in mixed-status families, are particularly vulnerable to the harmful impacts of abortion bans due to the barriers they face in accessing health care and the increased risk of criminalization based on immigration status. These barriers and risks include arbitrary Customs and Border Protection (CBP) checkpoints, a five-year waiting period for legal permanent residents to enroll in public health insurance programs, agreements between local law enforcement and federal immigration authorities, and increasing anti-immigrant state policies. Individuals in immigration detention face additional threats to their reproductive health and overall well-being, including medically unnecessary gynecological procedures like forced hysterectomies and denial of abortion care. This fact sheet highlights how Dobbs compounded pre-existing barriers to abortion care for im/migrants. We propose a set of concrete recommendations for Congress and the administration to support im/migrant access to abortion.

Invitation to Online Book Launch of Feminist Legislation Project on Sept. 25

Below is an invitation to a book launch of the Feminist Legislation Project from co-editor Becky Batagol. More information about the book project is here:   

Please come to the launch of the Feminist Legislation Project: Rewriting Laws for Gender-Based Justice edited collection created and edited by me, Professor Kate Seear, Assoc Prof Heli Askola and Dr Jamie Walvisch.

This book is the result of 7 years of Monash-led collaborative feminist work across Australia by leading law academics, lawyers, activists and those with lived experience of the problems we identify. We decided to go past the usual academic criticism of law and to actually show what legislation could look like if its concern was to create justice for women and those who experience gender-harm. 

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 is the world's first feminist legislation project and we think its methods can be applied worldwide. It also has great potential to lead to law reform as the book contains 16 proposals for law reform, complete with second reading speech and legislative drafting.  It will appeal to scholars of feminist legal studies, gender and the law, gender studies and others studying or working in relevant legal areas.

 

The book launch, which will take place at the Sky Room (Monash Business School), Level 14, at 30 Collins Street in Melbourne's CBD, on Wednesday 25 September, 5-7pm. We will organise Zoom access for those who can't attend in person. The invitation is attached and you can RSVP here by 16 September.

 

The book is open access, meaning it is free, not behind the usual academic paywalls and available to read and download here.

 

Abortion on the Ballot

Carrie Baker, Feminists Need to Know Ballot Measures

In nearly a dozen states, voters this fall will have a chance to protect abortion rights and advance equality for women.

In overturning Roe v. Wade, the Supreme Court declared, “The authority to regulate abortion is returned to the people and their elected representatives.” But with rampant gerrymandering—greenlit by the Supreme Court—these “elected representatives” often do not fairly represent the people. This makes ballot initiatives a critically important avenue for ensuring women’s rights in states with conservative legislatures.

Since June 2022, when the Supreme Court made its decision in Dobbs v. Jackson Women’s Health Organization, seven states have voted on abortion-related ballot measures. Voters chose to protect abortion rights in all seven states.

• • In August 2022, voters in Kansas rejected an antiabortion measure by 59 to 41.
  • Then, in November 2022, voters overwhelmingly supported constitutional amendments to guarantee abortion rights in California (67 to 33), Michigan (57 to 43) and Vermont (77 to 23), while voters rejected antiabortion ballot referenda in Kentucky (52 to 48) and Montana (53 to 47).
  • In November 2023, Ohioans voted 57 to 43 in favor of a constitutional amendment protecting abortion rights.

With a 100-percent success rate so far, reproductive rights activists are pushing for ballot measures in another 11 states this fall, with the added hope of turning out voters in battleground states like Arizona and Nevada. Abortion and women’s rights combined remains a top issue for women voters—especially young women—ranking above inflation and/or rising prices.

Missouri Rules Abortion Ballot Measure Invalid

A Missouri court late Friday moved toward striking a ballot measure in November that would ask voters whether to establish a right to abortion in the state Constitution.

Judge Christopher Limbaugh of Cole County Circuit Court sided with anti-abortion lawmakers and activists who said that the abortion rights groups that gathered signatures to sponsor the ballot measure had not sufficiently explained its potential ramifications on the petitions they asked voters to sign.

With the state scheduled to print ballots on Tuesday, the judge said he would wait until then to issue an injunction instructing the secretary of state to remove the measure that was certified last month. That will give the abortion rights groups a chance to appeal to a higher court.

Legislating Flexibility in the Post-Pandemic Workplace

Madeleine Gyory, "Legislating Flexibility in the Post-pandemic Workplace, Villanova L. Rev. (forthcoming)  

Working parents and caregivers in the United States struggle to balance the dual demands of work and care. Many working caregivers need flexible work arrangements (“FWAs”)—changes to their hours, schedule, or location—to allow them to balance work and care. But access to flexibility remains out of reach for many workers and is least accessible to the most marginalized. The COVID-19 pandemic underscored this problem, as huge numbers of women dropped out of the workforce to care for family. While no federal or state law requires employers to grant FWAs to caregivers, several states and localities have passed “right to request” laws, which establish steps employers must follow when workers ask for flexibility. Several cities go further to provide caregivers with limited rights to FWAs. One city, San Francisco, responded to the pandemic by granting caregivers robust legal rights to flexible work arrangements.

This Article offers the first analysis of FWA laws since the start of the pandemic and since passage of the nation’s strongest FWA law in San Francisco. The Article uses three case studies to interrogate how FWA statutes across the country protect or fail working caregivers and exposes gaps in protection. Using San Francisco’s law as a model, the Article argues that other states and cities should respond to the crisis of care exposed by the pandemic by passing comprehensive flexible workplace laws. The Article offers a roadmap for legislative action, recommending that future FWA laws should go beyond the right to request and grant broad substantive protections that cover a diverse array of workers. Building on prior scholarship advocating for accommodation of caregivers in the workplace, the Article argues that legislative intervention is needed to ensure access to flexibility irrespective of income, education, race, or gender.

Montana Supreme Court Upholds Minors' Right to Abortion

Montana Supreme Court Rules Minors Don't Need Parental Permission for Abortion

Montana’s Supreme Court ruled Wednesday that minors don’t need their parents’ permission to get an abortion in the state – agreeing with a lower court ruling that found the parental consent law violates the privacy clause in the state constitution.

“We conclude that minors, like adults, have a fundamental right to privacy, which includes procreative autonomy and making medical decisions affecting his or her bodily integrity and health in partnership with a chosen health care provider free from governmental interest,” Justice Laurie McKinnon wrote in the unanimous opinion.

The ruling comes as an initiative to ask voters if they want to protect the right to a pre-viability abortion in the state constitution is expected to be on the Montana ballot in November. County officials have verified enough signatures to qualify the issue for the ballot, supporters have said. The Secretary of State’s Office has to certify the general election ballots by Aug. 22.

See also Montana Supreme Court Strikes Down Abortion Law Requiring Parental Consent

The unanimous decision is here,  Planned Parenthood of Montana v. State of Montana (Aug. 14, 2024), authored by Judge Laurie McKinnon. Of the seven justices, three are women.

Montana is a little different than other states. As I have written here, Protecting Abortion with Health Care Freedom of Choice, 51 Journal Law, Medicine & Ethics 601 (2023), Montana has an express right to health care in its state constitution. When combined with rights to privacy under due process, there is a synergism that strengthens reproductive rights. 

This broader meaning of the right to health care freedom was adopted by Montana in interpreting its constitution to protect abortion. In 1972, Montana adopted a health care freedom amendment guaranteeing the right to seek “safety, health and happiness.” In 1999, the Montana Supreme Court applied the amendment to abortion, defining this health freedom in Armstrong v. State as “the right to seek and obtain medical care from a chosen health care provider and to make personal judgments affecting one’s own health and bodily integrity without government interference.” The court emphasized: “Unless fundamental constitutional rights—procreative autonomy being the present example—are grounded in something more substantial than the prevailing political winds, Huxley’s Brave New World or Orwell’s 1984 will always be as close as the next election.” “Fortunately,” the court held, “the roots of Montana’s constitutional 
right of procreative autonomy go much deeper and are firmly embedded in the right of individual privacy.”

The Supreme Court has affirmed this holding three times: Armstrong v. State, 989 P.2d 364 (Mont. 1999); reaffirmed in Weems v. State, 440 P.3d 4 (Mont. 2019); declined to overrule in Planned Parenthood v. Knudsen, 515 P.3d 301, 307-08 (Mont. 2022). 

 

 

Prashasti Bhatnagar on "The Pregnant Workers Fairness Act Leaves Agricultural Workers Behind"

Prashasti Bhatnagar has published The Pregnant Workers Fairness Act Leaves Agricultural Workers Behind in volume 52 of the Journal of Law, Medicine, and Ethics. The conclusion is excerpted here: 

Employment conditions contribute to workers’ ability to be healthy, particularly for immigrant pregnant workers. This article highlights how laws like PWFA often do not protect pregnant immigrant workers in the agricultural industry, resulting in health inequities. Advocacy efforts by immigrant workers and grassroots organizations have resulted in some protections, but there are still gaps. Therefore, future efforts geared towards eliminating pregnancy discrimination and the resulting health inequities must center the lived experiences of immigrant workers and understand workplace pregnancy discrimination as an immigrant justice issue. In order to achieve health justice, governments should engage with workers and grassroots organizations to build community power and create systems that invest in joy, well-being, safety, and liberation.