Thursday, December 1, 2022

Abortion Rights Referendums are Winning, but Opponents Seek to Change the Initiative Rules

Rachel Rebouche, Abortion Rights Referendums are Winning with State Battles Over Rights Replacing National Debate.

Division over abortion did not start when the Supreme Court abandoned constitutional protection for the right to have an abortion in Dobbs v. Jackson Women’s Health Organization in June 2022 – but the decision did prompt referendums at the state level about whether abortion should be permitted or not.

Eighteen states, from Ohio to Alaska and Arizona to Wyoming and Washington, allow voters to directly amend a state constitution through ballot measures.

Ballot measures – or referendums – could show the power of people’s direct vote in determining abortion law at the state level.

During the November 2022 midterms, voters added protection for the right to get an abortion to constitutions in CaliforniaVermont and MichiganKentucky voters were asked a reverse version of this question – whether the state constitution should bar abortions. They said no.

Kentucky’s vote is similar to an August 2022 referendum on abortion that was held in Kansas. Fifty-nine percent of people in Kansas – a state with a history of anti-abortion policies and activism – voted to keep state constitutional protection of abortion rights.

As a scholar of reproductive health and justice, I think the referendum results in places often considered red or purple states, such as Michigan, Kentucky and Kansas, demonstrate just how varied and complex abortion beliefs and opinions are in the United States.

Ballot measures, perhaps in the short term, may provide one way to protect or restore the ability to get an abortion in states where the politics tend to skew conservative. Simply put, not all conservatives want to ban abortion

Abigail Tracy, Republicans Lost Big on Abortion Ballot Measures: Now They Are Trying to Change the Rules., Vanity Fair.

Republicans, perhaps coming to terms with the unpopularity of their antiabortion agenda, seem to be grasping for a new playbook. Republicans in Ohio want to make it harder to amend the state constitution via ballot initiative, which abortion advocates say is a blatant attempt to block voter-driven efforts to enshrine reproductive protections in state rights.

“Ohio’s constitution has been far too susceptible to efforts by outside groups and special interests seeking to alter the people’s constitution to achieve their own ends,” Republican state representative Brian Stewart said, according to The Columbus Dispatch. With the backing of Frank LaRose, the Republican Ohio secretary of state, Stewart has introduced a resolution that would require a supermajority of Ohioans, 60%—as opposed to the current threshold of 50% plus one vote—to change the state constitution.

December 1, 2022 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Tuesday, November 22, 2022

Same Sex Marriage Bill Clears Critical Hurdle in Congress

NYT, Same-Sex Marriage Rights Bill Clears a Crucial Senate Hurdle

The Senate on Wednesday took a crucial step toward passing landmark legislation to provide federal protections for same-sex marriages, as 12 Republicans joined Democrats to advance the Respect for Marriage Act, putting it on track to become law in the twilight of the Democratic-held Congress.

The 62-to-37 vote, which came only days after the midterm elections in which Democrats retained control of the Senate but lost the House to Republicans, was a rare and notable last gasp of bipartisanship by a lame duck Congress as lawmakers looked toward an era of political gridlock.

It also signaled a remarkable shift in American politics and culture, demonstrating how same-sex marriage, once a divisive issue, has been so widely accepted that a law to protect the rights of same-sex couples across the country could gain decisive, bipartisan majorities in both the Senate and the House. Last summer, 47 House Republicans joined Democrats to pass a version of the bill.

November 22, 2022 in Constitutional, Family, Legislation, LGBT | Permalink | Comments (0)

Wednesday, November 9, 2022

Nevada Set to Pass Most Comprehensive State Equal Rights Amendment to Include Gender Identity and Expression

Voters to Decide Nevada Version of Equal Rights Amendment

Nevada voters on Tuesday will decide to adopt or reject what is widely considered the most comprehensive state version of the Equal Rights Amendment, a sweeping update that would put protections in place for people who have historically been marginalized in the state Constitution.

Nevada’s ERA would amend the state Constitution to ensure equal rights for all, “regardless of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.” It is a more wide-ranging amendment than the federal ERA that Nevada adopted in 2017, which outlaws discrimination based on sex, though the push to ratify it in the U.S. Constitution remains gridlocked.

With 90% of the vote counted, the new ERA is winning 57% to 42%.  See NYT, Nevada Question 1 Election Results (may take several days for full count).

November 9, 2022 in Constitutional, Legislation, LGBT | Permalink | Comments (0)

Pro Choice Abortion Rights Initiatives Win in All 5 States It was on the Ballot

The significance of this is big -- even in an election dominated by Republican wins, pro-choice succeeds.  

NYT, Abortion on the Ballot 2022  - CA, KY, MI, MT, VT (+ KS from the summer)

the19th, Abortion Initiatives on the Ballot

Voters in California, Kentucky, Michigan, Montana and Vermont weighed in on abortion ballot measures in the general election this year. When combined with this summer’s vote in Kansas, Tuesday set a record for the most abortion initiatives in a single election year.  

After a decided victory for abortion rights in Kansas this summer, these midterms previewed more measures that could come in the next few years, as state lawmakers navigate what limits — or protections — they can place on abortion, and what must be put to voters.

CNN, Abortion Rights Were on the Ballot. Here's What Voters Decided.

November 9, 2022 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, November 7, 2022

Nino Monea on Gender Neutrality in the Uniform Code of Military Justice

 

Nine Monea has published "An Officer and a Gentlewoman: Why Congress Should Modernize Article 133 of the UCMJ" in volume 61 of the Washburn Law Review. The abstract previews: 

Article 133 of the Uniform Code of Military Justice—the penal code for the armed forces—makes it a crime for an officer to do anything that is “unbecoming an officer and a gentleman.” This Article argues that Congress should modernize the statute to acknowledge the contributions of servicewomen to the officers’ corps and the unequal treatment they had to endure in order to serve their country by making the offense gender neutral. Given that Congress is poised to overhaul the military justice system, there is no reason why this relic should not be addressed.

November 7, 2022 in Equal Employment, Legislation, Masculinities | Permalink | Comments (0)

State Ballot Initiatives on Abortion

Four states have abortion rights explicitly on the ballot for voters this week. This election cycle is the highest number of ballot measures relating to abortion since 1986, according to Ballotpedia, and the most ever proposing affirmative constitutional protections for abortion access. 

  • California's proposed amendment seeks to add the following text: 
    The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives. This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional right to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or limits the right to privacy or equal protection.
  • Michigan voters will consider Proposal 3, seeking to add a constitutional right to reproductive freedom, defined as "The right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care."

  • Vermont voters will consider Proposal 5, adding the following language to the state constitution: "an individual's right to personal reproductive autonomy is central to the liberty and dignity to determine one's own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means."

  • Kentucky's referendum seeks to add a new section to the constitution stating, "to protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

November 7, 2022 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Tuesday, October 4, 2022

Protecting Reproductive Freedom Act Introduced in Congress

US Rep Pat Ryan Introduces First Bill For Access to Abortion

On Sept. 22, nine days after being sworn in as congressman, Ryan, D-Gardiner, introduced the “Protecting Reproductive Freedom Act.”

The bill would pre-empt state laws that prohibit women from accessing abortion medication through telehealth and would require a report to Congress on additional ways to expand access to reproductive health care.

“A woman’s right to choose is one of this country’s foundational freedoms, and there is no place for government interference in these private medical decisions, yet extremist state lawmakers are restricting access to FDA-approved abortion medication and even threatening to open Americans’ mail to stop the delivery of doctor-prescribed healthcare services,” Ryan said in a press release announcing the measure. “This legislation would ensure that women across the country can access this safe and effective medical treatment.”***

Since January, legislators in at least 20 states have proposed bills that would restrict or ban access to those abortion pills, which were approved more than two decades ago by the U.S. Food and Drug Administration, as well as bills that would require women to obtain those medications from a doctor in person

October 4, 2022 in Abortion, Healthcare, Legislation | Permalink | Comments (0)

Thursday, September 22, 2022

Ohio Court Grants TRO Blocking Six Week Abortion Ban on Grounds of State's Health Care Freedom Amendment

I've been writing an essay for the Journal of Law, Medicine & Ethics on how state so-called Health Care Freedom Acts and Amendments enacted as symbolic protests to the individual insurance mandate of the federal Affordable Care Act provide an arguable basis for a recognized state right to abortion.  The essay was a lot harder to write before last week, when the Ohio court rule on these grounds.

Judge to Extend Pause of Ohio's "Heartbeat" Abortion Law for Another Two Weeks

 A Hamilton County judge overseeing a lawsuit challenging Ohio’s “heartbeat” abortion ban plans to issue a second order temporarily blocking the law, according to a lawyer involved in the case.

Judge Christian A. Jenkins, a Democrat, last week issued what’s called a temporary restraining order, pausing the law from being enforced for 14 days while he deals with arguments in the case.***

Once the second order comes, Ohio abortion clinics will be able to provide abortions up until 22 weeks from a woman’s last menstrual period at least through Oct. 12. That would extend the pause until after an Oct. 7 hearing Jenkins has scheduled for a more permanent order blocking the law while both sides argue their case.***

Jenkins has indicated he plans to rule in favor of abortion advocates, agreeing with their arguments that equal-protection guarantees contained in Ohio’s constitution covers the right to obtain an abortion. He noted a 1993 decision from a state appellate court that found the Ohio Constitution confers greater abortion rights than the U.S. Constitution, including a broad scope of the meaning of “liberty.”

The full opinion is here: Preterm Cleveland v. Yost (Ohio C.C.P. Sept. 14, 2022) (TRO Decision)

No great stretch is required to find that Ohio law recognizes a fundamental right to privacy, procreation, bodily integrity and freedom of choice in health care decision making. In 2011, the Ohio Constitution was amended by popular referendum to adopt the Health Care Freedom Amendment (Article I, Section 21) (“HCFA”). The plain language of subsections B and C of the HCFA is simple and clear:  (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health  insurance.  (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or  health insurance.

The State Defendants argue that the HCFA was intended by its drafters to provide a legal basis for Ohio and Ohioans to undermine or avoid the federal Affordable Care Act, not to outlaw health care regulation in Ohio. They point to the language in subsection (D) providing in pertinent part that “[t]his section does not . . . affect any laws calculated to deter fraud or punish wrongdoing in the health care industry” to suggest that the Amendment does not render health care regulations unconstitutional. But this misses the point – as a result of the HCFA, the Ohio Constitution contains a direct recognition of the fundamental nature of the right to freedom in health care decisions.

The fact that no one has yet challenged any existing health care regulations under the HCFA does not negate the import of its plain language.10 The HCFA does not define “health care,” but the use of the disjunctive “or” renders the term separate and distinct from the purported target of the amendment – health insurance. Abortion, whether procedural or medication, clearly constitutes health care within the ordinary meaning of that term. Moreover, the drafters could have excluded existing and future regulation of the health care profession, or even abortion specifically, but they did not.

Rather, the exception in subsection D is limited to fraud and the nebulous term, “wrongdoing,” without providing any definitional or interpretive guidance. Wrongdoing is defined as “illegal or improper conduct.” Black’s Law Dictionary 1932 (11th Ed.2019). At the time of the HCFA’s adoption in 2011, abortion had been constitutionally protected as the law of the land for nearly 40 years, and could hardly be considered “wrongdoing.” Finally, S.B. 23 was adopted years after the HCFA such that the General Assembly was presumably aware of its provisions recognizing a fundamental constitutional right to choice in healthcare decisions.

This Court cannot simply ignore part of Ohio’s Constitution because the Ohio Attorney General asserts it is not germane to this case. Nor must the Court defer to the General Assembly on questions of law such as those presented in this case, for “’[i]t is emphatically the province and duty of the judicial department to say what the law is.’ Our function here is to determine whether the act transcends the limits of legislative power.” Adams v. DeWine, __ Ohio St. 3d __, 2022-Ohio-89, ¶ 28 (rejecting Congressional district plan adopted by General Assembly in contravention of Ohio Constitutional amendment enacted by popular referendum); citing Marbury v. Madison, 5 U.S. 137, 177, 2 L. Ed. 60 (1803).

The HCFA represents an express constitutional acknowledgement of the fundamental nature of the right to freedom and privacy in health care decision making. Read together with other applicable sections of the Ohio Constitution, a clear and consistent recognition the fundamental nature of this right under Ohio law emerges. See e.g. Planned Parenthood Southwest Ohio Region v. Ohio Dept. of Health, Hamilton C.P. No. A 2100870, p. 6 (Jan. 31, 2022) (“Deprivation of reproductive autonomy falls squarely within the meaning of an injury done to one’s person under the Ohio Constitution”), citing Stone v. City of Stow, 64 Ohio St. 3d 156, 160-163, 593 N.E.2d 294 (1992). Accordingly, this Court recognizes a fundamental right to abortion under Ohio’s Constitution.

September 22, 2022 in Abortion, Constitutional, Healthcare, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, September 19, 2022

American Medical Association Letter to the Senate on State Abortion Restrictions

The American Medical Association, in response to a letter from Senator Warren, wrote a formal letter to the United States Senate on state abortion restrictions dated September 9th. Key excerpts emphasized compromised patient care, vague and complicated state laws, and the importance of doctor-patient decision-making. 

While AMA policy recognizes that our members’ individual views on abortion are determined by their own values and beliefs, we firmly and unequivocally support patients’ access to the full spectrum of reproductive health care options, including abortion, as a right. Our policies are the result of a democratic process in which physicians representing every state and national specialty medical society come together in our House of Delegates. In alignment with our long-held position that the termination of a pregnancy is a medical matter between the patient and physician, subject only to the physician’s clinical judgment, the patient’s informed consent, and access to appropriate facilities, the AMA opposes any government or any other third-party interference that compromises or criminalizes patient access to safe, evidence-based medical care. Unfortunately, patient care is being compromised now, patients are suffering from lack of access to necessary care, and some are at risk of dying due to delayed care in the context of termination of ectopic pregnancies or patients experiencing intrauterine infections, pre-eclampsia, malignancies, or hemorrhage during pregnancy.

* * * 

Physicians have been placed in an impossible situation—trying to meet their ethical duties to place patient health and well-being first, while attempting to comply with vague, restrictive, complex, and conflicting state laws that interfere in the practice of medicine and jeopardize the health of patients.

* * * 

The foundation of the patient-physician relationship relies upon honest, open communication and trust, which is undermined by substituting lawmakers’ views for a physician’s expert medical judgment. It is each physician’s ethical responsibility to help his or her patients choose the optimal course of treatment through shared decision-making that is fully informed by evidence-based medical science and definitively shaped by patient autonomy. Anything less puts patients at risk and undermines both the practice of medicine and our nation’s health. The AMA Code of Medical Ethics states that “The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.” The AMA opposes any effort to undermine the basic medical principle that clinical assessments, such as viability of a pregnancy and safety of the pregnant person, are determinations to be made only by health care professionals with their patients.

September 19, 2022 in Abortion, Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Thursday, September 15, 2022

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

September 15, 2022 in Constitutional, Legal History, Legislation, Race | Permalink | Comments (0)

Thursday, September 8, 2022

A RESOURCE LIST of the NEW LEGAL, POLITICAL, and PRACTICAL ISSUES of ABORTION POST-ROE

Updated 9/28/22

Most recent news posted at top of each category.

 

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            New State Laws:

WV Lawmakers Pass Bill That Restricts Abortion With Narrow Exceptions (9/13/22)  

The First Abortion Ban Passed After Roe Takes Effect This Thursday in Indiana (9/20/22)

Joanna Grossman, The Trigger Has Been Pulled. Texas Law Takes Effect (8/25/22)

1 in 3 American Women Have Already Lost Abortion Access. More Restrictive Laws are Coming (8/23/22)

IN Becomes First State to Pass an Abortion Ban (8/10/22)

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

           Mary Ziegler, Why Exceptions for the Life of the Mother have Disappeared (8/2/22)    

           Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to State Abortion Bans:

IN Judge Blocks Enforcement of Abortion Ban (9/23/22)

OH Judge Blocks Six-Week Abortion Ban for 14 Days (9/20/22)

A MI Law Criminalizing Abortion is Struck Down (9/8/22)

Judge Blocks Part of ID Abortion Law from Taking Effect (9/8/22)

Judge: Prosecutors Cannot Enforce MI's Abortion Ban (8/23/22)

ID Lawmakers Walk Back Abortion Crackdown to Assuage Judge (8/23/22)

Justice Dept Sues ID Over Abortion Ban (8/10/22)

MT Abortion Laws Remain Blocked During Legal Challenge (8/10/22)

Courts Deliver Mixed Rulings on Pro-Life Laws After Roe (8/2/22)

Sistersong Women of Color Reproductive Justice Collective v. Georgia (11th Cir. July 20, 2022)

State Judge Strikes Down Many of MN's Abortion Restrictions (7/11/22) 

LA Judge Allows Abortion Ban to Take Effect (7/8/22)

TX, OH Top Courts Allow Abortion Bans to Take Effect (7/6/22)

FLA Judge will Temporarily Block 15 Week Abortion Ban (7/3/22)

TX SCt Lifts Freeze on Abortion Ban (7/2/22)

OH SCt Rejects Request to Suspend State's 6 Week Abortion Ban (7/1/22)

Judge Grants Restraining Order to Restore Abortion Access in Kentucky (6/30/22)

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:22

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Clergy Sue to Halt Fla Abortion Law, Cite Religious Freedom (9/7/22)

Clergy Members Contend FLA Abortion Law Violates Their Religious Freedom (8/10/22)

KY Court Holds that Abortion Ban May Violate State Establishment Clause (7/25/22)

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

A Federal Abortion Ban May Violate 5th A Due Process (9/23/22)

Graham Proposes 15 Week Abortion Ban, Seeking to Unite Republicans (9/13/22)

House Passes Bill to Codify Abortion Rights and Ensure Access (7/15/22)

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

The VA Says it Will Provide Abortions in Some States Even in States Where Banned (9/7/22)

TX Fed District Court Invalidates Federal Guidance on Emergency Treatment of Abortion (8/24/22)

Biden Issues [Second] Executive Order on Abortion (8/10/22)

Biden Signs Executive Order to Support Abortion Rights (7/11/22)

Under Pressure, Biden Signs Executive Order on Abortion

NM Governor to Sign Executive Order on Abortion Access (6/30/22) 

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

           Prosecutors:

Warren: DeSantis [FLA] Sacked me for Doing my Job as a Prosecutor (8/23/22)

Local Prosecutors Who Refuse to Prosecute Ohio's Abortion May be in the Clear (7/11/22)

Cuyahoga Cty Prosecutor Says He Won't Enforce 6 Week Abortion Ban (6/30/22) 

Liability for Pregnant Women:

NB Teen and Mother Facing Charges in Abortion Related Case (8/10/22)

Abortion Abolitionists Want to Punish Women (7/1/22)

FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            First Amendment Rights of Speech and Advising

First Amendment Confrontation May Loom in Post-Roe Rights (6/30/22)

            Out of State Travel: 

Dobbs and the Civil Dimension of Extraterritorial Abortion Regulation (9/23/22)

The Risk of Mandatory Reporting Laws to Out-of-State Abortion (8/2/22)

The Right to Travel in a Post-Roe World (7/15/22)

MT Clinics Preemptively Restrict Out of State Patients Access to Abortion Pills (7/11/22)

WP, Anti-Abortion Lawmakers Want to Block Patients From Crossing State Lines (6/30/22)

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Tribal Nations and Abortion Access: A Path Forward (8/23/22)

The Indian Country Abortion Safe Haven Fallacy

            Municipal Regulation    

Abortion Localism and Preemption in a Post-Roe Era (9/23/22)

            Other Constitutional Liberties: contraception, marriage, LGBTQ

Marc Spindelman, Dobbs' Other Dangers: Dobbs & Women's Constitutional Sex Equality Rights (8/2/22)

Thirteenth Amendment:

The Amendment Ending Slavery Could be the Key to Securing Abortion Rights (7/7/22)

State Legislation:

Most Voters Want a Chance to Support Abortion on a Ballot (8/10/22)

Where Abortion is on the Ballot (8/2/22)

Voters in as Many as Eight States Will Vote on Abortion This Year (7/7/22)

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

Michiganders Will Vote on Abortion Rights in November (9/13/22)

Reproductive Freedom for All v. Board of Canvassers (Mich. Ballot Case) 

Richardson, The Originalist Case for Why the FLA Constitution's Right to Privacy Protects the Right to Abortion 

Kansans Resoundingly Reject Amendment Aimed at Restricting Abortion Rights (8/10/22)

Want to Protect Abortion? Look to KS (8/2/22)

NY Moves to Enshrine Abortion Rights in State Constitution (7/6/22)

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

See Paul Lipford, Abortion Under States Constitutions (3d ed. 2020) (Carolina Press)

Cities

How One Progressive City is Fighting to Decriminalize Abortion (8/23/22)

  See generally Legal Scholarship:

New Legal Frontiers on the Constitutional Right to Abortion (8/25/22) (Cohen, Murray, Gostin)

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

           Voters and Elections:

The Erroneous Claim that SCOTUS has Returned the Question of Abortion Access to the People (9/8/22)

After Roe's End, Women Surged in Signing Up to Vote in Some States (9/28/22)

Op ed, Women are So Fired Up to Vote! I've Never Seen Anything Like It (9/7/22)

Ohio Sees Surge in Women Registering to Vote After Abortion Access Denied (9/7/22)

Rethinking Strategy Post-Roe (7/25/22)

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

Abortion Defenders in MI and OH Get It: Take it to the Voters (6/30/22)

            Fetal Personhood:

GA Abortion Restrictions Spark New Debate Over Claims to Fetal Personhood (9/8/22)

GA Abortion Law Says a Fetus is Tax Deductible (8/10/22)

New OH Personhood Bill Would Declare All Individuals are Human from Moment of Conception (7/15/22)

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

The Green Wave in Latin America

How Green Bandanas Became the International Color of Abortion Rights

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

Abortion Pill Providers Experiment with Ways to Broaden Access (9/7/22)

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            Contraception: double layer contraception, increase in vasectomies

Is Male Birth Control Finally Here?

Missouri AG Says State Abortion Ban Does not Prohibit Plan B or Contraception (6/30/22)

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

           Minors

FLA Court Rules 16-Year-Old not Sufficiently Mature for Abortion (8/23/22)

Digital Privacy & Period Tracking Apps:

Facebook Gave NB Cops a Teen's DMs. They Used Them to Prosecute an Abortion. (8/10.22)

SC Bill Would Ban Internet Information on Abortion; Tech Companies May Face Competing Laws (8/2/22)

HHS Issued Guidance to Protect Private Medical Info (inc Period Tracking Apps) (7/6/22)

Scholars Explain How Femtech Products Poised to Fill Gap as States Try & Limit Birth Control and Abortion 

Google Will Delete User Location History for Abortion Clinic Visits (7/6/22)

Period Tracker App Flo Develops Anonymous Mode (6/30/22)

Why Deleting Your Period Tracking App Won't Protect You (6/30/22) 

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Doctors and Women's Medical Care:

Republican Abortion Bans Restrict Access to Other Essential Medications

Telemedicine Just Got More Complicated (9/28/22)

What Will Happen if Doctors Defy the Law to Provide Medical Care? (9/12/22) 

Dr Proposes Floating Abortion Clinic in Gulf of Mexico to Avoid Bans (7/15/22)

Can Pharmacists Refuse to Fill Prescriptions for Drugs Used in Abortion? (7/15/22)

Physicians Face Confusion and Fear in Post-Roe World

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

Overturning Roe will Exacerbate the Black Maternal Mortality Crisis (8/25/22)

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies and cities paying travel expenses:

St Louis Will Help Women Get Out of State Abortions; Cleveland, Cincinnati Also Take Measures (7/25/22)

How St Louis Tapped Federal Funds to Help People Travel Who Need Abortion (7/25/22)

TX Lawmakers Target Law Firms Aiding Abortion Access (7/11/22)

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Information & Assistance:  

Google Maps Will Now Label Clinics that Provide Abortions

ID University Says It Can Give Birth Control, "Promote" Abortion (9/28/22)

Abortion Finder Org Site ("The pink book" of where to access providers)

ABJ, Experts Say Helping OH Patients Get Abortions Isn't Illegal (6/30/22)

            Rebecca Traister, The Necessity of Hope: "It means doing the thing that people have always done on the arduous                             path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity."

September 8, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

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.

September 8, 2022 in Constitutional, Judges, Legal History, Legislation | Permalink | Comments (0)

The Erroneous Claim that SCOTUS in Dobbs Has Returned the Question of Abortion Access to the People

David Landau & Rosalind Dixon, Dobbs, Democracy, and Dysfunction  

Few recent decisions of the Supreme Court have received as much popular attention as Dobbs v. Jackson Women’s Health. Yet the scholarly evaluation of the decision is just beginning. In this essay, we focus on one important aspect of the Dobbs decision: its emphatic claim to be returning questions of abortion access to “the people,” or to democracy. Dobb’s invocation of democracy has obvious intuitive appeal, but it is a deeply problematic claim. It ignores systemic distortions in state legislatures caused by gerrymandering and other factors. And more specifically in the abortion context, it overlooks the very old laws that pre-date Roe and Roe/Casey-era “messaging” bills never thought likely to go into effect, both of which Dobbs has revived across the country. These laws, which often instantiate draconian bans on abortion access, are dubious measures of contemporary public opinion, but they may end up remaining in effect for a long time because of what we call burdens of inertia and blind spots in state legislative processes. Given these intertwined dysfunctions, Dobbs is far from a pro-democratic decision. Such a claim would be more plausible if (a) issued in a context where the Court was also taking the sources of democratic dysfunction, such as partisan gerrymandering, seriously, and (b) issued in a way that showed sensitivity to the distortions in the democratic process surrounding abortion, many of which were caused by the Court’s own interventions. As well, since the dysfunctions identified on the abortion issue are difficult to eliminate, a decision that took democracy seriously may have required the Court to continue to oversee abortion regulation nationwide with a regime similar to its current approach in Casey. The hollowness of the celebratory reference to democracy in Dobbs raises the question of whether it was sincere, or instead a cynical fig leaf that threatens to further erode the significance of U.S.

September 8, 2022 in Abortion, Constitutional, Legislation | Permalink | Comments (0)

Friday, July 22, 2022

Bills to Protect Rights to Contraception and Marriage Equality Pass US House

Bills to Defend Marriage Equality and Contraception Pass US House, Head to Senate

The U.S. House of Representatives this week passed two landmark pieces of legislation: the Respect for Marriage Act, which would grant federal recognition of both same-sex and interracial marriages, and the Right To Contraception Act, which would establish a right in federal law to obtain and use contraceptives.

Democratic leaders say both bills are a direct response to Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson which called on the Court to “reconsider” past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage.

The bills now both head to the Senate, where Democrats need 10 Republican senators to consider and ultimately pass either bill.

July 22, 2022 in Constitutional, Family, Legislation, LGBT, Reproductive Rights, Same-sex marriage | Permalink | Comments (0)

Thursday, July 7, 2022

Misattribution of Authorship in Legal Work Masks Women's Efforts and Contributes to Gender Gap in Legal Profession

Jordana Goodman, Ms. Attribution: How Authorship Credit Contributes to the Gender Gap, Yale J. Law & Tech. (forthcoming)

 Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis of gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior-most legal team member signs on behalf of the team. This work illustrates that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. The gender gap in the legal profession is exacerbated through this practice by falsely implying that women do less work, are more junior, and do not deserve as much credit as their male colleagues.

Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship, doctrine, and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy de facto and de jure discrimination.

July 7, 2022 in Equal Employment, Legislation, Technology, Women lawyers, Workplace | Permalink | Comments (0)

Wednesday, July 6, 2022

New Bipartisan "Speak Out" Bill in Congress Removes Legal Barriers to Reporting Sexual Harassment from Nondisclosure Agreements

The Speak Out Act Removes Legal Barriers to Reporting Sexual Assault

A new bipartisan bill would enable workers to report workplace sexual assault and harassment even if they signed a confidentiality agreement, nearly five years after the viral #MeToo movement exposed how the common legal tools can muzzle survivors.

 

Reps. Lois Frankel (D-Fla.) and Ken Buck (R-Colo.) told The Washington Post they introduced legislation Friday that would empower survivors to report instances of abuse in the workplace. The bill, called the “Speak Out Act,” would prevent employers from enforcing nondisclosure or nondisparagement agreements (NDAs) in instances when employees and workers report sexual misconduct.

 

“This is a preventive piece,” Frankel said. “When companies that are going to have offenders are aware that they cannot hide illegal sexual harassment, that they cannot put it under the rug, they’re going to take more steps from the get-go to keep it from happening.”

 

NDAs are standard features of employment contracts that protect sensitive company information. They’re common across industries: Over one-third of the U.S. workforce is bound by an NDA, according to a 2018 Harvard Business Review report.

July 6, 2022 in Business, Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Tuesday, June 28, 2022

Ohio Statutory Framework of Abortion Laws After Dobbs

Download Summary: Ohio Statutory Framework for Abortion Laws After Dobbs (as of 6-27-2022)

 

OHIO ABORTION STATUTORY FRAMEWORK POST-DOBBS

I.  Ohio Laws on the Books That Have Been Enjoined or Not Enforced Under Roe

Telemedicine & Medical Abortions:  Only a physician can provide abortion-inducing drugs, physician must be physically present at administration of initial dose, exceptions for self-managed by woman and legal delivery. O.R.C. §§ 2919.123, 2919.124(B).  New 2021 version preliminarily enjoined by Planned Parenthood Sw. Ohio v. Ohio Dep’t of Health, No. A 2101148 (Hamilton Cty, Ohio, C.C.P. Apr. 20, 2021).  Earlier version enjoined for 12 years, limited to as-applied injunction, mooted on motion by Federal Drug Agency.  See Planned Parenthood of Sw. Ohio v. Dewine, 931 F.3d 530 (6th Cir. 2019), cert. denied, 141 S.Ct. 189 (2020).

Limitation of Backup Physician: Prohibits physicians affiliated with state institutions from being backup providers. Preliminarily enjoined, Women’s Med Dayton v. Vanderhoff, No. A2200704  (Ohio C.C.P. Apr. 15, 2022), second preliminary injunction granted (June 17, 2022).

“Dismemberment Feticide”: Prohibits D&E and D&X procedures, except to preserve life or physical health of mother. O.R.C. § 2919.15 (2019). Partially enjoined to permit D&E procedures before 18 weeks.  Planned Parenthood Sw. Ohio Region v. Yost, 375 F.Supp.3d 848 (S.D. Ohio 2019), reconsideration denied, 2020 WL 40143 (2020). 

Fetal Burial Law: Requires cremation or internment of fetal remains. O.R.C. § 3726.02 (2021), preliminarily enjoined by Planned Parenthood Sw. Ohio Region v. Ohio Dep't of Health, No. A2100870 (Ohio C.C.P. Jan. 31, 2022). 

Municipal Ban: A municipal ordinance in the City of Lebanon bans all abortions and those who “aid or abet,” but city stipulated it would not enforce after being sued by ACLU.  Ohio's Only Sanctuary City Chooses Not to Enforce Abortion Ban, Fox19News (May 26, 2022); Nat'l Assoc. Social Workers v. City of Lebanon, No. 1:22-cv-258 (S.D. Ohio May 11, 2022).

II. Ohio Abortion Regulations Currently In Effect That Have Criminal Penalties

Fetal “Heartbeat Protection Act”: O.R.C. § 2919.195(A), enjoined by Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796 (S.D. Ohio July 3, 2019), injunction dissolved (S.D. Ohio June 24, 2022).  The law had not been structured as a trigger law, but operated as one when the district court dissolved the injunction upon emergency motion of the state immediately following the Dobbs decision and the law went into effect. Litigation continues in the case. The law prohibits abortion when a “fetal heartbeat has been detected” (5-6 weeks) except to prevent death or “serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.”

*6/29/22: Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care (includes complaint and memorandum)

20 Week Ban:  O.R.C. § 2919.201(A) prohibits abortion after twenty weeks post-fertilization (22 weeks), except to prevent death or serious physical impairment. An earlier law prohibits abortion after “viability” and requires viability testing at 20 weeks. O.R.C. §§ 2919.17, 2919.18.

“Abortion Manslaughter”:  First degree felony if purposely takes life or “fails to take measures” to “preserve the health or life” of “child born by attempted abortion who is alive when removed from the uterus.” O.R.C. § 2919.13 (eff. Mar. 23, 2022).

Minor Parental Notification or Judicial Bypass: O.R.C. §§ 2919.121, 2151.85, upheld in large part by Cincinnati Women’s Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006) (overturning limit on one judicial petition per pregnancy).

Down Syndrome Ban:  Ohio prohibits abortions if provider has knowledge of woman’s reasons related to Down syndrome of the fetus. O.R.C. § 2919.10(B) (2018).  The U.S. Court of Appeals for the Sixth Circuit (en banc), reversed a preliminary injunction enjoining the Ohio Down syndrome law, finding that there was no likelihood of success on the merits that this was an unconstitutional undue burden.  Preterm-Cleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021).  However, in a subsequent decision, the Sixth Circuit declared a similar Tennessee Down syndrome law unconstitutional on grounds of void for vagueness and expressly noted that the Ohio decision had not address the vagueness issue. Memphis Center for Reproductive Health v. Slatery, 114 F.4th 409, 428-34 (6th Cir. 2021).

“Partial Birth Feticide”: O.R.C. § 2919.151(B) prohibits “partial birth procedure” of late term abortion when fetus is viable unless necessary to safe life or health of woman.

Woman’s Immunity: “Abortion” defined to include “purposeful termination” by “the pregnant woman herself.”  O.R.C. § 2919.11.  Exemption for Down syndrome prosecution.  O.R.C. § 2919.10(F).  Immunity for women for all bans passed, O.R.C. § 2919.198, enjoined in Yost, but injunction dissolved (S.D. Ohio June 24, 2022).

III.       Ohio’s Current Civil Framework Regulating Abortion

Many criminal prohibitions also carry civil liabilities for compensatory damages, exemplary damages, and attorney’s fees. E.g., O.R.C. §§ 2919.201; 2919.10; 2307.54.  Several permit the father to bring a civil action. E.g., O.R.C. § 2307.54 (20-week ban).

Other provider requirements are: (1) physician reporting, O.R.C. §§ 2919.171, 2919.101, 2919.202, 3701.79; (2) mandatory twenty-four-hour waiting period, O.R.C. § 2317.56; (3) counseling, O.R.C. § 2317.56; (4) determine fetal heartbeat. O.R.C. § 2919.191 (eff. 6/24/22).

IV.  Ohio’s Fetal Personhood Laws

“Intentionally aborted fetuses” are not considered “persons.” O.R.C. § 2901.01(B).

Fetal personhood law proposed in the Human Life Protection Act to define “unborn child” from the date of fertilization.  OH HB 598 (proposed Rev. O.R.C. § 2904.02(E)). The Act would also impose a total ban on all surgical and medical abortions, except as necessary to “prevent death” or “a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant individual.” OH SB 123 (introduced 3/2021); OH HB 598 (introduced 3/2022); see generally Ohio Policy Evaluation Network (tracking Ohio abortion laws and legislation).

 

See also Ohio Democratic Lawmakers Propose a Constitutional Amendment to Protect Abortion Rights (Joint Resolution requiring 3/5 vote of legislators to place on ballot for vote) (May 17, 2022)

 

June 28, 2022 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Texas District and County Attorneys' Explanation of Current State Abortion Law After Dobbs

Texas District & County Attorneys Association, Interim Summary: Abortion-Related Crimes After Dobbs

New criminal offense under HB 1280

The gist of new Chapter 170A is §170A.002 (Prohibited Abortion; Exceptions), which prohibits knowingly performing, inducing, or attempting an abortion at any time after fertilization. A violation of that section is a second-degree felony under §170A.004 (Criminal Offense) unless the unborn child dies, in which case it is a first-degree felony.

 

Other things to know about this new crime:

  • “Abortion” includes surgical and non-surgical means, such as drugs/medicine (which now account for more than half of all elective abortions). The term would appear to include “selective reductions” performed as a part of some IVF treatments, but it does not include contraception, ectopic pregnancy removals, and other surgical acts listed in the definition of that term (§170A.001(1)).
  • Nothing in Chapter 170A can be used to impose criminal, civil, or administrative liability upon a pregnant woman upon whom an abortion is performed (§170A.003).
  • Doctors have defenses for performing an abortion to save the expectant mother from death or severe injury and for any medical treatment that results in an accidental fetal death (§170A.002).

 

This new criminal offense will apply to conduct occurring on or after the 30th day after Dobbs finally overrules Roe. Note that this is *not* 30 days from today; the Court’s opinion was released today, but not it’s final judgment or mandate. The Attorney General’s Office issued a legal advisory today noting this remaining contingency, along with a (speculative) comment that some abortion-related crimes may be prosecutable immediately. (More on that below.) Regardless of an such opinion, though, any criminal, civil, or administrative action brought under the new law is likely to involve litigation over the effective date of §170A.002 due to its unusual (unprecedented?) trigger mechanism.

 

New civil fines (and complications)

Chapter 170A also includes new §170A.005 (Civil Penalty) creating a civil penalty of not less than $100,000 for each violation of §170A.002. If this sends up a double jeopardy red flag for you, congratulations—you are probably recalling the admonition from Dep’t of Revenue of Montana v. Ranch, 511 U.S. 767 (1994), in which SCOTUS held that a defendant already convicted and punished for a criminal offense cannot have a non-remedial civil penalty imposed against him for the same offense in a separate proceeding due to the Fifth Amendment’s Double Jeopardy Clause. And the reverse is also true: If a defendant fully pays a civil fine, then any subsequent criminal prosecution is barred by double jeopardy. See, Ex parte Ward, 964 S.W.2d 617, 627 (Tex. Crim. App. 1998).

 

While the Double Jeopardy Clause does not prohibit the initial filing of concurrent criminal and civil actions, a conviction in the former or a full payment in the latter will foreclose the other option. Interestingly, the civil enforcement provision of §170A.005 requires the attorney general (OAG) to file a civil action to recover this civil fine. By requiring OAG to pursue a minimum six-figure civil penalty for the same conduct that potentially incurs a felony sentence of imprisonment and a criminal fine, the legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion “trigger law” crime if any of those civil fines are collected by OAG.

June 28, 2022 in Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Friday, June 24, 2022

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.”

June 24, 2022 in International, Legal History, Legislation | Permalink | Comments (0)

Thursday, June 23, 2022

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.”

June 23, 2022 in Education, Legal History, Legislation, Sports | Permalink | Comments (0)