Gender and the Law Blog

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. 

Federal Court Enjoins Part of the EEOC Regulations on Pregnancy Workers Fairness Act Regarding Abortion

The cases are State of Louisiana v. EEOC, et al., No 2:24-cv-00629 (W.D. La. June 17, 2024), and U.S. Conference of Catholic Bishops v. EEOC, et al., No. 2:24-cv-00691 (W.D. La. June 17, 2024).

Alexandra Olson & Claire Savage, Judge Rules that Federal Agency Can't Enforce Abortion Rule in LA and MS

A federal judge on Monday granted the U.S. Conference of Catholic Bishops, as well as employers in two Southern states, temporary relief from complying with a federal rule that would have required them to provide workers with time off and other workplace accommodations for abortions.

Judge David Joseph granted the preliminary injunction in two consolidated lawsuits, one brought by the attorneys general of Louisiana and Mississippi, and the other brought by the U.S. Conference of Catholic Bishops, Catholic University and two Catholic dioceses.

The lawsuits challenge rules issued in April by the Equal Employment Opportunity Commission, which stated that abortions are among pregnancy-related conditions covered by the Pregnant Workers Fairness Act, which passed in December 2022 and took effect last year.***

His ruling came just days a federal judge in Arkansas dismissed a similar lawsuit filed by 17 states led by Arkansas and Tennessee. Eastern District of Arkansas U.S. District Judge D.P. Marshall, Jr., who was appointed to the bench by former President Barack Obama, ruled that the states lacked standing to bring the lawsuit.

“The District Court applied a common sense interpretation of the plain words of the Pregnant Workers Fairness Act,” said Louisiana Attorney General Liz Murrill said in an emailed statement

The Louisiana ruling was a partial victory for the attorneys general of Louisiana and Mississippi, who had asked for a much broader emergency injunction that would have stopped the entirety of the EEOC rules from taking effect nationwide. That request had alarmed some civil rights and women’s advocacy groups, who warned that the EEOC rules are critical to the successful implementation of the law.

EEOC Regulations on Pregnancy Workers Fairness Act Partially Enjoined Before Implementation

Earlier this spring, we published an article detailing the highlights of the United States Equal Employment Opportunity Commission’s (“EEOC”) new 408-page regulations on the Pregnancy Workers Fairness Act (“PWFA”).

The regulations include a provision that requires employers to consider a reasonable accommodation of an employee who chooses to have or has had an abortion. The regulations go into effect today, June 18, 2024.

However, yesterday afternoon, the United States District Court for the Western District of Louisiana issued a preliminary injunction that partially blocks the EEOC’s PWFA regulations from taking effect in certain states. The United States Conference for Catholic Bishops, other various Catholic-affiliated organizations, and the states of Louisiana and Mississippi filed a lawsuit seeking to prohibit the enforcement of the provisions of the EEOC’s PWFA regulations that require employers to consider reasonable accommodations for an employee who has an abortion.  

Yesterday, in ruling on the preliminary injunction, Judge David Joseph held that the regulations are unconstitutional because they usurp the role of Congress and improperly interfere with states’ rights to regulate abortion. The plaintiffs had argued that the regulations run counter to the SCOTUS decision in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade.

The injunction expressly states that it only covers the states of Louisiana and Mississippi. Therefore, the EEOC’s PWFA regulations are not currently enjoined in California and effective today, California employers must comply with all aspects of the regulations, including considering reasonable accommodations for employees who have or choose to have an abortion, unless the accommodation would cause an undue hardship. 

Greer Donley and Caroline Kelly on "Abortion Disorientation"

Greer Donley and Caroline Kelly have posted a draft of their work-in-progress, titled Abortion Disorientation, on SSRN. This work-in-progress will be published in Volume 74 of the Duke Law Journal. Here is the draft's abstract: 

The word “abortion” pervades public discourse in the wake of Dobbs v. Jackson Women’s Health Organization. But do we know what it means? Not only do law and medicine define it differently; state legislatures have codified wildly different definitions of abortion across jurisdictions. Our analysis exposes inherent ambiguities at the boundaries of the term, particularly as abortion intersects with other categories that we often think of as distinct: pregnancy loss, ectopic pregnancy, and other forms of medically necessary care. By juxtaposing statutory text next to real people’s experiences of being denied care in states with abortion bans, we reveal how those ambiguities have led to tragic results. Our analysis tracks how legislatures have responded to the tragedies of their own making by changing the definition of abortion to exclude certain types of care. Fifteen abortion-hostile legislatures have changed the definition of abortion since Dobbs, thirteen of which have added at least one definitional exclusion, most commonly for ectopic pregnancy, miscarriage, molar pregnancy, or fertility treatment. States that have expanded abortion rights, on the other hand, have moved in the opposite direction, broadening their abortion definitions as they expand reproductive rights. Our analysis concludes that antiabortion legislatures are running a fool’s errand: that it is impossible to fully distinguish abortion from other types of reproductive healthcare. The lines drawn are inherently vague, incoherent, and impossible to rectify. The Dobbs framework, which moved the complicated experience of pregnancy from the medical to the legal domain, is functionally unworkable, strengthening calls to overturn the decision.

A full version of the draft article is available here. 

Study Finds that Effects of California's Paid Family Leave Act Did Not Help Women's Careers and Gender Pay Gap

Martha Bailey, Tanya Byker, Elena Patel, Shanthi Ramnath, The Long-Run Effects of California's Paid Family Leave Act on Women's Careers and Childbearing: New Evidence from a Regression Discontinuity Design and U.S. Tax Data" 

We use administrative tax data to analyze the cumulative, long-run effects of California's 2004 Paid Family Leave Act (CPFL) on women's employment, earnings, and childbearing.***

A growing body of evidence suggests that the gender gap in pay emerges abruptly at motherhood, as new mothers work less for pay in order to increase their caregiving at home. These differences are also evident in U.S. tax data, which show that the “child penalty” for women in annual wage earnings grows sharply after their first child is born.

Academics and policymakers have mobilized around this issue, citing the absence of paid family leave in the United States as a major obstacle to gender equity in the labor market. Paid family leave policies, they argue, could enable workers to take longer leaves to care for newborns instead of dropping out of the labor force. Remaining attached to employers could help workers retain job- and firm-specific human capital and decrease skill depreciation, minimizing wage losses due to caregiving. Because more women leave the labor force than men for caregiving reasons, formalizing paid leave policies could narrow the gender gap in pay.***

Our findings challenge the conventional wisdom that paid leave benefits improve women’s short- or long-term career outcomes. In fact, CPFL significantly decreased employment and earnings of first-time mothers in the short run. First-time mothers taking up paid leave under CPFL were 6 percent less likely to be employed and earned 13 percent less during the first three years after giving birth. Moreover, we find evidence that these earnings effects persisted, with wage earnings remaining 13 percent lower nine to 12 years later.

The Fair Representation Act Reintroduced in Congress to Increase Women's and Racial Minorities' Political Representation

Ms., Weekend Reading on Women's Representation

*** The FRA has the potential to create a more diverse government through the implementation of ranked-choice voting and the creation of multi-member U.S. House districts drawn by independent redistricting commissions.

This voting system also combats gerrymandering and amplifies voter power. 

Our friend at FairVote, the amazing Deb Otis, discussed the reintroduction of the FRA on a podcast on NPR this week. Alaska and Maine have already seen major results from implementing RCV and Otis explains why more states are considering the new system and reinforces why the FRA is a true model for a more representative democracy.

The Fulcrum featured a terrific piece from Drew Penrose and Dave Daley about the impact of this proportional voting system and how it holds the potential to transform the way we elect our public officials:

The most meaningful change would put an end to winner-take-all, single-member districts and create a proportional House with larger, multimember districts and proportional voting. This might sound like a big lift, but it’s fully constitutional, deeply aligned with our founding vision, and only requires Congress to pass a statute. For example, the Fair Representation Act, a bill to be reintroduced in Congress this week by Reps. Don Beyer (D-Va.) and Jamie Raskin (D-Md.), would do just that by requiring every state to replace its winner-take-all elections with proportional ranked-choice voting.

Proportional representation methods like rank-choice voting, along with other types of multiple-candidate voting from a group, were advocated by Progressive reformers from 1913 to 1932 to make political officials more representative of ordinary people and minorities, rather than concentrating power in corrupt party bosses and corporate interests. See Kathleen L. Barber, A Right to Representation: Proportional Election Systems for the Twenty-First Century (Ohio State U. Press. 2000).

Lewis Grossman on "Criminalizing Transgender Care"

Lewis Grossman has posted his forthcoming article, Criminalizing Transgender Care, on SSRN. This article is forthcoming in the Iowa Law Review in Fall 2024. Here is the abstract. 

Since 2021, twenty-one states, in extraordinarily quick succession, have enacted statutes banning physicians from prescribing puberty blockers and cross-sex hormones to minors for treatment of gender dysphoria. Although the Food and Drug Administration has not approved these drugs for this use, off-label prescribing is a common practice, and leading medical organizations all agree that this off-label use of puberty blockers and sex hormones is an essential component of transgender medical care. These state laws thus represent an extreme, and unprecedented, interference with the provision of standard-of-care medicine. This article, after exploring the ongoing litigation challenging these bans, argues that they violate a fundamental right under the Due Process Clause of the Fourteenth Amendment—namely, the right to obtain standard-of-care treatment from a physician. It demonstrates that this right is deeply rooted in America’s history and traditions by presenting the first-ever comprehensive review of state policies regarding off-label prescribing practices and showing that the states have virtually never interfered with physicians’ prescribing decisions in this manner. Finally, in light of relevant judicial precedents, this article shows why courts should strike down these unparalleled, oppressive state laws as unconstitutional.

New Report on Harms of Michigan's Forced Parental Consent Law for Abortion

A new report is available on the harms of Michigan's forced parental consent law. The report was authored by the ACLU of Michigan, Human Rights Watch, and the Michigan Organization on Adolescent Sexual Health after in-depth interviews, data analysis, and a survey of secondary sources. The full report is available here. 

Its findings are excerpted here: 

Young people who can, do involve a parent in an abortion decision and care. While most young people do talk to a parent when facing a pregnancy, every situation is different, and not every young person can.

Young people who do not involve their parents have compelling reasons, rooted in their safety and well-being. They often fear abuse, alienation, or being forced to continue a pregnancy against their will.

Some young people are belittled, humiliated, or punished by their parents. Some parents even ask doctors to withhold pain medication for young people’s procedural abortions, against medical advice.

Judicial bypass is burdensome and difficult to navigate. For young people without resources or access to information, it can be impossible.

Judicial bypass is invasive, distressing, traumatizing, and often arbitrary. It feels punitive to young people, and may be especially harmful to young people of color.

Forced parental consent delays abortion care. Judicial bypass often delays care by a week or more, limiting patients’ already constrained and time-sensitive healthcare options and pushing them into more expensive and invasive procedures. In some cases, the delays caused by navigating forced parental consent and judicial bypass leave young people ineligible for medication abortion, a noninvasive and more common method of care, available only up to 11 weeks of pregnancy.

Young people are capable of making healthcare decisions. Michigan law allows young people to consent to all other forms of pregnancy-related health care — including those with significantly higher health risks than abortion — such as a C-section.

The Report recommends that "[a]ll young people should be safe and healthy. Michigan should invest in solutions that promote healthy families and strong healthcare networks and keep private family conversations free from intrusive laws and policies." It asks the Michigan legislature to "[r]epeal the Parental Rights Restoration Act 211 of 1990 as a matter of urgency and ensure that young people under 18 can access abortion care without being forced to involve a parent or legal guardian, or a judge, in their decision-making."

Equal Rights Amendment Event on April 12th

On April 12th, the Columbia Law School ERA Project and Georgetown Law will host an event in-person (D.C.) and online titled The Present and Future of the Equal Rights Amendment. Speakers include Kirsten Gillibrand, Mazie Hirono, Ben Cardin, Cori Bush, Ayanna Pressley, and others. Here are panel summaries:  

The first panel at 10:15 is designed to clarify the remaining challenges to final ratification of the ERA as the 28th amendment to the US Constitution. Topics for discussion papers include: what are the impediments to final ratification, how have similar objections to earlier amendments been addressed/resolved, how we might overcome them, whether they are more legal or political in nature, etc. 

The second panel at 1pm is designed to develop a substantive framework for a new source of equality rights in the constitution. We hope that, as a new, free-standing amendment, the ERA can/should embrace an alternative and more modern approach to equality as an independent source of constitutional rights beyond the tiers of scrutiny under the 14th Amendment.  

Register here. 

Forthcoming Book on "The Feminist Legislation Project"

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

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

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

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

Alabama Passes Legislation to Protect IVF Treatment in Light of State Supreme Court Ruling on Embryos

Wash Post, Alabama Lawmakers Pass Legislation to Protect IVF Treatment

The Alabama legislature voted Thursday to protect providers and patients doing in vitro fertilization from criminal or civil liability if embryos they create are subsequently damaged or destroyed.

The fast action by both the House and Senate on bills to shield IVF came less than two weeks after the state’s Supreme Court ruled that frozen embryos are people and that individuals could be liable for destroying them. The unprecedented decision, which gave fertilized eggs the same protection as babies under the state’s Wrongful Death of a Minor Act, threw IVF treatment in Alabama into turmoil.

Within days, nearly every clinic in the state either suspended IVF or halted embryo disposal. Some women in the middle of treatment fled the state after securing care from out-of-state providers. Many others feared that their significant emotional, physical and financial investment in having a child would be for naught.

Study Shows that Equal Pay Act and Civil Rights Act Were More Successful than Previously Believed in Addressing the Gender Gap in Pay

Martha J. Bailey, Thomas Helgerman & Bryan Stuart, How the 1963 Equal Pay Act and 1964 Civil Rights Act Shaped the Gender Gap in Pay, IZA Discussion Paper No. 16700

Abstract: 

In the 1960s, two landmark statutes—the Equal Pay and Civil Rights Acts—targeted the long-standing practice of employment discrimination against U.S. women. For the next 15 years, the gender gap in median earnings among full-time, full-year workers changed little, leading many scholars to conclude the legislation was ineffectual. This paper revisits this conclusion using two research designs, which leverage (1) cross-state variation in pre-existing state equal pay laws and (2) variation in the 1960 gender gap across occupation-industry-state-group cells to capture differences in the legislation's incidence. Both designs suggest that federal anti-discrimination legislation led to striking gains in women's relative wages, which were concentrated among below-median wage earners. These wage gains offset pre-existing labor-market forces which worked to depress women's relative pay growth, resulting in the apparent stability of the gender gap at the median and mean in the 1960s and 1970s. The data show little evidence of short-term changes in women's employment but suggest that firms reduced their hiring and promotion of women in the medium to long term. The historical record points to the key role of the Equal Pay Act in driving these changes. 

 Quote: "Yet a closer examination of long-term trends for a broader set of wage earners hints that federal anti-discrimination legislation mattered more than previously believed.

Reform of Sexual Harassment Laws in Australia

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

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

Judge Enjoins Pregnant Workers Fairness Act Finding it Violates Constitution's Quorum Clause

Pregnant Workers Fairness Act Blocked in Texas as Unconstitutional

A federal judge in Texas this week dealt a blow to a landmark piece of legislation protecting pregnant workers, ruling that there was no quorum in the U.S. House when the law passed, making it unenforceable.

The Pregnant Workers Fairness Act, which requires employers to make reasonable accommodations for pregnant workers, was part of a $1.7 trillion spending package that Congress passed in late 2022. U.S. Sen. Bob Casey (D-Pa.), first introduced the bill in 2012, and worked for more than a decade to get it passed.

“Texas: Won’t let you have an abortion but also won’t do anything to help you have a safe and healthy pregnancy,” Casey said in a statement to the Capital-Star on Wednesday. “This is Republican governance at its finest and downright insulting to women in Texas and beyond who want and need to continue working safely through pregnancy.”

Last February, Texas Attorney General Ken Paxton sued the Biden administration arguing that since members of Congress were allowed to vote by proxy for the spending package, there were not enough members physically present to form the quorum required in the Constitution. 

Then-Speaker of the House Nancy Pelosi regularly allowed House members to vote by proxy during the COVID-19 pandemic.

 

US Judge in Texas Rules Congressional Passage of 2022 Spending Bill Unconstitutional, Reuters

A federal judge in Texas on Tuesday ruled that a $1.7 trillion government funding bill was unconstitutionally passed in 2022 through a pandemic-era rule that allowed lawmakers in the U.S. House of Representatives to vote by proxy rather than in person.

 

U.S. District Judge James Wesley Hendrix in Lubbock reached that conclusion as he granted Republican Texas Attorney General Ken Paxton's request to block a provision of that bill that gave pregnant workers stronger legal protections.

 

The judge, an appointee of Republican former President Donald Trump, called the scope of his ruling "limited," and said it did not block all of the spending law. Texas had only sought to block two provisions ultimately.

 

Hendrix blocked one provision, the Pregnant Workers Fairness Act, from being enforced against the state after finding the bill was wrongly passed. That law requires employers to provide pregnant workers with reasonable accommodations.

Protecting Abortion With Health Care Freedom of Choice

Tracy Thomas, Protecting Abortion with Health Care Freedom of Choice, 51 Journal Law, Medicine & Ethics 601 (2023)

With the Supreme Court overturning the fifty year federal constitutional right to abortion recognized in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey, the question returns to state courts and legislatures. One potential avenue for future protection lies in state constitutional provisions. These issues are being litigated in court, and activists in several states have successfully put express constitutional amendments for abortion on the ballot. Concurrently with the previously-recognized federal right, fourteen states had recognized a right to abortion under state constitutional guarantees of equal protection, liberty, autonomy, and/or privacy. Post-Dobbs, there is renewed interest in utilizing these potential foundations for the abortion right under state-specific guarantees.

One possible avenue for recognizing a state constitutional right to choose an abortion may be found in rights to health care. Four states have express constitutional guarantees of freedom of choice in health care, and three states have recently proposed such amendments. Four other states have statutory provisions of health care freedom expressing policy that could be used to interpret constitutional rights of liberty to protect abortion. Courts in Ohio, Wyoming, and Montana have applied their health care freedom amendments to protect the liberty interest in choosing an abortion. These cases offer an example of how to protect abortion as a health care right.

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

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

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

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

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

Ohio's Reproductive Freedom Amendment Takes Effect, but the Fight Over Access Continues

Ohio's Abortion Protections Take Effect, but the Fight Over Access Continues

One month after Ohioans voted to protect abortion access, the constitutional amendment goes into effect Thursday — and while Republican leaders have mostly backed off plans to undermine the amendment in the near term, proposed legislation and pending litigation could still determine the scope of access. 

In the November elections, about 57 percent of Ohioans voted to approve Issue 1, which enshrined the right to abortion until the point of fetal viability, as well as access to contraception, miscarriage care and fertility treatment in Ohio’s Constitution. In Ohio, as of Thursday, abortion is legal up to 22 weeks, which has been the case since the state’s six-week ban was put on hold by the courts in September 2022.***

The GOP push to block Issue 1 started when Republicans put a separate measure onto August ballots that would have raised the threshold to pass citizen-offered constitutional amendments, including Issue 1; Ohioans soundly rejected that effort. Within hours of the November vote, Republican Senate President Matt Huffman told reporters it was the “beginning of a revolving door of ballot campaigns to repeal or replace” it,  perhaps with another amendment that would implement a 15-week abortion ban. Then, far-right state Rep. Jennifer Gross, who represents an exurban district outside Cincinnati, announced an effort to strip the judiciary of its jurisdiction over the abortion amendment as an end-run around courts inclined to uphold the state constitution.

Other Republicans in the state have rejected proposals that would ignore the will of Ohio’s voters — but some still expressed their openness to other ways to restrict abortion. Gov. Mike DeWine, for example, said that once Issue 1 took effect, voter sentiment may change and open the door to a different amendment or new abortion laws.***

Ohio still has many abortion laws on the books that weren’t automatically nullified by Issue 1. Some, like the six-week abortion ban that was already put on hold by courts before the amendment passed, are currently being litigated — the Ohio Supreme Court has asked both sides of the case to submit briefs Thursday on Issue 1’s impact on the so-called heartbeat ban. A 20-week ban passed in 2016 — interpreted as allowing abortion up to 21 weeks and 6 days — is still in place, as is a 2019 prohibition on dilation and extraction, an abortion method most commonly used in the second trimester of pregnancy. Another law prohibits doctors from performing abortions requested due to a Down syndrome diagnosis for the fetus. A 2013 law that led to multiple clinic closures requires all abortion clinics to have transfer agreements with private hospitals.

Where Things Stand on Opposition to Implementation of Ohio's New Reproductive Freedom Constitutional Amendment

Julie Carr Smyth & Christine Fernando, AP, Voters Back Abortion Rights, but Opponents Won't Relent.

As voters in state after state affirm their support for abortion rights, opponents are acting with escalating defiance toward the democratic processes and institutions they perceive as aligned against their cause.

Certain Republican elected officials and anti-abortion activists around the country have responded to losses at the ballot box by challenging election results, refusing to bring state laws into line with voter-backed changes, moving to strip state courts of their power to consider abortion-related laws and challenging the citizen-led ballot initiative process itself.

“We.Are.Not.Done.,” Ohio state Rep. Jennifer Gross declared on the social media platform X two days after voters enshrined the right to abortion in the state constitution earlier this month. She and 25 other Republican lawmakers vowed to block the amendment from reversing Ohio’s existing abortion restrictions.

A strong majority of Ohio voters passed the amendment, by roughly 57% to 43%. In response, the group of lawmakers said in a joint statement: “We will do everything in our power to prevent our laws from being removed based upon perception of intent.”

Gross joined three fellow Republicans to go even further, proposing legislation to prevent Ohio courts from interpreting any cases related to the abortion-rights amendment, known as Issue 1. Similar efforts have emerged in six other states since state courts became the new abortion battleground after the Dobbs decision on June 24, 2022, that overturned Roe v. Wade.

Douglas Keith, senior counsel to the Brennan Center for Justice’s Judiciary Program, said abortion politics prompted successful efforts to limit the power of state courts in Montana and Utah and unsuccessful legislation in Alaska and Kansas. Such bills are attempts to dismantle the government’s system of checks and balances, he said.

See also The Fight for Abortion Access in Ohio Isn't Over and Analysis: OH Legislature Threatens Jurisdiction Stripping to Prevent Enforcement of New Constitutional Amendment

 

Ohio Senate Leader Says After Issue 1 Vote, Abortion Won't be Back on the Ballot Soon

The Republican leader of the Ohio Senate says he doesn’t want an abortion amendment to change parts of Issue 1 passed by voters earlier this month to go before voters soon.

On Election Night, Senate President Matt Huffman (R-Lima) issued a statement saying he thinks there would be a “revolving door of ballot campaigns to repeal or replace Issue 1.” But Huffman said that doesn’t mean he wants to see another abortion amendment on the ballot right away.

“I don’t think there, certainly, should be anything on the ballot, certainly in '24 and we will have to see about that going forward," Huffman said.

Ohio's 2024 primary is in March, and the contests for the Republican nominations for president and U.S. Senate are likely to bring out GOP voters. But Huffman said, "I didn't say anything about putting something on the ballot in March."

Abortion also played a key role in the August special election, in which voters rejected a proposal to require 60% voter approval to pass future constitutional amendments. The abortion and reproductive rights amendment passed with just under 57%.

House Speaker Jason Stephens (R-Kitts Hill) and Gov. Mike DeWine, who both strongly opposed Issue 1, have also said an abortion issue shouldn’t be on the ballot next year.

 

Ohio's Top Court to Consider How Issue 1 Affects Six-Week Abortion Ban                                                                                   

The Ohio Supreme Court, which has been considering a technical question about the state's ban on abortion after six weeks, asked the parties involved in the lawsuit to file written arguments on the impact of a constitutional amendment approved by voters last week.