Wednesday, April 24, 2024

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.

April 24, 2024 in Business, Equal Employment, Family, Legislation, Reproductive Rights, Work/life, Workplace | Permalink | Comments (0)

Tuesday, April 23, 2024

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).

April 23, 2024 in Legal History, Legislation | Permalink | Comments (0)

Monday, April 8, 2024

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.

April 8, 2024 in Gender, Healthcare, Legislation | Permalink | Comments (0)

Monday, April 1, 2024

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."

April 1, 2024 in Abortion, Courts, Healthcare, Legislation, Pregnancy | Permalink | Comments (0)

Monday, March 25, 2024

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

March 25, 2024 in Constitutional, Legislation | Permalink | Comments (0)

Forthcoming Book on "The Feminist Legislation Project"

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

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

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

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

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

Tuesday, March 5, 2024

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.

March 5, 2024 in Family, Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Thursday, February 29, 2024

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


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.

February 29, 2024 in Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Reform of Sexual Harassment Laws in Australia

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

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

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

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.

February 29, 2024 in Constitutional, Family, Legislation, Pregnancy | Permalink | Comments (0)

Thursday, January 11, 2024

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.

January 11, 2024 in Abortion, Constitutional, Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Friday, December 8, 2023

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

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

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

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

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

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

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.

December 8, 2023 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Tuesday, November 21, 2023

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 resultsrefusing 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.


November 21, 2023 in Abortion, Constitutional, Courts, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, November 20, 2023

Legal Challenge to Tennessee's Aggravated Prostitution Law

OUTMemphis sued Tennessee challenging its existing aggravated prostitution law on statutory and constitutional grounds. Read the full complaint here. The preliminary statement is excerpted here.

2.Unlike Prostitution, which is a misdemeanor, Aggravated Prostitution is a felony that requires lifetime registration as a “violent sex offender” pursuant to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (“TN-SORA”). This drastic difference in treatment turns solely on HIV status and is so unmoored from medical facts as to punish sexual encounters that pose no risk of HIV transmission.


3.While Aggravated Prostitution and its related registration requirements completely fail to protect public health, the laws immeasurably harm those they target. Jane Does 1–4 are transgender and cisgender women living with HIV, who were convicted of Aggravated Prostitution and must register as “sexual offenders” or “violent sexual offenders” for the rest of their lives under TN-SORA. They are joined as Plaintiffs in this matter by OUTMemphis, a non-profit organization that provides the LGBTQ+ community, including people convicted of Aggravated Prostitution or at risk of being charged with Aggravated Prostitution, with support with housing, employment, healthcare, and other needs. Together, Plaintiffs sue to end Tennessee’s irrational, discriminatory, and cruel and unusual treatment of people living with HIV.


4.HIV has long been recognized as a disability under the Americans with Disabilities Act of 1990 (“ADA”). The ADA prohibits discrimination by state government entities by reason of a person’s disability. Defendants are explicitly violating this guarantee by subjecting people living with HIV who are convicted of engaging in sex work to dramatically increased criminal liability and lifetime registration as “violent” sex offenders—solely by virtue of their disability. This discrimination is imposed without any case-by-case, individualized assessment of any threat to public health. The Aggravated Prostitution law does not specifically target sexual behavior that can transmit HIV. Nor does it account for the fact that either partner to a sexual interaction can mitigate or entirely eliminate the risk of transmission of HIV. Given the actual science of HIV, Jane Does 1–4 and others convicted of Aggravated Prostitution need not and did not pose a threat to anyone’s health or safety.


5.As Congress recognized in passing the ADA, “society tend[s] to isolate and segregate individuals with disabilities.” For this reason, the very purpose of the ADA is to address ongoing discrimination against individuals with disabilities in critical areas like employment and housing. Subjecting people to lifetime sex offender registration because of their HIV status directly frustrates these goals. Under TN-SORA, Plaintiffs are effectively barred from many employment opportunities, housing options, and public spaces as well as family and community life: they are, for example, forbidden from working, living, or even spending short amounts of time within 1,000 feet of a school, playground, park, or other area where children gather. For Jane Does 1–4, who live in large cities like Memphis, finding work and housing outside these vast and ever-changing registry “Exclusion Zones” is nearly impossible.


6.The restrictions are particularly disruptive of family relationships, even though such relationships are critical to successful community reintegration and are known to reduce recidivism. Jane Does 1–4 cannot be alone with their nieces, nephews, or grandchildren, and are forbidden, for example, from watching their grandchildren perform in a school play or sporting event. This is so even though their convictions have nothing to do with the abuse of children.


7.Along with being unlawful, Tennessee’s criminalization of disability status is counterproductive as a means of addressing HIV. The scientific consensus is that HIV-criminalization laws do not reduce the prevalence of HIV. Rather, by criminalizing knowledge of one’s HIV status, Tennessee disincentivizes at-risk individuals from seeking testing and erodes the trust in medical professionals that is needed to successfully access treatment and limit transmission.


8.There are many other chronic and manageable infectious conditions prevalent in Tennessee, but none are subject to such draconian and counterproductive punishment. That individuals living with HIV are treated so differently can only be understood as a remnant of the profoundly prejudiced early response to the AIDS epidemic, and the continuing marginalization of the Black cisgender and transgender women who have borne the brunt of the Aggravated Prostitution and related registry requirements. Indeed, in 2022, a Black woman in Tennessee was 290 times more likely to be on the sex offender registry for an HIV-related conviction than a white man. 


9.While many states across the country have reformed their discriminatory and scientifically unsound HIV-specific criminal laws in recent years, Tennessee has continuously increased the penalties for Aggravated Prostitution through amendments to its registry scheme retroactively applied to Plaintiffs. Today, Tennessee’s Aggravated Prostitution statute is the only law in the nation that treats people living with HIV who engage in any sex work, even risk-free encounters, as “violent sex offenders” subjected to lifetime registration. 10.Counterproductive and harmful, Aggravated Prostitution and its related requirements under TN-SORA violate the ADA, equal protection, substantive due process, the Eighth Amendment, and the prohibition against ex post facto laws, and must be struck down.

November 20, 2023 in Healthcare, Legislation, LGBT | Permalink | Comments (0)

Wednesday, November 15, 2023

Analysis: Ohio Legislature Threatens Jurisdiction Stripping to Prevent Enforcement of New Constitutional Right to Reproductive Freedom

In November, people in Ohio passed an initiative for Reproductive Freedom of abortion, contraception, and reproductive rights by 57%. The initiative was proposed by a public petition process, where pro-choice supporters from the medical profession led the petition signing campaign to get the amendment on the ballot.

Maneuvers to Defeat Reproductive Freedom Amendment

The Ohio legislature and executive, Republican controlled, tried many maneuvers to defeat this amendment. The legislature added an August special election to change the standard for passing a constitutional amendment by initiative from 50% to 60%. After prohibiting special August elections the year before. The voters rejected that change in the one-hundred year standard by 57%. Then the Secretary of State “summarized” the actual language of the amendment in ways that suggested abortion would be freely allowed any time (while the amendment expressly says prohibitions are allowed after fetal viability) and changed fetus to “unborn child.” One poll showed this impacted 5% of the voters, particularly men and conservative women in the middle, who would have withdrawn their support based on the language. Then the Attorney General issued an “explanation” of the amendment that called it an extreme law that established a new level of “exclusive scrutiny” under the constitution never before seen. Even though the amendment is a reasonable restoration of the prior balance of Roe and state law drawn at viability and applying strict scrutiny. The Governor advocated strongly against the amendment, calling it extreme and jeopardizing parents’ rights over minors’ abortions. See Jessica Bulman-Pozen & Miriam Seifter The Right to Amend State Constitutions, Yale L.J. Forum (Nov. 10, 2023) (discussing larger trend of  maneuvers to block the right to amend). 

After the passage of amendment, the Governor announced he accepted the results of the election and recognized the amendment. “He said along with the rest of Ohioans, the state will wait to see how the constitutional amendment is applied.” “I always said that all of at least can be up to the courts," DeWine said. "So these things will have to play out in the court of law. So we will we'll see how they how they play out and what the courts decide."

Repeal or Replace

There have been some hints of new amendments to be quickly proposed to “repeal or replace” the 2023 Amendment. Reproductive Freedom Wins in Ohio. But That's Not the End of the Story.  Ohio has no regulatory limits on new amendments, unlike some states that have laws prohibiting these types of immediate proposals. Seven states have limits on repeat measures, typically temporal restrictions that prevent similar measures within 2 to 3 years.

Ohio has some precedent on this type of repeal. Ohio’s constitution originally banned gambling. But in 1973, voters approved a state lottery. Between 1973-2009, four initiatives failed to approve casinos, with one barely passing in 2009.

A similar back and forth happened with women’s presidential suffrage in 1917. Presidential suffrage was a partial suffrage measure granting women the right to vote in presidential elections. The legislature passed a bill authorizing presidential suffrage. But opponents, most from the liquor industry fearing women voters would vote for prohibition, quickly put together an initiative to repeal the law. Women suffragists led by attorney and later Judge Florence Allen challenged the petition signatures as fraudulent. But the amendment was placed on the ballot and strongly passed, thus overturning women’s limited suffrage. See Tracy Thomas, The Jurisprudence of the First Woman Judge, 27 William & Mary J. Race, Gender & Social Justice J. 293, 316-17 (2001).

Threats of Jurisdiction Stripping

However, the legislature has not. A significant minority of legislators issued a statement saying they intend to strip courts of jurisdiction to hear cases about the amendment. See Ohio GOP Lost on Issue 1. Now Some Want to Strip Power Over Abortion Laws from the Courts. “Jurisdiction” is a court’s power or authority to consider a case. What this proposal does is prevent courts from enforcing the amendment by injunction and by declaring laws in contravention of the Reproductive Freedom Amendment unconstitutional. Because these legislators have indicated they will not recognize or enforce this right.

The Ohio legislative group issued a statement saying it would pass a bill saying that the state courts and/or Supreme Court could not hear cases about reproductive rights and/or would limit enforcement remedies like injunctions and contempt it could award. “The draft proposal from Rep. Jennifer Gross (R-West Chester) said state lawmakers would have exclusive authority over implementing Issue 1, with all jurisdiction withdrawn from local and state courts. It also would order the immediate dismissal of lawsuits, and violations by judges would be impeachable offenses.” Id.

 "It's even more extreme than I expected. A better title would be the Issue 1 Non-Implementation Act," said Steven Steinglass, dean emeritus at the Cleveland State College of Law and wrote the best known book on Ohio’s constitution.

Steinglass said the draft proposal violates the state's constitution in several ways. He said it goes against the new reproductive rights amendment, it violates the constitutional role given to the judiciary to interpret constitutional issues and goes against principles of separation of powers. He said it violates due process at the state and federal level, and he also said it arguably violates equal protection laws.

"So it seems to me that legally it really is and should be a non-starter," Steinglass said. Id.

 The Unconstitutionality of Jurisdiction Stripping

Jurisdiction stripping is a political tool from conservative playbooks to limit judicial action on social issues. In the 1980s, federal Congress members proposed bills to remove or limit the power of the U.S. Supreme Court to adjudicate issues of abortion, desegregation busing, and school prayer. Four bills were introduced in 1981 specifically to limit jurisdiction over abortion in opposition to Roe v. Wade. Chief Justice Roberts, then working as a lawyer in the Senate, did the research endorsing this approach. (And recently, liberals have grabbed on to jurisdiction stripping as a court-reform strategy to limit the impact of the current Supreme Court).

Jurisdiction stripping assumes that the legislature has power to dictate the jurisdiction of the courts, and thus has the power to limit that jurisdiction. At the federal level, this is Congress’ power under Article III of the Constitution to create the appellate jurisdiction of the U.S. Supreme Court with exceptions and its power over the lower courts.

However, jurisdiction stripping is blatantly unconstitutional conduct. It violates separation of powers, one of the key principles of the U.S. Constitution establishing three branches of government with checks and balances on each. Eliminating jurisdiction from courts over targeted controversial issues encroaches on the legislature’s power to interpret the law and check the excesses of the legislature. It threatens the rule of law itself if the dialogue with the judicial branch is strangled and legislatures are unaccountable to constitutional rights.

The potential power of jurisdiction stripping is also different whether a statutory or constitutional right is at issue. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 U.C. Davis L. Rev. 673 (2001). There is some support for the argument that legislatures can remove or limit jurisdiction or remedies for statutory rights, because they created those very statutory rights and could eliminate those rights completely. Id. at 696. However, constitutional rights are superior paramount rights that are not created by the legislature. The legislature cannot eliminate or change that constitutional right short of subsequent constitutional amendment. Without the power to change the right, there is no power to change the procedure, remedy, or jurisdiction over that right.

November 15, 2023 in Abortion, Constitutional, Courts, Legislation, Reproductive Rights | Permalink | Comments (0)

Wednesday, November 8, 2023

Reproductive Freedom Wins in Ohio, but That's Not the End of the Story

Ohio's Reproductive Freedom Amendment enshrining in the state constitution the protection of an individual's choice of abortion and contraception won at the polls yesterday 56% to 43%. See Ohio Votes Continues a Winning Streak for Abortion Rights, NY Times.

However, that is not the end of the story.

Repeal and Replace

State legislators State legislators have already claimed they will be moving to "repeal and replace" the amendment. This is a legal reality of the state constitutional amendment process. The legislature or public initiatives can continue to put amendments on the ballot.  These could be replacements, for example proposing a narrower law of 15 weeks with certain exceptions-- the approach advocated by the Virginia Republican Governor. Or these could be outright appeals seeking a redo on the amendment that just passed. Whether this is an effective political strategy is another question. 

There is some Ohio precedent for this repeal and replace, though not exactly on point. Women's suffrage fell at the vicissitudes of repeat amendments.  A constitutional amendment proposed by the legislature failed in 1912. A constitutional amendment proposed by popular initiative failed worse in 1914. Then the legislature passed limited suffrage of presidential suffrage, to vote in presidential elections, in 1916. But a public initiative put the repeal of that law on the ballot and it passed, thus ending limited women's suffrage. Another example of repeal and replace was Prohibition, which failed at the state level many times, then passed, then was repealed from the state constitution many years later.

Still, the state constitutional amendment for reproductive right is the best approach that can be used at the state level after Dobbs. It is more stable than a court opinion, which can be appealed or changed based on the distinctions of specific cases. The amendment is also more stable than a statutory law, which can be changed by a subsequent legislature. But it is not as guaranteed as a federal constitutional right, which theoretically is not up for reconsideration each term -- but which proved that it too was not impossible to change. 

Federal Oversight

The Ohio reproductive freedom amendment could also be threatened by a federal law restricting abortion. This might be Congress' proposed 15 week ban. Federal law preempts state law in the same field, as we saw with the federal health insurance mandate and state constitutional amendments rejecting that mandate. Opponents did try to "repeal and replace" the health insurance law. A preemption abortion federal rule might also come from a fetal personhood decision by the Supreme Court, a move advocated by pro-life groups that would likely ban most abortions. Of course, a federal law from Congress could also be protective of reproductive freedom, which would control over any restriction passed by a state. 

Ongoing Litigation

Given the movement to repeal and replace, the ongoing litigation in the challenge to Ohio's 6 week abortion ban might continue to be relevant. In Preterm Cleveland v. Yost, a trial court held that Ohio's Constitution already protects abortion. The court cited the Ohio Constitution's liberty guarantees, due process, equality, and its unique Health Care Freedom Amendment (passed by voters challenging Federal Health Insurance in 2011) as synergistically protective of this choice. The case is pending in the Ohio Supreme Court on procedural challenges to the government's ability to file an interlocutory appeal and on standing of whether the providers are the proper parties to litigate. So maybe the case is not moot and will, or should, not be dismissed.

November 8, 2023 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Thursday, November 2, 2023

Clarifying What Is and Isn't Part of the Proposed Ohio Constitutional Amendment for Reproductive Freedom on the Ballot Next Week

In this interview with NBC News, I try to clarify what is--and isn't--part of the proposed Ohio Constitutional Amendment for Reproductive Freedom on the ballot next week.

Adam Edelman, NBC News Ohio GOP Candidate and Issue 1

 [As to claims the amendment is about parents' rights"]

 For one, they say, there is nothing in the text or in the intent of the proposed amendment that could affect the legal rights of minors or parents in Ohio. That’s because federal and state courts, going back decades, have upheld an existing Ohio law requiring parental consent for minors seeking abortion care.

A U.S. Supreme Court decision even upheld that law, which requires any unemancipated minor to receive consent from one parent or guardian or custodian, unless a judge has ruled that an abortion is “in the best interests of the minor.”

Tracy Thomas, director of the Center for Constitutional Law at the University of Akron Law School in Ohio, said there was "no conflict" between Issue 1 and existing minors' rights — "even when the amendment language is read broadly."

"We have 50 years of case law about minors' rights and parents’ rights," Thomas said.

Those rulings, she said, have determined that “even though individuals, including minors” have constitutional reproductive rights, “they can be more regulated than adults because minors are more vulnerable, more immature.” 

“There’s no reason that would change,” she said.

In a legal analysis of the measure published last month, even Dave Yost, a Republican and the state’s attorney general, acknowledged that the measure “does not specifically address parental consent.”

Thomas explained that the claim that a woman's rapist could somehow manipulate that law to force his victim to have an abortion is also false.

"They are saying that a rapist would be an accomplice who would be immune" — under a provision in the amendment language that protects a person who "assists" someone with receiving an abortion — "and that’s just not textually accurate."

“The amendment is not doing that in any way, shape or form," Thomas said.

That's because the amendment language also makes clear that an individual's right to reproductive care is protected only if it's "voluntary."

"Someone who is assisting in an abortion that’s not voluntary is not going to be protected by this at all," Thomas explained.***

“A parent who wants to support a minor’s decision to have an abortion cannot do so,” under the law, Thomas explained. “So, defeating it actually cuts into parents’ rights.***

But there is no mention of transgender rights or parental rights in the amendment. Legal experts say it would be wrong to interpret the language to apply to most topics not specifically mentioned in the measure’s language — even when the “not limited to” phrase is considered.

“Opponents have latched on to the ‘but not limited to’ language to say that this could provide a constitutional right to, among other things, gender-affirming care rights. That’s not a legally persuasive argument,” Jonathan Entin, a constitutional law expert and professor emeritus at the Case Western Reserve School of Law in Cleveland, told NBC News earlier this year.

That’s because courts have for decades developed rules about interpreting legal documents that include lists — including ones that have “but not limited to” language — dictating that such language covers things considered only “plausibly related” to the specific items mentioned.

See also Change in Ohio Ballot Language May Have a Big Effect on Support for Issue 1 Reproductive Freedom Constitutional Amendment

Tracy Thomas, Language post

Dan Kobil, Op ed, What Ohio's Proposed Abortion Amendment Really Does

The proposed Ohio amendment reinstates the freedoms that women -- and men -- had before Dobbs. It guarantees “individuals” the right to make their own reproductive decisions, and lists contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion, before viability. Viability means that the fetus has a “significant likelihood” of surviving outside the womb. The amendment will not automatically invalidate any existing Ohio laws apart from the current six-week ban.

Rather than engage the merits of the proposal, opponents have attempted to distract voters about what the amendment actually does. They contend that the amendment is aimed at depriving parents of their ability to help children decide whether to seek an abortion or “sex changes.”

This contention is highly misleading. Ohio’s current law already limits the ability of parents to choose reproductive options for their child, such as ending a pregnancy resulting from a rape. Moreover, the amendment does not include gender reassignment in its examples of protected “reproductive decisions.” The contention that “sex changes” will suddenly have constitutional status is thus a significant stretch.

And contrary to what is claimed by opponents, the amendment will not repeal Ohio’s existing law requiring parental consent for minors seeking abortions. This statute provides that an unemancipated minor must obtain the consent of one parent to obtain an abortion, unless a minor has obtained a court order that an abortion is in her best interests.

The amendment says nothing about this law, and it is unlikely that courts would invalidate parental consent if the amendment passes. In 1990, when Roe was in effect, the U.S. Supreme Court upheld Ohio’s parental consent rule. The amendment aims to reinstate the rights that Roe guaranteed                           

November 2, 2023 in Abortion, Constitutional, Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, October 31, 2023

Change in OH Ballot Language May Have a Big Effect on Support for Issue 1 Reproductive Freedom Constitutional Amendment

Change in Ballot Language May Have a Big Effect on Support for Issue 1 (OH Reproductive Freedom Amendment)

Advocates for Issue 1 were angered that the summary language facing voters at the ballot box was altered to include the phrase “unborn child” rather than the original language of “fetal viability.” To examine what effect this may have on support for Issue 1, we asked half of our respondents about their support with the original ballot language and half with the language now appearing on the ballot. We find majority support for both versions of Issue 1, albeit with 52% agreeing with the current ballot language and 68% agreeing with the original ballot language.
Much of the difference in support can be found among Republicans and Independents who are more supportive of the original language and less supportive of the current ballot language. Democrats show almost universal support for both versions (87% for each). Likewise, men are much more likely to support the original version of Issue 1, whereas women demonstrate little change in support for either version of Issue 1 (68% and 63%, respectively). The margins of error are appreciably higher for these specific questions because we split our sample to test the effects of the change in ballot language, so results should be taken with caution. Nonetheless, the change in ballot language will likely have an effect on the level of support for Issue 1.

Here is the initiative language endorsed by the petition signatories:

  1. Every individual has a right to make and carry out one's own reproductive decisions, including but not limited to decisions on contraception, fertility treatment, continuing one's own pregnancy, miscarriage care, and abortion.
  2. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either an individual's voluntary exercise of this right or a person or entity that assists an individual exercising this right, unless the State demonstrates that it is using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care.
  3. However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient's treating physician it is necessary to protect the pregnant patient's life or health.
  4. As used in this Section, "Fetal viability" means "the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis"; and "State" includes any governmental entity and political subdivision.
  5. This Section is self-executing.

Here is the ballot language rephrased by state officials:

        The proposed amendment would:

  • Establish in the Constitution of the State of Ohio an individual right to one's own reproductive medical treatment, including but not limited to abortion;
  • Create legal protections for any person or entity that assists a person with receiving reproductive medical treatment, including but not limited to abortion;
  • Prohibit the State from directly or indirectly burdening, penalizing, or prohibiting abortion before an unborn child is determined to be viable, unless the State demonstrates that it is using the least restrictive means;
  • Grant a pregnant woman's treating physician the authority to determine, on a case-by-case basis, whether an unborn child is viable;
  • Only allow the State to prohibit an abortion after an unborn child is determined by a pregnant woman's treating physician to be viable and only if the physician does not consider the abortion necessary to protect the pregnant woman's life or health; and
  • Always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability if, in the treating physician's determination, the abortion is necessary to protect the pregnant woman's life or health.

This changed ballot language was upheld by the Ohio Supreme Court. Ohioans for Reproductive Rights v. Ohio Ballot Board (Sept. 19, 2023)

Combined with the Ohio Attorney General's Opinion on Issue 1, an unusual and misleading "neutral" opinion on the interpretation and implications of the amendment, the misinformation and misunderstanding of the amendment is making a big impact on passage.

October 31, 2023 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Thursday, October 26, 2023

Regulating the Substantive Gender Inequalities of Artificial Intelligence

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

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

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