Thursday, September 8, 2022

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

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

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

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

Friday, July 22, 2022

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

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

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

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

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

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

Thursday, July 7, 2022

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

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

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

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

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

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

Wednesday, July 6, 2022

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

The Speak Out Act Removes Legal Barriers to Reporting Sexual Assault

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

 

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

 

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

 

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

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

Tuesday, June 28, 2022

Ohio Statutory Framework of Abortion Laws After Dobbs

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

 

OHIO ABORTION STATUTORY FRAMEWORK POST-DOBBS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.       Ohio’s Current Civil Framework Regulating Abortion

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

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

IV.  Ohio’s Fetal Personhood Laws

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

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

 

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

 

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

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

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

New criminal offense under HB 1280

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

 

Other things to know about this new crime:

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

 

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

 

New civil fines (and complications)

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

 

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

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

Friday, June 24, 2022

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

Thousands of Witches Could be Posthumously Pardoned in Scotland

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

 

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

 

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

 

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

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

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

Thursday, June 23, 2022

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

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

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

 

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

 

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

 

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

 

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

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

Wednesday, June 15, 2022

Where to Find the Specifics of Each State's Abortion Bans

If the Supreme Court overturns Roe and Casey in the forthcoming Dobbs decision, as an anticipated, the question is what the law of abortion will then be in each of the states.  Several groups have been compiling the information:

 

Center for Reproductive Rights, What if Roe Fell? (2019), https://reproductiverights.org/wp-content/uploads/2021/12/USP-2019-WIRF-Report-Web_updated.pdf (current as of 2019)

In the last decade, states have enacted over 450 restrictive abortion laws and, in 2019, numerous states enacted blatantly unconstitutional abortion bans as part of this coordinated strategy. If the Court were to limit or overturn Roe, it is likely that 24 states and three U.S. territories would attempt to prohibit abortion entirely. Abortions rights are protected by state law in only 21 states and no U.S. territories. In the remaining five states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, abortion may remain accessible but vulnerable without affirmative legal protection. With several abortion cases already seeking review at the Supreme Court and others making their way toward it, we now are facing an existential threat to reproductive rights.

 

Public discussion of abortion rights has focused on determining which states would prohibit or heavily restrict abortion access if allowed to do so by the Supreme Court. What if Roe Fell? provides our legal analysis of abortion law, state-by-state and territory-by- territory. We analyzed state constitutions, statutes, regulations, and court opinions in each of the fifty states, the District of Columbia, and the five most populous U.S. territories to answer this critical question: what would happen where you live if the Supreme Court limited or overturned Roe v. Wade?

 

The Policy Surveillance Project, Abortion Bans

Restrictions on abortion are most often accomplished by prohibiting abortions at specific gestational limits, usually defined in state law by either a certain number of weeks post-fertilization, or from a pregnant person’s last menstrual period (LMP). Further limitations on abortions in state-level regulation include restrictions based on a pregnant person’s reason for seeking an abortion, and bans on certain types of procedures used in late-term abortions. Additionally, some abortion bans are either contingent on a court ruling overturning Roe v. Wade, or have been in place prior to Roe protections.This dataset explores abortion regulations in all 50 U.S. states and the District of Columbia in effect from December 1, 2018 through October 1, 2021, as well as case law and attorney general opinions that affect the enforceability of these laws.

 

This dataset is a part of a suite of 16 datasets created by the Policy Surveillance Program of the Center for Public Health Law Research in collaboration with subject matter experts from Resources for Abortion Delivery (RAD), Guttmacher Institute, American Civil Liberties Union (ACLU), Center for Reproductive Rights (CRR), National Abortion Federation (NAF), and Planned Parenthood Federation of America (PPFA), who conceptualized and developed the Abortion Law Database. 

 

See also: 

Guttmacher Institute, An Overview of Abortion Laws, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws & Guttmacher Institute, State Legislation Tracker, https://www.guttmacher.org/state-policy 

NACL Appendices on the Criminalization of Abortion, https://nacdl.org/Document/AbortioninAmericaReportAppendices 

June 15, 2022 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, June 13, 2022

California Corporate Gender Diversity Law Struck Down, But Other States and Countries Continue Trend of New Laws

Ms., Gender Diversity on on California's Corporate Boards was Too Good to Law

In 2018, California broke new ground for women when Governor Jerry Brown signed the first-in-the-nation requirement that publicly traded companies in the state have at least one woman on their board of directors by the end of 2019, and two or three (depending on company size) by the end of 2021. The bill’s co-sponsor state Senator Hannah-Beth Jackson put it bluntly: “We are not going to ask any more.  We are tired of being nice. We’re tired of being polite. We are going to require this because it’s going to benefit the economy. It’s going to benefit each of these companies.”

 

Alas, it was too good to last. Last month, the law was deemed unconstitutional in a bench trial by Los Angeles County Superior Court Judge Maureen Duffy-Lewis because it wasn’t designed to remedy a “specific, purposeful, intentional and unlawful” instance of discrimination. She added that the state’s claims that diverse boards would directly boost California’s economy could not be proven.

 

It’s no surprise that Judicial Watch, the conservative group that prevailed in the litigation, trotted out the dreaded “Q Word” in opposing the measure: quotas. Legal precedent holds that quotas violate the Civil Rights Act of 1964, which prohibits discrimination against people based on race, gender, religion, age and other protected identities, because they could lead companies or schools to discriminate against people outside the targeted groups.

 

Never mind that in this case the poor, underrepresented targeted group happened to be wealthy white men, who have dominated corporate boards since Queen Elizabeth I the granted the first corporate charter to the East India company in 1600.

 

The ruling is without question a legal and moral setback, but fortunately for the future of women on boards in corporate America, that particular train may have already left the station. In the short time the law was in force, the percentage of board seats held by women virtually doubled—from 15.5 percent to 31.9 percent. In raw numbers, that translates to 766 female board members when the law was passed to 2046 by the end of 2021. ***

 

It’s clear from the pitiful progress since California led the way that stronger action is needed. Cases in point: Washington state’s law requires boards to have at least 25 percent of their makeup be members who self-identify as women. But violators face no penalties. Three other states—Maryland, New York and Illinois—merely require boards to disclose their demographic makeup. Ohio “encourages,” but does not require, disclosure.

 

We should take a page from the European Union playbook, where 40 percent female board seats for publicly traded companies were required as of March of this year. Under the new rules by the Council of the E.U., listed companies must meet the mandate by 2027

June 13, 2022 in Business, Equal Employment, Gender, International, Legislation, Workplace | Permalink | Comments (0)

Friday, June 10, 2022

Federal Legislation Proposed to Prohibit "Stealthing" (Nonconsensual Condom Removal) as Sexual Assault

Proposed Federal Law Prohibits Nonconsensual Condom Removal

Legislation introduced last week would create a new federal civil rights violation of “condom stealthing”—the removing of a condom during sex without verbal consent from a partner, which forces someone to have unprotected sex without their consent. Introduced by U.S. Representatives Carolyn B. Maloney (D-N.Y.), Norma J. Torres (D-Calif.) and Ro Khanna (D-Calif.), the proposed law recognizes the right to sexual self-determination including the right to choose what conditions are placed on consent to sex.

 

“Stealthing is a grave violation of autonomy, dignity and trust that is considered emotional and sexual abuse,” said Maloney. “Congress has an obligation to address stealthing at the federal level and allow survivors to hold those that have stealthed them accountable. Stealthing is a horrific act of sexual violence and must be put to an end.”

 

“Stealthing or nonconsensual condom removal is a violation of trust and dignity and a dangerous form of sexual assault,” said Khanna. “We need to do more to protect victims.”

 

Maloney, Torres and Khanna have introduced two bills:

  •  The Stealthing Act of 2022 would create a federal civil right of action for survivors of nonconsensual condom removal.
  • The Consent is Key Act would encourage states to voluntarily pass laws authorizing civil damages for survivors of nonconsensual condom removal by increasing funding levels for federal domestic violence prevention programs in states that pass these laws.

 

“Consent is key, it is that simple,” said Torres. “Nonconsensual condom removal is sexual violence that can have lifelong consequences, and survivors of such violence deserve to have their voices heard, and deserve justice. This legislation will ensure survivors can turn to the courts for relief and will boost federal domestic violence programs to help as many survivors as possible. Everyone deserves to have their autonomy respected.”

 

Both pieces of legislation were inspired by a California law passed last October, making it a civil sexual battery offense for someone to remove a condom during sex without verbal consent from their partner. The law allows victims of stealthing to sue their perpetrators for damages and relief. California was the first state to pass a law against condom stealthing.

June 10, 2022 in Legislation, Pregnancy, Reproductive Rights, Violence Against Women | Permalink | Comments (0)

Thursday, June 9, 2022

Ohio House Passes "Save Women's Sports Act" Bill to Prohibit Transgender Female Athletes in School Sports and Includes Verification Process of Genital Inspection

Ohio GOP Passes Bill Aiming to Root Out "Suspected" Transgender Female Athletes Through Genital Inspection

House Republican lawmakers in Ohio passed a bill at 11:15 p.m. Wednesday night that would ban transgender girls and women from participating in high school and college athletics. It also comes with a "verification process" of checking the genitals of those "accused" of being trans.

 

The 'Save Women's Sports Act,' or House Bill 61, wasn't supposed to be on the schedule for legislators originally. However, at the last minute, Republican representatives added the language to a completely different bill.

 

H.B. 151 would revise Ohio’s Teacher Residency Program, trying to reduce state control in schools. The bill, sponsored by Republican state Rep. Don Jones, from Freeport, got a surprise addition.

Powell's Save Women's Sports Act Passed by Ohio House

State Rep. Jena Powell’s (R-Arcanum) Save Women’s Sports Act was approved by the Ohio House on Wednesday. The legislation would prohibit biological males from competing in female-only sports within the state. Powell spoke to the legislation’s passage on the House Floor.

 

“The Save Women’s Sports Act is a fairness issue for women. Across our country, female athletes are currently losing championships, scholarship opportunities, medals, education and training opportunities, and more to discriminatory policies that allow biological males to compete in girls’ sports,” said Powell.

 

Powell’s Save Women’s Sports Act, which passed as an amendment to House Bill 151, would ensure that no school, interscholastic conference, or organization that regulates interscholastic athletics can allow biological males to compete in women’s sports. 

 

“All these girls ask for is a fair shot, and to be given the chance to play and win by the rules in the sports that they love. The opportunity is being ripped from them by biological males,” Powell added

June 9, 2022 in Education, Legislation, LGBT, Sports | Permalink | Comments (0)

Wednesday, June 8, 2022

Supremacy Clause May Preempt State Restrictions on Abortion Pills

FDA Abortion Pill Policy May Preempt State Restrictions

In December of 2021, the FDA lifted some of its burdensome restrictions on the abortion pill mifepristone, including the requirement that healthcare providers must meet in-person with patients to dispense the medication. Nineteen states, however, continue to impose in-person dispensing requirements and many impose other restrictions that go beyond FDA requirements, like only allowing physicians to dispense the medication and requiring multiple in-person visits to obtain the medication. In October, Texas banned clinicians from prescribing abortion pills after seven weeks of pregnancy—three weeks before the current FDA time limit of 10 weeks. Legal scholars and advocates are questioning the constitutionality of these additional restrictions on abortion pills.

University of Pittsburgh law professor Greer Donley argues that state bans of an FDA-approved abortion medication may violate the supremacy clause of the U.S. Constitution. The supremacy clause establishes that federal laws take precedence over state laws that are in conflict, and prohibits states from interfering with matters that are exclusively entrusted to the federal government—such as the regulation of medications.***

A similar lawsuit has already been filed by GenBioPro, which produces a generic form of the abortion pill mifepristone. The company has sued the state of Mississippi in federal court, challenging state restrictions that go beyond the FDA rule, including a law allowing only physicians to dispense the drug and requiring in-person dispensing. That suit is currently pending.

“It gets a little bit more complicated when we start thinking about the post-Roe world and abortion bans. I think if a state were to pass a law that specifically banned mifepristone or misoprostol that would be preempted,” said Greer. “But I think it’s a really hard question about whether or not a state’s general abortion ban is preempted

June 8, 2022 in Abortion, Courts, Legislation, Reproductive Rights, Science, Technology | Permalink | Comments (0)

Friday, June 3, 2022

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

Period-tracking apps gather intimate data. A new bill aims to curb mass collection

The “My Body, My Data Act” would require that companies only collect and retain reproductive health information that is “strictly needed” to provide one of their services, unless they otherwise obtain explicit consent from a user. And it would give users the right to demand that their information be deleted or for companies to disclose how they are using the data.***

 

The legislation would give the Federal Trade Commission the power to enforce the new standards but also give consumers the ability to launch their own lawsuits against companies in violation and allow states to implement privacy laws that build on the bill’s protections. ***

 

Given broad Republican opposition to expanding abortion protections and an evenly split Senate, Jacobs’s proposal is unlikely to become federal law. But she argued there’s momentum behind the effort that could inspire state-level action.

 

“We think this can be a model for states as they're trying to figure out how they can best protect people's right to abortion,” she said.

June 3, 2022 in Legislation, Media, Pop Culture, Reproductive Rights | Permalink | Comments (0)

Thursday, June 2, 2022

The Path Almost Taken Toward Abortion Rights in the NY Abramowicz Case Rather than Roe

Emily Bazelon, America Almost Took a Different Path Toward Abortion Rights

For three days in January 1970, they filled the 13th floor of the federal courthouse in Manhattan, women of all ages crowded into a conference room, sitting on the floor, spilling into the hallway. Some brought friends or husbands. One nursed a baby. Another was a painter who also taught elementary school. A third had gone to Catholic school. They’d come to give testimony in the case of Abramowicz v. Lefkowitz, the first in the country to challenge a state’s strict abortion law on behalf of women.

 

The witnesses in the courthouse were among 314 people, primarily women, brought together by a small team of lawyers, led by Florynce Kennedy and Nancy Stearns, to set up a legal argument no one had made before: that a woman’s right to an abortion was rooted in the Constitution’s promises of liberty and equal protection. New York permitted abortion only to save a woman’s life. Kennedy and Stearns wanted the court to understand how risking an illegal procedure or carrying a forced pregnancy could constrict women’s lives in ways that men did not experience.***

 

Those objectives started with forcing the courts to confront the impact of a near ban on abortion on women’s lives. “When we couldn’t control when we had a baby, we weren’t free and we weren’t equal,” Nancy Stearns, the lead writer of the briefs in the case, explained to me recently over the phone. “That was our fundamental argument,” she said of putting gender equality at the center of the case. “It was clearly even stronger for low-income women.”

 

At the time, Stearns’s framing was unheard-of as a legal theory. It wasn’t just that the Supreme Court hadn’t decided a case about abortion. The court “had never found a single law to violate the equal-protection clause because it discriminated on the grounds of sex,” Reva B. Siegel, a Yale Law professor, explained in The Boston University Law Review in 2010.

June 2, 2022 in Abortion, Constitutional, Courts, Legal History, Legislation, Reproductive Rights | Permalink | Comments (0)

Wednesday, June 1, 2022

Proposed PA Legislation Would Require Impregnators to Pay Half of Pregnancy Costs

Making "Impregnators" Pay Their Fair Share

Long before a leaked Supreme Court draft opinion revealed that by summer Roe v. Wade will likely be overturned, only pregnant people bore the burden of pregnancy—not just physically, but also financially. “Impregnators” have always had the choice to walk away. Sure, they could be on the hook for child support after birth—but what if they could be held responsible for their actions before, from the moment of conception, just as the pregnant person is?

 

That question led two Pennsylvania state representatives to begin drafting a law to hold impregnators accountable. Legislation proposed by Reps. Emily Kinkead (D–Pittsburgh) and Christopher M. Rabb (D–Philadelphia) focuses on “the civil offense of wrongful conception.” If enacted, it would require inseminators to pay half of all costs related to a pregnancy.

 

“Making it a civil offense for wrongful conception would allow pregnant people to financially recover 50 percent of all pregnancy-related costs,” Kinkead said. “Not just medical bills, but also the cost of maternity clothes, increased food expenses, birthing classes, doula care, mileage for travel to medical appointments, nursery furniture and supplies, and many other expenses that occur during pregnancy.” It would also cover other pregnancy-related costs postpartum because, “the costs of pregnancy do not stop after birth,” Kinkead added. “Postpartum, a new parent can have pregnancy-related costs for up to a year. Impregnators must be held responsible to equally cover all expenses.”

 

While Rabb acknowledged that the proposed law could be seen as “a radical proposition, it’s fundamentally fair since the full physical and financial weight of a pregnancy—termination, miscarriage, stillbirth or a successful delivery and postnatal care—are currently borne only by the impregnated person.

June 1, 2022 in Legislation, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, May 23, 2022

Exploring State Laws of Pregnant Workers Fairness Acts and Reasonable Accommodations

Deborah Widiss, Pregnant Workers Fairness Acts: Advancing a Progressive Policy in Both Red and Blue America, Nevada L.J. (forthcoming)

 Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to work safely through a pregnancy. Federal law does not explicitly address this need. However, in the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divides in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay, written for a symposium on using state legislation to advance civil rights, offers the first relatively-detailed case study of this remarkably effective campaign.

Advocates have generated bipartisan support by highlighting that the laws, generally known as Pregnant Workers Fairness Acts, simultaneously advance numerous distinct policy objectives. Lack of accommodations for pregnancy is a major barrier to women’s equality that disproportionately disadvantages poor and working-class women of color. Addressing this need is also a pro-family policy that promotes maternal and infant health and reduces liability risk to employers. These various frames help sell the policy to lawmakers across the political spectrum.

The state-level success has also been the result of effective partnerships between national organizations and state and local groups. Additionally, the Essay shows how the state legislative campaign has been reinforced by litigation in federal courts, advocacy to federal agencies and Congress, and worker organizing. Finally, the Essay explores how state-level organizing—even unsuccessful state campaigns—has bolstered support for analogous federal legislation.

May 23, 2022 in Equal Employment, Legislation, Pregnancy, Reproductive Rights, Workplace | Permalink | Comments (0)

Thursday, May 19, 2022

Republicans Introduce "Women's Bill of Rights" to "Protect" Biological Sex Differences in Law

Republicans Introduce Women's Bill of Rights to Protect Accomplishments, Ensure Safety of Biological Females

Republicans are introducing a "Women's Bill of Rights" in order to enshrine into law protections for females based on their biological sex.

 

Rep. Debbie Lesko, R-Ariz., is leading lawmakers on the Republican Study Committee (RSC), the largest group of conservative lawmakers on the Hill, in formally introducing the legislation Thursday morning. 

 

"I am proud to introduce the Women’s Bill of Rights to affirm the importance of acknowledging women and their unique and distinguishing characteristics and contributions to our nation. As the Left continues to erase women, we must fight for women and their place in our society. Whether it’s keeping the word "mother" in written law, or ensuring women’s domestic violence shelters do not have to accept biological men, we must stand up for women," Lesko told Fox News Digital.

 

The bill states that the Women's Bill of Rights is necessary to establish in order to "reaffirm legal protections afforded to women under Federal law" due to that face that males and females have unique biological differences, which increases as they age.

 

The lawmakers' bill says that due to biological differences, only females are able to "get pregnant, give birth, breastfeed children." In addition, males are larger and possess greater strength than females due to biology. The text also states that females are subjected to more specific forms of violence, including sexual violence....

 

"This common-sense document will help codify our common understanding and the reality we all know of the words ‘female,’ ‘woman,’ and ‘sex’, and I am proud to support it," Rep. Miller added.

 

The legislation clarifies, "for purposes of Federal law, a person’s ‘sex’ means his or her biological sex (either male or female) at birth" and the term "mother" means "parents of female sex and ‘father’ is defined as parent of the male sex." It continues: "there are important reasons to distinguish between the sexes with respect to athletics, prisons, domestic violence shelters, restrooms, and other areas, particularly where biology, safety, and privacy are implicated."

May 19, 2022 in Gender, Legislation, LGBT | Permalink | Comments (0)

Monday, May 16, 2022

Trauma as Inclusion

Raquel E. Aldana, Patrick Marius Koga, Thomas O’Donnell, Alea Skwara, and Caroline Perris have posted a forthcoming article, Trauma as Inclusion, on SSRN. The article is forthcoming in Summer 2022 in the Tennessee Law Review.  It "brings together a historian and law, public health, psychiatry, psychology, and neuroscience faculty and researchers to document how trauma is understood across disciplines and how it has developed in U.S. immigration law largely to exclude but increasingly to include migrants whose lives have been uprooted or otherwise impacted by borders." It describes, for example, how refugee and asylum law "largely fail to protect individuals and groups facing persecution by private actors, such as women and LGBTQIA+ individuals, even when private violence has become indistinguishable from state sponsored persecution." It then explores how the Violence Against Women Act has more potential for a model of "trauma as inclusion": 

Unfortunately, several obstacles, including evidentiary barriers impede the full potential of the VAWA self-petition process. Proving trauma for domestic violence victims is difficult, even in cases involving physical abuse, given the barriers to reporting. Moreover, when the alleged hardship is based on “extreme cruelty,” an immigrant’s narrative alone can be deemed insufficient to establish eligibility. For immigrants who can afford it, sometimes psychological evaluations can help document psychological trauma that is not otherwise documentable. However, even these types of evidence may not help overcome the Western clinical conceptualizations of trauma that undermine the lived experiences of more resilient women, especially when one considers the different ways that victims respond to trauma. Worse yet, these types of psychological evaluations can be used against immigrants to deny relief, such as when documented depression and suicidal thoughts trigger mental health grounds of inadmissibility.

May 16, 2022 in Human trafficking, Legal History, Legislation, Theory, Violence Against Women | Permalink | Comments (0)

Monday, May 9, 2022

N.J. Bill Proposes Remote School Accommodations for Students with Menstrual Disorders

The New Jersey Assembly has proposed a bill allowing students experiencing a menstrual disorder to attend school remotely.  The summary of the bill explains how the bill works and why it is important: 

This bill permits a student enrolled in a school district to attend school through virtual or remote means while experiencing symptoms of a menstrual disorder. The student's parent or guardian will submit a written request for accommodation no later than the start of the school day the accommodation is required.  Under the bill, menstrual disorders include, but are not limited to, dysmenorrhea, endometriosis, menorrhea, and polycystic ovarian syndrome.

 

     A parent or guardian will provide medical documentation, as required by the principal of the school in which the student is enrolled, to prove the student meets the requirements for virtual or remote instruction related to menstrual disorders.  Under the bill, a day of virtual or remote instruction will be considered the equivalent of a full day of school attendance for the purposes of meeting State and local graduation requirements or the awarding of course credit.

 

     Also under the bill, the Commissioner of Education, in consultation with the Commissioner of Health, will provide school districts with criteria for defining an excused absence from school related to a menstrual disorder.

 

     Menstrual disorders, and the pain and discomfort associated with them, are often cited as the reason menstruating students miss school days.  Menstrual disorders are also fairly common; one in five menstruating students experience menorrhagia, and nearly 70 percent of menstruating students experience dysmenorrhea.  Students who attend class while experiencing a menstrual disorder often report classroom performance or concentration being negatively affected.  Additionally, nearly one third of students who menstruate report missing at least one day of school while experiencing menstruation.

May 9, 2022 in Education, Legislation, Reproductive Rights | Permalink | Comments (0)