Gender and the Law Blog

Understanding Gender Through an Economic Frame and the Lens of Decertification of Legal Sex

Davina Cooper, De-producing Gender: The Politics of Sex, Decertification and the Figure of Economy,  
Forthcoming, Feminist Theory, https://journals.sagepub.com/doi/10.1177/14647001221148639

This article explores the contribution that the figure of economy can make to understanding gender in contemporary Britain, focusing on gender as a social quality and legal category that is produced, allocated and used. The article proceeds in two parts. The first part considers the politics of sex-based feminism and gender-as-diversity through an economic frame. The second part focuses, in detail, on one specific juncture where these diverging politics meet: decertification – a law reform proposal to dismantle the system for assigning, registering and regulating legal sex. Decertification is a controversial strategy. Advocates argue that self-expression and interpersonal communication, whether through gender or against it, is hindered by a state-based disciplinary certification system. Critics disagree. They argue that dismantling legal communication about a person's sex makes it harder to put categories of female and woman to remedial use. Drawing on other uses of certification, including commercial ones, this article suggests that certification not only communicates information about a process, quality or thing; it also contributes to their production. The impact of decertification on how gender is produced, what gets produced as gender and the uses to which gender is put are central to determining whether decertification is beneficial to a progressive transformative gender politics.

Rethinking the Infrastructure of Childbirth and Perinatal Health Inequity

Elizabeth Kukura, Rethinking the Infrastructure of Childbirth, 91 UMKC L. Rev. 497 (2023)

This Article applies the concept of infrastructure to analyze gaps in the maternity care system that shape where and how people give birth in the United States. It argues that we must understand how structural factors, including law and regulation, shape modern childbirth in order to advance perinatal health equity and improve health outcomes.

Specifically, the Article unpacks the concept of maternity care deserts as an infrastructure problem in three distinct but related ways. First, it describes the OB/GYN workforce shortage, including how the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is likely to compound this shortage in certain areas of the country.

Next, the Article describes the limited access to midwifery care in the United States and the current regulatory barriers to increasing the midwifery workforce and making midwifery care more available. It argues that greater midwife involvement in United States perinatal care will be essential in order to address the deepening gaps in access to care, and that the medical profession should abandon its opposition to liberalized midwifery licensure and regulation in favor of both midwifery promotion and greater interprofessional collaboration to meet the needs of pregnant people. Experimentation during the COVID-19 crisis with relaxed interstate licensure rules and interprofessional collaboration among physicians, midwives, nurses, and doulas to ensure safe childbirth provide examples for reimagining the relationships among birth professionals in ways that promote positive health outcomes.

Finally, the Article addresses existing barriers to community birth—meaning birth at home and in freestanding birth centers—and how lack of access to community birth, which is typically attended by midwives, both contributes to maternity care deserts and forces some people to birth in hospitals where their needs are not adequately met. Drawing on experiences during the pandemic, when record numbers of pregnant people sought community birth options in order to avoid delivering in hospitals overwhelmed by COVID-19, the Article argues that investing in more freestanding birth centers and reducing barriers to home birth are sensible, necessary strategies for closing gaps in access to maternity care and ensuring that pregnant people who do not feel safe or cannot have their needs addressed in hospitals have options for delivering in a community setting.

Dobbs, Plessy, and the New Jane Crow

Evan D. Bernick, Dobbs, Plessy, and the Constitution of the New Jane Crow,  Northern Illinois U. Law Rev. (2023)

Women and girls enter U.S. jails and prisons every year. Nearly a million are on probation, parole, or pretrial release. This carceral control is unevenly distributed, being primarily exercised over poor women of color. And it is growing. These realities are part of what has been conceptualized as “the New Jane Crow.”

This Essay contends that Dobbs v. Jackson Women’s Health Org. gives the New Jane Crow the U.S. Supreme Court’s constitutional blessing. In justifying its decision to overrule Roe v. Wade and hold that the Fourteenth Amendment does not protect the right to terminate a pregnancy, Dobbs invokes Plessy v. Ferguson and its overruling by Brown v. Board of Education. The profound evil of Plessy’s constitutional endorsement of “separate but equal” railcars and its legitimation of Jim Crow segregation is said to illustrate the importance of overruling egregiously wrong precedents. But Justice Samuel Alito’s opinion for the Court in Dobbs has more in common with Plessy than its author recognizes.

Part I provides an overview of the New Jane Crow, tracing the genealogy of the phrase and describing the phenomenon that it names. Though provocative, I argue that the phrase fits the phenomenon, given substantive and functional continuities between state control of female reproduction past and present. Part II describes how Dobbs constitutionally legitimates key components of the New Jane Crow and encourages its expansion.

Part III analogizes Dobbs to Plessy in three respects. First, in its disregard of relevant history. Second, in its lack of attention to present socioeconomic realities. Third, in its capacity to provide constitutional legitimation to an entire political-economic order that perpetuates racialized and gendered subordination.

How the 19th Century Comstock Obscenity Law a the Key to the Abortion Fight

Emily Bazelon, NYT, How a 150-Year Old Law Against Lewdness Became a Key to the Abortion Fight

Anthony Comstock, a 19th-century crusader against sexual liberty, was mocked as a prude in his own time, but wielded real power. He persuaded Congress in 1873 to pass the Comstock Act, written by and named for him, making it a federal crime to send or deliver “obscene, lewd or lascivious” material through the mail or by other carriers, specifically including items used for abortion or birth control.

By the 1960s, the Comstock Act had fallen out of use — narrowed by court rulings, partly gutted by congressional repeals — and it was made an unconstitutional relic by the Supreme Court’s decision in 1973 in Roe v. Wade, recognizing a national right to abortion. But it stayed on the books.

Now, Comstock is back, once more being wielded as a weapon by social conservatives. Their arguments use the language of the act to target the mailing of abortion pills, and they are pushing judges and the Biden administration to reopen seemingly long-settled questions.

NYT, What to Know About the Comstock Act

The Comstock Act’s definition of what was lewd material would be “radically unfamiliar” to people living today, according to Mary Ziegler, professor of law at University of California, Davis. Examples she cited included “somebody writing a letter to somebody asking them for a date if they weren’t married,” and “somebody mentioning the existence of an abortion in a newspaper.”

“The early Comstock Act enforcement is extraordinarily broad, and gets broader and broader,” Professor Ziegler said.

I have written some about the origins of the Comstock law: See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 91, 174-75 (NYU Press 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).

See also Gender & the Law Blog, Siegel and Ziegler on SCOTUS, Mifepristone, and the 19th Century Comstock Act

For a fictionalized story of the crusader Anthony Comstock and feminist activist Elizabeth Cady Stanton, see Marge Piercy, Sex Wars: A Novel of Gilded Age New York

Conference at the Center for Constitutional Law: Gender, Health and the Constitution

Gender, Health & the Constitution: Constitutional Law Conference

The Center for Constitutional Law at Akron

Friday, October 13, 2023

The Center for Constitutional Law at Akron seeks proposals for its annual Constitutional Law Conference.  The Center is one of four national centers established by Congress in 1986 on the bicentennial of the Constitution for legal research and public education on constitutional law.  Past presenters at the Center have included Justice Sandra Day O’Connor, Justice Arthur Goldberg, Judge Jeffrey Sutton, Professor Reva Siegel, Professor Lawrence Solum, Professor Maggie Blackhawk, Professor Katie Eyer, Professor Ernest Young, Professor Julie Suk, and Professor Paula Monopoli, among many others.

The 2023 Conference brings together scholars to explore the constitutional questions at the intersection of gender and health.  The daily news features issues of gender and health, whether related to Covid, abortion, transgender treatment, or maternal health.  Bodily autonomy and health rights raise questions about balancing against the interests of the state and third parties.  And individuals struggle to seek justice for their own lived reality.  

Committed speakers include: Aziza Ahmed (Boston U), Noa Ben-Asher (Pace), Jennifer Bard (Cincinnati), Rachel Bracken (NEOMed), Debbie Brake (Pitt), Ainslee Johnson-Brown (Akron), Naomi Cahn (Virginia), Marie Curry (Legal Aid), Bernadette Bollas Genetin (Akron), Susan Keller (Western), George Horvath (Akron), Dr. Allison Kreiner, M.D. (Plakas Manos), Maya Manian (American), Abby Moncrieff (Cleveland State), Jane Moriarty (Duquesne), Megan Frantz Oldham (Plakas Manos), Jennifer Oliva (Indiana), Christopher Peters (Akron), Dara Purvis (Penn State), Tracy Thomas (Akron)

This conference invites papers and presentations on any and all aspects related broadly to the theme.  Topics may include, but are not limited to:

• Covid: mandates, illness, and gendered differences
• Abortion and reproductive justice
• Transgender school and medical treatment bans
• Maternal health, pregnancy, and surrogacy
• Medical malpractice, including gaslighting of women patients
• Exclusion of women and gendered treatment in medical research
• Barriers in access to healthcare
• Gendered aspects of aging
• Biology as a basis for sex discrimination
• Rights related to gender-affirming care
• Gendered implications of medical conscientious objections

The Conference will be held live, in person on Friday, October 13, 2023, at the University of Akron School of Law.  Presenters may also participate virtually to facilitate participation by all who are interested in joining.  Unfortunately, we are not able to pay for travel expenses, and hope that speakers can be reimbursed from their home institutions.

Papers will then be published in a Winter 2024 Symposium Edition of the Center for Constitutional Law’s open-access journal, ConLawNOW (also indexed in Westlaw, Lexis, and Hein).  Papers are typically shorter essays of 10,000 words.  Publication is expedited within four to six weeks of final paper submission.  The journal is designed to put issues of constitutional import into debate in a timely manner for an opportunity to impact discussion and decision.

Those interested in participating in the 2023 Constitutional Law Conference should send an abstract and CV to Professor Tracy Thomas, Director of the Center for Constitutional Law, at [email protected] by August 15, 2023.   

 

 

Gendered Barriers to Access for Legal Aid Programs in Canada

Gillian Petit & Lindsay Tedds, Systematic Barriers to Justice: Financial Eligibility for Legal Aid- A Gendered Analysis 

Provinces and territories across Canada offer legal aid programs to facilitate access to justice for those who are economically disadvantaged. While requirements differ by province/territory, eligibility for legal aid is dependent on having a case of merit and having income and assets below a certain threshold. In this paper, we focus on income thresholds for legal aid, and empirically measure their impact on gendered access to family legal aid. We find that legal aid income thresholds pose a higher access barrier to single women living in MBM poverty in BC, Alberta, and Ontario compared to single men living in MBM poverty, families with children living in MBM poverty, and residents of Quebec. We show this is due to different distributions of income and the placement of the legal aid income threshold. This analysis is an example of how GBA+ should be applied to examine systematic barriers to program access.

Dispute Resolution in a Feminist Voice

Andrea Kupfer Schneider, Carrie Menkel-Meadow: Dispute Resolution in a Feminist Voice, 10 Tex. A&M L. Rev. 151 (Fall 2022)

The presence of women in the law has changed the law’s substance, practice, and process. Carrie Menkel-Meadow, whose scholarship centers on this theme, is one such revolutionary woman.

Professor Menkel-Meadow, who I am proud to call my colleague, co-author, and friend (hereinafter referred to as Carrie), began her career in 1977 with a series of simple questions that sparked a breathtaking body of work. Carrie probed the depth of male domination in the realm of law and wondered what changes female representation might engender. In particular, she focused her inquiry on the value orientation each respective gender might bring to the law: "To what extent are the legal institutions we deal with male-dominated, both in the values they reflect and the manner or means used to express those values? To what extent might the expression of feminine or female values, principles and qualities both in the ends desired and the means used to express those ends alter our legal institutions? How does the increased participation of women in these legal institutions move us toward or away from the realization of feminine values in the law?"

Over 40 years, Carrie elaborated on these questions to develop a thorough and wide-ranging feminist jurisprudence. This Essay attempts to do justice to her work. Part II recapitulates her account of the feminization of the law: the way that feminine values affect the substance of the law; the way that we practice and learn law; and the process of law, especially in the area of Carrie’s other love—dispute resolution. In particular, Carrie used a key narrative to illustrate competing approaches to problem-solving. Spurred by Carol Gilligan’s reanalysis of psychology studies, Carrie dove into the moral dilemmas used in psychology and recast the story of Amy and Jake (where they wrestle over the dilemma of whether to steal drugs to save a life) as a lesson in problem-solving. Throughout her writings, Carrie advocated for a feminine ethic of care to have equal footing with the more traditional (masculine) ethic of justice that has been hallowed in law.

Part III of this Essay uses a different narrative from Carrie’s scholarship to illustrate the application of the feminization of the law. In the case of Ziba—a hypothetical mediation between an underage bride and her controlling husband, Ahmed—we see how Carrie’s own passions for feminism and dispute resolution collide in the mediation process she typically champions. Ultimately, Carrie’s treatment of the case puts into practice the ethic of care developed within her feminist jurisprudence.

Sabbeth and Steinberg on "The Gender of Gideon"

Kathryn Sabbeth and Jessica Steinberg have published The Gender of Gideon in volume 69 of the U.C.L.A L. Rev. in January 2023.  The abstract is provided here: 

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating racial and gender inequality.

 

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

 

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and, we argue, available data suggest that the largest categories of these cases--family law, eviction, and debt collection--disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, in the absence of government-appointed counsel, women’s individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised by lack of access to representation, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

Koller on "The Pipeline to Title IX"

Dionne Koller has published The Pipeline to Title IX in volume 33 of the Marquette Sports Law Review.  The abstract previews: 

Sport participation for girls and women remains, to perhaps state the obvious, contested terrain. In the fifty years since Congress enacted Title IX, the struggle to achieve sex equality in sport has taken different forms, from the initial fight to permit girls and women to participate at all to navigating the backlash that Title IX as applied to sport has “gone too far.” Whatever its form, the struggle over gender equity in sport has been, at bottom, a struggle to re-calibrate the traditional systems of power circulating in sport. Title IX dramatically altered the trajectory of this struggle through a highly successful, but as yet not fully realized, legal intervention that prohibits sex discrimination in education-based sport. This Article seeks to shed light on one aspect of the struggle, by arguing that to fully achieve equality for girls and women in sport, we must expand our lens to incorporate a more complete understanding of the systems of power that shape whether a girl becomes an athlete with the “interest” and “ability” to participate. In doing so, this article explains that youth sport is the pipeline to Title IX, and it operates as a largely privatized, professionalized system, conceptualized as a matter for the individual, not public policy. It is also an experience entwined with public health discourses that link participation in athletics with being a responsible citizen. In the U.S., youth sport is shaped by what many call our “neoliberal” political, historical moment, and in this way, it has a profound impact on Title IX’s continued ability to make meaningful change in education-based sport. 

Pizzarossa et al., on "Self-Managed Abortion in Africa"

Scholars Lucía Berro Pizzarossa, Michelle Maziwisa, and Ebenezer Durojaye have published "Self-Managed Abortion in Africa: The Decriminalization Imperative in Regional Human Rights Standards, in the Health and Human Rights Journal (May 2023). The abstract provides:   

Self-managed abortion holds particular promise for revolutionizing people’s access to quality reproductive care in Africa, where the burden of abortion-related mortality is the highest globally and where abortion remains criminalized, in violation of various internationally and regionally recognized human rights. Increasingly safe and effective, self-managed medication abortion is still subject to many restrictions, including criminal laws, across the continent. Drawing on recent evidence and human rights developments around self-managed abortion, this paper explores whether and to what extent Africa’s regional legal framework builds a normative basis for the decriminalization of self-managed abortion. We conclude that the region’s articulation of the rights to dignity, to freedom from cruel, inhuman, and degrading treatment, and to nondiscrimination, among others, provides strong grounds for decriminalization, both concerning individuals who need abortions and concerning the constellation of actors who enable self-management.

Call for Submissions: Women, Gender & the Law Emerging Scholar Award

Elisabeth Haub School of Law at Pace University

Women, Gender & the Law Emerging Scholar Award: Call for Submissions

The Elisabeth Haub School of Law is pleased to announce the competition for its annual Women, Gender & the Law Emerging Scholar Award.  This paper competition is open to all having with five (5) or fewer years of full-time law teaching experience as of July 1, 2023. The deadline for submissions is July 1, 2023.

The purpose of the award is to encourage and recognize excellent legal scholarship related to gender and the law.  The work chosen for the Women, Gender & the Law Emerging Scholar Award should make a substantial contribution to legal literature and reflect original research and/or major developments in previously reported research.

Papers will be reviewed on a blind basis by a committee comprised of members of the Haub Law faculty with expertise in this area.  The winner of the competition will be invited to present the paper to selected students and faculty at Haub Law (located in White Plains, NY) during the 2023-2024 academic year, with reasonable travel expenses from within the continental U.S. paid, or via Zoom, as circumstances permit and by mutual agreement.

ELIGIBILITY:

·         All persons who have held full-time teaching positions for five (5) or fewer full academic years as of July 1, 2023 are eligible for consideration. One does not have to be on the tenure-track or tenured to be eligible. Time as a VAP or Fellow does not "count against" the five (5) year clock.

·         There is no subject-matter limitation for submissions, as long as the paper relates in some way to gender and the law.

·         Jointly authored papers are accepted as long as each author independently meets the eligibility requirements.

PUBLICATION COMMITMENTS/LIMITATIONS:

·         There is no publication commitment associated with the competition. 

·         Papers are eligible regardless of whether they were published prior to submission date, are scheduled to be published after the submission date, or are not yet under submission.

·         Each applicant is limited to one (1) entry.

·         Papers considered in prior years' competitions are eligible for resubmission.

·         There are no page-length or word-count limitations.

·         All publications (including scholarly articles, book chapters, legal briefs and other writings) are eligible for consideration.

SUBMISSION:

·         We will accept submissions for the Emerging Scholar Award from May 10, 2023, through July 1, 2023. The winner will be announced by August 30, 2023.

·         To participate, please email your work, redacted as necessary to preserve anonymity (for the blind judging process), as a portable data file (PDF) to Judy Jaeger, Senior Staff Associate, at [email protected] with the subject line "Emerging Scholar Award."

·      Please include in the body of the email your name, institutional affiliation and confirmation that you meet the eligibility requirements.

·      Unredacted or late papers will not be considered.

Information on Emerging Scholar Award and the Elisabeth Haub School of Law

The Elisabeth Haub School of Law is pleased to host an annual paper competition for its Women, Gender & the Law Emerging Scholar Award.  The law school at Pace University is one of a small number of schools in the United States named after a woman, and we are proud of our school's long-standing commitment to gender justice.

Since the establishment of the Women's Justice Center in 1991, Haub Law has made gender justice a priority.  Students have the ability to pursue a path to practice in Women, Gender & the Law, through which they develop skills and strategies for effective representation and advocacy for women and gender justice, regardless of what career they pursue.  The Haub Law faculty includes nationally recognized academic experts and advocates for women and gender justice. Our faculty teach, research and write about gender equality and justice as it relates to constitutional law, corporate law, criminal law, education, environmental law, estate planning, juvenile justice, legal theory, poverty, public health, social media, and taxation, to name just a few areas.  An important hallmark of Haub Law is that in addition to our specialty classes that focus on gender, issues involving gender are also integrated into a wide range of other courses.

 

Prior Winners

 

2020 – Greer Donley, University of Pittsburgh School of Law, Contraceptive Equity: Curing the Sex Discrimination in the ACA's Mandate, 71 Ala. L. Rev. 499 (2019).

 

2021 – Marie Amélie George, Exploring Identity, 54 Fam. L.Q. 1 (2021)

Introduction to Frontiers of Gender Equality--Transnational Legal Perspectives

Rebecca J. Cook, Introduction, "Many Paths to Gender Equality," in Frontiers of Gender Equality: Transnational Legal Perspectives (Rebecca J. Cook, ed. University of Pennsylvania Press, 2023)

In this Introduction to the book Frontiers of Gender Equality: Transnational Legal Perspectives (2023), editor Rebecca Cook shows how a chorus of voices introduces new and different discourses about the wrongs of gender discrimination and explains the multiple dimensions of gender equality. This volume demonstrates that the wrongs of discrimination can best be understood from the perspective of the discriminated, and that gender discrimination persists and grows in new and different contexts, widening the gap between the principle of gender equality and its realization, particularly for subgroups of women and LGBTQ+ peoples.

Frontiers of Gender Equality provides retrospective views of the struggles to eliminate gender discrimination in national courts and international human rights treaties. Focusing on gender equality enables comparisons and contrasts among these regimes to better understand how they reinforce gender equality norms. Different regional and international treaties are examined, those in the forefront of advancing gender equality, those that are promising but little known, and those whose focus includes economic, social, and cultural rights, to explore why some struggles were successful and others less so. The book illustrates how gender discrimination continues to be normalized and camouflaged, and how it intersects with other axes of subordination, such as indigeneity, religion, and poverty, to create new forms of intersectional discrimination.

With the benefit of hindsight, the book’s contributors reconstruct gender equalities in concrete situations. Given the increasingly porous exchanges between domestic and international law, various national, regional, and international decisions and texts are examined to determine how better to breathe life into equality from the perspectives, for instance, of Indigenous and Muslim women, those who were violated sexually and physically, and those needing access to necessary health care, including abortion. The conclusion suggests areas of future research, including how to translate the concept of intersectionality into normative and institutional settings, which will assist in promoting the goals of gender equality.

New Book Indigenous Justice and Gender

Marianne O. Nielsen & Karen Jarratt-Snider, eds., Indigenous Justice and Gender (U Arizona Press 2023)

This new volume offers a broad overview of topics pertaining to gender-related health, violence, and healing. Employing a strength-based approach (as opposed to a deficit model), the chapters address the resiliency of Indigenous women and two-spirit people in the face of colonial violence and structural racism.

The book centers the concept of "rematriation"--the concerted effort to place power, peace, and decision making back into the female space, land, body, and sovereignty--as a decolonial practice to combat injustice. Chapters include such topics as reproductive health, diabetes, missing and murdered Indigenous women, Indigenous women in the academy, and Indigenous women and food sovereignty.

Federal PUMP Act for Nursing Parents Goes Into Effect

The 19th, The Full Pump Act is Now in Effect. Here's What it Does for Lactating Parents

The PUMP Act, a bill designed to extend workplace protections to an additional 9 million nursing parents, goes into full effect on Friday. 

Now, workers will be able to sue their employers if they are not compliant with the law, which requires businesses to provide a private space that’s not a bathroom and adequate break time for workers to express breastmilk. The bill passed Congress with bipartisan support in December.

The PUMP Act will close loopholes and “unintentional” mistakes in a 2010 bill, the Break Time for Nursing Mothers Act, said Liz Morris, the deputy director of the Center for WorkLife Law, which helped draft the model legislation the PUMP Act is based on. Previously, protections only extended to hourly workers who qualified for overtime, but even then, it restricted any restitution workers could seek. If workers wanted to sue their employer, there was no legal mechanism to do so. Now, the majority of those covered has expanded to also include salaried workers, such as teachers and nurses, most of whom are women. 

Legal Challenge to Oklahoma's Ban on Gender-Affirming Care

Lambda Legal, the ACLU, and Jenner & Block have filed a suit challenging the constitutionality of Oklahoma's new law banning gender-affirming medical care for transgender youth. Excerpts of the Complaint reveal the key legal theories: 

13. The Health Care Ban not only gravely threatens the health and wellbeing of transgender adolescents in Oklahoma; it also is unconstitutional. The Health Care Ban violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates against the Minor Plaintiffs on the basis of sex and transgender status by prohibiting any “health care provider” from “knowingly provid[ing] gender transition procedures to any child.”

 

14. The Health Care Ban also discriminates against the Parent Plaintiffs in the exercise of their fundamental right to make decisions concerning the care, custody, and control of their children by prohibiting them from seeking and following medical advice to protect the health and wellbeing of their minor children. By preventing parents from seeking the medical care for their children that medical and mental health providers have recommended, the Health Care Ban violates the right to parental autonomy guaranteed by the Due Process Clause of the Fourteenth Amendment.  

Read the full complaint here. 

New Report on Accessing Emergency Obstetrics Information in Oklahoma

A recent report was published on "Accessing Emergency Obstetrics Information as a Prospective Prenatal Patient in Post-Roe Oklahoma." The report was jointly authored by Physicians for Human Rights (PHR), the Oklahoma Call for Reproductive Justice (OCRJ), and the Center for Reproductive Rights (CRR). The Executive Summary provides: 

In the wake of the 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, Oklahoma residents are currently living under three overlapping and inconsistent state abortion bans that, if violated, impose severe civil and criminal penalties on health care providers. * * * Because the exceptions drafted by legislators are often conflicting and use non-medical terminology, they sow confusion around what kinds of care and procedures health care providers can legally offer when a pregnancy threatens a person’s health or life. These challenges, combined with the significant penalties under these bans, constitute a situation of “dual loyalty”: health professionals are forced to balance their obligation to provide ethical, high-quality medical care against the threat of legal and professional sanctions. The decision to provide emergency medical care risks becoming a legal question – determined by lawyers – rather than a question of clinical judgment and the duty of care to the patient – determined by health care professionals.

 

In light of the extensive anti-abortion legal framework newly in place in the state, Oklahoma offers an important insight into the potential effects of near-total abortion bans on pregnant patients and the clinicians who care for them. 

 

* * *

 

The results of this research are alarming. Not a single hospital in Oklahoma appeared to be able to articulate clear, consistent policies for emergency obstetric care that supported their clinicians’ ability to make decisions based solely on their clinical judgement and pregnant patients’ stated preferences and needs. Of the 34 out of 37 hospitals offering obstetric care across the state of Oklahoma that were reached, 65 percent (22 hospitals) were unable to provide information about procedures, policies, or support provided to doctors when the clinical decision is that it is necessary to terminate a pregnancy to save the life of a pregnant patient; only two hospitals described providing legal support for clinicians in such situations. In 14 cases (41 percent), hospital representatives provided unclear and/or incomplete answers about whether doctors require approval to perform a medically necessary abortion. Three hospitals indicated that they have policies for these situations but refused to share any information about them; four stated they have approval processes that clinicians must go through if they deem it necessary to terminate a pregnancy; and three stated that their hospitals do not provide abortions at all.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.