Gender and the Law Blog

Eighth Circuit in Case of First Impression Rules Employee Does not Have to Arbitrate Claims She was Sexually Harassed and Raped by Chipotle Co-Worker

Chipotle Can't Force Arbitration of Workplace Rape Claim, US Court Rules

A U.S. appeals court on Monday said a former Chipotle Mexican Grill employee does not have to arbitrate claims that she was sexually harassed and raped by a coworker, because she sued the restaurant chain after a federal law took effect banning agreements to keep such claims out of court.

 

A unanimous three-judge panel, opens new tab of the St. Louis-based 8th U.S. Circuit Court of Appeals said the law that passed Congress with bipartisan support in 2022 applies to any lawsuit filed after it was enacted, rejecting Chipotle's claim that it only covers conduct that occurred after that date.

 

The ruling is the first of its kind by a federal appeals court and could salvage some pending cases and invite new ones involving conduct that occurred prior to the adoption of the law. A California state appeals court in January also said the federal ban applies based on the date a lawsuit is filed and not when the underlying conduct occurs.

 

The plaintiff says a coworker raped her in the bathroom at a Rochester, Minnesota, restaurant in 2021 after verbally harassing her for months, and that Chipotle failed to investigate or respond after she told a manager about the assault. She had signed an agreement to arbitrate employment-related disputes when she was hired, and initially sued Chipotle a few months after the federal law took effect. ***

 

Chipotle denied wrongdoing and moved to send the case to arbitration, citing the agreement the plaintiff had signed. But U.S. District Judge Donovan Frank in St. Paul last year said the agreement could not be enforced because of the federal ban on mandatory arbitration of harassment and assault claims.

 

The 8th Circuit on Monday affirmed. The law applies to "disputes" that arise on or after its effective date, and that term applies to an actual "conflict or controversy," such as a lawsuit, the court said.

 

Utah's Majority-Women Supreme Court Upholds Injunction of Strict Abortion Ban and Includes Women's Legal Scholarship of History in its Analysis

The majority-female Utah Supreme Court upheld an injunction preliminarily enjoining an abortion ban by a vote of 4-1. The case is Planned Parenthood of Utah v. State, ___P.3d___, 2024 WL 3612730 (Utah Aug. 1, 2024)

    Wash Post, Utah Abortion Ban Remains on Hold After Ruling by State's High Court

    NYT, Utah Supreme Court Upholds Block on Strict Abortion Ban

In the discussion of the state history of abortion regulation in the late 19th century, the majority includes a discussion of my work: 

In addition, the State's evidence does not necessarily demonstrate that abortion was illegal at statehood because Utahns understood that a woman lacked the legal ability to decide whether to carry a pregnancy to full term. There is evidence suggesting that concern for the life of the mother motivated, at least in part, abortion bans. See, e.g., Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle U. L. Rev. 1, 21 (2012). Tracy Thomas writes that “early legislation” (taking place around 1841) “continued to focus on medical malpractice and protection of the life and health of the mother from the consequences of abortion.” Id. ***

 Some scholars also suggest that the push for anti-abortion laws that determined fetal life started from conception was a way to standardize the medical profession. Thomas writes: “The lobbying effort to criminalize abortion was spearheaded by the medical profession.” Thomas, supra ¶ 145, at 21. Doctors “claim[ed] pregnancy as an area solely for medical expertise. ... Quickening, the physicians argued, could not be relied upon as an indicator of fetal life because it did not occur at a standard moment.” Id. at 21–22. Reva Siegel writes that “[d]uring the period of the criminalization campaign, the gynecologists and obstetricians of the AMA [American Medical Association] were seeking to appropriate management of the birthing process from midwives, and to prevent women from entering the medical profession.” Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 300 (1992). The period Thomas and Siegel examine—the 1850s to the 1880s—parallels the founding of the Utah Territory and its development toward statehood. See Thomas, supra ¶ 145, at 21; Siegel, supra at 286 (discussing the AMA's 1859 resolution “condemning abortion as an unwarranted destruction of human life” and the AMA's 1860s campaign to save “the nation from the evils of abortion” (cleaned up)).

New Study of Children's Brains Shows How Sex and Gender are Different

CNN, A Detailed Look at Children's Brains Might Show How Sex and Gender are Different, New Study Says

Sex and gender are often conflated or equated in everyday conversations, and most American adults believe a person’s gender is determined by sex assigned at birth. But a new study of nearly 5,000 9- and 10-year-olds found that sex and gender map onto largely distinct parts of the brain.

The research gives a first insight into how sex and gender may have “measurable and unique influences” on the brain, study authors said, just as other experiences have been shown to shape the brain.

“Moving forward, we really need to consider both sexes and genders separately if we better want to understand the brain,” said Dr. Elvisha Dhamala, an assistant professor of psychiatry at the Feinstein Institutes for Medical Research and the Zucker Hillside Hospital in Glen Oaks, California, and a co-author of the study, published Friday in the journal Science Advances.

The researchers on the new study defined sex as what was assigned to the child at birth. In the US, clinicians make this assignment based on genitalia. Most people are assigned either female or male, according to the research; the rest are intersex, a person whose sexual or reproductive anatomy doesn’t fit this male/female binary.

The researchers defined gender as an individual’s attitude, feelings and behaviors, as well as socially constructed roles. They noted specifically that gender is not binary, meaning not all people identify as either female or male.

Both sex and gender are a core part of human experience. They’re key to how people perceive others and how they understand themselves. Both can influence behavior as well as health, the study authors say.***

The authors used a kind of artificial intelligence called machine learning that built a model that could predict a child’s sex and reported gender from their brain scan. When the researchers looked the children’s brain scans, the results seemed to show that sex influenced different regions of the brain that are involved in visual processing, sensory processing and motor control and some regions involved in executive function, which lets an individual organize and integrate information across time.

Gender seems to influence some of the more sensory-specific networks that are associated with sex, but it also seems to have a broader influence and can be detected on different brain networks involved in executive function, including things like attention, social cognition and emotional processing.

Harris Made Gender Visible in the 2024 Election, But It Was There All Along

Ms., Harris Just Made Gender Visible in the 2024 Election--But it was There All Along

Now that Joe Biden has announced his withdrawal from the 2024 presidential race and endorsed Vice President Kamala Harris, the salience of gender as a critical factor in the contest for the presidency will rise quickly to the surface. The surest way to make gender visible in presidential campaigns is to get a woman in the race.

But gender is always present in those campaigns—whether or not it’s visible. Even when two men run against each other, it’s not a “battle of the sexes” between a man and a woman: It’s a contest between two (usually white) men over competing versions of masculinity. That was the case up to the moment of Biden’s withdrawal. The 2024 campaign was gearing up to be a contest between two older white men who represent starkly divergent ideas about the very meaning of manhood.

Many commentators in mainstream and progressive media seem not to understand—or want to discuss—the deeply gendered nature of presidential campaigns or the presidency itself. This glaring deficit in political analysis was on full display in coverage last week of the Republican National Convention (RNC). The GOP put on a four-day, fist-pumping celebration of the manly virtues, culminating yet again in the anointing of a bombastic former real estate mogul, reality TV star and notorious misogynist as the supposed embodiment of those virtues.

The unapologetic celebration of a crude and embarrassingly cartoonish hypermasculinity was so extreme—especially on the penultimate day four—that some TV commentators had trouble mustering anything more thoughtful to say than what CNN’s Chris Wallace said on-air in response to a question from Jake Tapper: When Tapper asked Wallace, “What theme are we seeing at the convention tonight?” Wallace replied, “Testosterone.”

Sixth Circuit Upholds School Misgendering Policy, Saying Objectors Can Avoid Using Pronouns

ABA J. 6th Circuit Refuses to Block School's Pronoun Policy; Dissent Makes Belief-in-Ghost Comparison

A federal appeals court has refused to block a school policy banning the misgendering of transgender students.

The plaintiff, a group called Parents Defending Education, did not make a clear showing that the policy violates the First Amendment, the 6th U.S. Circuit Court of appeals at Cincinnati ruled Monday in a 2-1 decision.

At issue was a policy adopted by the Olentangy Local School District in suburban Columbus, Ohio, report Courthouse News Service and Reuters.

The school’s policy banned discriminatory harassment and bullying based on protected characteristics that include gender identity. The policy barred intentional and repeated use of nonpreferred pronouns when referring to transgender classmates.

Parents Defending Education had alleged that the policy violated the constitutional rights of students who don’t believe in gender transitioning because of their religious beliefs. The 6th Circuit, however, said students don’t have to use preferred pronouns because they can avoid using any pronouns when referring to transgender classmates.

“Students who do not want to use their transgender classmates’ preferred pronouns may permissibly use no pronouns at all and refer to their classmates using first names,” the appeals court said in the July 29 opinion by Judge Jane B. Stranch.

The plaintiff did not make a clear showing that the policy unconstitutionally compels speech, or that it constitutes unconstitutional viewpoint discrimination, said Stranch, who is an appointee of former President Barack Obama.

In her dissent, Judge Alice M. Batchelder said there was a First Amendment violation, and the majority opinion had created a circuit split.

The majority opinion “requires the speaker to recognize and accept that gender transition is a real thing,” Batchelder said.

New Book Traces Legal Developments of Abortion and Their Status as a Winning Issue at the Ballott

Jessica Valenti, Abortion: Our Bodies, Their Lies, and the Truths We Use to Win

Valenti (Sex Objects) draws on her post-Roe-era newsletter Abortion, Every Day—where she has been “tracking every ban, court case, and anti-abortion strategy” in the U.S.—to create this clarifying and incandescent affirmation of not only the importance of abortion rights but their status as a winning issue at the ballot box. Aiming to “arm the choir” with facts and figures to counter right-wing talking points and encourage Democrats to “get out of [their] defensive crouch” on the issue, Valenti marshals persuasive evidence that Americans are overwhelmingly pro-abortion (“following the fall of Roe... abortion rights won every single time” they were put to the ballot, “even in states like Kansas and Kentucky”). Her close observations of nationwide developments also give her keen insight into slippery Republican election strategies: Valenti describes how opponents of recent Michigan and Ohio ballot measures ensuring children could get abortions without parental consent, having realized abortion restriction was unpopular, instead deployed irrelevant anti-trans ads, hoping to find another means to stoke parental fears of losing the ability to control their children’s bodies. She points out that children seem to be the “canary in the coalmine” for abortion rights, as kids’ access to abortion is being tightened around the country (“In Florida in 2022... judges were approving fewer abortions for teens. One young woman was told... poor grades were proof that she wasn’t mature enough”). This is a critical resource for the coming election season. (Oct.)

Anti-Transgender Constitutional Law

Katie R. Eyer, Anti-Transgender Constitutional Law, 73 Vanderbilt L. Rev. 1113 (2024)  

Over the course of the last three decades, gender identity anti-discrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or eliminate such trans-protective measures. Such litigation has attacked as unconstitutional everything from laws prohibiting anti-transgender employment discrimination to the efforts of individual public school teachers to support transgender teens.

This Article provides the first systematic account of the phenomenon of anti-transgender constitutional litigation. As described herein, such litigation is surprisingly novel: while trans-protective measures date back much further, anti-transgender constitutional litigation was virtually nonexistent prior to 2016. Moreover, as late as 2018, the few victories in such cases were almost always either temporary or predicated on arguments with only limited application. In contrast, the most recent wave of anti-transgender constitutional litigation has seen increasing success in invalidating or limiting transgender equality measures, based on increasingly broad and potentially impactful rationales.

These findings raise significant questions, both for the transgender community and for those who care about broader anti-discrimination law. They suggest that even at a time when the transgender community is achieving important gains, the constitutional claims of transgender equality opponents are simultaneously eroding these gains. Moreover, the reasoning in some of the recent rulings in anti-transgender constitutional cases ought to be of substantial concern to all groups protected by anti-discrimination law.

Indeed, the rulings in some anti-transgender constitutional law cases provide a troubling vision of what the future of speech- and religion-based claims could portend. Emboldened by the recent victories, litigants have become increasingly aggressive—and lower courts increasingly creative—in arguing for the constitutional limitation of equality rights. While such arguments have been adopted by only a limited number of courts to date, they could—if adopted more widely—form the basis for the constitutional limitation or invalidation of broad swaths of modern anti-discrimination law.

Texas Sues Biden Administration Over Teenage Access to Birth Control

Texas Sues Biden Administration Over Teenage Access to Birth Control, Wash Post

Texas Attorney General Ken Paxton (R) is suing the Biden administration over a policy that allows adolescents to access birth control without their parents’ consent, arguing that the rule violates state law requiring guardians to consent to their children’s use of contraceptives.

Paxton said in a statement that he was protecting parental rights, a popular GOP rallying cry used by Republicans to talk about culture-war issues such as education and transgender care.

“By attempting to force Texas health care providers to offer contraceptives to children without parental consent, the Biden administration continues to prove they will do anything to implement their extremist agenda — even undermine the Constitution and violate the law,” Paxton said in a statement.

The lawsuit, filed Thursday in a division of the Northern District of Texas that has one federal judge, is unlikely to change much in the state, analysts said. That’s because a similar case ended in March with a ruling that required Texas providers to begin obtaining parental consent this spring without wholly striking down the rule.

But it is the latest conservative effort to challenge the Biden administration’s reproductive health-care policies and Title X, a half-century-old family-planning program.

 

 

New Women's Justice Commission Formed to Research Factors that Lead to Women's Incarceration

From Arrest to Release, there’s a New Effort to Investigate the Experiences of Incarcerated Women

Women represent only about 10 percent of incarcerated people in the United States. Because of that, most criminal legal research and reform proposals overlook their specific needs. 

A growing number of researchers and advocates are pushing to change this. They’re calling for a more intentional focus on the factors that lead women to incarceration, the challenges they face inside and the limited available resources to help them re-enter society.

This month, the nonpartisan Council on Criminal Justice launched a new Women’s Justice Commission to address some of these gaps. It is led by former U.S. Attorney General Loretta Lynch and made up of 15 other members who include academics, legislators, law enforcement and advocates. 

Report on Medicaid Coverage of Telehealth Abortion Services in Six States

The National Health Law Program has published a report on Medicaid Coverage of Telehealth Abortion Services in Six States (IL, MN, NM, NY, RI, WA). Here is a summary of the report scope: 

In 2022, the National Health Law Program started a project to comprehensively map the Medicaid coverage and reimbursement policies that impact access to telehealth medication abortion (TMAB) services. We published an in-depth report investigating the policy landscape in six states that use their own funding to provide abortion coverage for Medicaid enrollees. You can find that report and fact sheets for the six states here.

 

This report is the next installment in that series, examining the policies and regulations in a new set of states: Illinois, Minnesota, New Mexico, New York, Rhode Island, and Washington. This issue brief provides a thorough analysis of the major policies impacting coverage and reimbursement of TMAB, including detailing the major trends and highlighting policy barriers that impede comprehensive coverage and thus access to TMAB for Medicaid enrollees. It concludes with a discussion of the importance of Medicaid coverage of TMAB and highlight forthcoming work.

 

Here is the report conclusion: 

Comprehensive coverage of TMAB can combat travel and resource obstacles, facilitate faster access to care, and address privacy concerns. The costs associated with seeking an abortion in the post-Dobbs landscape disproportionately harm people facing structural barriers to care, like Black, Indigenous, and other people of color, LGTBQ+ individuals, people living in rural areas, young people, individuals with disabilities, and those struggling to make ends meet. This research shows that Medicaid coverage of TMAB has improved significantly, as states have established more robust coverage of the full spectrum of telehealth modalities, enhanced telehealth payment parity policies, and removed some restrictions around sites of care and patient-provider relationships. But gaps remain and the National Health Law Program will continue our research and advocacy to ensure that Medicaid enrollees have equitable access to all models of TMAB and in-person care.

Daniel Del Gobbo on "Reckoning with Queer History: The Canadian 'LGBT Purge' Case and the Limits of Forgiveness"

Daniel Del Gobbo has posted Reckoning with Queer History: The Canadian 'LGBT Purge' Case and the Limits of Forgiveness on SSRN. This article is forthcoming in Volume 62 of the Osgoode Hall Law Journal (2025). The abstract is excerpted here: 

The Canadian government has a long history of regulation, exploitation, and violence against lesbian, gay, bisexual, trans, queer, and two-spirit (LGBTQ2) people. One of the most painful chapters in this history is the “LGBT Purge,” a term that refers to the expulsion of LGBTQ2 service members and employees from the Canadian Armed Forces, Royal Canadian Mounted Police, and federal public service between 1955 and 1992. The LGBT Purge was the subject of a class action lawsuit filed in 2017 that resulted in a settlement agreement in 2018. On a parallel track to the settlement, Prime Minister Justin Trudeau issued a formal apology for the government’s history of state-sponsored discrimination against LGBTQ2 people in 2017. In this article, I consider these events from a legal historical and queer theoretical perspective. I focus on the potential of the settlement to promote reconciliation with LGBTQ2 people, contextualizing the settlement in light of neoliberal and homonationalist pressures on the class members to settle the past and forgive legacies of homophobic violence that continue to be felt today. Praiseworthy as the settlement terms might be, I conclude by arguing that forgiving the government’s history of discrimination against LGBTQ2 people is an historical impossibility.

Abortion's New Criminalization--A History and Tradition Test Right to Healthcare Access After Dobbs

Reva Siegel & Mary Ziegler, Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term  

Since Dobbs v. Jackson Women's Health Organization reversed Roe v. Wade as contrary to the nation's history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before. Cases in the Court's 2023 Term, Moyle v. United States and Food and Drug Administration v. Alliance for Hippocratic Medicine, demonstrate these trends. Under Dobbs, do abortion bans that break with history and tradition in obstructing access to urgently needed health care violate liberty guarantees of state or federal constitutions?

We present evidence that the nation has long had a tradition of exempting health care from criminalization that extended to abortion law and was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. This tradition demarcated quite self-conscious limits on state action that were reiterated across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically understood as a right. We show that courts in states with abortion bans view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend this account of our law against an originalist reading of Dobbs advanced by Professor Stephen Sachs asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s reading conflicts with important aspects of Glucksberg and Dobbs, misconstrues Dobbs’s reasons for turning to history and tradition, and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. Posing concrete questions of Dobbs illustrates how much of Dobbs has yet to be written, showing the many senses in which, as Justice Barrett writes in Vidal v. Elster, “a rule rendering tradition dispositive is itself a judge-made test.” 

The Return of Boy Scouts v. Dale and the Resurgence of Expressive Association Claims

Elizabeth Sepper, The Return of Boy Scouts of America v. Dale, 68 St Louis U L.J. (2024)  

In 2000, the Supreme Court’s decision in Boy Scouts of America v. Dale seemed to upend the law of freedom of association. Fears surfaced that the right of expressive association would be “an easy trump of any antidiscrimination law” —and perhaps other regulations of conduct. Organizations from schools to employers, social service providers to unions, could mount constitutional claims against the inclusion of individuals unwanted because of their sex, sexuality, race, disability, or beyond.

Instead, lower courts read Dale narrowly. Expressive associational rights would, it seemed, be bounded by the facts of the case. Freedom of association would not override equality under the law.

The ground, however, is now shifting. This essay identifies a rapid and dramatic resurgence of expressive association claims. In a series of decisions, courts have begun to read Dale as broadly as commentators once feared. Indeed, they have gone further still, taking the right to expressive association far beyond its foundations in the membership of non-profit, non-commercial groups. Employers, commercial entities, and social services providers have notched recent wins on expressive association claims. Several decisions conclude that an employer becomes expressive simply by articulating a desire to discriminate. Others deny a state interest in requiring nondiscrimination in employment on the ground that dissenting employees can work elsewhere—a proposition that would dismantle all of labor and employment law.

The essay offers some tentative explanations of the recent successes of expressive association claims. It predicts that the Supreme Court’s compelled speech opinion in 303 Creative v. Elenis will further fuel expansion. The essay concludes with a call to scholars to pay attention to developments in the lower courts where doctrinal siloes no longer hold and the antiregulatory agenda of the conservative legal movement is fast developing.

Teaching Law After Dobbs: Rethinking Foundations and Analyzing New Concepts

Nicole Huberfeld, Linda C. McClain & Aziza Ahmed, Rethinking Foundations and Analyzing New Concepts: Teaching Law After Dobbs, 17 St. Louis U. J. Health L. & Pol'y 243 (2024) [Westlaw Access]

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs' overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”--and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes.

Prashasti Bhatnagar on "The Pregnant Workers Fairness Act Leaves Agricultural Workers Behind"

Prashasti Bhatnagar has published The Pregnant Workers Fairness Act Leaves Agricultural Workers Behind in volume 52 of the Journal of Law, Medicine, and Ethics. The conclusion is excerpted here: 

Employment conditions contribute to workers’ ability to be healthy, particularly for immigrant pregnant workers. This article highlights how laws like PWFA often do not protect pregnant immigrant workers in the agricultural industry, resulting in health inequities. Advocacy efforts by immigrant workers and grassroots organizations have resulted in some protections, but there are still gaps. Therefore, future efforts geared towards eliminating pregnancy discrimination and the resulting health inequities must center the lived experiences of immigrant workers and understand workplace pregnancy discrimination as an immigrant justice issue. In order to achieve health justice, governments should engage with workers and grassroots organizations to build community power and create systems that invest in joy, well-being, safety, and liberation. 

Lambda Legal Publishes Report on LGBTQ+ Representation in the Judiciary

Lambda Legal has published a report on LGBTQ+ representation in the federal judiciary. The report concludes that there are 26 states with no openly LGBTQ+ district or circuit level judges. Twenty-one of those states have an open vacancy to which Biden could make an appointment. The report also states that 40% of the federal judges appointed by Trump had "demonstrated a history of hostility toward LGBTQ+ people." The report explains why representation matters: 

Federal courts are often the final authority on the civil rights of underrepresented groups, including LGBTQ+ people and people living with HIV. Right now, there are cases in our federal courts, challenging bans on gender affirming care for youth and bans on transgender youth playing sports with their peers, defending people living with HIV from discrimination in employment and protecting access to health care, challenging state laws that prohibit drag performances and those that seek to remove LGBTQ+ themed books from schools and libraries, among many others. The rights of everyone in the community are under attack. If we hope to defend our legal protections and build upon our victories, ensuring that fair judges, who don’t hold biases against LGBTQ+ people and people living with HIV, are the only judges that get a seat on the federal judiciary must be a priority.

 Read the full report here. 

Samantha Prince on "Deducting Dobbs: The Tax Treatment of Abortion-Related Travel Benefits"

Samantha J. Prince has published Deducting Dobbs: The Tax Treatment of Abortion-Related Travel Benefits in Volume 98 of the Tulane Law Review. The abstract is excerpted here:   

In 2022, Dobbs v. Jackson Women’s Health Organization overturned both Roe v. Wade and Planned Parenthood v. Casey thereby giving the states carte blanche to do as they wish regarding abortion access. The decision created upheaval in the United States. However, it also provided the impetus for the creation of a new employee benefit, abortion-related travel benefits.

Thirteen states had anti-abortion trigger bans that were unenforceable until Dobbs. Several other states have passed legislation that criminalizes, or significantly restricts, abortion access. Women residing in these states will now endure greater financial, health, and temporal challenges to travel out of state for abortion access. As a result, a profusion of private employers enhanced their mployee benefit packages by providing abortion-related travel benefits. An assessment of the current and potential future tax treatment of such benefits is warranted.

This Article provides past examples of employee benefits that were created around pivotal United States Supreme Court cases. It then covers women’s need to travel, and the time and expense of such travel, including the disparate impact on women of color and those in lower socio-economic positions. Then this Article focuses on the creativity and swiftness with which companies responded to Dobbs to assist women who will need to travel and the federal income tax treatment of these responses. The Article explores the potential deductibility issues that could arise due to state laws criminalizing abortion and enacting aiding and abetting laws. Lastly, the Article concludes with a discussion on how the government can best proceed equitably.

Understanding the Original Meaning of Washington v. Glucksberg and its Use in the Dobbs Abortion Decision

Marc Spindelman, Washington v. Glucksberg's Original Meaning

This Article elaborates and defends Washington v. Glucksberg's original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.  
 
The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court's Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. Wade and constitutional abortion rights. As Dobbs figures it, Glucksberg signs the constitutional warrant that Dobbs enforces by overturning Roe.   

Proceeding in stages, the Article traces Dobbs' reliance on Glucksberg before pivoting to a detailed account of Glucksberg's original meaning, which engages and surmounts Dobbs' undefended tally of Glucksberg. Having shown Dobbs' reading of Glucksberg cannot be squared with Glucksberg's text and its meaning--as crosschecked against other Supreme Court decisions, as well as new sources found in the Supreme Court archives--the work explains that Dobbs is also deficient in not providing an independent, full-blown justification, beyond Glucksberg's invocation, for its basic, if contoured, constitutional interpretive method of decision. In context, Dobbs' failure to offer this kind of public accounting, consistent with constitutional and rule-of-law demands, means that Dobbs stands exposed as lawless at its foundations. Dobbs is thus primed for challenge on these grounds, the very terms of legality that Dobbs deploys as it eliminates Roe and constitutional abortion rights.

 

Kansas Supreme Court Strikes Down Abortion Restrictions

Kansas Supreme Court Strikes Down Abortion Restrictions, Clinic Rules in Major Decisions, Kansas City Star

The Kansas Supreme Court struck down a series of abortion rules and restrictions on Friday in twin opinions affirming its landmark decision that the state constitution protects the right to end a pregnancy. The justices in two near-unanimous decisions tossed a ban on dilation and evacuation abortions, a common second-trimester surgical procedure, and a series of abortion-specific clinic regulations that providers have long fought. The opinions marked the end of two years-long legal battles over rules, which never took effect.

The rulings delivered a stinging but expected blow to anti-abortion activists and Republicans, who for years sought to steadily chip away at access. The opinion built upon the court’s key 2019 decision, which upheld the right to an abortion under a broader guarantee of bodily autonomy. “We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen, appointed by Democratic Gov. Kathleen Sebelius in 2005, wrote in the majority opinion striking down the dilation and evacuation ban.

Rosen wrote that the state “must show any infringement of that right withstands strict scrutiny.” The decision was 5-1 in both cases, with Justice Caleb Stegall, an appointee of Republican Gov. Sam Brownback, the sole dissenting vote. Justice K.J. Wall, an appointee of Democratic Gov. Laura Kelly, didn’t participate.

 

Ohio Appellate Court Says Frozen Embryos are Life and Awards to Wife in Divorce Case

Bryce Buyakie, Akron Beacon J., Do Ohio courts consider frozen embryos property or life, July 2, 2024

Recently in Ohio, Ninth District Court of Appeals Judge Donna Carr ruled in a divorce case that frozen embryos are "life, or the potential for life," though legal experts say the court still treated embryos as marital property.

Reproductive freedom advocates are concerned such a decision could limit access to IVF and other medical care.

For legal experts, this ruling emphasizes Ohio's complicated relationship with frozen embryos, which state law views as property.

Why are embryos considered property in Ohio?

Ohio treats embryos as property, not life, which means a person who owns an embryo can do what they want with it — gestate, destroy, donate or give it away for research.

This has been the precedent for much of Ohio's history, said Tracy Thomas, a professor of constitutional law and gender equality law at the University of Akron.

"Historically, it wasn't a thing at all," she said about the personhood debate. "It's genetic material, but even disconnected from that, they treated it like an organ donation."

Frozen embryos most often appear in divorce cases, where one or both parties are seeking ownership of the embryos produced during their relationship. Instead of diving into a custody dispute, Ohio courts historically have distributed the embryos as property.

How do courts treat pre-IVF contracts?

Before undergoing IVF, patients sign a pre-IVF agreement, which describes what happens to frozen embryos if one or both parents die or in the event of a divorce, Thomas said.

"The whole point of contracts is to leave no open question and to avoid litigation," Thomas said. "It's so you supposedly have the best idea of what you want to happen in a [divorce or death]."

Contracts should specify who can use the frozen embryos, or the parties agree to destroy or donate to another couple or research, she said.

If there is no contract or an ambiguous contract, the courts decide on how to proceed.

What did the Ninth District Court of Appeals' ruling say about frozen embryos?

A recent Summit County case in the Ninth District Court of Appeals lacked a clear contract, so the judges balanced the interests of the divorcing wife and husband when they couldn't agree on how to distribute the embryos, Thomas said.

The husband wanted the embryos to be used by other couples, but not by his wife, as he didn't want to have biological children with her, according to the ruling. The wife wanted to use the embryos.

In the decision giving the wife all 14 embryos, Carr wrote that the chances of achieving pregnancy "will only decrease" as the wife ages.

The decision, Thomas said, protects the wife's reproductive freedom as she wants to become pregnant.

The case is E.B.N. v. R.N. (Ohio App. 9th Dist. April 17, 2024).