Gender and the Law Blog

Tobin-Tyler on "Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families"

Elizabeth Tobin-Tyler has published Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families in volume 51 of the Journal of Law, Medicine & Ethics. Here is an excerpt on how to advocate for Black families post-Dobbs:

Abortion rights organizations are now working to support women living in states with bans or restrictions to obtain abortions in states where abortion is still legal and to access self-managed medication abortion. But many women will be unable to obtain an abortion when they want or need one. Given this fact, an advocacy agenda must be built around supporting mothers and children, defending them from unjust CPS intervention, and promoting access to reproductive healthcare. This agenda should be grounded in reproductive justice which accounts for and calls out racism and other forms of oppression that trample human rights and affirms that women not only have the right to decide if and when to have children, but also “to parent the children they have in safe and sustainable communities.” This includes freedom from state removal of their children due to structural racism and poverty.

Now that anti-abortion policymakers have achieved their wish, they must be held accountable for the effects of abortion bans on women, children and communities. Reproductive justice requires an intersectional approach to the myriad ways in which policy choices affect marginalized people. The voices of affected women who can speak to the reality of what abortion bans mean--including the impact of forced birth, parenting an unwanted child in poverty, experiencing CPS involvement and child removal--should be prioritized and promoted by advocates. Building coalitions with those seeking economic justice and child welfare system reform will broaden the constituency base and call attention to the ramifications of failing to enact policies that invest in families. Academic researchers and policy analysts should support community-based advocates by tracking the evidence linking abortion bans to increases in poverty and CPS caseloads.

* * * Ultimately, reform will only be possible through acknowledgement of the structural racism inherent in multiple systems, most profoundly, the child welfare system. * * * Post-Dobbs, the call to action to replace the current child welfare system with one framed by reproductive justice--which encompasses racial justice, gender justice, economic justice, and human rights--is more important than ever.

 

 

Gender Violence as a Penalty of Poverty

Deborah Weissman, Gender Violence as a Penalty of Poverty, 54 Miami Inter-Amer. L. Rev. 29 (2022)

The matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when seeking housing and employment and encounter other economic difficulties due to their legal status. These circumstances interfere with the tasks of mitigating gender violence.

Economic difficulties are not only after–the–fact–occurrences. Decades of research demonstrate causal relationships between poverty, economic strain, and inequality, on the one hand, and survivor status, on the other. Moreover, studies confirm that economic instability contributes to the very factors that often culminate in offenders’ transgressions. Notwithstanding the IPV discourse that recognizes the entanglement between structural economic conditions and consequences to families and communities, too little economic support either on the front end or the back has been allocated to address these issues.

This essay will address the various economic factors related to survivors and offenders. It critically assesses the ways in which the responses to IPV insufficiently acknowledge economic concerns as a function of a neoliberal economic system that fails to support meaningful social change It offers a brief comparative review of circumstances in Ciudad Juárez, Mexico following the signing of the North American Free Trade Agreement and a hyped–up period of economic liberalization and free trade with a model to address gender violence developed in Cuba after the period of Cuba’s post 1959 revolution through the first decade of the twenty–first century based on a political economy built upon principles of social justice and gender equality. These disparate economic circumstances illustrate the ways in which political economies contribute to or mitigate gender violence.

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.

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.

Yiran Zhang on "The Care Bureaucracy"

Yiran Zhang has posted The Care Bureaucracy on SSRN. This article is forthcoming in the Indiana Law Journal. The article describes the bureaucratization of public home health care. These struggles, the article explains, are situated "in a highly gendered and class-specific workforce." Zhang concludes that "[t]he care bureaucracy, while serving certain benefits such as promoting standardization and preventing some types of fraud, burdens the users of public care programs—vulnerable elders and people with disabilities, their families, and their direct care workers, who are disproportionately low-income women of color and immigrant women."

The abstract provides: 

The state plays an increasingly crucial role in providing home care as an aging population leads to mounting care needs. The public care system in the United States delivers home care and compensation for care work through an increasingly bureaucratic mode of governance featuring documentation, quantification, and professional governance. The process adopts a functional, task-based approach to define, measure, and regulate care that does not reflect home care’s relational and spontaneous reality. Through the concept of the “care bureaucracy,” this Article describes the ongoing bureaucratization of public home care, analyzes its political economy context, including its origin in poverty law, and lays out its benefits and profound costs. The care bureaucracy not only burdens families needing care and care workers with unpaid, complicated, and sometimes privacy-invading bureaucratic work, but also threatens the state’s capacity to adequately deliver the promised care. The Article also proposes an alternative way to deliver public home care by drawing from the Department of Veterans Affairs’ caregiver programs for veterans with service-related disabilities.

This Article makes two contributions to legal scholarship on care and the state. First, this Article explores the co-constitution between care and a mundane form of family regulation — a meticulous bureaucracy — in the public home care system. While not involving carcerality, the care bureaucracy imposes a less punitive and yet more omnipresent regulation of the users’ family, workplace, and bodily autonomy by micro-managing their physical movements inside homes. Second, it establishes the political-economy connection between the bureaucratization and fragmentation of public home care. In analyzing the status quo political economy of the care bureaucracy, this Article provides a roadmap to reform the public care system into one more responsive to the growing care needs.

 

Expansions in California's Abundant Birth Project

The United States' first program giving cash to pregnant Black women in San Francisco has expanded to four additional counties. California's Abundant Birth Project is described as: 

The Abundant Birth Project is a simple, yet novel, approach to achieving better maternal health and birthing outcomes: provide pregnant Black and Pacific Islander women a monthly income supplement for the duration of their pregnancy and during the postpartum period as an economic and reproductive health intervention. Prematurity is a leading cause of infant mortality and has been linked to lifelong conditions, such as behavioral development issues, learning difficulties, and chronic disease. In San Francisco, Black infants are almost twice as likely to be born prematurely compared with White infants (13.8% versus 7.3%, from 2012-2016) and Pacific Islander infants have the second-highest preterm birth rate (10.4%). Furthermore, Black families account for half of the maternal deaths and over 15% of infant deaths, despite representing only 4% of all births. Pacific Islander families face similar disparities.

San Francisco Mayor, London N. Breed, celebrated the launch of the program stating:  

“Providing guaranteed income support to mothers during pregnancy is an innovative and equitable approach that will ease some of the financial stress that all too often keeps women from being able to put their health first. The Abundant Birth Project is rooted in racial justice and recognizes that Black and Pacific Islander mothers suffer disparate health impacts, in part because of the persistent wealth and income gap. Thanks to the work of the many partners involved, we are taking real action to end these disparities and are empowering mothers with the resources they need to have healthy pregnancies and births.”

Daisy Nguyen, reporter with KQED.org, reported on the expansion of the program.  

Since June 2021, the Abundant Birth Project has given $1,000 per month to nearly 150 Black residents during a portion of their pregnancies and the first six months of their children’s lives. With the extra funding from the California Department of Social Services and another $1.5 million in city funds, the program aims to reach another 525 people in San Francisco, Alameda, Contra Costa, Los Angeles and Riverside counties.

Learn more about the Abundant Birth Project here.  

The History of Women-Led, Non-Lawyer Legal Aid in Boston, Chicago, and Elsewhere

From the Legal History Blog, Jeon on Women-Led, Non-Lawyer Legal Aid in Boston

Kelsea A. Jeon, the holder of an M.Phil in Socio-Legal Research from the University of Oxford, has published Legal Aid Without Lawyers: How Boston’s Nonlawyers Delivered and Shaped Justice for the Poor, 1879–1921 in the Georgetown Journal on Poverty Law & Policy:

Women nonlawyers were some of the first actors to provide organized legal aid to America’s poor. Yet, today, unauthorized practice of law statutes bar nonlawyers from providing legal help, citing concerns about malpractice and public harm. This Article uses a historical case study to challenge conceptions that nonlawyers cannot provide effective legal services to the people. The study focuses on the development of legal aid in Boston via two organizations, the nonlawyer-led Women’s Educational and Industrial Union and the lawyer-centric Boston Legal Aid Society. Although organized legal aid in Boston began with the nonlawyers at the Union, they were eventually overtaken by the lawyer-centric Legal Aid Society. This paper examines this transition in legal aid practitioners, emphasizing how nonlawyers provided effective legal help. In doing so, it challenges the modern-day conception that access to justice requires access to an attorney and serves as a powerful counter to claims that nonlawyer practitioners endanger the public.

For more on the history of women-led legal aid, see Felice Batlan,  Women and Justice for the Poor: A History of Legal Aid , 1863-1945 (Cambridge Press 2015):

This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women's history in dialogue, it demonstrates that nineteenth-century women's organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor

 

Cash Aid to Poor Mothers Increases Brain Activity in Babies, Study Finds, Possible Policy Implications

Cash Aid to Poor Mothers Increases Brain Activity in Babies, Study Finds

A study that provided poor mothers with cash stipends for the first year of their children’s lives appears to have changed the babies’ brain activity in ways associated with stronger cognitive development, a finding with potential implications for safety net policy.

The differences were modest — researchers likened them in statistical magnitude to moving to the 75th position in a line of 100 from the 81st — and it remains to be seen if changes in brain patterns will translate to higher skills, as other research offers reason to expect.

Still, evidence that a single year of subsidies could alter something as profound as brain functioning highlights the role that money may play in child development and comes as President Biden is pushing for a much larger program of subsidies for families with children.

“This is a big scientific finding,” said Martha J. Farah, a neuroscientist at the University of Pennsylvania, who conducted a review of the study for the Proceedings of the National Academies of Sciences, where it was published on Monday. “It’s proof that just giving the families more money, even a modest amount of more money, leads to better brain development.”

Another researcher, Charles A. Nelson III of Harvard, reacted more cautiously, noting the full effect of the payments — $333 a month — would not be clear until the children took cognitive tests. While the brain patterns documented in the study are often associated with higher cognitive skills, he said, that is not always the case.

“It’s potentially a groundbreaking study,” said Dr. Nelson, who served as a consultant to the study. “If I was a policymaker, I’d pay attention to this, but it would be premature of me to pass a bill that gives every family $300 a month.”

A temporary federal program of near-universal children’s subsidies — up to $300 a month per child through an expanded child tax credit — expired this month after Mr. Biden failed to unite Democrats behind a large social policy bill that would have extended it. Most Republicans oppose the monthly grants, citing the cost and warning that unconditional aid, which they describe as welfare, discourages parents from working.

Benin's New Abortion Law

Benin's parliament has voted to expand abortion access. 

Before this amendment, a woman could get her pregnancy terminated if the pregnancy would threaten her health or life, in case of foetal malformation, or when the pregnancy was a result of incest or rape. The new law expands this to protect a woman’s education or career.

The new law allows abortion "upon the request of the pregnant woman, voluntary termination of pregnancy can be allowed when the pregnancy is likely to aggravate or cause a situation of material, educational, professional or moral distress incompatible with the interest of the woman and/or the unborn child."

This is notable for several reasons. First, it allows abortion on the basis of socioeconomic status. Second, it is "somewhat groundbreaking"  in the geographic region: 

Benin goes beyond the Maputo Protocol, which has been the policy goal in the region for all the states, to "protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus."

Op. Ed. on "Shameful" Trends in Maternal Health

The New York Times ran an Op. Ed. on trends in maternal health containing very useful infographics to our communities and our classrooms depicting the "shameful" status of maternal health risks, particularly by geography and race. A few key statistics from the Op. Ed.: 

• "One of every five women of reproductive age in Southern states live in counties with a high risk of death and other poor maternal health outcomes, such as post-partum hemorrhage, pre-eclampsia and preterm birth."
• "American Indian and Alaska Native are 2.6 times as likely as white women to live under conditions that create problems during and after pregnancy."
• "Black women are 1.6 times as likely as white women to live under these unfavorable conditions."

The Op. Ed visually and powerfully depicts in digestible and accessible ways how "a woman’s chance of a healthy pregnancy varies greatly depending on where she lives, based on factors such as whether she has a high school diploma, her exposure to poverty, her access to OB-GYNs and midwives, and her access to abortion clinics."

 

 

Fact Sheet: U.S. National Strategy on Gender Equity and Equality

Fact Sheet: National Strategy on Gender Equity and Equality

The Biden-Harris Administration issues first-ever national gender strategy to advance the full participation of all people – including women and girls – in the United States and around the world.

The strategy identifies ten interconnected priorities: 1) economic security; 2) gender-based violence; 3) health; 4) education; 5) justice and immigration; 6) human rights and equality under the law; 7) security and humanitarian relief; 8) climate change; 9) science and technology; and 10) democracy, participation, and leadership.  These priorities are inherently linked and must be tackled in concert.

The strategy also adopts an intersectional approach that considers the barriers and challenges faced by those who experience intersecting and compounding forms of discrimination and bias related to gender, race, and other factors, including sexual orientation, ethnicity, religion, disability, age, and socioeconomic status.  This includes addressing discrimination and bias faced by Black, Latino, and Indigenous and Native American people, Asian Americans, Native Hawaiians, and Pacific Islanders, and other people of color.

Britney Spears, Carrie Buck, and the Awful History of Controlling "Unfit" Women

Wash Post, Britney Spears, Carrie Buck, and the Awful History of Controlling "Unfit" Women

In a June hearing, Spears said that her conservatorship was “abusive,” and that her father forced her to work and to keep a birth-control device in her body so that she could not become pregnant. The claims shocked the public, including many celebrities, who have increasingly voiced their support for her.

But to historians of eugenics, Spears’s ordeal sounds very familiar. It’s a story of control — control of a woman’s labor, civil rights, parental custody, legal representation and even her reproductive system.***

In the early 20th century, a lot of states were “chasing the white whale” of a eugenics law that would pass constitutional scrutiny, said Elizabeth Catte, a public historian and author of the scorching book “Pure America: Eugenics and the Making of Modern Virginia.” Indiana passed a eugenics-based law allowing forced sterilization in 1907, but it was overturned in court, as was California’s in 1909.

Then Virginia gave it a try with its own law in 1924, and went looking for a test case to legitimize it.

Carrie Buck was born into poverty in Charlottesville in 1906. Her father abandoned the family, and her mother was soon accused of “immorality” and committed to the Virginia State Colony for Epileptics and Feebleminded — essentially a work camp for White people the state didn’t like. Buck was separated from her siblings and sent to live with a wealthy foster family, who forced her to leave school during sixth grade and serve as a housekeeper in their home.

When Buck was 17, she was raped by the nephew of her foster mother and became pregnant. Probably to save face, the family accused her of promiscuity and feeblemindedness, and in 1924, she was committed to the same colony as her mother. Her infant daughter was given to her foster mother.

In an 8-to-1 decision, the Supreme Court agreed, with Justice Oliver Wendell Holmes famously declaring, “Three generations of imbeciles are enough.” (Many words now used as mild insults, such as “moron,” “imbecile,” and “idiot,” have a long history of being used as clinical diagnoses.)

Buck, along with her mother and her sister, was subsequently sterilized by having her fallopian tubes cut and cauterized. Buck’s daughter died when she was 8.

All told, Virginia robbed 8,000 people of their ability to have children.

Spears’s situation has made Catte “think a lot about women that I write about, even though they are incredibly poor women,” and Spears is not.

“The choice to deprive them of their reproductive freedom through sterilization was only one half of the state’s control over their lives,” she said. “The second half is control over their labor.”

ABA Webinar Today on Women's Rights, Cultural Heritage Preservation, and Economic Relief in Afghanistan

Today from 2:00 - 3:30 p.m. EST the ABA is hosting a free webinar titled Afghanistan on the Brink: Risk Assessments for Women’s Rights, Cultural Heritage Preservation and Economic Relief. The program description looks timely and relevant to blog readers. 

This panel of experts considers the urgency for women’s rights, cultural heritage preservation, and economic relief in Afghanistan. As of 2020, approximately 90% of Afghans lived below the poverty level of $2 per day, according to the US Congressional Research Service. At the same time, minerals generate just $1 billion in Afghanistan per year. Analysts estimate that 30% to 40% of returns are siphoned off by corruption as well as by warlords and the Taliban, which has presided over small mining projects. The World Bank warned that the economy remains "shaped by fragility and aid dependence.” Additionally, this panel explores how climate change has served as a threat multiplier for conflict and regional instability. Despite these obstacles, experts share insights on how to move beyond the current situation to harness potential for female education, women’s economic empowerment, and cultural heritage preservation. Information will be shared on how to assist those impacted directly through ABA and ABA partner institutions. 

Black Women Challenge Florida's Felony Disenfranchisement Law as Undue Burden and Violative of 19th Amendment

Courts Asked to Analyze Undue Burden of Florida's Felony Disenfranchisement Law on Black Women

New filings in the nation’s sole 19th Amendment felony disenfranchisement suit seek acknowledgement of historical and economic factors that impact Black women in particular.

After nearly two-thirds of the state voted to restore the right to vote to those convicted of felony offenses, McCoy and more than 700,000 Floridians lost access to the voting box in 2019, when Gov. Ron DeSantis signed Senate Bill 7066 into law. The legislation requires formerly incarcerated people to pay any restitution, fines, fees or court costs — also known as legal financial obligations — before regaining the right to vote. McCoy learned that she owed about $7,500 in victim restitution, including interest, and her county expected her to pay it all at once. Advocates call the law a modern-day poll tax. 

Now, the Southern Poverty Law Center (SPLC), which sued Florida on behalf of McCoy and another Black woman named Sheila Singleton, is asking an appeals court to require a new analysis of the nation’s sole felony disenfranchisement lawsuit alleging a violation of the 19th Amendment. Lower courts dismissed SPLC’s analysis of the law’s disproportionate financial, “undue burden” on women of color. ***

The 11th Circuit Court of Appeals upheld Florida’s felony disenfranchisement laws in September, but, according to court documents filed on February 10, McCoy’s lawyers want the court to weigh in on The 19th Amendment more directly because of the law’s disparate impact on women of color. 

At the core of this renewed legal battle is the question of intent. Lawyers for the state of Florida argue that McCoy and her legal team have to prove that lawmakers and the governor intended to disenfranchise women with the law. But Nancy Abudu, the deputy legal director for the SPLC, filed an appeal for Florida to focus on the impact of this law on women of color.

“We have to move away from having to prove that people are racist and sexist,” Abudu told The 19th. “If that is our burden of proof, then we might as well not bring any of these cases. Instead, we need to focus on what is the impact of these laws. You can’t feel comfortable with a system that incarcerates mostly poor Black people just because the system doesn’t say arrest poor Black people.” 

Attorneys representing DeSantis and Florida’s secretary of state did not respond to a request for comment at press time. 

Nationwide 57 percent of men made less than $23,000 prior to incarceration, this is true for 72 percent of women, court documents read. The SPLC’s past filings include data from Prison Policy, a nonpartisan criminal justice think tank, showing the unemployment rate among formerly incarcerated people between the ages of 35 to 44 was 44 percent among Black women and 35 percent for Black men, and 23 percent among White women compared to 18 percent of White men.  

Abudu sees this as a timely fight. Black women’s votes ushered in the first ever woman in the White House, and Black women like Stacey Abrams, who’ve been largely uncredited with this work, became household names. Yet laws like Florida’s felony disenfranchisement law have the heaviest burden on Black women, Abudu said. 

“Our argument essentially is that because of that legislative history, and because of the political history of Black women and voting in our country, that that leads to the conclusion that Black women, or women of color in general, need greater protection when it comes to their voting rights,” Abudu said. 

As the SPLC argues in new court documents, the 19th Amendment claim should be read in a way that grants the greatest protection to women, especially because when Congress passed it in 1920, it hardly enfranchised all women. 

“The aim of enfranchising women was not simply so they could cast a ballot, but so they could directly influence the other areas of life that ultimately infringe upon their right of self-determination,” the lawsuit reads. 

h/t Paula Monopoli

CFP Sex Trafficking, Opioids & Eradicating the Demand

The University of Kentucky Rosenberg College of Law is very pleased to host a day-long symposium entitled, “Selling Vulnerability: Sex Trafficking, Opioids, and Eradicating the Demand” on Friday, February 5, 2021. A detailed description of the symposium is provided below. We are hosting the symposium virtually via Zoom.   

Article Submissions:  

As part of our symposium, the Kentucky Law Journal (KLJ) is currently seeking articles to be published in an issue devoted to sex trafficking and opioids. Relevant topics may include, but are certainly not limited to, the use of drug dependency and manipulation to “coerce” sex trafficking victims; enhanced victim support services that include drug treatment; and recent efforts in and new ideas regarding sex trafficking law reform.  

We are interested in many different submissions, including submissions from practitioners.  

Submission Guidelines:  

  

Articles published by the KLJ average 15,000 - 25,000 words.  KLJ does not accept submissions from students at other law schools. Co-authorship is permissible. All authors please submit an updated curriculum vitae and/or resume.  

Deadlines:  

Please submit an abstract to KLJ. The final articles are due on December 15, 2020.   

Contact information:  

Please emails submissions and questions to [email protected] and please copy Associate Professor Blanche Cook at [email protected].  

Symposium Description:   

Our nation is experiencing a meteoric rise in opioid overdose. The sheer power of opioid dependency has left few untouched and many devastated in its wake.  Inextricably intertwined with opioid dependency is an equally epidemic rise in sex trafficking. Like no other point in its 5,000-year history, sex trafficking is on a sharp upsurge: The internet has expanded the insatiable demand for vulnerable human flesh. As the internet increases the scope of the flesh trade, opioid addiction adds to its sting. Millions are feeding their dependency through the selling of flesh.   

Sex trafficking exists conterminously with drug dependency because vulnerability is the lynchpin of exploitation. This conference, the first of its kind, will examine the converging and rising tides of sex trafficking and opioid addiction. This conference has three aims: Awareness, Advocacy, and Activism.  Using a panel of experts who have first-hand experience with the intertwined effects of sex trafficking and opioid addiction, this conference will increase the public awareness of the converging forces of dependency and vulnerability.  A second panel of advocates will address how the legal process can intervene in the demand for human flesh.  Finally, a third panel of activists will critique the current problems in the criminal justice system’s attempt to ameliorate the intertwined problem of drug dependency and sex trafficking through mass incarceration.  

New Book Podcast: Michele Goodwin's Policing the Womb: Invisible Women and the Criminalization of Motherhood

Michelle Goodwin, Podcast, New Books in Law: Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge Press 2020)

Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020) a brilliant but shocking account of the criminalization of all aspects of reproduction, pregnancy, abortion, birth, and motherhood in the United States. In her extensively researched monograph, Michele Goodwin recounts the horrific contemporary situation, which includes, for example, mothers giving birth shackled in leg irons, in solitary confinement, even in prison toilets, and in some states, women being coerced by the State into sterilization, in exchange for reduced sentences. She contextualises the modern day situation in America’s history of slavery and oppression, and also in relation to its place in the world. Goodwin shows how prosecutors abuse laws, and medical professionals are complicit in a system that disproportionally impacts the poor and women of color. However, Goodwin warns that these women are just the canaries in the coalmine. In the context of both the Black Lives Matter movement, and in the lead up to the 2020 Presidential election, her book could not be more timely; Not only is the United States the deadliest country in the developed world for pregnant women, but the severe lack of protections for reproductive rights and motherhood is compounding racial and indigent disparities.

Exploring the Toxic Racial Construct of the Black Welfare Queen

Catherine Powell & Camille Gear Rich, The “Welfare Queen” Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Geo.L.J., 19th Amendment, Special Edition (forthcoming)

As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.

In service of these goals, we use this Article to explore a toxic racial construct often used to distract American women from our shared rights claims—the political trickster known as the “welfare queen.” This construct was born as a result of fiscal conservatives’ attacks on government anti-poverty subsidy programs in the 1980s. It relied on antipathy toward Black women—characterized as “welfare cheats” or frauds—and pathologized women of color to call for aggressive cuts to social-safety-net programs. This Article explores the remobilization of this construct in present-day electoral politics and the ways in which it compromises cross-racial coalitions and obscures the path to reform. We take as our object the 2016 presidential election and its aftermath, for in 2016, then-presidential candidate Donald Trump and his surrogates reanimated the welfare queen construct and alleged that she was stealing American democracy through voter fraud. The visceral power of this construct allowed this group of Republicans to transform Americans’ understanding of voting rights and American democracy. In so doing, their representations simultaneously sidetracked feminist efforts to build strong cross-racial coalitions. This Article explores the various paths out of our current discourse, dispelling thedistracting haze generated by the welfare queen construction. In the process, we also hope to advance our conceptual understanding of intersectional identities and their relationship to political change.

The Injustice of Formal Gender Equality in Criminal Sentencing

Emma Decourcy, The Injustice of Formal Gender Equality in Sentencing, 47 Fordham Urb. L.J. 395 (2020)  

Over the past 40 years, the entire United States penal population has grown at an unprecedented rate, and the rate of female incarceration is growing at twice the rate of men. Given that there does not appear to be an increase in female criminality that corresponds with the increase in female incarceration, it may be inferred that the rising rate of female imprisonment is the result of changes in criminal justice law and policy that prescribe simplistic, punitive enforcement responses to complex social problems.

While criminological research has paid increased attention to women and girls over the past decade, there is still much work left to be done. This Note aims to address a perceived gap in existing scholarship on female incarceration — existing research and proposed solutions have tended to focus on prison conditions and post-incarceration re-entry. While such work is imperative, an examination of the female pathways to incarceration is equally important. This Note argues reforms that target the front end of the incarceration process, namely sentencing, should be employed to address the rapidly rising rate of female incarceration.

Part I of this Note first provides a brief overview of the mass incarceration crisis in America and the changes in criminal justice policy, namely sentencing policy, to which it is attributed. Part I then discusses the impact of changes in sentencing policy on female sentencing outcomes. Part II proposes a framework of inquiry to be used by policymakers engaged in the creation of gender-responsive sentencing policies. This framework includes an analysis of the scope and nature of female incarceration, the correlates of female criminality, and the impact of existing gender-neutral policies on women involved in the criminal justice system. Finally, Part III discusses the efficacy of gender-neutral sentencing policies in action and identifies two policies that exemplify proper application of the framework presented in Part II.

Payday Lending Regulations and the Disproportionate Impact on Women of Color

Lara Sofia Romero, Rafael Romero, & Sim Jonathan Covington, Payday Lending Regulations and the Impact on Women of Color, Accounting & Taxation, v. 11 (1) p. 83-92

Payday loans, or small short-term loans that carry high fees, may provide a much-needed safety net for some consumers in need of quick cash for emergencies. However, data suggest that most payday loan borrowers become repeat users caught in a cycle of high-cost debt. Furthermore, empirical evidence suggests consistent overrepresentation of women of color, including many single mothers, among payday loan borrowers. Based on international human rights law, the U.S. has an obligation to remedy predatory economic practices such as a payday lending that have a disproportionately negative economic effect on women of color. Posing the issue of payday lending as a human rights issue can make an important contribution to public action on how to address the aftermath of the financial crisis and its impact on women of color.

Rural Resentment and LGBTQ Equality

Luke Boso, Rural Resentment and LGBTQ Equality, 70 Florida L. Rev. (forthcoming) 

In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage.  Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills.  Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide.  Many rural Americans feel that they are under attack.  Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms.  This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people.  In several respects, the conflict is merely perceived and not real.  It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces. 

This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism.  Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel.  Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige.  They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them.  Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity.  It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.