Gender and the Law Blog

A People's Tribunal to End Obstetric Violence and Obstetric Racism

Continuing the success of the Birth Justice Tribunal held in October, the next Birth Justice Tribunal will be held on December 1 in Memphis. Interested parties can participate by zoom by registering here. This event brings together speakers to describe their experiences of mistreatment in pregnancy and childbirth. The presence of others lends further impact and solidarity. Learn more about birth justice work at Elephant Circle's helpful resource page. The Birth Rights Bar Association is another helpful resource. 

Infant Mortality Rate Rises by 3%

The National Center for Health Statistics released data on infant mortality for 2022. The infant mortality rate in the United States rose from 2021 to 2022. Roni Caryn Rabin of the New York Times reports on these findings (November 1, 2023): 

The infant mortality rate — defined as the number of babies who die before they are a year old for every 1,000 live births — [] increased by a statistically significant 3 percent last year, to 5.6 infant deaths per 1,000 live births, up from 5.44 deaths per 1,000 live births in 2021 . . .

The mortality rate of babies who were between 4 weeks and a year old increased by 4 percent, while neonatal mortality rates — that of babies less than a month old — increased by 3 percent.

Rates increased significantly among both premature babies born before 37 weeks of gestation and those born extremely early, at less than 34 weeks of gestation.

Overall, the statistically significant increases in mortality rates were seen only among male infants, whose survival rates have always been slightly lower than those among females.

Black infants have the highest mortality rate in the United States, rising slightly last year to 10.86 deaths per 1,000 live births, from 10.55 deaths per 1,000 live births in 2021, an increase that was not statistically significant.

By contrast, the infant mortality rates of both white and Native American and Alaska Native babies increased by statistically significant amounts last year.

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

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

Adam Edelman, NBC News Ohio GOP Candidate and Issue 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tracy Thomas, Language post

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

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

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

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

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

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

Malinda L. Seymore on "Social Costs of Dobbs' Pro-Adoption Agenda"

Malinda L. Seymore has posted Social Costs of Dobbs' Pro-Adoption Agenda on SSRN. This article is forthcoming in volume 57 of the U.C. Davis Law Review in 2023. Here is an excerpt from the abstract. 

Abortion opponents have long claimed that women denied access to abortion can simply give their children up for adoption. * * * Of course, this claim assumes away the burdens of the pregnancy itself, which can result in economic strife, domestic violence, health risks, and potentially death in childbirth. But even on its own terms, the argument that adoption is an adequate substitute for abortion access makes normative assumptions about adoption as a social good in and of itself, ignoring the social costs of adoption for birth parents and adoptees. Idealizing adoption then influences decisions about what constitutes a valid adoption, with courts minimizing the requirements for voluntary consent. In a new post-Roe landscape that narrows choices for those facing an unplanned or unwanted pregnancy, what reforms are necessary to ensure that birth parents are not coerced into adoptions they do not want?

First, this Article looks to patterns of adoption placement before and after Roe v. Wade legalized abortion, and relies on newly available empirical data since Dobbs, to paint a picture of the adoption landscape in a post-Roe world. It concludes that the Dobbs ruling will not appreciably increase the “domestic supply of infants” for adoption . . . . Second, drawing upon insights from psychosocial literature the Article explains how pregnant persons make the decision about adoption, who relinquishes for adoption, and the salience of abortion to that decision; thus informing our understanding of laws and practices of consent in adoption. Third, the Article outlines many of the potentially coercive tactics that have been employed by adoption professionals to persuade birth parents to relinquish their constitutionally-protected parental rights, including high-tech targeting ofpotential birth parents, the use of crisis pregnancy centers to steer pregnant persons to adoption, manipulating the emotional stress of pregnancy to procure consent, and taking advantage of the duress of circumstances of poverty. Fourth, the Article proposes reforms to adoption that give enhanced meaning to the requirement of consent: increased regulation of adoption agencies, independent options counseling, recognition of duress of circumstances as vitiating consent, greater procedural protection to include appointment of counsel, and judicial education about the realities of adoption.

Gender, Health and the Constitution Conference at the Center for Con Law at Akron

 

Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas Genetin, Mike Gentithes, Dr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

Alabama Woman Files Civil Suit After Being Forced to Give Birth in a Jail Shower

An Alabama woman has sued county officials after she gave birth in a jail shower while detained. The complaint alleges the following: 

For almost the entirety of Ms. Caswell’s high-risk pregnancy, which she spent behind bars, ECDC staff continuously exhibited callous indifference toward Ms. Caswell’s pregnancy-related medical needs. Jail staff ignored her requests for regular prenatal care, refused to provide her with access to her critical mental-health prescription medications, and even denied her basic accommodations, forcing her to sleep on a thin mat on a concrete floor. This ongoing mistreatment culminated on October 16, 2021, the day of her delivery. Although Ms. Caswell was obviously in painful labor, ECDC staff refused to transport her to the hospital. Instead, ECDC staff forced Ms. Caswell to endure nearly 12 hours of unmedicated labor alone in a jail cell and ignored her cries of pain and repeated pleas for assistance. Ms. Caswell ultimately had no choice but to deliver her baby unassisted—not in a hospital or even ECDC’s medical unit—but in a jail shower room. Ms. Caswell suffered excruciating pain and a placental abruption that almost led to her death. After Ms. Caswell delivered, ECDC staff looked on as she lay on the floor bleeding. Instead of attending to Ms. Caswell, ECDC staff took pictures with her newborn baby while the umbilical cord was still connected to Ms. Caswell.  

The complaint further suggets that these issues are more systemic in Etowah County: 

Etowah County subjects more pregnant and postpartum women per capita to criminal prosecution and pretrial incarceration for pregnancy-related charges than any other large county in Alabama or throughout the United States. Between 2015 and 2023, Etowah County arrested at least 257 pregnant women and new mothers. Accordingly, it was foreseeable and plainly obvious that Defendants would need to attend to the medical needs of pregnant and postpartum women, yet Defendants developed a persistent policy, custom, and practice of doing precisely the opposite.

Indeed, Ms. Caswell’s experience, shocking as it is, is not an isolated event. There is a persistent and widespread history, custom, and practice at ECDC of denying, delaying, or providing plainly inadequate medical care to detained individuals who are pregnant or postpartum in the face of serious and obvious medical needs. In recent years, Defendants’ conduct has resulted in many other pregnant women at ECDC receiving grossly inadequate pre- and postpartum care, or, in many instances, no care at all. Ms. Caswell herself experienced callous indifference to her medical needs at ECDC during an earlier pregnancy in 2019. ECDC staff has denied medical care to numerous other women with serious and obvious medical needs similar to Ms. Caswell’s while they were pregnant or postpartum, including denial of adequate prenatal care, refusal to provide prescribed medications, refusal to provide access to external medical providers even in the face of emergency medical issues such as ongoing labor and delivery, refusal to provide beds and other basic living necessities for pregnant and postpartum women, and denial of proper postpartum care, including provision of a breast pump. This pattern of deficient care has resulted in grievous harm, including at least one stillbirth. 

The complaint alleges that defendants violated plaintiff's rights under the Fourteenth Amendment by deliberate indifference to serious medical needs. It also alleges negligence, and Intentional Infliction of Emotional Distress claims.  

You can read the full complaint here. 

California Passes New Reproductive Loss Leave Law

California Establishes New Leave for Reproductive Loss

On Oct. 11, California Gov. Gavin Newsom signed a bill into law allowing for up to five days of time off work for reproductive-related losses.

Senate Bill 848 makes it an unlawful employment practice for an employer to refuse to grant an eligible employee's request to take up to five days of unpaid leave following a reproductive loss event.

Previously, California law required employers to provide bereavement leave upon the death of an employee's family member. Reproductive-related losses, however, largely remained unaddressed. Such losses are a common occurrence with more than 1 in 4 pregnancies resulting in miscarriage, and they may result in post-traumatic stress disorder (with almost 1 in 3 women developing pos-traumatic stress disorder after a miscarriage).

What Does this New Leave Require?

SB 848 acts as a subset of California's bereavement leave law and increases an employee's leave entitlements for a reproductive loss event, which is defined as "the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction." Covered employers must provide up to five days of leave for reproductive loss events.

The law limits the amount of reproductive loss leave to a maximum of 20 days within a 12-month period.  Thus, although an employee may be subject to multiple reproductive loss events in a 12-month period, an employer is not required to provide more than 20 days of reproductive loss leave.

Like many other California leave laws, SB 848 prohibits employers from retaliating against any employee for requesting or taking leave for a reproductive loss.

California employers with five or more employees are covered under the law

Understanding Ohio's Constitutional Amendment for Reproductive Rights

A state constitutional amendment for reproductive freedom is on the ballot in Ohio. The "Right to Reproductive Freedom and Protections for Health and Safety" Amendment essentially restores the legal standard of Roe v. Wade of recognizing a fundamental right of reproductive choice and subjecting regulations to strict scrutiny and the least restrictive means. It does eliminate the undue burden standard of Casey, restoring the regular direct and indirect burden standard for infringements of fundamental rights generally. The Ohio amendment expressly allows prohibition of abortion after fetal viability, with an exception for the life and health of the pregnant person, thus restoring the balanced result of Roe. This seems to be a reasonable approach to abortion regulation matching what polls suggest is the view shared by a majority of people.  Yet the political opposition has centered on parents' rights, gender-affirming care, sex trafficking, and the alleged "exclusive scrutiny" of the proposal. 

Here is the amendment language:

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

This is what voters will see on the ballot:

    The proposed amendment would:

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

The Ohio Supreme Court upheld this rewritten "summary" of the proposed amendment, with only minor changes. State ex rel Ohioans for Reproductive Rights v. Ohio Ballot Board, Ohio S.Ct. (Sept. 19, 2023)

The Ohio Attorney General took the unusual step of issuing a legal opinion said to explain rather than advocate for the amendment. Issue 1: A Legal Analysis by the Ohio Attorney General

One year ago, a trial court in Preterm Cleveland v. Yost, invalidated the state's six-week abortion ban on grounds that it violated the state constitutional rights of liberty, privacy, and health care freedom. Ohio is one of four states that has a unique health care freedom amendment protecting the right of choice in health care decisions. It was passed as a challenge to the federal health care insurance mandate to affirm the individual right to choice in health care decisions and health care insurance. The insurance provision is preempted by the federal health care statute. The Preterm Cleveland court granted a TRO and then preliminary injunction staying enforcement of the ban. The government appealed the injunction and oral arguments were held last week. But the appeal is limited to the questions of 1) whether the order is a final appealable order that the government can appeal at this preliminary stage, and 2) whether the providers have standing. The Ohio Supreme Court did not grant cert on the merits of the constitutional question.

For more on the Ohio Reproductive Freedom Amendment, see:

Susan Tebben, Long-fought Abortion Battle in OH Could End in Amendment of Six-Week Ban

Julie Carr Smyth & Christine Fernando, AP, An Ohio Ballot Measure Seeks to Protect Abortion Access. Opponents' Messaging is on Parental Rights.

Jo Ingles, Ohio Voters Will Decide a Constitutional Amendment on Abortion. Here's What You Need to Know.

Valerie Richardson, Wash Times, Parental Rights Take Center Stage in Ohio's Ballot Battle Over Abortion

Christine Fernando & Ali Swenson, AP, Ohio Votes on Abortion Rights this Fall. Misinformation is Spreading.

Susan Tebben, Ohio Issue 1 Attacks on Parental Rights Do Not Appear in Amendment, Ohio Capital J.

Eric Heisig, Ohio Case Pits State Against Doctors Suing to Treat Patients

Webinar on "Rise of Pregnancy Criminalizations"

Pregnancy Justice is hosting a Webinar on October 25th at 3:30 ET. The Webinar focuses on the spike in pregnancy criminalization in the years before Dobbs. It highlights the research and findings in this report. The Webinar features these speakers:

• Khiara M. Bridges, Law Professor at UC Berkeley
• Kassandra Frederique, Executive Director at Drug Policy Alliance
• Dr. Ghazaleh Moayedi, Incoming Board Chair at Physicians for Reproductive Health, and 
• Purvaja S. Kavattur, Pregnancy Justice lead researcher 

You can register for the Webinar here. 

 

 

Milan Markovic on "Charging Abortion"

Milan Markovic has posted Charging Abortion on SSRN. The article is forthcoming in the Fordham Law Review. The abstract is excerpted here. 

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in anti-abortion states have pledged to not enforce anti-abortion laws whereas others are targeting even out-of-state providers. This post-Dobbs reality wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, but prevailing ethical rules and standards do not allow them to disregard laws that they regard as unjust. Nevertheless, since prosecutors do not have unlimited resources, and abortion cases are complex and sensitive, they should use their discretion to focus only on cases where abortion care endangers women and in instances of coercion, as they did pre-Roe. Extraterritorial applications of anti-abortion law are constitutionally suspect and are unlikely to further the public interest.

Abortion is one of the most contentious issues in American life. In a morally pluralistic society, prosecutors must strive for neutrality in the abortion wars by relying on professional standards to guide their charging discretion rather than following public opinion and the dictates of individual conscience.

California Attorney General Sues "Crisis Pregnancy Centers"

California has sued "crisis pregnancy centers" alleging violations of consumer protection laws. The complaint is available here. The core claims are excerpted here: 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in acts or practices that constitute violations of Business and Professions Code section 17500 et seq., by making or causing to be made untrue or misleading statements with the intent to induce members of the public to undergo [Abortion Pill Reversal] APR. Defendants’ untrue and misleading representations include, but are not limited to, the following:

 

a. that APR can “reverse” a medication abortion, as well as an “effective” process that “has been shown to increase the chances of allowing the pregnancy to continue,” and that APR has a 64-68% success rate, even though no credible scientific evidence supports these claims;

 

b. that APR may be effective after a 72-hour window following administration of mifepristone by encouraging pregnant people to contact them “even if more than 72 hours have passed,” even though no credible scientific evidence supports this claim;

 

c. that the rate of birth defects following APR “is less or equal to the rate in the general population,” even though no credible scientific evidence supports these claims;

 

d. that “thousands of lives” have been saved via APR, even though no credible evidence supports this claim;

 

e. that APR may be effective following administration of misoprostol and methotrexate, even though no credible scientific evidence supports this claim; and

 

f. that APR can cause only non-life-threatening side effects, when in fact APR can cause severe, life-threatening bleeding. 

 

Defendants knew or should have known that these statements were misleading.

 

* * * 

 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in unlawful, unfair, and/or fraudulent acts or practices, which constitute unfair competition within the meaning of section 17200 of the Business and Professions Code.

 

Widiss on "The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America"

Deborah A. Widiss has published The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America on SSRN. The article is forthcoming in the Employee Rights and Employment Policy Journal in 2023. The abstract is excerpted here: 

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

Abortion Law as Protection Narrative

Lolita Buckner Inniss has published Abortion Law as Protection Narrative in volume 101 of the Oregon Law Review (2023). Here is the abstract: 

Is there value in exploring centuries-old legal historical accounts in the assessment of contemporary legal matters? If the decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization is any example, the answer is decidedly yes. In Dobbs, the Court relied upon understandings about abortion and fundamental rights that dated back to the early United States. That reliance, however, fails to address the ways that abortion law narratives have consistently been structured: most such narratives center on the idea of protection, in one form or another. Dobbs also fails to acknowledge that the notion of protection is contingent and contested. This Article centers on a key protection narrative in the history of United States abortion law: the case of the Reverend Ammi Rogers, a popular but unconventional Yale-educated Episcopalian minister. In 1820 Rogers was accused of engaging in nonmarital sex with Asenath Smith, impregnating her, and providing her with an abortion. In telling the story of Rogers’ sensational case, this Article urges analyzing the case as a protection narrative: a story whose goal is to promote the erection of defenses against attack, invasion, or injury or other loss. This Article concludes by asserting that contemporary protection narratives surrounding abortion, such as those seen in the opinion of Dobbs v. Jackson Women’s Health Organization, are still as much a part of the modern legal (and political) landscape as those protection narratives that helped to give birth to the earliest codified abortion law in the United States.

 

Center for Reproductive Rights Files Three Suits on Behalf of Pregnant Women Denied Abortion Care

The Center for Reproductive Rights filed three more suits last week on behalf of patients denied abortions while facing grave medical conditions. Here are the CRR's summaries of the cases and links to the complaints:  

Idaho—Brought on behalf of four women denied abortion care, two physicians and the Idaho Academy of Family Physicians (IAFP), Adkins v. State of Idaho challenges the limited scope of the medical exceptions to Idaho’s two abortion bans. The medical exception to Idaho’s near-total ban permits abortion only to prevent death, and its six-week ban—with “vigilante”-style civil liability provisions—similarly has a narrow medical exception. Clarifying the laws’ exceptions would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify and expand the exceptions under the two bans to ensure physicians can provide abortion care to preserve a pregnant person’s health and for cases of fatal fetal diagnoses. The case was filed in Idaho state court.

Tennessee—Brought on behalf of three women denied abortion care and two physicians, Blackmon v. State of Tennessee challenges the limited scope of the “emergent medical condition” exception to Tennessee’s total abortion ban. Such clarification would allow physicians to provide life-saving care without waiting for patients to be near death. The lawsuit also seeks to clarify that the law’s exception permits abortion for cases of fatal fetal diagnoses. The case was filed in Tennessee state court.

Oklahoma—In this action, the Center filed a complaint against Oklahoma Children’s Hospital, alleging it violated the Emergency Medical Treatment and Active Labor Act (EMTALA) when it denied medically indicated abortion care to a woman suffering a life-threatening pregnancy complication. The complaint under EMTALA—a federal law requiring hospital emergency departments to provide “stabilizing treatment,” which can include abortion care—was filed with the U.S. Department of Health and Human Services (HHS).

Analyzing the New Federal Pregnant Workers Fairness Act

Deborah Widiss, The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America, Employee Rgts & Employment Policy J (2023)  

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

The Biden Administration Asks the Supreme Court to Intervene in Mifepristone Litigation

The Department of Justice petitioned the U.S. Supreme Court to intervene in the Fifth Circuit's decision in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine. Here are key excerpts: 

The Fifth Circuit’s decision warrants this Court’s review because it would impose an unprecedented and profoundly disruptive result: Neither respondents nor the courts below identified any prior decision abrogating FDA’s approval of a drug or limiting a drug’s availability based on a disagreement with the agency’s judgment about safety or effectiveness much less doing so at the behest of plaintiffs with such an attenuated claim of standing and imminent harm.

In taking that step here, the Fifth Circuit countermanded a scientific judgment FDA has maintained across multiple administrations; imposed unnecessary restrictions on the distribution of a drug that has been safely used by millions of Americans over more than two decades; and upset reliance interests in a healthcare system that depends on the availability of mifepristone as an alternative to surgical abortion for women who choose to lawfully terminate their early pregnancies. At earlier stages of this case, hundreds of amici filed briefs underscoring the harmful consequences of the lower

courts’ decisions.

 

Beyond those destabilizing practical consequences, the Fifth Circuit’s decision also warrants this Court’s review because of its serious legal errors.  

For a full summary of the case, check out this coverage at SCOTUS.blog.

Australian Inquiry Into Accounts of Birth Trauma

CNN covered a recent proceeding hearing personal accounts of birth trauma in Australia in its article, "MeToo" for Mothers: Australian Inquiry Hears Troubling Accounts of Birth Trauma.

The inquiry was called after dozens of women complained about their care in one part of the state, but the deluge of submissions suggests the problem goes far wider.

 

More than 4,000 submissions were received in just six weeks, mostly from mothers who say they were ignored, belittled, and denied the opportunity to give informed consent.

 

Some lost their babies, others carried their infants home along with mental and physical trauma – for which many blame themselves.

The proceeding opened with comments like these: 

“No means no, except apparently in childbirth, and it’s time to change that,” Hannah Dahlen, a professor of midwifery at Western Sydney University, told the inquiry when it opened on Monday. “This is the MeToo movement of birth.”

The committee member who convened the proceeding told CNN: 

Committee Chair Emma Hurst says the point of the inquiry isn’t to lay blame on individuals. “It’s about finding out where the system is failing and making sure we can work towards changing those systems so it doesn’t continue to happen to other women.”  

 

The Fetal Personhood Movement as Eradicating the Legal Personhood of Women

Meghan Boone & Benjamin McMichael, Reproductive Objectification, Minnesota L. Rev. (forthcoming)  

The American system of rights is individualized – premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate and autonomous.

This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person conceptually precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object – a reproductive vessel, merely the container for another individual rights’ holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the “maternal-fetal conflict” and undermine pregnant people’s rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome – undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety.

Lawsuit Challenges U.S. Dept. of Veteran's Affairs' Policy Limiting Access to IVF

The National Organization for Women is suing the United States Department of Veteran's Affairs over its policy limiting access to in vitro fertilization to only opposite-sex and married couples. For news coverage of the lawsuit, check out 19th News here.  The complaint alleges that the existing policy requires as follows:

6. Veterans and service members seeking coverage of IVF treatments must, together with a spouse, be able to provide their own sperm and eggs and are prohibited from using gametes from third parties (“Member Gamete Requirements”). Defendants’ policy also limits the benefit to service members and veterans who are lawfully married (“Marriage Requirements”).

 

7. Additionally, no matter how much an active-duty service member struggles with fertility, only active-duty service members with a “serious or severe” illness or injury from service can access IVF. Similarly, only veterans with infertility diagnosed as “service-connected” can receive IVF from VHA (“Service-Connection Requirements”).

 

8. The IVF policies facially exclude service members who are a) single or in an unmarried couple; b) unable to use their own eggs or sperm because of illness or injury; c) in a same-sex couple or couple with the same reproductive organs; or d) lacking a service-connected disability or Category II or III illness causing infertility.

 

The complaint alleges that this policy is discriminatory and it seeks injunctive and declaratory relief: 

9. By excluding service members and veterans from IVF coverage on the basis of sex, sexual orientation, marital status, and/or the cause of their infertility, Defendants’ discriminatory policies violate Section 1557 of the Affordable Care Act, the due process and equal protection guarantees of the Fifth Amendment of the Constitution, and the Administrative Procedure Act.

 

* * *  

 

11. NOW-NYC seeks injunctive and declaratory relief on behalf of itself and its members enjoining Defendants from enforcing the discriminatory eligibility provisions of their IVF policies and declaring those provisions unlawful, so that no service member or veteran is denied the care they need to start a family solely because of who they love, their choice whether or not to marry, or the precise source of their fertility challenges. Specifically, NOW-NYC asks that this court declare unlawful and permanently enjoin Defendants from enforcing the Marriage Requirements, the Member Gamete Requirements, and the Service-Connection Requirements (collectively, the “Discriminatory Provisions”).

 

The full complaint is available here. 

 

Bridget Crawford on "Pink Taxes and Other Tropes"

Bridget J. Crawford has published new work titled Pink Taxes and Other Tropes in volume 34 of the Yale Journal of Law & Feminism (2023). Here is an excerpt from the article's abstract:

The “pink tax” is an overarching description of related manifestations of gender inequality: the gender wage gap, gender-based pricing differences in consumer goods or services, disproportionate expenses incurred by a large portion of the population for safe travel or to maintain stereotypically “feminine” appearances, and unequal time burdens experienced by those responsible for households or caregiving. Note at the outset that the majority of existing research in the field deploys a binary understanding of gender as cis male and cis female. In relying on that research, this Article builds a more nuanced account of the complex operation of discrimination on the basis of gender. Such discrimination limits all people, regardless of whether and how they do (or do not) fit within narrow categories. This Article builds to the argument that only one manifestation of the “pink tax,” as a description for the state sales tax on menstrual products, has been well-served by a tax shorthand phrase. “Tampon tax” talk has fueled litigation and advocacy efforts; it has led to law reform in at least eleven jurisdictions, with more states expected to follow. Indeed, generalized “pink tax” rhetoric describing figurative taxes likely will not, on its own, lead directly to legal change. For that reason, at least when arguing for law reform, gender equality advocates should not over-rely on “pink tax” talk or figurative tax tropes.