Thursday, June 30, 2022

A Resource List of the New Legal, Political, and Practical Issues on Abortion Post-Roe

Updated 6/29/22

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            Trigger Laws:

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

                        Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to Trigger Laws: 

Judge Grants Restraining Order to Restore Abortion Access in Kentucky (6/30/22)

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:22

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

NM Governor to Sign Executive Order on Abortion Access (6/30/22) 

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

           Prosecutors:

Cuyahoga Cty Prosecutor Says He Won't Enforce 6 Week Abortion Bam (6/30/22) 

FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            First Amendment Rights of Speech and Advise

First Amendment Confrontation May Loom in Post-Roe Rights (6/30/22)

            Validity of State Travel Bans:

WP, Anti-Abortion Lawmakers Want to Block Patients From Crossing State Lines (6/30/22)

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Lauren Van Schilfgaarde, Aila Hoss, Sarah Deer, Ann Tweedy, Stacy Leeds, The Indian Country Abortion Safe Haven Fallacy

            Other Constitutional Liberties: contraception, marriage, LGBTQ

State Legislation:

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

           See generally:

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

Abortion Defenders in MI and OH Get It: Take it to the Voters (6/30/22)

            Fetal Personhood:

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

How Green Bandanas Became the International Color of Abortion Rights

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Election issue

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            Contraception: double layer contraception, increase in vasectomies

Plan B:

Missouri AG Says State Abortion Ban Does not Prohibit Plan B or Contraception (6/30/22)

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

            Digital Privacy & Period Tracking Apps:

Why Deleting Your Period Tracking App Won't Protect You (6/30/22) 

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

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

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Women's Medical Care: 

Physicians Face Confusion and Fear in Post-Roe World

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies paying travel expenses:

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Information & Assistance:  

Abortion Finder Org Site ("The pink book" of where to access providers)

ABJ, Experts Say Helping OH Patients Get Abortions Isn't Illegal (6/30/22)

            Rebecca Traister, The Necessity of Hope: "It means doing the thing that people have always done on the arduous                             path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity."

June 30, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, June 29, 2022

Ohio Lawsuit Filed to Enjoin 6 Week Abortion Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care

Lawsuit Filed Against Ohio Abortion Ban After Roe v. Wade Ruling

Just days after the United States Supreme Court overturned Roe v. Wade in a historic decision, multiple groups have come together to file a lawsuit in the Ohio Supreme Court “seeking to block the state’s six-week ban on abortion and to restore and further protect Ohioans’ reproductive rights secured by the Ohio Constitution.”

Their lawsuit comes after a federal judge in Ohio granted the state’s request to allow the previously blocked six-week abortion ban – also known as the “heartbeat bill” – to take effect. The suit argues the bill “radically restricts access to abortion in Ohio by lowering the gestational age limit from 22 weeks to approximately six weeks, with very limited exceptions.”

The Complaint is here: Download Complaint, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

See also: Download Memo in Support of Writ, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

To add some additional information:

1.  There is original jurisdiction in the Ohio Supreme Court for "extraordinary writs" like mandamus when there is no adequate remedy at law.  It is an unusual option, but that is the argument the provider plaintiffs are making here. saying there is a need for a definitive, state-wide ruling on this emergency motion.

2.  Ohio may be different in interpretation of its state due process ("due course of law") clause because it also now has a "Freedom to Choose Health Care" constitutional provision.  Ohio Const. Art. I.21.  This freedom of health care provision was passed by initiative in 2011 in response to the federal Affordable Healthcare Act as an "anti-Obamacare" action.

 

 

June 29, 2022 in Abortion, Constitutional, Courts, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 28, 2022

Ohio Statutory Framework of Abortion Laws After Dobbs

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

 

OHIO ABORTION STATUTORY FRAMEWORK POST-DOBBS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.       Ohio’s Current Civil Framework Regulating Abortion

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

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

IV.  Ohio’s Fetal Personhood Laws

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

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

 

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

 

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

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

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

New criminal offense under HB 1280

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

 

Other things to know about this new crime:

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

 

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

 

New civil fines (and complications)

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

 

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

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

Thursday, June 23, 2022

Unequal Representation of Women in Clinical Research

Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021

Abstract:

This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.

Introduction:

The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.

On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.


However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.

These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials. 

June 23, 2022 in Healthcare, Legal History, Pregnancy, Race, Science | Permalink | Comments (0)

Wednesday, June 15, 2022

Elizabeth Cady Stanton Trust Files Lawsuits to Activate ERA and Protect Right to Abortion

The Elizabeth Cady Stanton Trust Files Three Lawsuits to Establish the ERA and to Protect Roe v Wade from Being Overturned

Three lawsuits were filed today in New York, Michigan and Rhode Island to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment (“ERA”) in the United States Constitution.

 

The plaintiff, The Elizabeth Cady Stanton Trust, filed the lawsuits to affirm that women are fully equal citizens under the U.S. Constitution, and are entitled to full and Equal Protection of all laws. Stanton was a leading women’s rights activist in the 1800s, whose leadership led to women winning the right to vote in 1920. The Trust’s president, Coline Jenkins, is the great, great granddaughter of Elizabeth Cady Stanton. Jenkins explained that the lawsuits were filed because “only with full Equal Protection of all laws can women’s right to choose be protected."

 

The lawsuits were filed in response to the recently leaked opinion of U.S. Supreme Court Justice Samuel Alito, who proposes to overturn Roe v Wade. The lawsuits were filed in states where Attorneys General have expressed their support for Roe, and have stated publicly that the ERA is valid. These lawsuits ask the courts to declare the ERA valid and ensure that all laws are fully compliant with the ERA.

 

The lawsuits assert claims under the ERA as the Twenty-Eighth Amendment to the Constitution and state that because three-fourths of the states have ratified the ERA it is now part of the Constitution and must be enforced. Article V of the Constitution states that an amendment becomes valid the moment the last of 3/4ths of the states ratifies it, which was Virginia in January 2020. But federal officials have refused to acknowledge the ERA’s validity because a purported ratification deadline expired before Virginia ratified. The lawsuits assert that the ERA is valid because the deadline is not valid.

Last-Minute Bid to Save Right to Abortion Comes Via ERA Lawsuits

The threat of a Supreme Court ruling overturning Roe v. Wade has spurred a trio of new lawsuits seeking state court recognition of the Equal Rights Amendment—a last-minute effort to preempt that anti-Roe ruling by forcing the high court to factor new constitutional language into its decision.

 

The women’s rights group Elizabeth Cady Stanton Trust filed lawsuits in state courts in Michigan, Rhode Island, and New York, asking courts there to declare the ERA a fully ratified and enforceable part of the Constitution. The group sued each state’s attorney general, seeking to force the officials “to identify and repair all sex discriminatory laws, policies and programs” in their respective states.

 

The lawsuits open a new front in the wide-ranging battles over abortion rights and the Equal Rights Amendment. The recently leaked draft of a Supreme Court opinion in the pending case Dobbs v. Jackson Women’s Health Organization would end the court’s 50-year precedent of recognizing a constitutional right to abortion, if the court’s final majority opinion aligns with Justice Samuel Alito’s draft when it is published, likely next month.

 

“By declaring the ERA’s validity, this Court will prevent the Supreme Court from overruling Roe and protect women’s basic human right to control their own lives,” attorneys wrote in each of the three complaints, filed May 18 in Michigan and Rhode Island and May 19 in New York.

 

The Equal Rights Amendment doesn’t explicitly address abortion, but the plaintiffs said the amendment’s guarantee of equal protection under the law on the basis of sex would cover the right for women to make reproductive choices free from government interference.

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

False Claims Continue Claiming Elizabeth Cady Stanton and Susan B Anthony as Anti-Abortion Advocates

False claims continue to abound about pioneering 19th century feminists Elizabeth Cady Stanton and Susan B. Anthony as to their views on abortion, including this week in the Wall Street Journal.

As a scholar of Stanton's work for the last twenty years studying her focus on legal and social reform of the family and marriage, I have written extensively against these false claims and tried to set the record straight by delving into the historical details (incorrectly) asserted for these claims.  I post here to refresh the recollection of that work as relevant to ongoing debates: 

First, here's the current, incorrect report, written by anti-abortion activists:

WSJ, Yes, Susan B Anthony Was Pro-Life

Early feminist icons Elizabeth Cady Stanton and Susan B. Anthony changed forever the role of women in American society. In the 19th century they tirelessly promoted public education on behalf of women’s equality and demanded that women be given the right to vote. But contrary to recent claims by advocacy groups, they were not in favor of abortion.

 

After a leaked Supreme Court draft decision appearing to overturn Roe v. Wade circulated in May, the nonprofit National Susan B. Anthony Museum and House in Rochester, N.Y., accused the Susan B. Anthony List, a pro-life political action committee, of misappropriating the famous suffragist’s name. “To suggest that Susan B. Anthony would support government intervention in a woman’s decision about a pregnancy is abhorrent,” museum president Deborah L. Hughes wrote in a post on the organization’s website.

 

The Elizabeth Cady Stanton Trust similarly claims that its namesake would have supported abortion-rights advocacy in the 21st century. The group has filed lawsuits in Michigan, New York and Rhode Island, asking courts, according to a press release, “to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment . . . in the United States Constitution.”

 

In fact, it’s the pro-choice groups that have it wrong. During their lifetimes, both women vociferously condemned abortion.

Here are links to my work challenging and disproving the historical basis on which these incorrect assumptions continue to rely:

Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012) (discussing both Stanton & Anthony)

Tracy Thomas, ECS Book Elizabeth Cady Stanton and the Feminist Foundations of Family Lawm chp. 4, The "Incidental Relation" of Mother (NYUP 2016)

Tracy Thomas, Gender & the Law Prof Blog, Elizabeth Cady Stanton was Not Against Reproductive Rights

Tracy Thomas, Gender & the Law Prof Blog, Voluntary Motherhood: What Did 19th Century Feminists Think About Abortion and Birth Control

The Atlantic, The Abortion Debate and the Legacy of Women's Suffrage (June 2019)

Tracy Thomas, National Constitution Center "We the People" Podcast, The Constitutional Legacy of Seneca Falls

Tracy Thomas, Gender & the Law Prof Blog, Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life

Tracy Thomas, Gender & the Law Prof Blog, The "Incidental Relation of Mother" and 19th Century Demands for Women's Reproductive Control

 

Elizabeth Cady Stanton and the Feminist Foundations of Family Law by [Tracy A. Thomas]

June 15, 2022 in Abortion, Books, Constitutional, Family, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Friday, June 10, 2022

The Possibility of Executive Orders on Abortion Rights if Supreme Court Strikes Down Roe

Biden Says He's Looking at Executive Orders on Abortion Rights if Supreme Court Strikes Down Roe 

President Joe Biden on Wednesday said he was weighing executive actions he could take if the Supreme Court overturns Roe v. Wade's holding of a federal constitutional right to an abortion.

The President, during an appearance on "Jimmy Kimmel Live!" in Los Angeles, again pressed Congress to codify into law the right to abortion established by the landmark ruling in the wake of the publication of the leaked draft of the Supreme Court's ruling on the issue.
 
"I think if the court overrules Roe v. Wade and does what is drafted ... if that occurs, I think we have to, we have to legislate it. We have to make sure we pass legislation making it a law that is the federal government says this is how it works," Biden told Kimmel.
 
He said, "I think what we're going to have to do. There's some executive orders I could employ, we believe -- we're looking at that right now."
 
CNN has previously reported that Biden's administration has been working for months in preparation for the expected decision by the Supreme Court overturning Roe v. Wade. The White House has so far not detailed exactly what options could be taken to mitigate the effects of the ruling.
 
Among that preparation has been convening roundtables with state lawmakers to discuss the issue and solicit ideas. Options for moves Biden could take include executive action that could make it easier for women to travel to receive abortions in states where the procedure is still legal or expanding access to medication abortion through the mail. Some advocates have also suggested leasing federal land for abortion clinics, bypassing state laws that restrict them.

Bracing for the End of Roe v. Wade, the White House Weighs Executive Action, NYT

No executive order can re-establish a constitutional right. It would take an act of Congress to restore a national legal standard barring states from outlawing abortion, and proponents currently lack sufficient votes in the Senate, where Republicans can filibuster such a bill. But Mr. Biden has signaled that he wants to move on his own.***

The White House counsel, Dana Remus, the director of its gender policy council, Jennifer Klein, and the director of its domestic policy council, Susan Rice, are overseeing the legal and policy vetting of potential executive actions. Anita Dunn, a senior policy adviser to Mr. Biden, is in charge of broader planning, including communications strategy, officials said.

June 10, 2022 in Abortion, Constitutional, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

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

Proposed Federal Law Prohibits Nonconsensual Condom Removal

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

 

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

 

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

 

Maloney, Torres and Khanna have introduced two bills:

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

 

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

 

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

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

Tuesday, June 7, 2022

Leading Historian Explains What Alito Gets Wrong About the History of Abortion in America

One of the leading historians, Leslie Regan, who literally wrote the book on the topic, see When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973.com/When-Abortion-Was-Crime-1867-1973 (1996)  explains what Justice Alito's draft opinion in Dobbs gets very wrong.

Leslie Reagan, What Alito Gets Wrong About the History of Abortion in America

f it were possible to eavesdrop on conversations among women and some doctors in early America, you might overhear the phrase “bringing on the menses.” If a woman didn’t menstruate when expected, she was considered to be sick and action was required to bring her back to health. Women who had “a common cold” — a euphemism for “obstructed” menses — used a variety of methods, teas and concoctions to bring “their menses back.”

In other words, returning menstruation to its normal cycle was within the purview of a woman’s own self-health care and was not regulated by the state until after “quickening” — the moment during a pregnancy when a woman could feel a fetus kick and recognized a life “stirring” within her. Quickening occurred between the fourth and sixth month of pregnancy. Only after quickening was an induced miscarriage, an abortion, considered immoral and banned by law.

The truth is that abortion is deeply rooted in our nation’s history — in practice, in morality and in law. Abortion was not always a crime — although Justice Samuel Alito speciously claims otherwise in his recently disclosed draft majority opinion that would overturn Roe v. Wade.***

The logic that Alito uses in the draft opinion leans heavily on history — history that he gets egregiously wrong. Alito explicitly dismisses the distinction between ending a pregnancy before or after quickening, a distinction that my research has found was critical to the way American women and American physicians traditionally thought about pregnancy. In early America as in early modern England, abortion before “quickening” was legal under common law and widely accepted in practice.

June 7, 2022 in Abortion, Books, Constitutional, Legal History, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, June 6, 2022

The 19th Century History of Abortion Medicines and Advertisements for "Relief for Ladies"

Forget "Abortion": Bring Back "Relief for Ladies."

Supporters of the right to abortion often stumble over the word itself, choosing “choice” as a more acceptable thing to be “pro.” Only recently in the long history of the abortion debate have advocacy groups started to press for use of the word “abortion” and ask that people “shout” their abortions, as one campaign puts it.***

In the 18th and most of the 19th century, before abortion became the province of the medical establishment and the courts, the procedure was widespread, and abortifacients — drugs that cause abortions — were widely marketed. But there was no advertising for “abortions.”

The woman-centered language was a code of sorts. The advertisers encrypted the word “abortion” to evade moral censure and — after the Comstock Act of 1873 criminalized the distribution of abortifacients — to avoid legal consequences as well.

Women knew what regaining their “regularity” really meant, though, just as today we all know that a “cleanse” or a “detox” most likely includes a laxative or diuretic. Early Viagra ads said “love life again” — not “chemically induce your erection.”

But even if marketing Dr. Peter’s French Renovating Pills as “a blessing to mothers” was euphemistic, it circulated a potent message about women’s perfectly reasonable desire not to be pregnant. A desire they have been seeking means to fulfill since at least the Roman Empire.

 

 

 

 

Instead there were ads for “Relief for Ladies” suffering from “obstructed menses.” “Female renovating pills” treated “all cases where nature has stopped from any cause.” Dr. Pierce’s Favorite Prescription promised to clear away “all the troubles and ailments that make woman’s life a burden to her. She’s relieved, cured, and restored.”

“This invaluable medicine,” read an ad for Sir J. Clarke’s Female Pills, “moderates all excess, removes all obstructions, and brings on the monthly period with regularity.”

June 6, 2022 in Abortion, Legal History, Pop Culture, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, June 1, 2022

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

Making "Impregnators" Pay Their Fair Share

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

 

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

 

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

 

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

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

Monday, May 23, 2022

Exploring State Laws of Pregnant Workers Fairness Acts and Reasonable Accommodations

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

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

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

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

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

Thursday, May 12, 2022

The New Jane Crow and the Impact of Denying Reproductive Choice on Women of Color

Michele Goodwin, The New Jane Crow, The Atlantic

With the Supreme Court poised to overturn Roe v. Wade, abortion access for tens of millions of women and girls across the nation may soon be a matter of the past. For many women of means, who can travel and pay for child care, the loss of Roe will be disruptive. For many poor women—particularly poor women of color—the loss will be deadly. This is the coming of the new Jane Crow.

 

Certain aspects of the era of the new Jane Crow are already predictable. First, high rates of maternal mortality will persist, and Black and brown women will disproportionately experience the blow and brunt of these deaths. Medicaid will not be expanded in anti-abortion states, nor will welfare benefits increase to meet families’ needs.

 

Second, states will turn to civil and criminal punishments of women and girls who seek abortions through medication or by traveling out of state. Even now, before Roe has fallen, lawmakers are working on such legislation. Third, just as the Jim Crow era sanctioned racism and racial profiling, the Jane Crow era will be marked by greater surveillance of pregnant women and the curation of laws, practices, and policies to justify stalking, watching, and policing women’s bodies. That is our near future.

 

Already today, we know how dangerous pregnancy and delivery can be. An American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion—a fact the Supreme Court itself acknowledged in Whole Woman’s Health v. Hellerstedt just six years ago. In Louisiana, giving birth is roughly 57 times more dangerous for women than having an abortion. For Black women, the risk of death is especially dire—and especially in states eager to ban abortions. For example, according to the Mississippi Department of Health’s most recent investigation of maternal health and mortality, Black women accounted for “nearly 80% of pregnancy-related cardiac deaths” in that state; they also suffered from far greater rates of gestational diabetes, sepsis, and hemorrhaging. Black women in Mississippi are 118 times more likely to die from giving birth than from having an abortion. To be Black and pregnant in America is a deadly combination.

 

Some of this devastation is the result of the anti-abortion movement itself, and in particular its white, male champions in statehouses across the South. These legislatures have targeted abortion providers for decades, stripping them of their ability to provide essential health-care services for poor women, including pap smears, cancer screenings, and contraception. Their efforts have contributed to the United States being the deadliest country in the developed world to be pregnant.

 

Surely Justice Samuel Alito and the four justices who, according to Politico, voted to sign on to his draft opinion are aware of this. But do they find such data relevant? Seemingly not, as the draft opinion barely acknowledges maternal deaths—and does so only in reference to 1973, not 2022.

May 12, 2022 in Abortion, Constitutional, Pregnancy, Race, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, May 3, 2022

Con Law Scholars CFP The Future of Reproductive Rights at the Center for Constitutional Law

CONSTITUTIONAL LAW SCHOLARS FORUM
THE CENTER FOR CONSTITUTIONAL LAW AT AKRON
Friday, October 28, 2022 (virtual)

The Future of Reproductive Rights

The Center for Constitutional Law at Akron seeks proposals for its annual Constitutional Law Scholars Forum. The Center is one of four national centers established by Congress in 1986 on the bicentennial of the Constitution for legal research and public education on the Constitution. Past program topics have focused on the history of race discrimination, LGBTQ rights, civil rights remedies, federal courts, and women’s suffrage. Presenters at the Center have included Justice Sandra Day O’Connor, Justice Arthur Goldberg, Judge Jeffrey Sutton, Professor Reva Siegel, Professor Lawrence Solum, Professor Katie Eyer, Professor Ernest Young, Professor Julie Suk, and Professor Paula Monopoli, among many others.

The 2022 Forum brings together scholars to explore the question of the future of reproductive rights and justice. The U.S. Supreme Court will soon issue a monumental decision in the pending case of Dobbs v. Jackson Women’s Health Organization, altering the fifty-year constitutional consensus on protection for reproductive autonomy under the federal Constitution. What will the parameters of constitution liberty look like after this decision? Anticipating this change, states have already begun legislating for and against reproductive choice. Some of these cases, like those in Texas, have added justiciability hurdles to the debate before the Supreme Court. At the same time, women in the U.S. and abroad continue to seek affirmative rights related to pregnancy, surrogacy, and other reproductive interests. This Forum invites papers and presentations on any and all aspects related broadly to this topic of reproductive rights and justice.

The Forum will be held virtually on Friday, October 28, 2022. This virtual meeting allows for expanded access to scholars by reducing costs, balancing work/life/health demands, and reaching widely across geographic bounds. Papers will then be published in a symposium edition of the Center’s open-access journal, ConLawNOW (also indexed in Westlaw, Lexis, and Hein). Papers are typically shorter, essay style and publication is expedited within four to six weeks of final paper submission. The journal is designed to put issues of constitutional import into debate in a timely manner while they have the opportunity to impact the discussion and decisions.

Those interested in participating in the Constitutional Law Scholars Forum should send an abstract and CV to Professor Tracy Thomas, Director of the Center for Constitutional Law, at thomast@uakron.edu by August 30, 2022.

 

Download Constitutional Law Scholars Forum CFP 2022

May 3, 2022 in Abortion, Call for Papers, Conferences, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, May 2, 2022

Insuring Contraceptive Equity

Jennifer Hickey has published her article, Insuring Contraceptive Equity, in volume 17 of the Northwestern Journal of Law & Social Policy (2022). Jennifer Hickey is a postdoctoral fellow with the Vulnerability and the Human Condition Project at Emory University. The abstract previews: 

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.

 

While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is the profit motivation of private insurance companies. This Article fills a crucial gap by providing an in-depth examination of the insurance practices that burden contraceptive access for the vast majority of reproductive-aged women on both public and private insurance. Private insurers are afforded substantial discretion in the products they choose to cover and the costs they set, and this causes significant disparities in the availability and affordability of various contraceptive methods. Arguments for equitable and enhanced contraceptive access are traditionally grounded in claims of constitutional rights to reproductive freedom. Unfortunately, this rhetoric of individual rights, rooted in privacy jurisprudence, focuses only on restraining the state from interfering with a woman’s reproductive decisions. This absolves the state of responsibility for family planning and allows women to shoulder the burden of unintended pregnancy as a matter of individual choice and responsibility.

 

This Article instead applies vulnerability theory to establish state responsibility for just and fair distribution of contraception. A vulnerability approach imposes positive obligations on the state to provide contraception as a form of resilience, rather than allowing the state to abdicate responsibility to the private insurance market and individual women under a limited “consumer protection” role. This approach requires the state to monitor and regulate the discretion afforded to insurance companies in making public decisions regarding coverage of various contraceptive methods. This includes examining inequitable insurance practices and policies and assessing power imbalances between insurers, providers, and pharmaceutical companies and patients. In this manner, the United States can move beyond its narrow consumer-oriented approach to contraception and recognize that contraception is vital to fulfillment of important social obligations, not an individual choice made by empowered consumers.

May 2, 2022 in Pregnancy, Reproductive Rights, Theory | Permalink | Comments (0)

Monday, April 25, 2022

Spain Outlaws Harassment of Women Accessing Abortion

Spain has passed a new law banning harassment of women accessing abortion care.  An article by Maureen Breslin published by The Hill provides a translation of the key language: 

[A]nyone trying “to impede [a woman] from exercising her right to voluntarily interrupt pregnancy” through “bothersome, offensive, intimidating or threatening acts” will face jail time of between three and 12 months, or community service.

 

It will ban anti-abortion activists from protesting outside of abortion service providers and clinics and extends to ban harassment of those performing abortions or working in the abortion providers as well, reports CBS.

April 25, 2022 in Abortion, International, Pregnancy, Reproductive Rights | Permalink | Comments (0)

If/When/How Resource Guide for Providers in Texas

If/When/How has prepared a vital information guide for medical providers in Texas. The guide is titled "What You Need to Know: Mandatory Reporting Requirements, Law Enforcement, and Patient Confidentiality in Texas." It is available on the organization's website. The fact sheet "gives an overview of some of the major mandatory reporting requirements and where they may intersect with patient privacy - with a specific focus on self-managed abortion." If/When/How intends this fact sheet to "help reduce hospital-site criminalization of pregnancy outcomes by helping providers understand what type of reporting the law requires." Stay tuned to the If/When How website for future updates in a rapidly evolving legal environment. 

April 25, 2022 in Abortion, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, April 21, 2022

Situating the Law of Menopause in the Broader Socio-Legal Context of Pregnancy and Menstruation

Emily Gold Waldman, Naomi Cahn & Bridget J. Crawford, Contextualizing Menopause in the Law, Harvard J. L. & Gender (forthcoming)

  “It is horrendous, but then it’s magnificent,” says one character about menopause in an episode of the 2019 Netflix comedy Fleabag. Her younger interlocutor is incredulous at this proclamation. That younger character, and even the audience, may be somewhat taken aback by this frank discussion. After all, menopause is not a subject that is commonly discussed, let alone praised. Whether among friends, acquaintances, or colleagues (fictional or not), silence about menopause is more likely the norm. This is true in the law, too. The law mostly ignores menopause.

The law’s silence about menopause is linked to a broader cultural silence about the inevitable consequences of the aging process. It is also linked to longstanding silence and stigma around the menstrual cycle. A growing menstrual advocacy movement, however, has begun to chip away at stigmas and shame surrounding menstruation, in the course of pursuing policy and legal changes that make menstrual products more affordable and available. This Article imagines a role for the law in addressing challenges faced by those transitioning to menopause, whether in the workplace or beyond. It considers why that has not yet occurred, and explores the possible contours of a future legal landscape.

To inform this analysis, the Article situates its discussion of menopause in a broader context: the socio-legal treatment of pregnancy, breastfeeding, and menstruation. By viewing the four reproduction-associated conditions or processes together, rather than in silos, it is possible to discern a hierarchy of favorable treatment, with breastfeeding and pregnancy at the top, trailed by menstruation, and with menopause at the bottom. The Article also highlights a connective thread across these processes: law’s abnormal/normal binary often maps uneasily onto them.

Ultimately, the Article argues that the law should move beyond individual one-off accommodations for “abnormal” manifestations of these conditions. The law should instead recognize and incorporate protections for the broad spectrum of what can be considered “normal” experiences. Such an approach challenges the abnormal/normal dichotomy and is necessarily part of a larger scholarly dialogue that challenges binary thinking about gender and disability. By chipping away at the stigma surrounding menopause, this Article seeks for menopause a socio-legal solicitude equal to the one that exists for breastfeeding and pregnancy and that is beginning to emerge for menstruation.

April 21, 2022 in Pregnancy, Reproductive Rights, Science, Theory | Permalink | Comments (0)

Thursday, April 7, 2022

The Limits of Employment Law and Pregnancy Discrimination for Miscarriage

Laura Kessler, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law 108 Cornell L. Rev. (forthcoming)  

This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen to twenty-five percent will end in miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States.

The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with job-protected, unpaid leave for personal or family illness. The Americans with Disabilities Act of 1990 mandates both nondiscrimination and reasonable accommodations for employees with disabilities. The Occupational Safety and Health Act of 1970 is supposed to ensure that American workplaces are free of recognized hazards that may cause serious physical harm to workers. However, as this Article demonstrates, none of these laws clearly addresses the experience of miscarriage. Moreover, courts and agencies often refuse to interpret these statutes in obvious and reasonable ways to provide meaningful equality to workers when they suffer the common experience of miscarriage.

Many scholars have examined the limitations of employment law with regard to pregnancy. This Article is the first to comprehensively examine this problem as it specifically relates to miscarriage. In addition to bringing attention to this important issue, which silently affects so many workers, this Article provides an opportunity to challenge the artificial conceptual separation of employment and health law, as well as to consider the problem of pregnancy discrimination through the broader lens of reproductive justice.

April 7, 2022 in Equal Employment, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)