Gender and the Law Prof Blog

Podcast: The Constitutional Legacy of Seneca Falls

I enjoyed discussing the history and constitutional relevance of the first woman's rights movement in this We the People Podcast with the National Constitution Center.

The Constitutional Legacy of Seneca Falls (July 2019)

July 19 was the anniversary of the Seneca Falls Convention, the nation’s first women’s rights convention held in Seneca Falls, New York in 1848. This episode explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade. Women and law scholars Erika Bachiochi of the Ethics & Public Policy Center and Tracy A. Thomas of the University of Akron School of Law join host Jeffrey Rosen.

My discussion draws on my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016) tracing pioneering women's rights leader Elizabeth Cady Stanton's work in organizing the Seneca Falls Convention and leading the first women's rights movement for over fifty years.

Here is the Declaration of Sentiments waterfall outside the Women's Rights National Park in Seneca Falls, reflecting Stanton's words.

SCOTUS Decision in Box v. Planned Parenthood Foreshadows Possible Abortion Decision of the Future

The Supreme Court decided Box v. Planned Parenthood without full briefing or oral argument and issuing a per curiam opinion.  It upheld Indiana's fetal remains law, but denied cert on the second question regarding the law prohibiting abortion for fetal diagnosis or disability.  Justice Sotomayor would have denied cert on both questions.  Justice Ginsburg dissented, and would have applied a higher standard of scrutiny because the case implicated “the right of [a] woman to choose to have an abortion before viability and to obtain it without undue interference from the State."  Justice Thomas dissented from the denial of cert on the second question.  Ginsburg criticized Thomas' opinion, saying it "displays more heat than light."

 

Wash Post, Supreme Court Compromise on Indiana Abortion Law Keeps Issue off Its Docket

The Supreme Court on Tuesday agreed to a compromise on Indiana’s contested abortion law, an outcome that revealed its openness to state restrictions on the procedure but also apparently favored a cautious and incremental path in confronting one of the nation’s enduring controversies.

 

On one hand, the court upheld a part of Indiana’s 2016 law that places new restrictions on the disposal of fetal remains after an abortion. It reversed a decision by a lower court without the customary briefing and oral arguments.

 

But the court said it would not revive another part of the law, which would have prohibited abortions if the woman chose the procedure because of a diagnosis or “potential diagnosis” of Down syndrome or “any other disability,” or because of the fetus’s gender or race.

 

The Indiana case was closely watched because it was the first time the conservative court, reinforced by the addition of President Trump’s two nominees, had the opportunity to take a case with consequences for the constitutional protections found in Roe v. Wade and Planned Parenthood v. Casey.

 

Tuesday’s decision in Box v. Planned Parenthood of Indiana and Kentuckyheld no consequences for either Roe or Casey. But it appeared to be a commencement of the new court’s consideration of abortion rights, and many cases are waiting in the wings.***

 

The unsigned opinion of the court, just three pages long, was matter-of-fact and devoid of broad holdings. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have let the lower court’s rejections stay in place; fellow liberals Stephen G. Breyer and Elena Kagan were silent.

 

But there were signs of tension. Justice Clarence Thomas wrote a 20-page statement linking abortion to the eugenics policies popular in the 19th and early 20th centuries. He added in a footnote that Ginsburg’s objection to the fetal-remains portion of the law “makes little sense.”

 

She responded by correcting his use of the word “mother” throughout his opinion. “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,’ ” she wrote.

 

The portion of the Indiana law the court allowed to go into effect mandates that the “remains” of an abortion or miscarriage be buried or cremated, as required of other human remains.

See Mary Ziegler, What Clarence Thomas Gets Wrong About Abortion and Eugenics

This is a dark history, but it is not the tidy, simple one that Thomas describes. Many population controllers actually opposed legal abortion or viewed it as irrelevant. They shared the worries of their eugenicist forbears that giving women a choice would not do enough to reduce demographic growth.

 

More important, many in the population control movement had no interest in eugenics. Cold warriors hoped that curbing demographic growth would prevent developing countries from turning to communism. Environmentalists believed that population control could conserve scarce environmental resources. And feminists believed that population control could facilitate the liberation of women.

 

The converse was also true: Unlike the synergy of belief conveyed by Thomas, some abortion rights supporters had no use for population rhetoric, viewing it as unethical and counterproductive, regardless of the political benefits. Contrary to what Thomas suggests, these voices grew louder after Roe, when feminists took on more influential roles in major abortion rights organizations. These groups understood that population arguments could smack of coercion — antithetical to their beliefs about choice and freedom — and alienate people of color both in the United States and in developing countries. And feminists increasingly argued that women had a right to abortion regardless of its policy consequences.

 

Pregnant People?

Jessica Clarke, Pregnant People?, 119 Colum. L. Rev. Online (Forthcoming)

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have benefits in terms of equality for expectant LGBT parents. To further this project, this Response asks what unsexing pregnancy might look like for different types of pregnant people: (1) pregnant individuals who do not identify as women, (2) expectant couples in which one partner is pregnant, (3) expectant parents engaging a surrogate or pursuing adoption, and (4) pregnant people who rely on networks of family and friends for support and caregiving. It argues that, in each of these contexts, the extension of pregnancy benefits raises a unique set of questions. But across all of these contexts, it will take more than simply making existing pregnancy rules gender neutral to achieve equality.

Study Examining Whether Women Judges are More Likely than Men Judges to Affirm Reproductive Health Rights

Michele Goodwin & Mariah Lindsay, American Courts and the Sex Blind Spot: Legitimacy and Representation,  87 Fordham L. Rev. (2019)

We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (vis-à-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, but unnecessary, and even harmful and sabotaging, to a participatory democracy.

Building from two years of empirical research and examining each federal appeals court’s record on abortion and each judge’s vote on a particular case, this project studies whether women are more likely than their male counterparts to affirm reproductive health rights. We examined 302 cases across each federal appellate circuit, including the District of Columbia and the Federal Circuit. Our findings have both normative and sociological implications. This project tells an important story about the composition of the federal appellate judiciary and the slow climb for women, including women of color, within the elite branches of the courts. This is a story expressed in numbers and it reflects the historical marginalization of women within the law and the problem of homogeneity in the courts.

Why the Supreme Court Didn't Overturn Roe in 1992, Even Though it Had the Votes

Marcia Coyle, The Justices Had 5 Votes to Overturn Roe in 1992. Why That Didn't Happen, Natl L. J.

In 1992, anti-abortion groups thought they had a winning case in defense of a restrictive Pennsylvania state law. There appeared to be five votes on the U.S. Supreme Court to overrule the landmark decision Roe v. Wade, but that did not happen. As Alabama and Missouri lawmakers adopt strict anti-abortion laws, and predict successful outcomes at the high court, history provides some lessons: Never bet on what occurs behind the high court’s closed conference doors.

 

After oral arguments in Planned Parenthood of S.E. Pennsylvania v. Casey, Justices Harry Blackmun and John Paul Stevens believed the 1973 ruling in Roe was doomed.

 

Stevens, writing in his newly published book, “The Making of a Justice,” said the justices, except for him and Blackmun, agreed the U.S. Court of Appeals for the Third Circuit correctly upheld all of the challenged abortion restrictions—save for one, which required a married woman to certify she had notified her husband of her intent to have an abortion.

 

The Casey case, which affirmed Roe’s central holding, is getting renewed attention today for the standard the decision set for determining whether a state law posed an “undue burden” on a woman’s right to get an abortion. The justices are weighing several abortion-related challenges, and separately, new laws passed by Alabama and other Republican-led states could tee up direct challenges to Roe in the coming months.

 

Several new books, including the one from Stevens, offer a glimpse behind the scenes at how the Pennsylvania case was resolved and why caution is warranted in predicting the outcome in the most contentious cases.

 

“Harry and I both assumed that the result [in Casey] would be explained in an opinion overruling Roe v. Wade,” Stevens wrote in his autobiography, published this week.

 

In fact, at the justices’ private conference, Chief Justice William Rehnquist counted five votes to reverse Roe, and he assigned the court’s opinion to himself, according to journalist Evan Thomas in his new book, “First,” a biography of Sandra Day O’Connor.

Rewriting the Supreme Court's Decision in Young v. UPS

Deborah Widiss, Young v. United Parcel Services, Inc., Rewritten, in Feminist Judgments: Employment Discrimination Opinions Rewritten (Ann C. McGinley & Nicole B. Porter, eds., Cambridge Univ. Press, 2019, forthcoming).

Young v. United Parcel Services, 135 S. Ct. 1338 (2015), is appropriately considered a win for women because it expanded opportunities for pregnant employees to receive workplace accommodations. However, the case could have been far more transformative, both in how it interpreted the law and in how it explained why it matters for working women. This “rewritten” version, forthcoming in an edited volume, imagines what Young might have said if it were written from a feminist perspective.

The Supreme Court’s actual decision instructs lower courts to assess whether an employer’s refusal to provide an accommodation is infected by discriminatory bias. The rewritten decision, by contrast, argues the plain language of the Pregnancy Discrimination Act makes intent irrelevant, so long as a pregnant employee can show that other workers with similar limitations receive more favorable treatment. This interpretation is better supported by the text of the statute, as well as its history and purpose. The Equal Employment Opportunity Commission also endorsed this interpretation, and the rewritten opinion shows why deference was warranted.

Finally, the rewritten opinion rejects the contention, articulated by the Court in the actual Young decision, that this interpretation affords pregnant women a “most favored nation” status. This allegation suggests accommodating male workers is an ordinary cost of business, but costs relating to pregnancy are special costs that employers should not have to bear. The PDA’s comparative structure was intended to counteract such assumptions and the still-pervasive belief that pregnant women are less capable or less committed than other employees.

Readers may also be interested in my more traditional academic scholarship on this subject: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans With Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013) (https://ssrn.com/abstract=2221332) and The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act After Young v. UPS, 50 U.C. Davis L. Rev. 1423 (2017) (https://ssrn.com/abstract=2948666).

Ohio is Third State to Pass Law Restricting Abortion to First Six Weeks

NPR, A Bill Banning Most Abortions Becomes Law in Ohio

The six-week abortion ban known as the "heartbeat bill" is now law in Ohio. That makes Ohio the sixth state in the nation to attempt to outlaw abortions at the point a fetal heartbeat can be detected.

 

Gov. Mike DeWine signed the bill Thursday afternoon, just one day after it passed the Republican-led General Assembly. The law is slated to take effect in 90 days, unless blocked by a federal judge.

 

Now known as the "Human Rights Protection Act," SB 23 outlaws abortions as early as five or six weeks into a pregnancy, before many women know they're pregnant. It is one of the most restrictive abortion laws in the country.

 

The bill does include an exception to save the life of the woman, but no exceptions for cases of rape or incest.***

 

DeWine's signature will set off a lengthy legal fight. The ACLU of Ohio announced it will sue to stop the law, which the group says "virtually bans all abortion care."

USA Today, Ohio is the Latest State to Pass "Heartbeat" Abortion Bill

With the stroke of a pen by Gov. Mike DeWine, Ohio became the third state this year to pass a "heartbeat" bill banning abortion as early as six weeks into a pregnancy. 

 

The ban takes effect after the detection of a fetal heartbeat at a point before many women are even aware they are pregnant.

 

Kentucky and Mississippi have adopted similar laws, while a Georgia bill awaits only the expected signature by Gov. Brian Kemp by May 12. The Mississippi law takes effect in July. 

 

Meanwhile, "heartbeat" bills have passed one chamber of the legislature in Missouri, Ohio and Tennessee and have been introduced in Florida, Illinois, Louisiana, Maryland, Minnesota, New York, South Carolina and West Virginia.

 

The bills hit at the nexus of the abortion debate, and frame the act in stark,emotional terms, with proponents arguing that preserving life outweighs arguments against government interference in personal, medical decisions.

For prior scholarship on this bill, see Marc Spindelman, On the Constitutionality of Ohio's Proposed "Heartbeat Bill", 74 Ohio State L.J. 149 (2012)

Reproductive Rights Stories: FMLA and the Supreme Court's Decision in Nevada Dept of Human Resources v. Hibbs

Sam Bagenstos, Nevada Department of Human Resources v. Hibbs: Universalism and Reproductive Justice" 
Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel, eds., Forthcoming)

The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton — just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism — the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by Chief Justice Rehnquist, relied heavily on feminist universalist arguments. Even at the time of Hibbs, though, evidence was accumulating that the FMLA’s universalist approach was not sufficient to achieve the underlying goals of feminist lawyers and activists: disestablishing gender-role stereotypes and promoting equal opportunities for women and men throughout society. Hibbs thus represents the triumph of feminist universalism, even as it highlights the limitations of the feminist universalist project.

Judge Grants Preliminary Injunction Blocking Trump Administration's Roll Back of Birth Control Mandate

Judge Blocks Trump's Attempt to Roll Back Birth Control Mandate

A federal judge on Sunday granted a request by more than a dozen states to temporarily block the Trump administration from putting into effect new rules that would make it easier for employers to deny women health insurance coverage for contraceptives.

 

Contraception is covered by the Affordable Care Act as a preventive health service, something employers and insurers are generally required to provide at no charge. But the Trump administration developed rules to allow employers to opt out of the mandate if they had religious or moral objections.

 

A version of those rules was stymied by the courts in 2017, so the administration issued a new set of rules in November, which had been scheduled to take effect on Monday.

 

However, the judge, Haywood S. Gilliam Jr. of the United States District Court in Oakland, Calif., granted a request by 13 states and the District of Columbia for a preliminary injunction, writing that the new rules “are nearly identical to” the ones that he had previously blocked.

 

The plaintiffs, he wrote, had done enough to bolster their claim that the religious exemption and the moral exemption sought by the Trump administration were “not in accordance with” the Affordable Care Act.

 

After Judge Gilliam blocked the initial rules, the Trump administration appealed. Last month the United States Court of Appeals for the Ninth Circuit upheld the District Court’s ruling but limited the injunction’s scope.

 

With that ruling in mind, Judge Gilliam made clear that the preliminary injunction he granted on Sunday bars enforcement in only the states that sued.

 

“The Court fully recognizes that limiting the scope of this injunction to the plaintiff states means that women in other states are at risk of losing access to cost-free contraceptives when the final rules take effect,” he wrote in Sunday’s order.

Judge Blocks Trump Birth Control in 13 States and DC

The challengers "have raised serious questions going to the merits, on their claim that the Religious Exemption and the Moral Exemption are inconsistent with the Women's Health Amendment," wrote Judge Haywood Gilliam, Jr., who was nominated by President Barack Obama in 2014. The states had argued that the new policy "cannot be reconciled with the text and purpose of the ACA — which seeks to promote access to women's healthcare, not limit it."

 

At Least For Now, Women Have Reproductive Rights

Joanna Grossman, At Least for Now, Women Have Reproductive Rights, Justia

It’s hard to read a single day’s news without encountering a new threat to reproductive rights. To take just one egregious example, Republican legislators in Ohio recently introduced a bill that would abolish abortion in all circumstances, including cases of rape, incest, and a threat to the woman’s life. The fetus would be treated as a person, and women and providers could potentially be punished with life in prison or even the death penalty. This bill might not make it out of the Ohio House of Representatives; it might not be passed by the Senate; and it might not be signed by the current governor or the one who will replace him in January. But it might leap over all of those hurdles and become the strictest abortion law in the nation. Similar bills, maybe one notch less extreme, have become law in several states in recent years. * *  *

 

Extreme anti-abortion measures proposed or passed in recent years have a number of things in common. First, they do not reflect the will of Americans, seven in ten of whom support abortion in all or almost all circumstances. Second, they are unconstitutional. Third, the legislators who support or vote for these bills know both of these things. * * *

 

In a recent case, a federal judge in Mississippi permanently enjoined one of these ultra-restrictive laws. In that case, Jackson Women’s Health Organization v. Currier, the court concluded that a ban on abortions after 15 weeks imposed an unconstitutional burden that could not be squared with the applicable caselaw. In response to the question whether this law violates the Fourteenth Amendment, the court concluded that “[i]t does, unequivocally.”

The Gendered Impact of the Incapacitation Rationale for Incarceration

Priscilla Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191 (2018)

 Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States. Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country. Women have been uniquely devastated by this shift toward incapacitation. Indeed, the United States is home to the largest and fastest growing women’s prison population in the world. Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.

This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women. The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood. Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers. Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms. Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.

Elizabeth Cady Stanton's Impact on and Reform of the Law

November 12 is the anniversary of the birthday of women's rights pioneer Elizabeth Cady Stanton (1815-1902).  I spent a decade studying her work on law, including the law of marriage, marital property, child custody, domestic violence, reproductive rights, juries, and constitutional reform.  That work was encapsulated in my book,  Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016).

I blogged about each of the chapters, linked here: 

Introduction, overview, biography, and conclusions 

Chapter 1, "What Do You Women Want?" on marital property reform

Chapter 2, "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage

Chapter 3,  "Divorce is not the Foe of Marriage"  on advocacy of no-fault divorce and domestic violence protections

Chapter 4, "The Incidental Relation of Mother" on reproductive rights and birth control

Chapter 5,  "Our Girls" on child custody, feminist parenting, and equality in education

Conclusion: “Still Many Obstacles” on Stanton's legacy in 21st century family law.

 

The book is reviewed by Prof. Paula Monopoli here in the Journal of Legal Education.

My response is here, The Multiple Feminisms of a 19th Century Women's Rights Thinker

I talk about the book on the New Book Network Podcast.

The Impact of Liberal Feminism and Critical Race Theory on Reproductive Rights and Justice in the U.S.

Lisa Chiyemi Ikemoto, Reproductive Rights and Justice: A Multiple Feminist Theories Account in Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Bowman eds., Elgar Press, Forthcoming)

This chapter examines the impact of liberal feminism and critical race theory on reproductive rights and justice in the United States. Liberal feminism has played a key role in this fight. Other feminist theories, including, prominently, critical race theory, have taken the mainstream reproductive rights movement to task for marginalizing the voices and experience of women of color and low-income women, thus reinforcing stratified reproduction. This work has put issues like surrogacy, coerced sterilization, welfare family caps and criminal prosecution of pregnant women on the reproductive rights and justice agenda. Interaction among feminist theories has produced a dialectic and evolution that enable them to meet new challenges. Similarly, a multi-theory account of reproductive rights and justice issues produces a more useful analysis and range of strategies than a single theory approach.

Using Feminist Legal Theory to Critique the Law's Devaluation of Tort Liability for Stillbirth

Jill Wieber Lens, Tort Law's Devaluation of Stillbirth, Nevada L. J. (forthcoming)

In the United States, more than sixty-five babies die daily due to stillbirth—death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth.

 

This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts continue to treat, stillbirth as just as a physical manifestation of the woman’s emotional distress. Even when modern courts recognize stillbirth as the death of a child, they still devalue that injury by characterizing the child as a nameless, genderless “fetus.” Also historically, courts were resistant to claims based on relational injuries, another injury stereotypically associated with women. Even though prenatal attachment theory demonstrates a parent-child relationship is lost in stillbirth, some courts are especially reluctant to recognize the relational injury in the context of death before birth. The cognitive bias associating stillbirth with women has also stunted the development of tort recourse for fathers, as it also will for non-biological parents. Fathers, the “forgotten bereaved,” are sometimes denied a claim or given a more limited claim.

 

The remedy for this devaluation is a wrongful death claim for the death of a child—not just a fetus—available to both parents, including recovery for the relational injury. Tort law must also guard against possible undervaluation of the parents’ injury based on the supposed replaceability of children or the presence of other living children, and against damage caps’ mandatory undervaluation of the parents’ injury. The Article also explains how these reforms are supported by tort law theories, and explains that the wrongful death claim should be available for all stillbirths, not depending on viability. Last, the Article necessarily explains that tort law’s proper recognition of stillbirth poses no threat to the legality of abortion.

SCOTUS Overturns CAL Disclosure Law for Pro-Life Pregnancy Counseling Centers

In National Institute of Family and Life Advocates (NIFLA) v. Becerra, the US Supreme Court in a 5-4 decision blocked a California law that required “crisis pregnancy centers” to provide information about abortion.

The decision written by Justice Thomas and joined by Justices Roberts, Kennedy, Alito, and Gorsuch is here at NIFLA v. Becerra.  Concurrence by Justice Kennedy. Dissent written by Justice Breyer.

Commentary on the decision:

Mary Ziegler, Wash Post, The Supreme Court's Big Abortion Hypocrisy

On Tuesday, the Supreme Court struck down a California law regulating antiabortion crisis pregnancy centers, which are Christian counseling centers that try to persuade women to continue their pregnancies. California had required pregnancy centers with a medical license to tell women that the state provided free or low-cost services, including abortion, to low-income women. If a center wasn’t licensed, the facility had to post a sign saying so.

 

For all the justices, the case boiled down to a question of fairness. Writing for the majority, Justice Clarence Thomas accused California of discriminating against Christians. After all, the state demanded that crisis pregnancy centers — and no similar facilities — post notices about other services. Justice Stephen G. Breyer argued that the discrimination actually ran the other way: The Supreme Court had upheld laws requiring abortion providers to recite a state-mandated script but wouldn’t do the same when antiabortion activists made their case.****

 

But the court’s decision to treat crisis pregnancy centers as religious institutions has created two  contrasting sets of rules when it comes to free speech on abortion. While abortion providers have their speech rights curbed — they are required by law to say certain things to their patients — the majority seemed to suggest that crisis pregnancy centers are different. 

 

Emma Green, The Atlantic, The Supreme Court Hands a Win to the Pro-Life Movement

These radically different readings of the case suggest that the Court is still wrestling with how it thinks about abortion: as a medical procedure, an act with heavy moral consequences, or both. Looking ahead, the Court’s decision in NIFLA may be most consequential as a boundary line for the way the government treats pro-life groups. In this respect, Kennedy’s concurring opinion is most telling, wrote Mary Ziegler, a law professor at Florida State University, in an email. “He is concerned about freedom of thought and religion for conservative Christians, and he thinks the fact Act shows evidence of bias against believers who work in [crisis-pregnancy centers],” she said. “This may turn out to be the most significant part of the opinion.”

 

Volokh Conspiracy, NIFLA v. Becerra and Speech Compulsions

 

Caroline Corbin, Compelled Disclosures, 65 Alabama Law Review 1277 (2014)

 

Abortion Providers Have Less First Amendment Rights than Abortion Opponents

One of the centerpieces of the Supreme Court’s First Amendment decisions is that the Constitution does not permit “viewpoint discrimination.” The government may, in certain limited cases, enact laws that place restrictions on speech — but discriminating between two opposing sides of a debate is a big no-no.

 

On Tuesday, the Supreme Court created an “except when we do it” carve-out to this rule. When you boil down the opinion’s rhetoric, the holding of National Institute of Family and Life Advocates (NIFLA) v. Becerra is that abortion opponents enjoy the full force of a robust First Amendment, while abortion providers must accept a watered-down right to free speech.

Pregnancy, Poverty and the State

Michele Goodwin & Erwin Chemerinsky, Pregnancy, Poverty and the State, 127 Yale L. J. (forthcoming)

In Pregnancy, Poverty, and The State, we argue that the core bundle of rights contained in reproductive privacy have been hollowed out through new legislation and court decisions, affecting the actual practice of reproductive privacy. We show how increasingly, even judicial opinions affirming reproductive rights fail to constrain state governments seeking to eviscerate those rights through new legislation. Though court rulings recognize these rights, they ultimately render them meaningless for poor women, particularly poor women of color. These groups are the first victims since they are largely unseen and unheard by those who make the law and policy. As the policies that substantially burden women’s reproductive rights become normalized, these norms will affect broader segments of the population, placing greater numbers of women at risk. 

We view these issues as not simply matters of law, but of human rights, morality, and dignity. The moral hypocrisy of the state is clear in the reproductive health context. That is, when the state coerces women and girls into pregnancies they do not want and to bear children they do not desire to have, it not only creates unconstitutional conditions, but it also acts immorally. Even though legal scholars typically refer to lawmaking that unduly burdens the poor as unjust, we suggest that legislative efforts to eviscerate reproductive rights is far worse than that. 

This project, launches with a review of Professor Khiara Bridges’s daring book, The Poverty of Privacy Rights to problematize the intersections of privacy and morality. We view the state as not only a fallible and problematic arbiter of women’s morality, but argue the state acts immorally when it deprives poor women of privacy, bodily autonomy, and threatens to rob them of life itself. As we document in detail, bounded in the state’s immoral actions toward poor women of color are its historical struggles and campaigns against their personhood and citizenship as well as conscription of their bodies in service to malevolent state agendas such as eugenics and forced sterilization. As we show, this is more than mere indifference, but an historic pattern. We illustrate how the continued effects of more than a century of negative state interventions in the reproductive lives of poor women of color is actually deadly. Finally, we predict that the continued interference in the reproductive lives of poor women creates cultural norms and precedents in medicine, law, and society that will spill over and constrain the rights of all classes of women, regardless of race. That is, historical disregard for the lives and rights of Black women inscribed by judicial doctrine and court opinions as well as state and federal legislation serve as vehicles for contemporary and future disparagement of all women.

Challenging the Criminal Prosecution of Pregnant Women

Priscilla Ocen, Birthing Injustice: Pregnancy as a Status Offense, 85 G.W. L.Rev. 1163 (2017)

Over the last thirty years, pregnant women, particularly pregnant women of color, have increasingly come under the supervision and control of the criminal justice system. In July 2014, Tennessee became the first state in the country to pass a law criminalizing illegal drug use during pregnancy. Within weeks of its enactment, several women were arrested and subjected to prosecution under the statute. In Alabama, the State Supreme Court upheld convictions of several women after finding that the state’s chemical endangerment statute applied to fetal life. The women convicted of these crimes joined hundreds of other pregnant women arrested for or convicted of similar offenses. Indeed, according to recent studies, over 1000 women have been convicted of crimes ranging from child endangerment to second-degree murder as a result of conduct during pregnancy. In almost all of these cases, the conduct of the women prosecuted would have been lawful or subject to a lesser penalty had it been committed by a nonpregnant person.

This Article makes two central claims about the increasing number of criminal prosecutions of pregnant women. First, this Article contends that pregnant women are subject to a form of status offense. Status offenses, which criminalize the behavior of individuals within a select group of people that would be noncriminal if committed by persons outside of the group, have been utilized to regulate disfavored classes. Pregnant women, especially those who are poor and of color, are similarly constructed as a disfavored class and are therefore subject to unique forms of criminal regulation. Through the imposition of criminal liability, the state is enforcing gendered norms and policing the line between “good” and “bad” motherhood. As such, criminalization and incarceration play a significant role in the regulation of the reproductive autonomy of women. Second, the Article asserts that the prosecution of pregnancy-based status offenses violates the Eighth Amendment’s ban on cruel and unusual punishment.

Comparing Reproductive Freedom in the US and China

Marisa Cianciarulo,  For the Greater Good: The Subordination of Reproductive Freedom to State Interests in the United States and China, 51 Akron Law Rev. 99 (2017)

This Article provides a comparative analysis of two very different restrictions on reproductive freedom that have startling parallels and similarities. Both China and the United States impose limits on reproductive freedom: China restricts the number of children that families can have, often in ways that violate international law, while some U.S. states have attempted to restrict access to abortion in ways that violate the precepts of Roe v. Wade as well as international law. Both China and U.S. states impose restrictions on reproductive freedom in order to achieve compelling state goals: protecting development and sustainability in China, and protecting prenatal life in the United States. Finally, both China and the United States have means other than severe restrictions on reproductive freedom at their disposal to achieve the governments’ goals: broad access to birth control and sex education. This Article uses the lens of international human rights law to evaluate the concept of subordinating individual reproductive choice to a perception of the common good. Part II provides an overview of the major international instruments addressing individual rights and how they interact with the rights and responsibilities of the state. Part III discusses anti-abortion laws in the United States and the anti-abortion movement’s rationale that protecting prenatal life justifies limiting reproductive choice. Part IV discusses China’s vast and population control system and the government’s rationale that providing a controlled, sustainable population justifies limiting reproductive choice. Part V examines three levels of coercion—compulsory sex education and unrestricted access to contraception, monetary incentive and disincentive programs, and forced abortion and forced child-bearing—and analyzes whether these levels of coercion are consistent with international human rights principles. Finally, the Article concludes that in light of modern access to education and contraception, and the ability to reduce the incidence of unwanted pregnancies via those means, more coercive means are unnecessary (in the case of monetary incentives and disincentives) and unjustifiable (in the case of forced abortion and forced child-bearing).

DC Circuit en banc Allows Immigrant Teen's Abortion to Proceed

The DC Circuit sitting en banc overruled a panel decision from late last week delaying an immigrant teen's abortion, granted by a state court. 

Garza, as GAL to J.D. v. Hargan, No. 17-5236 (D.C. Cir. en banc, Oct. 24, 2017), overruling the panel decision in Garza v. Hargan (D.C. Cir. Oct. 20, 2017)

Concurring Opinion to the Order by Judge Millett (the dissent in the panel decision).

Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—“refuses to leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That sure does not sound like “on demand” to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.

Dissenting Opinion by Judge Kavanaugh (majority opinion in the panel decision).

The en banc majority has badly erred in this case.

The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.

Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.

Judge Karen Henderson also dissent in a separate opinion.

Can an Employer Provide Fathers with Less Paid Paternity Leave than Mothers

Jon Hecht, The Surprising Sexism of Maternity Leave

Many Americans still think of parental leave as a "woman's issue," but Derek Rotondo, a employee at JPMorgan Chase, is determined to change that. On Thursday, the American Civil Liberties Union filed a complaint with the Equal Employment Opportunity Commission on behalf of Rotondo, alleging that JPMorgan Chase is engaging in gender discrimination by providing 16 weeks of maternity leave but only two weeks of comparable paternity leave.

“JPMorgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” Galen Sherwin, the ACLU’s Women’s Rights Project's senior staff attorney, said in a statement.

"I'm frankly surprised that a company as large as JPMorgan would have a policy like this in this day and age," Vicki Schultz, Ford Foundation Professor of Law and Social Science at Yale Law School, tells Bustle.

"Providing equal parental leave to men and women is an important step in trying to get at a lot of cultural stereotypes and starting to chip away at the assumption that women do and should bear the primary responsibility for caregiving," Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women’s Law Center, tells Bustle

The paternity fight may even be a sign of larger societal change. "Legal and cultural change often go hand in hand. One pushes the other," Raghu says.

The effect of more men involved as primary caregivers for raising children could have powerful effects not just for those men, but for the women who would no longer be expected to put their careers on hold to take care of children. Research has suggested time and again that the breaks in work from caregiving — usually experienced more by women than men — contribute to the gender wage gap. Some experts hope that equalizing how workplaces and culture treat men as caregivers could have impact on minimizing that gap.

"Feminist theorists believe that this is really kind of the crux," says Tracy Thomas, John F. Seiberling Chair of Constitutional Law at the University of Akron School of Law and Editor of the Gender and Law Professors Blog. "Right now, a lot of the formal inequalities between men and women since the 1970s have sort of been eliminated in the workplace — as far as different rules, different hours, different wages."

However, the reality is often more complicated than the workplace laws on the book. "A lot of the cases really pushing the theory of gender discrimination right now are at this question of family and parenting and maternity leave," says Thomas. "So if we were to extend it across the board, I think that could be potentially very big in changing [the situation]. Because that's where we've identified we're culturally stuck. We're still stuck on women taking care of kids."

However, as I blogged about last week in Are Men Entitled to Equal Paid Paternity Leave?, the current EEOC guidelines on pregnancy discrimination allow a different leave period for men and women by giving additional time for women based on physical recovery time.  It is only the time for caregiving and bonding that must be the same.  Thus, it is permissible as the law is currently interpreted to give 16 weeks of paid leave to women, and 6 weeks of paid leave to men.