Gender and the Law Prof Blog

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.

Comparative Perspectives on the International Regulation of Abortion

Siobhan Mullally and Claire Murray, Regulating Abortion: Dissensus and the Politics of Rights, 25 Social & Legal Studies: An International Journal (2016)

This special issue brings together comparative perspectives on the regulation of abortion. It examines the sociopolitical contexts within which proposals to expand access to abortion for women are won and lost. Women’s claim to a right to safe and legal abortion services is relatively new in the language of human rights; yet, it is one that continues to ‘trickle up’ and to ‘download’ across diverse jurisdictions. As the essays in this volume acknowledge, however, the universalized power of law, and the turn to law to secure a vindication of rights, brings with it certain risks. These risks of ignoring context and the messy processes of implementation are highlighted in the essays collected together in this volume.

Would Gorsuch Follow Supreme Court Precedent on Pregnancy Discrimination

Gillian Thomas, Would Gorsuch Follow Supreme Court Precedent Rejecting Discrimination?

A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.

 

Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.

 

Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.

 

There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.

 

In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”

 

A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.

 

In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.

For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016). 

New Books: Sex and the Constitution

Geoffrey Stone, Sex & the Constitution (2017)

From the publisher:

 

Beginning his volume in the ancient and medieval worlds, Geoffrey R. Stone demonstrates how the Founding Fathers, deeply influenced by their philosophical forebears, saw traditional Christianity as an impediment to the pursuit of happiness and to the quest for human progress. Acutely aware of the need to separate politics from the divisive forces of religion, the Founding Fathers crafted a constitution that expressed the fundamental values of the Enlightenment.

 

Although the Second Great Awakening later came to define America through the lens of evangelical Christianity, nineteenth-century Americans continued to view sex as a matter of private concern, so much so that sexual expression and information about contraception circulated freely, abortions before “quickening” remained legal, and prosecutions for sodomy were almost nonexistent.

 

The late nineteenth and early twentieth centuries reversed such tolerance, however, as charismatic spiritual leaders and barnstorming politicians rejected the values of our nation’s founders. Spurred on by Anthony Comstock, America’s most feared enforcer of morality, new laws were enacted banning pornography, contraception, and abortion, with Comstock proposing that the word “unclean” be branded on the foreheads of homosexuals. Women increasingly lost control of their bodies, and birth control advocates, like Margaret Sanger, were imprisoned for advocating their beliefs. In this new world, abortions were for the first time relegated to dank and dangerous back rooms.

 

The twentieth century gradually saw the emergence of bitter divisions over issues of sexual “morality” and sexual freedom. Fiercely determined organizations and individuals on both the right and the left wrestled in the domains of politics, religion, public opinion, and the courts to win over the soul of the nation. With its stirring portrayals of Supreme Court justices, Sex and the Constitution reads like a dramatic gazette of the critical cases they decided, ranging from Griswold v. Connecticut (contraception), to Roe v. Wade (abortion), to Obergefell v. Hodges (gay marriage), with Stone providing vivid historical context to the decisions that have come to define who we are as a nation.

Also of related interest might be Leigh Ann Wheeler, How Sex Became a Civil Liberty (Oxford 2012).

CFP Student Scholarship in Reproductive Rights

CFP 2017 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights

If/When/How, in collaboration with the Center for Reproductive Rights and the Center on Reproductive Rights and Justice at Berkeley Law School, is currently accepting submissions for the twelfth annual Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights.

 

This year’s suggested theme is “Balancing Burdens and Benefits after Whole Woman’s Health v. Hellerstedt.” However, submissions on other topics will also be accepted. For more information, please download the Call for Submissions. The deadline for submission is Monday, February 27, 2017.

 

Winning authors will receive cash prizes: $750 (first place), $500 (second place), or $250 (third place). Additionally, each winning author will receive a copy of the casebook Cases on Reproductive Rights and Justice, by Melissa Murray and Kristin Luker. The first place winner will also have a chance at publication with the NYU Review of Law and Social Change

Recognizing a Cause of Action for Reproductive Negligence

Dov Fox, Reproductive Negligence, Columbia L. Rev. (forthcoming)

Abstract:     

A pharmacist fills a prescription for birth control pills with prenatal vitamins. A lab loses a cancer survivor’s eggs. A clinic exposes embryos to Mad Cow. A sperm bank uses a donor of a different race. A geneticist predicts a healthy fetus would be born with a terrible disease. These transgressions go unchecked within a reproductive profession that operates virtually free of regulation. Victims who sue find the legal system treats their suffering as more trifle than tragedy. Courts don’t deny that specialists are to blame for botching a vasectomy or misimplanting an embryo. But in the absence of property loss or physical injury, they decline to recognize disrupted family planning as a serious and distinct harm worthy of legal protection.

This Essay introduces a right to recover for reproductive wrongs that: (1) impose procreation on people who undertook efforts to avoid it; (2) deprive those who pursued pregnancy or parenthood of that opportunity; or (3) confound more particular reproductive goals for a child with certain traits. This cause of action would measure these three injuries as a function of (a) their practical consequences for plaintiffs; and (b) the probability that misconduct was responsible for having caused those injuries. Damages would accordingly be reduced in cases of defective birth control based on the role of user error; in cases of lost embryos, depending on the severity of preexisting infertility; and in cases of prenatal misdiagnosis, in proportion to uncertainties in genetic testing.

 

Colorado Adds Pregnancy and Post-Partum to Anti-Discrimination Laws

Colorado Amends Discrimination Law to Accommodate Pregnant and Post-Partum Employees

On June 1, 2016, Gov. Hickenlooper signed into law Colorado House Bill 16-1438, requiring employers to provide reasonable accommodations for pregnant and post-partum employees (specifically, for applicants or employees with “health conditions related to pregnancy, the physical recovery from childbirth, or related conditions”). Employers who fail to do so may assert the affirmative defense of undue hardship. The amendments will become effective Aug. 10, 2016. Critically, there are posting and notification requirements. Starting Aug. 10, 2016, employers are required to provide notice to new employees, and by Dec. 8, 2016, notice to existing employees. Conspicuous notice must also be posted. . . .

 

[T]he General Assembly’s overarching policy goal is to provide pregnant and post-partum women workplace protections to ensure they can remain gainfully employed by ensuring: “full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.” To that end, the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401, et seq., was amended to prohibit an employer from discriminating against employees and applicants who have health conditions related to pregnancy, the physical recovery from childbirth, or related conditions. Specifically, employers must:

•  provide reasonable accommodations unless that would cause undue hardships on the employer’s business;
• not take adverse actions against employees who request or use a reasonable accommodation;
• hire applicants despite the need to make a reasonable accommodation;
• not require an applicant or employee to accept an accommodation that the employee did not require or that is not necessary to perform the essential job functions; and
• not require leave if the employer can provide another reasonable accommodation.

From Standing With Planned Parenthood to Moving Forward

 

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.   

 

Unqualifiedly, “I stand with Planned Parenthood,” consistent with the viral social media hashtag that so mobilized the reproductive rights movement this year.   I’ve made my donations.  I’ve changed my Facebook status picture.  I’ve defended the reputation and profound importance of Planned Parenthood.   

I also celebrated last month’s decision in Whole Woman's Health v. Hellerstedt  . . . but I did so more privately and discreetly, a point this blog seeks to explore.  Whole Woman’s Health challenged the motive and methodology of state legislatures enacting restrictive laws regulating abortion and abortion providers.  It concluded that the state does impose an “undue burden” on a woman’s right to choose when it enacts laws that are not medically justified and that restrict access to as many women as the Texas provisions did.  I celebrate this decision for its affirmation of the undue burden standard, its demand for sound legislation supported by medicine and science, and the potential it offers to push back on the increasing frequency and intensity of restrictive measures.

Yet, for the most significant Supreme Court decision protecting a woman’s right to choose in decades, what form of mobilized and energized support could be seen away from the Supreme Court steps?  I, for one, did not change my social media imagery.  In fact, I did not post anything on social media at all, not even a simple link to the decision or news coverage of it.  It seemed that only a small handful of my colleagues and friends who are active in this area posted anything other than a few vague social media posts best characterized as  “phew” points, more than substantive or celebratory posts.     

Interestingly, who was busy blogging and posting about women and what they need and what their rights are . . . . opponents to abortion access!  Notably, opponents to the decision were not characterizing this as judicial overreach or inconsistency – like the dissenting justices had – rather, they were tweeting and blogging about how the Supreme Court failed to protect women and make abortion safer for women. 

As we breathe a sigh of relief from this legislative and Supreme Court term, we now stand poised to assess the carnage of the past years, and the last year particularly, and to assess the reproductive rights movement’s trajectory.  Social movements, like the reproductive rights movement, are about collective action to bring change.  They require an oppositional frame and they develop a collective identity.  This collective identity defines what it means to join the movement and how its members recognize themselves and are recognized externally.  This creates a shared sense of oneness or we-ness.  Historic framings of reproductive rights were broadly tethered to larger understandings of women’s equal citizenship and participation in public and private life, including women’s health, women’s autonomy, and women’s freedom.

Contrasting the social and political responses to attacks on Planned Parenthood over the past year to responses to the Whole Woman’s Health decision or even contrasting social and political responses to Whole Women’s Health to historic reproductive rights successes, it merits thoughtful reflection on what the consequences have been to the reproductive rights social movement in having spent so much time in a defensive posture.  The movement’s defensive posture in the past year has forced us to shift our emphasis to the myopic focus on defending an institution instead of defending the people and issues that it protects, serves, and saves.  When I declare that “I stand with Planned Parenthood,” I am not declaring more directly the politically and historically grounded points that I stand for women’s equal autonomy to make medical decisions and the central importance of women’s reproductive autonomy to control their political, social, professional selves as men do.  This focus arose out of necessity, but centralizing a social or political movement so squarely around one institution a worrisome long-term strategy that places too much weight and pressure on the institution’s leaders?  Does this institutional focus compromise the collective action or “oneness” of women supporting reproductive rights more broadly?

As I defend the relevance and importance of Planned Parenthood, I worry that its four walls limit me and perhaps the movement’s trajectory.  As we stand and defend the four walls of Planned Parenthood and its access to funding, there is reason to worry that the opposition is swiftly co-opting the gendered framing of abortion and the broader rights at stake for women. 

I worry that the muted reaction to Whole Woman’s Health reveals a deeper shift and narrowing of the framing of the reproductive rights movement.  I write, not to be critical of the past, but looking to the future.  There was a critical time and need to “stand with Planned Parenthood.”  But we cannot maintain a movement for reproductive justice and women’s bodily autonomy just by defending the necessity and credibility of one institution or even one procedure.  I do stand with Planned Parenthood.  I also stand with midwives.  I also stand with birthing women . . . at home and in hospitals.  I stand with women seeking birth control, just as I stand with those not using birth control for reasons religious or otherwise.  As we move forward, now is the time to expand the base, expand the conversation, and reach for new allies, not narrow and institutionalize the conversation.  We stood in defense of a fortress when we needed to do so.  Now we must move forward in ways that restore a sense of “oneness” that is tethered to issues and people. 

New MD Contraceptive Equity Act Insures Coverage of Birth Control

NWLC Blog, Victory for Birth Control in Maryland

The Maryland Contraceptive Equity Act of 2016 makes sure that women have insurance coverage of the specific birth control that their health care provider prescribes without out-of-pocket costs and requires insurance plans to cover up to six months of birth control dispensed at once....

 

While the federal Affordable Care Act’s (ACA) birth control benefit eliminated many cost barriers to birth control, even women eligible for this benefit may face difficulties getting coverage without cost of the specific birth control recommended by their health care providers.

 

That is because the ACA requires coverage without out-of-pocket costs of at least one item within each birth control method category for women, but plans can still use medical management techniques within a birth control method category, such as imposing costs on some pills while covering others without cost. Women often go without preventive health care because of costs, even small costs.  So, if a plan is still charging for the specific birth control a woman has chosen with her health care provider, that cost can be a barrier to accessing the care she needs.  The Maryland Contraceptive Equity Act of 2016 ensures that women have coverage without cost-sharing of the specific birth control recommended by their health care provider, facilitating women’s access to birth control and enabling them to use it more consistently.

SCOTUS's Weird Call for Supplemental Briefing in Women's Contraception Coverage Case

A Puzzling Order in a US Supreme Court Case on Obamacare

Something strange is afoot at the U.S. Supreme Court. The justices issued a highly unusual order Tuesday for the parties in Zubik v. Burwell, one of this term’smost-watched cases.

How to Make Sense of the Baffling Order the Supreme Court Just Handed Down on Birth Control

The order instructs the parties in Zubik and a bevy of related cases to “file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees” (“petitioners” in this case, refers to the employers who object to birth control). In case that instruction is not clear, the order also offers an example of a possible regime that may survive review in the Supreme Court:

[T]he parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any
separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan

SCOTUS Asks Objectors to Contraceptive Opt-Out: Show us Better Alternatives

 

Bibliography of Legal Commentary on Zubik Contraceptive Mandate Arguments

Zubik  v. Burwell, Transcript of Oral Argument

Zubik v. Burwell, Audio of Oral Argument (Oyez)

 

NYT, Justices Seem Split in Case on Birth Control Mandate

Wash Post, Prof. Michael McConnell on Zubik RFRA Oral Argument

Wash Post, Court Appears Divided on Contraception Coverage Case, with Kennedy Raising Concern

Con Law Blog, Not Much New in Oral Arguments in Contraceptive Requirement Accommodation Case

SCOTUS Blog, On New Health Care Case, a Single Word May Tell it All

WSJ, Supreme Court Signals Possible Tie Vote in Obamacare Contraception Case

NPR, Divided Court Seems to Hint at 4-4 Decision in Obamacare Case

Fox News, Supreme Court Divided on ObamaCare Contraceptive Mandate

NWLC, Birth Control and Women--That's What Zubik is Really About

Balkinization, The Zubik Oral Argument Pt 1: Of Substantial Burdens and "Hijacking"

Balkinization, The Zubik Oral Argument Pt. 2

Rewire, Justices Against "Hijacking" and Other Unsettling Details from Zubik v. Burwell Oral Arguments

Dorf on Law, Executive Discretion and RFRA Harmonization in the Zubik Oral Argument

 

Only one of these headlines mentions women.