Gender and the Law Prof Blog

Supreme Court will hear Procedural Aspects of S.B. 8 on November 1

On Friday, the Supreme Court agreed to hear limited arguments on November 1st  regarding Texas's S.B. 8. The issue before the Court is framed as: 

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit Texas Senate Bill 8 from being enforced.

Justice Sotomayor powerfully wrote concurring in part and dissenting in part (citations omitted): 

I cannot capture the totality of this harm in these pages. . . . [T]he State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State’s gambit has worked. The impact is catastrophic.

These ruinous effects were foreseeable and intentional. Were there any doubt, proponents of S. B. 8 have boasted in this very litigation that “Texas has boxed out the judiciary” and crowed that “[a]bortion . . . is a court-invented right that may not even have majority support on the cur- rent Supreme Court.”  

There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability. As noted, S. B. 8 was created to frustrate that right by raising seemingly novel procedural issues, and it has had precisely the intended effect. Under such unique circumstances, the equities plainly favor administrative re- lief while this Court sorts out these issues. Every day that S. B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights.  

There are women in Texas who became pregnant on or around the day that S. B. 8 took effect. As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State. Those with sufficient resources may spend thousands of dollars and multiple days anxiously seeking care from out-of-state providers so overwhelmed with Texas patients that they cannot adequately serve their own communities. Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help. None of this is seriously in dispute.

These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this Court now. Because of the Court’s failure to act today, that relief, if it comes, will be too late for many. Once again, I dissent.

 

Parental Rights Issue in Military Academies Disproportionately Harms Women

Melissa Hemphill wrote a powerful Washington Post Op-Ed on Friday detailing issues with parental rights in military academies. She explains the impossible choices that she and her partner had to make as cadets: 

Because we were students at a military academy, Anthony and I were subject to a harsh, antiquated policy that does not allow cadets to have dependents. This meant, and still means, that cadets in our position either must terminate the pregnancy or permanently sever their parental rights to graduate and commission as officers. If Anthony and I wanted to keep our child and our parental rights, we had to resign or face expulsion.

We were determined to honor our commitments to both our future family and the Air Force Academy. But to do so, we had to negotiate a costly and circuitous legal maze.I left the academy for a year and gave birth to Oliver while Anthony remained a cadet and severed his parental rights so that he could graduate. Once he commissioned, he adopted Oliver and I severed my parental rights. Anthony and Oliver moved to Florida for Anthony’s first assignment, and I returned to the academy.

After I commissioned and graduated, I finally adopted the baby to whom I had given birth the previous year. In all, we spent nearly $20,000 on legal fees — while being repeatedly warned that there was no guarantee we would be able to get back our parental rights.

The “no dependents” policy understandably reflects the difficulty of reconciling parenthood with the intense demands of a military academy. But requiring cadets to fully relinquish their children is cruel and unnecessary. While this terminated our legal relationship, it did not terminate our emotional connection and love for Oliver. I sobbed through my relinquishment hearing, having to verbally affirm that I willingly was giving up my rights as a mother with no intention of getting them back.

The Op. Ed describes relevant pending legislation to fix this issue with bipartisan support. 

The broader military community already has a solution to the dilemma of service members confronted with conflicting military and family responsibilities. It is the Family Care Plan, which establishes temporary guardianship for dependents in the rare cases that a single parent — or, in a dual-military family, both parents — have duties that would not permit them to care for the day-to-day needs of their children. The Defense Department could simply alter its policy to permit such family care plans at service academies.

Recently, Sens. Ted Cruz (R-Tex.) and Kirsten Gillibrand (D-N.Y.) introduced bipartisan legislation, the Candidates Afforded Dignity, Equality and Training (CADET) Act, which would prohibit the forced termination of parental rights by military academies and instead offer more practical alternatives, including the family care plans. Nothing about academy life would change; it would simply make a really hard situation more humane.

The Supreme Court Sneak Attack on Abortion Access in Kentucky

Rewire reports on the upcoming case of Cameron v. EMW Women's Surgical Center being argued in the Supreme Court tomorrow.  The issue before the court is "whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law." While it will not address the merits of abortion law, the stakes are still high:

If Cameron is able to intervene and the law gets upheld, it could effectively ban abortion after 15 weeks in a state that has just two clinics and multiple restrictions, including a 24-hour waiting period and bans on insurance coverage of the procedure. Both clinics are in downtown Louisville, which means access is limited for people in other areas of the state.

Notably, the article also revisits the issue of struggles to enforce Louisville's new ordinance imposing a clinic buffer zone. The article notes the disparities in how racial justice protesters were handled after Breonna Taylor's death, compared to anti-abortion protesters. Interviewing the owner of EMW Women's Medical Center, Ona Marshall, and clinic escort and support fund director, Meg Sasse Stern, Rewire reports that: 

[A]dvocates pushed for the safety zone because of the lack of enforcement of various city ordinances regulating things like harassment, noise, and sidewalk access. She also noted that these same ordinances were enforced against social justice protests after Breonna Taylor’s death, and the Louisville Metro Police Department is now under a pattern and practice investigation by the U.S. Department of Justice. LMPD arrested the state’s only Black woman lawmaker, state Rep. Attica Scott, during a September 2020 protest.

“Anti-abortion protesters are ignored and just treated differently than other protesters,” Marshall said. Stern agreed that the difference is obvious: “I cannot ignore the vast difference in treatment received by these anti-abortion protesters and the way that our police department treats protesters that are demanding police stop killing Black and brown people.”

Both Marshall and Stern are skeptical that the safety zone around EMW will be enforced due to anti-abortion sentiments in the police department. During an August 2020 Metro Council meeting about the proposed safety zone, former council member David Yates, now a Democratic state senator, said he received text messages from police officers asking, “who’s going to enforce this – lol.”

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

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

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

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

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

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

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

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

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

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

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

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

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

CFP Governing Bodies--Bodily Autonomy and the Law (Detroit Mercy Law Review)

The University of Detroit Mercy Law Review is accepting submissions for the annual symposium, Governing Bodies: Bodily Autonomy and the Law, on Friday, March 4, 2022, in Detroit, Michigan.

Bodily autonomy has been regulated or banned on many levels throughout our history, ranging from slavery to the right to an abortion, assisted suicide, transgender rights, and even issues surrounding the present COVID-19 pandemic. While these laws and regulations have led to controversy and protest, it remains unclear where exactly the line should be drawn limiting government power over our bodies, or if there should be a line at all.

Detroit Mercy Law Review invites academics, scholars, practitioners, and other stakeholders to submit proposals for panel presentation and potential publication on topics involving governments and entities attempting to regulate bodily autonomy. These may include, but are not limited to, the following: slavery, vaccine passports and mandates, abortion laws, assisted suicide, data privacy issues, and transgender rights.

 

Submission Procedure

Proposals should be approximately 250–500 words, double-spaced, and should detail the proposed topic and presentation. Proposals must be submitted no later than 5 PM EST Friday, October 15, 2021, by email to Mackenzie Clark, Symposium Director, at lawreview@udmercy.edu. In your e-mail, please indicate whether your proposal is for a presentation only or if you plan to submit an article based on your presentation for potential publication in the Detroit Mercy Law Review. Also, please include a current CV or resume.

Decisions will be emailed on or before Monday, November 7, 2021. The final completed manuscripts must be submitted by Friday, March 11, 2022, for editing to commence by the Law Review staff.

Pennsylvania Bill Seeks "Dignity for Incarcerated Women"

Pennsylvania has introduced a bill seeking dignity for incarcerated women. The bill was sent to the House Judiciary Committee on September 21.  An accompanying memo from bill sponsors explains to the members of the house that:  

Over the past three decades Pennsylvania has seen a significant increase in the number of incarcerated women. While we believe in supporting a system that serves justice, women who are incarcerated face a number of unique issues regarding their heath and the health of their children. Despite being incarcerated, these women are still our mothers, wives, sisters, and daughters, and it is in everyone’s best interest to ensure we treat them with dignity.  

Through extensive consultation and collaboration with our state Department of Corrections, county wardens, corrections officers, various interest groups, and subject matter experts, we have identified a number of best practices, many of which are already in place, that we believe will not only benefit incarcerated women, but their children, families, and society as a whole. Specifically, our bill will provide for the following well vetted provisions at both the state and county level, with necessary oversight from children and youth services, and limited exceptions where extenuating circumstances and/or capacity constraints prevent safe practice and enforcement.  With common sense exceptions in all cases, the bill:

                1. Prohibits the shackling of pregnant women.  
                2. Prohibits solitary confinement of pregnant women.  
                3. Provides for trauma informed care training of corrections officers interacting with pregnant and postpartum women. 
                4. Provides for up to three days of post-delivery bonding time between mother and new born child.  
                5. Provides for accommodation of adequate visitation time between minor children and incarcerated individuals (male or female) who were the sole legal guardian of those minor children at the time of their arrest. 
                6. Prohibits full body searches of incarcerated females by male guards.  
                7. Provides for appropriate amount of feminine hygiene products at no cost to incarcerated women. 
                8. Provides for limited coverage of cost to transport individuals to a safe location upon release.   

The full text of the bill is available here. 

The Messy Legal Future of a Post-Roe World of Abortion Law

Greer Donley, David S. Cohen, and Rachel Rebouché,  The Messy Post-Roe Legal Future Awaiting America, The Atlantic

America now faces the very real possibility that in just a few months’ time, the Supreme Court will interpret the U.S. Constitution to no longer protect the right to abortion. On September 1, S.B. 8—the most stringent abortion ban since before Roe v. Wade—took effect in Texas. Completely ignoring the protections of Roe, the Supreme Court refused to intervene. Though the Court’s decision was procedural in nature, it speaks volumes about the justices’ view on the importance of abortion rights and the future of Roe. That will matter greatly when, later this term, the Court decides a different abortion case, Dobbs v. Jackson Women’s Health Organization, addressing a Mississippi law that, like S.B. 8 and the copycat laws coming down the pike, challenges the fundamental holding of Roe by banning abortion before fetal viability. If the Court does overturn Roe, much of the American legal landscape—and with it, the lived experiences of millions—could change overnight, and the result will be a giant, legal mess.***

 

Navigating a post-Roe country will be anything but simple. Perhaps the only certainty to expect is that a post-Roe country will be one of inequity. A little fewer than half of U.S. states, mostly concentrated in the South and the Midwest, are poised to ban abortion in almost all cases if the Supreme Court overrules Roe. Some of these bans will start immediately, either because of pre-Roe laws still on the books or new “trigger laws” that will take effect the moment Roe is overturned. Scholars and activists have long noted that wealthy women in those states will be able to travel to other states to obtain abortions. But three-quarters of people seeking abortions are low-income, a group that is disproportionately people of color, and they will face barriers that will make it almost impossible to get to another state.***

 

But beyond the inevitable inequality resulting from overturning Roe, not much else is clear. The basic rule of Roe is straightforward: Abortion before viability must be legal in every state. This rule may not ensure practical access everywhere—abortion care is very difficult to obtain in many places—but it does outline some clear prohibitions. However, if Roe is overturned, we will live in a country where every state creates its own rules. Some states will ban abortion almost entirely, some will allow it with substantial restrictions, and others will codify reliable and equitable abortion access.

Symposium 10/15 Reproducing Injustice: Covid-19, Reproduction, and the Law

Reproducing Injustice: Covid-19, Reproduction, and the Law, Drexel Law School, Oct. 15

Reproductive rights are under attack in the United States, with a record number of restrictive abortion bills introduced in state legislatures this year alone. The United States continues to report high rates of maternal mortality and morbidity, with pregnant people of color at greater risk of adverse health outcomes related to childbirth and experiencing mistreatment by their health care providers at disproportionately high rates. In addition, gaps in access to health care, legal services, and other critical resources mean that many poor people and people of color face particular burdens as parents trying to raise their children in safe and healthy environments. Political divisions regarding reproduction have been exacerbated by the COVID-19 pandemic. As we look forward to a post-pandemic future, it seems important to ask: What kinds of trends do we see as we consider reproductive health and rights through the lens of the pandemic? How can lessons from the COVID-19 era inform future efforts to increase access to health services, defend reproductive rights, and promote reproductive justice? The Drexel Law Review Volume XIV presents Reproducing Injustice: COVID-19, Reproduction, and the Law, a symposium designed to facilitate a conversation about reproductive health and rights in the wake of the COVID-19 pandemic, and what we can take away from the past year and a half to advocate for reproductive justice moving forward.

RSVP

New Book -- Just Get on the Pill: The Uneven Balance of Reproductive Politics

Krystale Littlejohn, Just Get on the Pill: The Uneven Burden of Reproductive Politics (UC Press)

Understanding the social history and urgent social implications of gendered compulsory birth control, an unbalanced and unjust approach to pregnancy prevention.

The average person concerned about becoming pregnant spends approximately thirty years trying to prevent conception. People largely do so alone using prescription birth control, a situation often taken for granted in the United States as natural and beneficial. In Just Get On the Pill, a keenly researched and incisive examination, Krystale Littlejohn investigates how birth control becomes a fundamentally unbalanced and gendered responsibility. She uncovers how parents, peers, partners, and providers draw on narratives of male and female birth control methods to socialize cisgender women into sex and ultimately into shouldering the burden for preventing pregnancy.

 

Littlejohn draws on extensive interviews to document this gendered compulsory birth control—a phenomenon in which people who give birth are held accountable for preventing and resolving pregnancies in gender-constrained ways. She shows how this gendered approach encroaches on reproductive autonomy and poses obstacles for preventing disease. While diverse cisgender women are the focus, Littlejohn shows that they are not the only ones harmed by this dynamic. Indeed, gendered approaches to birth control also negatively impact trans, intersex, and gender nonconforming people in overlooked ways. In tracing the divisive politics of pregnancy prevention, Littlejohn demonstrates that the gendered division of labor in birth control is not natural. It is unjust

Texas Doctor's Washington Post Statement on Providing Abortion Care After September 1

San Antonio physician, Alan Baird, published an Opinion piece yesterday in the Washington Post. Having begun practicing obstetrics and gynecology before the Court's decision in Roe v. Wade, Dr. Baird describes his reaction to Texas's S.B. 8. 

For me, it is 1972 all over again.

And that is why, on the morning of Sept. 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.

I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.

The opinion closes powerfully with the following text: 

I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly. Represented by the Center for Reproductive Rights, my clinics are among the plaintiffs in an ongoing federal lawsuit to stop S.B. 8.

I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care. I have spent the past 50 years treating and helping patients. I can’t just sit back and watch us return to 1972.

It will be important to watch next steps in enforcement. 

California Moves to Be First State to Outlaw Stealthing, or Removing Condom Without Consent

NYT, California Moves to Outlaw "Stealthing" or Removing Condom without Consent

The California State Legislature this week approved a measure that would make the state the first to outlaw stealthing, the act of removing a condom during sex without a partner’s consent.

 

The bill, which was approved unanimously on Tuesday, awaits the signature of Gov. Gavin Newsom, a Democrat, who has until Oct. 10 to sign it into law. A spokesman for the governor said his office did not comment on pending bills.

 

If approved, the measure would amend the state’s civil definition of sexual battery and make stealthing a civil offense, meaning victims could sue their assailants for damages.***

 

Ms. Garcia, a Democrat, said that she had tried to pass legislation criminalizing stealthing since 2017, when a Yale University study brought widespread attention to it. But she ran into considerable opposition.

 

The bill that was approved this week that would make stealthing a civil offense “is a good first step,” Ms. Garcia said. She said she hoped it would lay the groundwork to eventually add stealthing to the state’s criminal code.

 

A study published in the National Library of Medicine in 2019 reported that 12 percent of women said that they had been a victim of stealthing. Another study that year found that 10 percent of men admitted to removing their condom during intercourse without their partner’s consent.

 

Alexandra Brodsky, who wrote the 2017 Yale study and is the author of “Sexual Justice,” a book that addresses various forms of institutional response to sexual harassment and assault, said that the measure approved this week could bring “political and personal power” to victims. She said that it would remove any ambiguity surrounding stealthing — which tends to begin with the consensual act of sex — by defining it as illegal.

Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion

Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson  allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion.  President Biden has called on Congress to act.  House Speaker Nancy Pelosi has similarly called for action.  And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021.  It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment. 

The Supreme Court too, has periodically suggested this option.  For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).  

Except that it might not be that easy.  The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare.  Congress must rely on a source of power specifically articulated in the Constitution. 

Here are some options under the Supreme Court’s existing precedent.  It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.  

1. Commerce Clause

Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act.  Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.”  There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).

The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case.  In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause.  It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance.  Inactivity, the Court said, was not economic activity.

The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock.  Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”

The Commerce Clause power also requires that a regulate activity be “economic.”  This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity.  “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison.  While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity.  The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.

The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power.  The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause.  Abortion services is an economic activity.  It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.  

The abortion context also seems more clearly interstate.  With bans and restrictions on abortion, patients travel out of state to other providers.  They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality.  If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard.  Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court.  It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.

2. Section 5 of the Fourteenth Amendment

A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment.  This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws. 

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion.  But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary.[1]  Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court. 

That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law.  FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors.  If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.

However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way.  Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5.  Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison. 

Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs.  In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality.  The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct.  In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished.  It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation.  In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.

The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right.  This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt).  These are rights that would not necessarily be struck down if Roe is overturned.  There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion.  There might also be an argument to connect to the provider’s right to work or profession.

A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination.  Hibbs provides good precedential support here.  In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process.  See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).

3. The Necessary and Proper Clause

Congress has also cited the Necessary and Proper Clause for authority to legislate abortion.  The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case.  The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.  

4. The Taxing Power

Following Sebelius, Congress could structure the abortion legislation as a tax.  In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power.  The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.

A Roe tax might tax the states which impose bans or regulations on abortion.  That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.

5. The Ninth Amendment

Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion.  That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause.  Another possible source of recognizing the right is the Ninth Amendment.  In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution.  A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment.  See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).  The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.

 

[1] Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with Boerne.  See Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote).  See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).

Second-Trimester Abortion Dangertalk

Second-Trimester Abortion Dangertalk

By: Greer Donley and Jill Wieber Lens

Forthcoming in: Boston College Law Review, Vol. 62, Forthcoming

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale — the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling in cases of life-limiting fetal conditions. This Article discusses the paternalism and traditional gender stereotypes underlying these newer abortion restrictions and uses empirical studies to discredit the woman-protective rationale justifying them. The Article also suggests a radical, new response to claims that women need protection from second-trimester abortion: the embrace of second-trimester abortion “danger-talk.” First introduced in medical literature by abortion providers, danger-talk refers to the uncomfortable truths about abortion that supporters often avoid. These topics include the nature of second-trimester abortion procedures and the emotional complexity that can especially accompany second-trimester abortion. This Article advocates for greater openness about these topics, arguing that silence only capitulates the narrative of second-trimester abortion to those opposing abortion rights. The Article envisions second-trimester abortion care that better recognizes these realities and provides women with more choices that might make second-trimester abortion easier, including alternative procedures and the option of memory-making to process difficult emotions, like grief. Finally, this Article argues that more transparency about these difficult subjects will help rebut the woman-protective rationale used to justify second-trimester abortion restrictions.

Free Market Feminism: Re-Reconsidering Surrogacy

Free Market Feminism: Re-Reconsidering Surrogacy

By: Alexandra Holmstrom-Smith

Published in: University of Pennsylvania Journal of Law and Social Change, Volume 24, Number 3 (2021)

The COVID-19 pandemic has thrown the global surrogacy industry into chaos, stranding surrogates,infants, and their caretakers across the world from the intended parents. As surrogates and staff are left caring for infants that are strangers to them by law, the emotional toll of commercial surrogacy is more visible than ever before. In this article, I argue that this moment is ripe for reconsidering our laissez faire approach to for-profit reproduction. When the Baby M case hit the news in 1988, it set off a chorus of alarm among feminists (and others). Many states subsequently passed laws banning commercial surrogacy. Yet in the years since then, the dominant feminist position has quietly shifted. Surrogacy is now seen as a choice, one that expands women’s possibilities both as workers and as mothers. Surrogacy is also seen as an LGBT rights issue, as it provides a way for gay men to have children that are genetically related to them. However, the issues of gender, race, and exploitation that inflamed feminists in the1980s and 1990s are no less relevant today. As renewed concern with economic justice has made a resurgence on the national stage, I argue that it is time for socialist-feminist perspectives on surrogacy to reemerge. Eschewing freedom of contract as an illusory freedom that serves the ruling class, such a politics would demand social policy that limits commodification and promotes reproductive justice and freedom for all, not just the wealthy few.

SCOTUS Denies Stay of Texas Fetal Heartbeat Abortion Ban

By a vote of 5-4, the US Supreme Court denied abortion providers' request to stay the operation of a new Texas law banning abortion after six weeks.  The split was Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett in the majority and Sotomayor, Breyer, Kagan, and Roberts in the dissent.

Here is the opinion:   Whole Women's Health v. Jackson

    The majority highlight the unique procedures established by the Texas law requiring private citizen enforcement.

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention

In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in
no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

For a blog post on Justice Kavanaugh's prior thinking in a stay of an abortion case, somewhat following his assent to the majority here while also seeming to follow Roberts' approach, see Supreme Court Temporarily Block Louisiana Abortion Law Requiring Doctors Admitting Privileges

All dissenting Justices wrote separate opinions.  

    Roberts focused on the standards of stays and temporary injunctions and maintaining the status quo.

 I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.

    Breyer disagreeing that the procedural posture is relevant, and focused on the imminent harm to the plaintiffs, one of the traditional factors in granting temporary relief:

I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district
attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. Normally, where a legal right is “‘invaded,’” the law provides “‘a legal remedy by suit or action at law.’” Marbury v. Madison. 

    Sotomayor blatantly calls out the Court for its decision on the merits and procedurally.  

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent....

Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of
the rights of women seeking abortions throughout Texas....

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry....

The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.

    Kagan takes on the shadow docket and the shadowy state procedure:

The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to
carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey. Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence.

Viewing Justice Gorsuch's Opinion in the LGBT Decision in Bostock as Support for--not Against--Abortion Rights in the Upcoming Dobbs Case

Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).

Informed speculation holds that the Supreme Court’s decision to hear and decide Dobbs v. Jackson Women’s Health Organization spells bad news for constitutional abortion rights. Recognizing both the stakes and the odds, this brief commentary engages Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County and the prospects that it opens up in Dobbs for a future for—not against—abortion rights. Bostock’s pro-gay and pro-trans sex discrimination rulings are built atop—and go out of their way to reaffirm—women’s statutorily-grounded economic and social rights, and hence women’s equal citizenship stature. Moreover, the final decision in the case emerges after judicial wrestling with rule of law concerns involving legal and social stability. In both of these respects, Bostock aligns with the controlling opinion in Planned Parenthood v. Casey, a decision that Justice Gorsuch, like other justices in Dobbs, might yet in principle reaffirm. After exploring some of Casey’s doctrinal implications and its example of judicial moderation, discussion turns to Casey’s often overlooked spiritual dimensions. Not only does Casey’s spiritual pluralism on the abortion right and its limits converge with important features of Bostock, but it also actively counsels a decision in Dobbs giving Casey and what it preserves of Roe a new lease on life as part of a larger effort to preserve the American public’s shared faith in a constitutional republic that everyone in Dobbs wishes to keep.

Proposed Ohio Bill Expanding Doula Services Would Improve Maternal Health and Racial Disparities in Birth Outcomes

Op ed from a former fellow at the Center for Constitutional Law at Akron and research assistant to our Gender & Law Prof Blog.

Morgan Foster, Expansion of Doula Services Would Help Ohio Improve Maternal Health, Address Racial Disparities in Birth Outcomes, cleveland.com 

Sponsors drafted House Bill 142 with women of color in mind. In joint sponsor testimony, former State Rep. Erica C. Crawley and Rep. Thomas Brinkman reported that, “Black women died at a rate more than two and a half times that of white women, accounting for 34% of pregnancy-related deaths while only making up 17% of women giving birth in Ohio.

 

According to the Health Policy Institute of Ohio, only five states have a higher Black infant mortality rate than Ohio. Over the last decade, Ohio’s infant mortality disparity between Black and white infants increased by 26%. For Black women in Ohio, the preterm birth rate is 49% higher than the rate among all other women.

 

House Bill 142 would require Medicaid to cover doula services, which have proven to reduce racial disparities in birth outcomes. A doula is a trained, nonmedical professional who provides continuous physical, emotional, and informational support to a woman shortly before, during, and after her pregnancy, regardless of whether the woman’s pregnancy results in a live birth.

 

The benefits are clear. That is why New York, Oregon, and Minnesota have implemented legislation in which Medicaid will provide reimbursement for doula services. California may be the next state to take this step, and Ohio has an opportunity to join as a leader on this issue.

 

One reason more states do not cover doula services is because there is not a standard certification or registration process.

 

Ohio’s proposed bill would address this concern by creating this process with the Ohio Board of Nursing, establishing standards and procedures for issuing certificates to doulas. Once implemented, only certified doulas could call themselves such, or face penalty by the Board.

Lift Louisiana and If/When/How Challenge Judicial Bypass Jurisdiction Law

Lift Louisiana and If/When/How filed a motion for an injunction arguing that Louisiana's Act 482 violates the Louisiana Constitution because it deprives minors of meaningful and effective access to the Courts when seeking judicial bypass to terminate a pregnancy. Prior to the Act, Louisiana minors could either pursue a judicial bypass in the jurisdiction in which they are domiciled or in the jurisdiction in which the clinic is located. Under the prior jurisdictional rule, most bypass proceedings were heard in the parishes where two of the three remaining clinics are located. This broader approach protected the anonymity of minors, ensured that the courthouses were savvy in handling these proceedings, created a path for out of state minors to seek a bypass, and worked more expeditiously. Act 482 limits the jurisdictional rules such that minors can only pursue bypass proceedings in the parish of their domicile. Lift Louisiana and If/When/How seek an injunction blocking Act 482 before it causes irreparable injury. The plaintiffs argue that this Act deprives plaintiffs of their right to access the courts under the Louisiana Constitution and violates the due process and privileges and immunities clauses of the Fourteenth Amendment of the United States Constitution.  

Menstruation Discrimination under the Pregnancy Discrimination Act and the Problem of Shadow Precedents

Deborah Widiss, Menstruation Discrimination and the Problem of Shadow Precedents" 
Columbia Journal of Gender and the Law, Forthcoming

The movement calls attention to menstruation-related discrimination in workplaces, schools, prisons, and many other aspects of life. In recent years, a few courts have suggested such discrimination could violate Title VII, the federal law that prohibits sex discrimination in employment. Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed to override a Supreme Court case that had held pregnancy discrimination was not sex discrimination.

This essay, written for a symposium at Columbia Law School, applies my earlier research on the statutory interpretation of Congressional overrides to highlight two potential challenges this nascent litigation campaign may face, and to suggest how to avoid them. The first risk is that courts will simply deny such claims, reasoning that menstruation is not directly addressed by the text of the PDA and therefore should not be recognized as sex discrimination. The second—which is more subtle, and also perhaps more likely—is that courts could find such discrimination to be actionable, but do so relying solely on the PDA’s explicit reference to “medical conditions” related to pregnancy. While that would be helpful for addressing discrimination in workplaces, it could open the door to arguments that menstruation is outside the ambit of sex discrimination laws that do not include comparable language.

Theorists and advocates should instead seek to establish that menstruation discrimination is discrimination the basis of “sex” itself, in that it is a condition linked to female reproductive organs (although transmen and boys and non-binary persons may also menstruate) and associated with stereotypical assumptions about women’s proper role in society. That reasoning, which suggests that the PDA is properly interpreted as signaling Congress’s disapproval with the Supreme Court’s unduly cramped understanding of what constitutes sex discrimination in the earlier pregnancy case, should apply not only to Title VII, but also to the interpretation of statutory and regulatory prohibitions on sex discrimination in non-employment contexts.

"We Have Been Here Before": SCOTUS and the Demise of Abortion Rights in Casey

Earl Maltz, We Have Been Here Before: Planned Parenthood of Southeastern Pennsylvania v. Casey and the Survival of Abortion Rights 

Nearly half a century after the landmark decision in Roe v. Wade, recent events have given supporters of the pro-choice position good reason to fear that the Supreme Court is likely to soon abandon its support for abortion rights. Although the Court recently struck down an anti-abortion statute in June Medical Services v. Russo, the balance of power in that case was held by Chief Justice John Roberts, whose opinion indicated that, in the future, he was likely to allow states to impose a wide variety of restrictions on access to abortions. Moreover, the pro-choice forces recently lost one of their staunchest allies when Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, whose nomination was roundly cheered by those who argue that Roe should be overruled. Thus, many observers believe that the Court is likely to use Dobbs v. Jackson’s Women’s Health Organization as a vehicle to eliminate or significantly undermine constitutional constraints on the ability of state governments to limit access to abortions.

However, we have been here before. In the decade between 1981 and 1991, Republican presidents who were openly critical of the decision in Roe had the opportunity to nominate five of the nine members of the Supreme Court. Moreover, during this period, the issue of abortion played an increasingly important role in the selection of those justices. Thus, by the early 1990s, most commentators believed that the anti-abortion forces were on the verge of claiming near-total victory in their campaign against Roe and its progeny. But despite the expectations of most commentators, in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a majority of the justices reaffirmed their support for the view that the Constitution protects the right of a woman to terminate her pregnancy without undue interference from the government, and thereby created a regime that has endured for almost three decades. This article will describe the sequence of events that led to the decision in Casey and culminated in the failure of the assault on abortion rights.