Gender and the Law Prof Blog

#FreeBritney In the United States, Eugenics Is Still Legal

FreeBritney In the United States, Eugenics Is Still Legal

While the details Spears divulged shocked many and raised questions about the legality of her conservatorship, the issue of her IUD raised a broader conversation about reproductive justice—one that’s familiar for the disabled community. For decades, the medical community, the government, and even our own families have legally been able to do heinous things to us simply because of our disabilities. Atrocities such as forced sterilization and abortion have been done solely to prevent disabled people from reproducing and spreading our “afflictions” to new generations. Countries have built immigration law around forced sterilization, and fascists have enacted policy based on destroying the disabled. Disabled people—most of whom are poor women, and many of whom are Black, Latine, or  Indigenous—have been victimized by a system designed to strip us of our humanity. The reproductive coercion that Spears is experiencing now is part of the same misogynistic and ableist system that’s been used against disabled people for decades.

The history of forced sterilization of disabled communities has been hidden for too long, but stories like Britney Spears’ allow us the opportunity to educate and liberate. In the early 2000s, a disability justice framework was created by queer disabled activists of color—namely Patricia Berne, Mia Mingus, and Stacey Milbern—when they addressed ableism in their social justice communities. In confronting ableism, reproductive freedom became an obvious concern for the disabled community. Knowing the painful history of sterilization without consent, eugenics, and reproductive coercion within our community, disabled activists paired this issue with accessibility to emphasize its importance in our activism. Working to educate others about disability issues and stressing the importance of equity over equality, disability activism is first and foremost about autonomy. 

In the 1927 Buck v. Bell case, the U.S. Supreme Court upheld the state of Virginia’s right to forcibly sterilize anyone labeled “unfit” to reproduce. Though the case was initially introduced to prevent doctors who performed forced sterilizations from being sued for medical malpractice, the decision was seen as a win for the American eugenics movement. At the time, the eugenics movement was actively attempting to breed out “undesirable” characteristics often attributed to non-white, disabled, and mentally-impaired subjects. Labeled as “feeble-minded,” a broad term that encompassed ailments ranging from vision and hearing impairment to “the inability to ‘appreciate moral ideals,’” as many as 70,000 people—who were overwhelmingly Black, Latine, and Indigenous, disabled, and poor—were forcibly sterilized as a result of the Buck v. Bell ruling. Additionally, women who were labeled “promiscuous”—a “condition” that was considered a mental illness in the early 20th century—were disproportionately impacted by the misogynistic decision. To this day, the Supreme Court hasn’t overturned Buck v. Bell. 

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.

New Book: The Man Who Hated Women, on the Comstock Laws and the Women Prosecuted Under Them

NPR, Fresh Air, How an Anti-Vice Crusader Sabotaged the Early Birth Control Movement

In 1873, Congress passed a law outlawing the distribution, sale, mailing and possession of "obscene" materials — including contraception.

 

The Comstock Act, as it became known, was named after Anthony Comstock, an anti-vice crusader who later became a special agent to the U.S. Post Office, giving him the power to enforce the law. In her new book, The Man Who Hated Women, author Amy Sohn writes about Comstock — as well as eight women charged with violating the Comstock Act.

 

While working for the post office, Sohn says, Comstock "decoyed people" by using the mail to solicit obscenity and contraception.

 

"[Comstock] was given that [post office] title so that he could have the power to inspect the mail and over time it was expanded to be able to come into people's houses and seize items," she says. "It was a very broad, broad definition of what someone affiliated with the post office could do with regards to individual civil liberties."

 

Over time, the scope of the Comstock law expanded: "Its heart was in the mail, but ... it became much broader than that," Sohn says. "Even oral information, which reasonable people believed was constitutionally protected, turned out that it wasn't."

 

In 1916, feminist activist Emma Goldman was arrested in New York City just before giving a lecture on family planning. One year earlier, birth control advocate Margaret Sanger had been charged with violating the law. Goldman and Sanger are just two of the eight women profiled in Sohn's book. Others include nurses and health practitioners, spiritualists and women in the so-called free love movement.

 

The Comstock Act lasted until 1965 when the Supreme Court ruled it violated the right to marital privacy. "It was in Griswold v. Connecticut that married women could finally have the right to receive contraception from their doctors," Sohn says.

 

As for single women? They didn't get the same rights until the 1972 Eisenstadt v. Baird ruling — 99 years after the passage of the Comstock Act.

The Legal History of the Involuntary Sterilization of Native American Women

Sophia Shepherd, The Enemy is the Knife: Native Americans, Medical Genocide, and the Prohibition of Nonconsensual Sterilizations, 27 Michigan J. Race & L (forthcoming 2021) 

In the early 1970s, Tribal Nations learned that doctors at Indian Health Service (IHS) hospitals were sterilizing at least 25 percent of Native American women of childbearing age. Most of the women were sterilized without their knowledge or without giving valid consent. This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It explains the obstacles that Native activists faced when confronting the sterilizations, including the widespread acceptance of eugenic sterilizations, federal legislation that gave doctors economic incentives to perform the procedures, and paternalistic views about the reproductive choices of women, and especially women of color. Finally, this Article describes the long-lasting impacts of the federally-sponsored sterilization of Native women. The sterilizations devastated many women, reduced tribal populations, and terminated the bloodlines of some Tribal Nations. In the last decade, living victims of nonconsensual sterilization programs in other parts of the country have received compensation for their losses. Native American women deserve them too.

 

New Book: "Unwell Women," Misdiagnosis and Myth in a Man-Made World

NYT, Book Review, Why "Unwell Women" Have Gone Misdiagnosed for Centuries

Reviewing: Elinor Cleghorn, UNWELL WOMEN: Misdiagnosis and Myth in a Man-Made World

In order to recognize illness, you have to know what health looks like — what’s normal, and what’s not. Until recently, medical research generally calibrated “normal” on a trim white male. Such a patient, arriving in an emergency room clutching his chest as they do in the movies — and in the textbooks — would be immediately evaluated for a heart attack. But heart disease in women, inconveniently, doesn’t always come with chest pain. A woman reporting dizziness, nausea and heart-pounding breathlessness in that same E.R. might be sent home with instructions to relax, her distress dismissed as emotional rather than cardiac.

Heart disease has clear markers and proven diagnostic tools. When a woman’s symptoms are less legible or quantifiable — fatigue, vertigo, chronic pain — the tendency to be dismissive grows. In “Unwell Women,” the British scholar Elinor Cleghorn makes the insidious impact of gender bias on women’s health starkly and appallingly explicit: “Medicine has insisted on pathologizing ‘femaleness,’ and by extension womanhood.”

A woman’s purpose was to procreate; if she wasn’t well, it was probably her womb that was to blame. One Roman writer described the uterus as “an animal within an animal,” with its own appetites and the capacity to wander through the body in search of satisfaction. Most female afflictions could be reduced to “hysteria,” from the Greek word for womb. “The theory that out-of-work wombs made women mad and sad was as old as medicine itself,” Cleghorn notes. The standard cure was marriage and motherhood. As Hippocratic medicine was refracted through the lens of Christianity, the female anatomy was additionally burdened with the weight of original sin.

Moving steadily through the centuries, Cleghorn lays out the vicious circles of women’s health. Taught that their anatomy was a source of shame, women remained in ignorance of their own bodies, unable to identify or articulate their symptoms and therefore powerless to contradict a male medical establishment that wasn’t listening anyway. Menstruation and menopause were — and often still are — understood as illness rather than aspects of health; a woman’s constitution, thus compromised, could hardly sustain the effort required for scholarship or professional life.

The intersection of class and race complicates things further. As early as 1847, the Scottish physician James Young Simpson argued in favor of anesthesia during labor and delivery, contradicting the age-old belief that the pain of birth was part of God’s judgment. (To this day, women who opt for an epidural instead of “natural childbirth” can feel a nagging sense of failure.) But even liberal-minded men like Simpson believed that what he called the “civilized female” needed his revolutionary innovation more than her less privileged sisters. Black women were thought to be less sensitive to pain and working-class women were considered hardier in general; certainly no one worried about whether these women could work while menstruating.

Each scientific advance came with its own shadow. Margaret Sanger may have campaigned for contraception “as a way for women to reclaim their bodies and lives from medical and social control” — but for women of color, birth control was presented more as a duty than a right, a weapon against overpopulation and poverty requiring the policing of women.

 

 

Gender as a Central Feature of Illiberal Rhetoric and Action

Susanna Mancini & Nausica Palazzo, The Body of the Nation: Illiberalism and Gender, Routledge Handbook of Illiberalism (S. Holmes, A.Sajo, R. Uitz eds., forthcoming, 2021)

Gender has become a central feature of illiberal rhetoric and action. While socio-legal scholarship has established a clear relationship between anti-genderism and populist parties and/or the global right, the link between anti-genderism and illiberalism has not yet been clearly established. The aim of this chapter is to fill this gap.

The chapter first explicates the link between anti-genderism and global right/right-wing populism (two phenomena strictly related to contemporary illiberalism). It then establishes a more specific link between anti-genderism and illiberalism, by focusing on illiberal actors’ war on “gender ideology”, and their efforts to reshape human rights epistemology. The analysis corroborates these links by looking at three domains: immigration, religious attire, and sexual and reproductive rights.

The Public Health Turn in Reproductive Rights

Rachel Rebouche, The Public Health Turn in Reproductive Rights,  78 Wash. & Lee L. Rev. (2021) 

Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects.

What might surprise even close observers of abortion policy, however, is how the federal courts, including the Supreme Court, have embraced this new wave of public health research. Recent litigation around the U.S. Food and Drug Administration’s requirement that patients collect in-person the first drug of a medication abortion – a two-drug regimen taken over two days – is an example.

Betting on courts to strike down abortion restrictions, however, is a risky wager, particularly given the current ambiguity about how the constitutional standard for evaluating abortion restrictions applies. This Article shows that abortion law is moving beyond constitutional litigation and toward building capacity for delivering care across state borders. The confluence of regulation, funding, and evidence have helped facilitate remote abortion care (or telehealth for abortion care) and self-managed abortions – overcoming legal barriers imposed by numerous states and extending abortion access despite the evisceration of constitutional rights.

This Article argues that an understudied development in abortion law suggests a way forward that hinges neither on defending nor abandoning a right to an abortion. Scholars in the field of reproductive justice have called for a move beyond constitutional doctrine for a long time. That shift, with its attention to structural and systemic inequalities, has never seemed more urgent – or more possible – than it is right now.

How Forced Sterilization of Native American Women Birthed Generational Reproductive Justice

Micaela Simpson, The Marshall Factor: How Forced Sterilization of Native American Women Birthed Generational Reproductive Injustice, Southern University L. Rev.  

Native American women have suffered years of systematic injustice; the most tyrannical act in modern times may arguably be eugenics' practice through forced sterilization. Despite recent feminist movements and reproductive health reform, Native American women are missing from the conversation. The Marshall Trilogy's longstanding effects, comprised of three foundational Supreme Court decisions, has served as jurisprudence in federal Indian law and a catalyst to irreparable harm suffered by Native American women. Without proper redress, Native Americans will continue to be afflicted by perpetual generational injustice.

This Comment examines the direct correlation between Indian women's reproductive injustice and the Marshall Trilogy. The author examines precedence established in the Marshall Trilogoy and the Plenary Power Trilogy, in parallel with the Indian Constitution and the U.S. Constitution. Studies provide that the government-funded and performed forced sterilization on Native American women through the Indian Health Services. The constitution, treaties, and jurisprudence define the standard of care and protection the federal government must provide to Indian Nations. Readers can interconnect the government's delivery of care and protection or lack thereof to the current state of poor Indian and the federal government relations, high occurrence of poor health outcomes, lack of resources and funding, the improper exertion of power executed federally over Indians, and generational reproductive injustices suffered by Native American women.

The author concludes that the forced sterilization of Native American women and continued reproductive injustice result from the broken treaties and abuse of power founded in the Marshall Trilogy, and redress is warranted. The author offers federal reform, autonomy empowerment, and a grassroots approach to redress and eradicate reproductive injustice and the domino effects suffered by Native Americans

Legal and Historical Examination of Obstetric Racism and the Limits of Informed Consent for Black Women

Colleen Campbell, Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women, 26 Mich. J. Race & L. 47 (2021)

This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic of biological race. Though the principle of informed consent traditionally protects the rights of autonomy, bodily integrity, and well-being, medicine nevertheless routinely subjects Black women to medically unnecessary procedures. This Essay adopts the framework of obstetric racism to analyze Black women’s overmedicalization as a site of reproductive subordination. It thus offers a critical interdisciplinary and intersectional lens to broader conversations on race in reproduction and maternal health.

SCOTUS Agrees to Hear Abortion Case that May Overrule Roe by Challenging Viability as the Basis for Regulation

Bloomberg, Supreme Court Agrees to Hear Case that May Slash Abortion Rights

The U.S. Supreme Court will consider gutting the constitutional right to abortion, agreeing to hear Mississippi’s bid to ban the procedure in almost all cases after 15 weeks of pregnancy.

The move suggests the court’s strengthened conservative wing may be ready to roll back, if not overturn, the landmark 1973 Roe v. Wade decision, which legalized abortion nationwide. The clash, which the court will hear in the nine-month term that starts in October, will be its first abortion case since Justice Amy Coney Barrett was confirmed.

Mississippi’s appeal seeks to let states outlaw abortion even before a fetus becomes viable. That would eviscerate the core holding of the 1992 Planned Parenthood v. Casey ruling, which said states can’t impose significant restrictions before viability. The court in Casey didn’t pinpoint when viability occurs but suggested it was around 23 or 24 weeks at the time of the ruling.

In its appeal, Mississippi argued that viability is “not an appropriate standard for assessing the constitutionality of a law regulating abortion.” The state says its ban was designed to protect maternal health as well as the life of the fetus....

“In an unbroken line of decisions over the last fifty years, this court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy,” the clinic argued in a brief that urged rejection of the appeal.

The Mississippi ban makes exceptions only in cases of severe fetal abnormality or major health risk to the woman. A federal district judge and then a federal appeals court said the ban was unconstitutional.

The case is Dobbs v. Jackson Women's Health Center  (SCOTUSblog)

New Law in Utah Requires Biological Fathers to Pay Half Out-of-pocket Costs During Pregnancy

New Law in Utah Requires Biological Fathers to Pay Half of Out-of-pocket Costs During Pregnancy

A new law in Utah makes biological fathers responsible for half of the out-of-pocket costs a woman incurs during pregnancy and childbirth, a policy that some experts say falls short in addressing the burden of such expenses.

 

Experts and women’s health advocates say the new law highlights the high cost of prenatal care, but may leave the burden on women to seek financial support. They point to broader resources such as expanded health coverage they say would better help pregnant women. The bill has also been praised by antiabortion groups who argue that it could reduce the number of women seeking the procedure.

 

“It’s really important to acknowledge that pregnancy related costs are significant and that the burden of those costs should be shared,” said Alina Salganicoff, senior vice president and director of women’s health policy at the Kaiser Family Foundation. “But I think there are other ways that legislators can develop policies that protect women from out of pocket costs.”...

 

The bill would require a biological father to pay 50 percent of a woman’s out-of-pocket medical costs during pregnancy, including insurance premiums and other pregnancy-related costs such as a hospital birth. The bill notes that if the paternity of a child is disputed, a biological father would only be responsible for a share of the costs after paternity is confirmed. The bill also adds that the biological father would not be responsible for sharing the financial cost if the woman receives an abortion, unless the abortion is necessary to avoid death, or if the pregnancy was a result of rape or of incest.

Sixth Circuit En Banc Uphold's Ohio's Ban on Abortions After Down Syndrome Diagnosis

  Ohio Can Enforce Ban on Abortions After Downs Syndrome Diagnosis

Ohio's ban on abortions after a fetal diagnosis of Down syndrome doesn't violate a woman's ability to obtain an abortion, a divided Sixth Circuit Court of Appeals ruled Tuesday.

 

The law, passed by Ohio's Republican-controlled Legislature and signed by GOP Gov. John Kasich in 2017, imposes criminal penalties on doctors who perform abortions if they're aware that a Down syndrome diagnosis, or the possibility of a diagnosis, is the reason for seeking the abortion. The penalty is a fourth-degree felony.

 

Four abortion providers filed suit: Preterm-Cleveland, Planned Parenthood of Southwest Ohio, Women's Med, Planned Parenthood of Greater Ohio and a doctor. The law was blocked by a federal judge in March 2018, and the case has been tied up in federal court ever since. 

 

On Tuesday, the full Sixth Circuit Court of Appeals ruled 9-7 that Ohio's law did not "create a substantial obstacle to a woman’s ability to choose or obtain an abortion." The appeals court reversed the injunction blocking the law from taking effect.  

 

The court ruled that a woman's right to an abortion is not absolute. Ohio's law, which prevents a doctor from performing an abortion because of a Down syndrome diagnosis, is not an undue burden on the woman, wrote Judge Alice Batchelder, who was nominated by former President George H. W. Bush.

 

By preventing the doctor from joining the woman as a knowing accomplice to her Down syndrome-selective decision making, House Bill 214 prevents this woman from making the doctor a knowing participant (accomplice) in her decision to abort her pregnancy because her fetus has Down syndrome," Batchelder wrote. "As limitations or prohibitions go, this is specific and narrow."

 

Batchelder said the law only prevented doctors from knowingly performing an abortion because of Down syndrome, but if the woman doesn't provide a reason, the abortion could still proceed.

***

The decision is here: Pre-Term Cleveland v. McCloud (6th Cir. en banc Apr. 13, 2021)

Challenging the Logic of Pro-Life Constitutionalism in June Medical

Reva Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 SUP . CT. REV. (forthcoming 2021)

As the Supreme Court prepares to roll back protections for the abortion right, this Article analyzes the logic of pro-life constitutionalism in June Medical Services L.L.C. v. Russo.

I expand the frame on the admitting privileges law in June Medical to examine the logic of woman-protective health-justified restrictions on abortion. Do these laws protect women or the unborn—and how? By considering the history of the admitting privileges law at issue in June Medical and locating it in broader policy context, we can see how Louisiana legislators who restricted abortion to protect women’s health equated women’s health with motherhood; they supported laws that pushed women into motherhood while declining to enact laws that provided for the health of pregnant women and the children they might bear. Expanding the frame on Louisiana’s pro-woman pro-life law shows us sex-role stereotyping in action, and demonstrates the intersectional injuries it can inflict.

From this vantage point, we can see that judges who refuse to scrutinize pro-life law making—on the grounds that it would involve judges in politics—help legitimate the claims about protecting women’s health that supposedly justify the abortion restrictions, while revising the meaning of the Constitution’s liberty and equality guarantees. Reading the doctrinal debate in June Medical in this context identifies open and hidden efforts to roll back protections for the abortion right—and suggests how the Supreme Court that President Donald Trump helped fashion values women, health, life, truth, and democracy.

Proposed TN Abortion Bill Would Give Fathers Veto

Tennessee Abortion Bill: Fathers Would Get Veto, No Rape Exception

 In an effort to further restrict abortion in Tennessee, two state  lawmakers have introduced legislation that would allow a father to deny an abortion without the pregnant woman's consent.

The bill, sponsored by state Republicans Sen. Mark Pody and Rep. Jerry Sexton, would give a man who gets a woman pregnant the veto power to an abortion by petitioning a court for an injunction against the procedure.

Tennessee lawmakers already passed one of the nation's most restrictive abortion laws last year, although much of it is held up with legal challenges from abortion rights advocates. The ongoing court battle could stretch for months if not years.

Despite the outlook for potential lawsuits, state lawmakers appear adamant in pushing for stricter abortion laws this legislative session. Including Pody and Sexton's legislation, six bills to further restrict abortion have been filed this year

Pody said Wednesday that he introduced his bill after a Tennessee resident expressed concerns that fathers do not have a say over abortion under the current law. He said his bill would assure fathers' right to make a decision about an unborn child.

"I believe a father should have a right to say what's gonna be happening to that child," Pody said

The US Supreme Court declared a spousal veto to be unconstitutional in Planned Parenthood of Missouri v. Danforth (1976), and spousal notification to be unconstitutional in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

Surrogacy and the Politics of Pregnancy

Courtney Joslin, Surrogacy and the Politics of Pregnancy,  14 Harvard L. & Policy Rev. 365 (2020)

This Essay examines the regulation of pregnancy through a less commonly explored lens — surrogacy legislation. Initially, the dominant position of feminist advocates was to understand the practice of surrogacy as antithetical to women’s equality and reproductive autonomy. Due in part to their active and persuasive involvement, the early legislative trends tracked this position; most of the legislation enacted in the 1980s and early 1990s banned surrogacy. By the mid-1990s, however, the legislative tide turned. All of the comprehensive surrogacy statutes enacted since that time permit and regulate surrogacy. This shift was due in part to a growing sense among some feminists and others that permitting surrogacy can promote the goals of liberty and equality.

At times, however, too little attention was paid to the details of these permissive surrogacy schemes. As a result, permissive surrogacy statutes in some states may undermine these aims. This Essay focuses on one such type of statute: surrogacy provisions that authorize potentially sweeping control over the lives, bodily integrity, and decision making of people acting as surrogates. For example, a number of permissive surrogacy schemes expressly authorize contract clauses that require people acting as surrogates to undergo risky and invasive medical procedures over their clearly stated, contemporaneous objection. But such schemes are not inevitable. This Essay concludes by highlighting recent examples that illustrate how permissive surrogacy legislation can foster, rather than impede, the ability of people to control decisions about their own bodies

Surrogacy, Autonomy, and Equality

Douglas NeJaime, Reva Siegel, & D. Barak-Erez, Surrogacy, Autonomy, and Equality, 2020 Global Constitutionalism Seminar Volume, Yale Law School

This Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School.

As surrogacy becomes widespread, it may call for new forms of judicial response. This Chapter surveys the different ways that surrogacy is practiced across borders, and the different ways the practice has been criticized and valued. After considering some of these debates (does surrogacy exploit and commodify women or empower them to pursue their own autonomous life ends?), the Chapter then turns to critical issues surrounding surrogacy legislation. It examines the ability of individuals, including unmarried and LGBTQ individuals, to access surrogacy for family formation. And it addresses the interests of individuals serving as surrogates, including questions of compensation and decision-making during pregnancy. Finally, the Chapter examines questions of parental recognition, implicating the constitutional interests of the intended parents, the person serving as the surrogate, and the child. By exploring how courts, legislatures, and human rights tribunals have addressed surrogacy transnationally, the Chapter shows that the meanings and implications of surrogacy vary across contexts and depend on how the practice is structured and regulated.

12th Feminist Legal Theory Conference: Applied Feminism and Privacy

Conference 12th Feminist Legal Theory Conference: Applied Feminism & Privacy

We hope you will join the Center on Applied Feminism at the University of Baltimore School of Law for this exciting conference on April 22-23, 2021. The theme is Applied Feminism and Privacy. As always, the conference focuses on the intersection of gender and race, class, gender identity, ability, and other personal identities. We are excited that Fatima Goss Graves , president and CEO of the National Women’s Law Center, has agreed to serve as our keynote speaker.

We are at a critical time for a broad range of privacy issues. State-level abortion bans have put a spotlight on the importance of decisional privacy to women’s equality. Across America, advocates are fighting for reproductive justice and strategizing to preserve long-settled rights.

At the same time, our informational privacy is increasingly precarious. Data brokers, app designers, and social media platforms are gathering and selling personal data in highly gendered ways. As a result, women have been targeted with predatory marketing, intentionally excluded from job opportunities, and subject to menstrual tracking by marketers and employers. In online spaces, women have been objectified, cyber-stalked, and subject to revenge porn.

With regard to physical privacy, the structural intersectionality of over-policing and mass incarceration impacts women of color and other women. And while a man’s home may be his castle, low-income women are expected to allow government agents into their homes – and to turn over reams of other personal information -- as a condition of receiving state support. In addition, families of all forms are navigating the space of constitutionally protected family privacy in relation to legal parentage, marriage and cohabitation, and child welfare systems.

In this conference, we will explore such questions as: Is privacy dead, as often claimed? If so, what does this mean for women? How can privacy reinforce or challenge existing inequalities? How has feminist legal theory wrestled with privacy and what lessons can we draw from past debates? What advocacy will best advance privacy protections that benefit women? How do emerging forms of surveillance impact women? Can intersectional perspectives on privacy lead to greater justice? Who defines the “right to privacy,” and what do those understandings mean for women? How is privacy related to other values, such as autonomy, anti-subordination, vulnerability, justice and equality?

Register for Thursday's sessions here.
Register for Friday's sessions here.

12th Annual Feminist Legal Theory Conference Applied Feminism and Privacy April 22 & 23, 2021 via Zoom
Thursday, April 22, 2021
4:00-6:30	Achieving Menstrual Justice: Law and Activism
	Panel One: Menstrual Justice and Activism Across Employment, Homelessness, Education, and Data Privacy Margaret E. Johnson, Associate Dean for Experiential Education, Professor of Law, and Co-Director, Center on Applied Feminism, University of Baltimore School of Law, Menstrual Justice Marcy Karin, Jack and Lovell Olender Professor of Law and Director of the Legislation Clinic, David A. Clarke School of Law, University of the District of Columbia, Menstruation at Work Marni Sommer, Associate Professor, Sociomedical Sciences, Mailman School of Public Health, Columbia University, Menstruation and Homelessness Michele Gilman, Venable Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore School of Law, Menstrual Apps and Privacy Panel Two: Focus on Menstrual Justice in Schools Laura Strausfeld, Co-Founder, Period Equity, Menstrual Equity, Comprehensive Sex Education, and Title IX Diana Philip, Executive Director, NARALProChoice Maryland, Menstrual Equity as Reproductive Justice Alana Glover, Symposium Editor, University of Baltimore Law Review, Menstrual Equity & UB Law Christopher A. Cotropia, Dennis I. Belcher Professor of Law, Director, Intellectual Property Institute, University of Richmond School of Law, Period Poverty & School Attendance/Performance

Friday, April 23, 2021
9:00-9:15	Welcome and Opening Remarks
	Ronald Weich, Dean, University of Baltimore School of Law Margaret E. Johnson, Professor of Law, Associate Dean for Experiential Education, and Co-Director, Center on Applied Feminism, University of Baltimore School of Law J.J. Lucido, Editor-in-Chief, and Christian Coward Symposium Editor, University of Baltimore Law Review
9:15-10:15	Panel One: Controlling Personal Data in The Digital Age
	Kendra Albert, Clinical Instructor, Harvard Law School, The Double Binds of Transgender Privacy Cynthia Conti Cook, Civil Rights Lawyer and Law & Technology Resarcher, and Brook Kelly-Green, Program Officer, Gender, Racial and Ethnic Justice, Ford Foundation, Data for Reproductive Autonomy or Surveillance? The Role of New Technology in Criminalizing Pregnant People Lynn Daggett, Smithmoore P. Myers Chair and Professor of Law, Gonzaga University School of Law, Gender and Student Medical Privacy Nicole McConlogue, Associate Professor of Law and Clinic Director, West Virginia University College of Law (moderator)
10:15-10:45	Break Rooms Open for Coffee and Discussion
	Room 1:    Data Privacy as Social Justice Room 2:    Academic & Activist Social Mingle
10:45-12:00	Panel Two: Resisting Intrusions into Physical Privacy
	Jenny Brooke Condon, Professor of Law, Director, Equal Justice Clinic, Seton Hall Law School, Uncaging Privacy:  What "Me Too" Means for the Fight Against Sexual Violence and Coercion in U.S. Prisons and Jails Michelle Ewert, Associate Professor of Law, Washburn University School of Law, Their Home Is Not Their Castle: Subsidized Housing’s Intrusion into Family Privacy and Decisional Autonomy Susan Hazeldean, Associate Professor of Law, Brooklyn Law School, Privacy as Pretext Sapna Khatri, Attorney, Advocacy and Policy Counsel at the ACLU of Illinois, From Rosary to Camera: The Shift in Protesting Tactics Jeopardizing the Privacy of Patients Shanta Trivedi, Clinical Teaching Fellow, Georgetown University Law Center (moderator)
12:00-12:30	Break Rooms Open for Lunch and Discussion
	Room 1:  Pitching and Writing Op-eds on Privacy Topics Room 2:  Reproductive Justice Agenda:  What’s Now/Next?
12:30-1:30	Keynote
	Fatima Goss Graves, CEO and President, National Women’s Law Center
1:30-1:45	Break
1:45-3:00	Panel Three: Protecting Decisional Autonomy To Shape Identity And Families
	Deborah Brake, John E. Murray Faculty Scholar and Professor of Law, University of Pittsburgh School of Law, andJoanna Grossman, Ellen K. Solender Endowed Chair in Women and the Law and Professor of Law, SMU Dedman School of Law, Beyond Pregnancy: Title IX and Reproductive Rights Laura Kessler, Professor of Law, University of Utah, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Discrimination Law Anibal Rosario Lebrón, Assistant Professor of Lawyering Skills, Howard University School of Law, Weaponizing Civil Liberties: A Crisis Lens Analysis to Sex, Gender, and Sexuality Equality Lynn Lu, Associate Professor of Law and Co-Director, Economic Justice Project, CUNY School of Law, Anti-Poverty or Anti-Privacy? Reimagining Welfare through Restorative Justice and “Radical Help” Emily Poor, Clinical Teaching Fellow, University of Baltimore School of Law (moderator)
3:00	Closing Remarks
	Michele Gilman, Venable Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore School of Law

 

 

 

Program: The Past and Future of Reproductive Choice

Forum: The Past and Future of Reproductive Choice

February 24, 2021 (Wednesday) / 5:00 pm

LIVE ONLINE EVENT

 

The Past and Future of Reproductive Choice

 

Linda Greenhouse, Senior Research Scholar, Yale Law School

Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School

Serena Mayeri, Professor of Law and History, University of Pennsylvania

 

As the future of Roe v. Wade, the landmark 1973 US Supreme Court case legalizing women’s right to choose an abortion, hangs in the balance, legal scholars Linda Greenhouse and Reva Siegel talk with Serena Mayeri about the long history of the struggle for reproductive justice in the US.  Among the topics they will consider are the past and present of what has been known since the 70s as the “pro-choice” position and how they see it faring both in the courts and in public opinion going forward. 

Cosponsored by the Department of History

Feminist Efforts to Disentangle Disputed Conceptions of Motherhood

Jennifer Hendricks, Disputed Conceptions of Motherhood, forthcoming, Oxford Handbook of Feminism and Law in the U.S. (Deborah Brake, Martha Chamallas & Verna Williams, eds.)

This chapter, which will appear in the Oxford Handbook of Feminism and Law in the U.S. (Deborah Brake, Martha Chamallas & Verna Williams, eds.), examines feminist efforts to disentangle womanhood, biological motherhood, and social motherhood in order to promote equality in the law. It argues that this approach has produced important feminist influence and results in some areas of law but has led to a lack of feminist influence in areas where biological and social motherhood overlap, such as parental rights, reproductive technology, and surrogacy. Just as the law needed a theoretical boost that went beyond gender neutrality to see the gendered harm of sexual harassment at work, it needs a feminist account of pregnancy and birth that recognizes that these biological processes have social, relational dimensions.