Female scientists are “significantly less likely” than men to be credited as authors on scholarly articles or named on patents to which they contribute — a systemic exclusion that probably has negative impacts on female scientists’ careers, according to a new study published in the journal Nature.
Wednesday, November 2, 2022
Q&A with Prof. Diana Rosenfeld, What Our Primate Ancestors Can Teach Us About Dismantling the Patriarchy
Women’s organized resistance to male dominance continues to make headlines around the world, from young women leading an uprising against the restrictive policies of the theocratic regime in Iran, to feminist activism in the U.S. in response to the Dobbs decision that overturned Roe v. Wade.
A new book shines an intriguing new light on the possibilities for alliances among women in the ongoing struggle to end men’s violence against women by examining the social organization of one of our closest primate relatives. In The Bonobo Sisterhood, Harvard Law School professor Diane Rosenfeld shows how we have much to learn from the bonobos about how to eliminate male sexual coercion.
Diane Rosenfeld: It blew my mind when I learned from my friend and colleague Richard Wrangham, the renowned anthropologist, about how bonobos protect one another from male aggression. I saw how this connects directly to my work on domestic violence and sexual assault law.
For those who don’t know, bonobos are primates that look like but are a separate species from chimpanzees. They share 98.7 percent of our DNA, like chimpanzees, but have a completely different social order. If a female bonobo is aggressed upon, she lets out a special cry and all the other females within earshot come rushing to her aid, forming an instantaneous coalition to defend her. They come whether they know her, like her, or are related to her. We can take a critical lesson from that as humans! Evolutionarily, they have eliminated male sexual coercion.
Wednesday, October 26, 2022
Vicki Huang, Sue Finch & Cameron Patrick, Patents and Gender: A Big Data Analysis of 15 Years of Australian Patent Applications, 45 Univ. New South Wales L. J. (2022).
Recent recommended changes to Australia’s patent laws could narrow the scope of patentable inventions. We argue this could have a comparatively bigger impact on female inventors who we find clustered in the life sciences. We examine 309,544 patent applications filed with IP Australia (the majority from international applicants) across a 15-year period (2001–15) and attribute a gender to 941,516 inventor names. Only 23.6% of patent applications in this dataset include at least 1 female inventor. The average overall success rate irrespective of gender was 75.0%, but the odds of success increased with increasing numbers of male inventors on a team. The addition of female inventors to a team did not have the same effect. We propose that the gender disparity could arise from implicit gender effects (examiner or patentee) during patent prosecution. https://www.unswlawjournal.unsw.edu.au/article/patents-and-gender-a-big-data-analysis-of-15-years-of-australian-patent-applications
Tuesday, October 18, 2022
Aziz Huq & Rebecca Wexler, Digital Privacy for Reproductive Choice in the Post-Roe Era, 97 NYU L Rev. (forthcoming)
The overruling of Roe v. Wade unleashed a torrent of regulatory and punitive activity restricting lawful reproductive options. The turn to the expansive criminal law and new schemes of civil liability creates new, and quite different, concerns from the pre-Roe landscape a half-century, ago. Reproductive choice, and its nemesis, rests on information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion begin with clinic closings, but quickly will extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely digital. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the mere act of doing so places them in legal peril.
This Article offers the first comprehensive accounting of abortion-related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal and economic terrain upon which firms, individuals, and states will make privacy related decisions. Building on this political economy, we develop a moral and economic argument to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law, and should actively resist restrictionist states’ efforts to instrumentalize them into their war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance, explaining in particular a range of powerful yet legal options for firms to refuse cooperation with restrictionist criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from restrictionist warrants, subpoenas, court orders, and judicial proceedings.
Thursday, July 7, 2022
Legal Scholars Argue that Femtech Products Poised to Fill Gaps as States Try to Limit Birth Control and Abortion Access
Leah Fowler & Michael Ulrich, Femtechnodystopia
Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral changes that support the health of the fetus. However, more nefarious actors also have interests in these technologies and the intimate information they contain. In the wrong hands, these tools can effectuate increased reproductive control and criminalization. What happens next will depend on whether we can improve efficacy, limit foreseeable privacy risks, and raise consumer awareness. But the current legal and regulatory landscape makes achieving these goals far from a straightforward proposition, further complicated by political influence and a conservative Supreme Court. Thus, this Article concludes with multiple solutions involving diverse stakeholders, offering that a multifaceted approach is needed to keep femtech’s dystopian future from becoming a reality.
Study Shows Unintended Consequences of MeToo in Fewer Research Projects and Collaborations for Junior Women Academics
In this study, I use research collaborations between junior female and male academics at U.S. Economics departments as a laboratory in which to analyze how #MeToo affected workplace interactions between men and women. I find that junior female academics start fewer new research projects after the #MeToo movement. This decrease is driven by a decline in the number of collaborations with new male co-authors at the same institution. The negative effect is more pronounced in locations with more liberal gender attitudes. Moreover, I show that the drop in collaborations is concentrated in universities with both a high number of sexual harassment cases and more ambiguous sexual harassment policies. These results suggest that the social movement had unintended consequences that disadvantaged the career opportunities of the protected group. The study has also important implications for the design of organizational sexual harassment policies.
Thursday, June 23, 2022
Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021
This Article engages with legal and social history to analyze the present-day consequences of two distinct, yet related historical wrongs: the exclusion of pregnant women and women of child-bearing potential from medical research and the unknowing or unwilling medical experimentation on women of color. It provides a critical contribution to the ongoing discourse about clinical trial representation, arguing in favor of policy considerations rooted in law and society to address the harms caused by this deeply rooted and problematic history.
The underrepresentation of women in clinical research throughout history is a well-recognized problem. Progress has been made, but there is still room for improvement and it must be recognized that not all women have been or continue to be treated equally in the context of clinical research. On the one hand, there is a long history of paternalism and lack of respect for women’s autonomy that has resulted in the exclusion of women from research, particularly pregnant women and women of childbearing potential. The potential consequences of this are many, including harm to women’s health because diseases and treatments can affect men and women differently.
On the other hand, there is also a long history of women of color being unknowingly or unwillingly subjected to unethical medical experiments and procedures. This includes experimentation during human enslavement, carried out most famously by doctors like James Marion Sims, who abused and terrorized Black women who he rented as slaves. He performed myriad gynecological experiments on these women, often without providing them any anesthesia. It is a glaring reflection on the multiple cruelties of slavery as well as the American experience of medical experimentation.
However, the horrors experienced by women of color in the medical setting are far more extensive, spanning into the nineteenth, twentieth, and twenty-first centuries. Famously, throughout the Jim Crow period, Black women became the unwitting subjects of eugenics platforms, legally blessed by the 1927 Supreme Court decision Buck v. Bell. In Mississippi, the frequency and normalization of sterilizations are revealed by the term “Mississippi Appendectomy” becoming associated with the practice. The term reveals the mistruths told to Black women and girls, as well as the callousness and neglect used to obtain consent for the real surgeries taking place. Most recently, during the COVID-19 pandemic, allegations of sterilizations at immigrant detention centers only further the concerns related to these matters, particularly as they affect vulnerable, poor women. This history has contributed to women of color’s distrust in the government, research institutions, and the medical system in general.
These two historical wrongs are distinct, yet related in that they both harm women’s health, dignity, and autonomy. As this Article will discuss, much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article, therefore, is the inadequate representation of women of color, and people of color more generally, in clinical trials.
“These are pretty big gaps, and they’re incredibly persistent,” said co-author Britta Glennon, assistant professor of management at the University of Pennsylvania’s Wharton School of Business.***
The findings — which come from an extensive data set and were confirmed by a survey and follow-up interviews — both partially explain and probably contribute to the underrepresentation of women in science, Glennon said: “If you’re seeing that you’re not getting credit for the work that you do, or even that your senior female colleagues aren’t getting credit for the work that they do, that’s pretty discouraging — so I think we would all be very surprised if there weren’t a significant impact on careers.”
Wednesday, June 8, 2022
In December of 2021, the FDA lifted some of its burdensome restrictions on the abortion pill mifepristone, including the requirement that healthcare providers must meet in-person with patients to dispense the medication. Nineteen states, however, continue to impose in-person dispensing requirements and many impose other restrictions that go beyond FDA requirements, like only allowing physicians to dispense the medication and requiring multiple in-person visits to obtain the medication. In October, Texas banned clinicians from prescribing abortion pills after seven weeks of pregnancy—three weeks before the current FDA time limit of 10 weeks. Legal scholars and advocates are questioning the constitutionality of these additional restrictions on abortion pills.
University of Pittsburgh law professor Greer Donley argues that state bans of an FDA-approved abortion medication may violate the supremacy clause of the U.S. Constitution. The supremacy clause establishes that federal laws take precedence over state laws that are in conflict, and prohibits states from interfering with matters that are exclusively entrusted to the federal government—such as the regulation of medications.***
A similar lawsuit has already been filed by GenBioPro, which produces a generic form of the abortion pill mifepristone. The company has sued the state of Mississippi in federal court, challenging state restrictions that go beyond the FDA rule, including a law allowing only physicians to dispense the drug and requiring in-person dispensing. That suit is currently pending.
“It gets a little bit more complicated when we start thinking about the post-Roe world and abortion bans. I think if a state were to pass a law that specifically banned mifepristone or misoprostol that would be preempted,” said Greer. “But I think it’s a really hard question about whether or not a state’s general abortion ban is preempted
Monday, June 6, 2022
Exposing the Patent Archives as an Inaccurate Record of US Invention When Viewed Through the Lens of the Black Woman
Kara Swanson, Inventing While a Black Woman: Passing and the Patent Archive, 25 Stanford Tech. L. Rev. (forthcoming)
This Article uses historical methodology to reframe persistent race and gender gaps in patent rates as archival silences. Gaps are absences, positioning the missing as failed non-participants. By centering Black women and letting the silences fill with whispered stories, this Article upends our understanding of the patent archive as an accurate record of US invention and reveals powerful truths about the creativity, accomplishments, and patent savviness of Black women and others excluded from the status of “inventor.” Exposing the patent system as raced and gendered terrain, it argues that marginalized inventors participated in invention and patenting by situational passing. It rewrites the legal history of the true inventor doctrine to include the unappreciated ways in which white men used false non-inventors to receive patents as a convenient form of assignment. It argues that marginalized inventors adopted this practice, risking the sanction of patent invalidity, to avoid bias and stigma in the patent office and the marketplace. The Article analyzes patent passing in the context of the legacy of slavery and coverture that constrained all marginalized inventors. Passing, while an act of creative adaptation, also entailed loss. Individual inventors gave up the public status of inventor and also, often, the full value of their inventions. Cumulatively, the practice amplified the patent gaps, systematically overrepresenting white men and thus reinforcing the biases marginalized inventors sought to avoid. The Article further argues that false inventors were used as a means of appropriating the inventions of marginalized inventors. This research provides needed context to the current effort to remedy patent gaps. Through its intersectional approach, it also brings patent law into broader conversations about how law has supported systemic racism and sexism and contributed to societal inequality.
Michael Bikard & Isabel Fernandez-Mateo, Standing on the Shoulders of (Male) Giants: Gender Inequality and the Technological Impact of Scientific Ideas"
We argue that gender inequality in science and technology means that ideas are less likely to be built upon if their author is a woman versus a man. Testing this empirically is challenging because men and women tend to work on different ideas whose potential is largely unobservable. To address this challenge, we exploit the occurrence of simultaneous discoveries in science – i.e., instances when a man and a woman have published the same idea around the same time – and track the citations to their subsequent publications in patented inventions. We find that scientific publications receive fewer patent citations, that is, they have a lower technological impact, when their main author is a woman. This gap is not driven by women’s lower propensity to produce patented inventions based on their own ideas, but rather by other inventors’ lower likelihood to build on those ideas. Additional analysis suggests that supply-side factors alone, such as the greater saliency of men’s work, are unlikely to drive our results. Rather, inventors seem to pay more attention to men’s ideas. Our research highlights that gender inequality shapes more than individuals’ careers. It also shapes the extent to which their ideas are used to create new technologies.
Monday, May 16, 2022
Scary Mommy tells a powerful story of how a grieving mother and scientist has identified the cause of Sudden Infant Death Syndrome. The findings were published in the June 2022 publication of The Lancet. The publication provides the following contextual summary of the research:
Evidence before this study
Despite the effectiveness of public health campaigns in reducing the incidence of Sudden Infant Death Syndrome (SIDS), SIDS remains the major cause of infant death in western countries. The “triple risk model” hypothesises that SIDS deaths result from coincident occurrence of a vulnerable infant, a critical developmental period, and an exogenous stressor. Despite intensive research, identification of any specific vulnerability prior to the sudden death has remained elusive. And, while autonomic dysfunction has long been considered a candidate for this vulnerability, studies have been hampered by reliance on post-mortem samples.
Added value of this study
We found that Butyrylcholinesterase Activity, measured in dried blood spots taken 2-3 days after birth, was significantly lower in babies who subsequently died of SIDS compared to living controls and other Non-SIDS infant deaths. This study identifies a biochemical marker that differentiates SIDS infants from control cases and those dying from other causes, prior to their death. We postulate that this decreased activity of Butyrylcholineserase represents an autonomic cholinergic dysfunction and therefore an inherent vulnerability of the SIDS infants.
Implications of all the available evidence
This finding represents the possibility for the identification of infants at risk for SIDS infants prior to death and opens new avenues for future research into specific
These findings have implications for the patchwork of state laws governing SIDS throughout the country.
Thursday, April 21, 2022
Emily Gold Waldman, Naomi Cahn & Bridget J. Crawford, Contextualizing Menopause in the Law, Harvard J. L. & Gender (forthcoming)
“It is horrendous, but then it’s magnificent,” says one character about menopause in an episode of the 2019 Netflix comedy Fleabag. Her younger interlocutor is incredulous at this proclamation. That younger character, and even the audience, may be somewhat taken aback by this frank discussion. After all, menopause is not a subject that is commonly discussed, let alone praised. Whether among friends, acquaintances, or colleagues (fictional or not), silence about menopause is more likely the norm. This is true in the law, too. The law mostly ignores menopause.
The law’s silence about menopause is linked to a broader cultural silence about the inevitable consequences of the aging process. It is also linked to longstanding silence and stigma around the menstrual cycle. A growing menstrual advocacy movement, however, has begun to chip away at stigmas and shame surrounding menstruation, in the course of pursuing policy and legal changes that make menstrual products more affordable and available. This Article imagines a role for the law in addressing challenges faced by those transitioning to menopause, whether in the workplace or beyond. It considers why that has not yet occurred, and explores the possible contours of a future legal landscape.
To inform this analysis, the Article situates its discussion of menopause in a broader context: the socio-legal treatment of pregnancy, breastfeeding, and menstruation. By viewing the four reproduction-associated conditions or processes together, rather than in silos, it is possible to discern a hierarchy of favorable treatment, with breastfeeding and pregnancy at the top, trailed by menstruation, and with menopause at the bottom. The Article also highlights a connective thread across these processes: law’s abnormal/normal binary often maps uneasily onto them.
Ultimately, the Article argues that the law should move beyond individual one-off accommodations for “abnormal” manifestations of these conditions. The law should instead recognize and incorporate protections for the broad spectrum of what can be considered “normal” experiences. Such an approach challenges the abnormal/normal dichotomy and is necessarily part of a larger scholarly dialogue that challenges binary thinking about gender and disability. By chipping away at the stigma surrounding menopause, this Article seeks for menopause a socio-legal solicitude equal to the one that exists for breastfeeding and pregnancy and that is beginning to emerge for menstruation.
Thursday, March 31, 2022
Patients who have felt that their symptoms were inappropriately dismissed as minor or primarily psychological by doctors are using the term “medical gaslighting” to describe their experiences and sharing their stories on sites like Instagram. The term derives from a play called “Gaslight” about a husband’s attempt to drive his wife insane. And many patients, particularly women and people of color, describe the search for accurate diagnosis and treatment as maddening.
“We know that women, and especially women of color, are often diagnosed and treated differently by doctors than men are, even when they have the same health conditions,” said Karen Lutfey Spencer, a researcher who studies medical decision-making at the University of Colorado, Denver.
Studies have shown that compared with men, women face longer waits to be diagnosed with cancer and heart disease, are treated less aggressively for traumatic brain injury, and are less likely to be offered pain medications. People of color often receive poorer quality care, too; and doctors are more likely to describe Black patients as uncooperative or non-compliant, which research suggests can affect treatment quality.***
Women say doctors frequently blame their health problems on their mental health, weight or a lack of self-care, which can delay effective treatment. For instance, Dr. Spencer’s research suggests that women are twice as likely as men to be diagnosed with a mental illness when their symptoms are consistent with heart disease.***
Women may be misdiagnosed more often than men, in part, because scientists know far less about the female body than they do about the male body, even though “there are biological differences that go down to the cellular level,” said Chloe Bird, a senior sociologist at Pardee RAND Graduate School who studies women’s health.
In 1977, the U.S. Food and Drug Administration began recommending that scientists exclude women of childbearing years from early clinical drug trials, fearing that if enrolled women became pregnant, the research could potentially harm their fetuses. Researchers were also concerned that hormonal fluctuations could muddle study results.
Today — thanks in large part to a law passed in 1993 that mandated that women and minorities be included in medical research funded by the National Institutes of Health — women are more systematically included in studies, yet there are still huge knowledge gaps.
Monday, February 28, 2022
Sonia Rankin on "Would You Make it to the Future? Teaching Race in an Assisted Reproductive Technologies and the Law Classroom"
Sonia M. Gipson Rankin has posted a forthcoming work titled Would You Make It to the Future? Teaching Race in an Assisted Reproductive Technologies and the Law Classroom on SSRN. This work is forthcoming in the Family Law Quarterly. The abstract previews:
Would you make it to the future? For the last five years, I have started my Assisted Reproductive Technology (ART) lecture in Family Law with this question. Students take the query seriously. They ponder their lived experiences such as home training, medical history, education, financial well-being, personality traits, work ethic, and social graces when determining if they would be the “model DNA” someone might select in a future society. The good-natured jokes about being nearsighted, having a pitiful jump shot, and wearing orthodontic headgear turn reflective when someone raises the question: would someone in the future select my race?
In this paper, Section I describes how race connects to family law. Section II explains cognitive dissonance theory, color blindness ideology, and the relationship of these theories to racial inequality in family law and how this connects to assisted reproductive technologies. Section III provides the framework for race-centered learning outcomes, a relevant rubric for reflection papers, and examples of case law and legislation that addresses race and ART. Section IV concludes by addressing how these skills and assessments in our family law curricula can impact systemic change in the practice of family law and the legal academy.
The article concludes:
Legal education must be at the forefront of assisted reproductive technology. Our students will serve be crafters and litigators of ART contracts and decisions, policymakers and drafters of legislation, and will hold the hands of clients planning the biggest decisions of their futures. Showing students distinctions in family law shows the academy is responsive to realties in the practice of law. Race can serve as the first way to unpack cognitive dissonance. Professors must show the fallacies in the law so students can learn how to use their agency to critique the law and be excellent advocates for their clients. A racial cognitive dissonance lens allows students to review the impact of all the law, given the role of technology in the law that did not exist when the law was being formed. Understanding cognitive dissonance and cultural competency can help reduce legal issues in family law and ART.
A tagline for Gattaca [a "1997 science fiction film [depicting] a future society that uses reproductive technology and genetic engineering to produce genetically enhanced human beings"] states, “There is no gene for the human spirit.” There is a part of our lived journey that cannot be captured by DNA nor contract law but can only be bettered through our interactions with each other.
Wednesday, January 12, 2022
Bridget Crawford, Emily Gold Waldman, Naomi Cahn, Working Through Menopause, Washington U. L. Rev. (forthcoming)
There are over thirty million people ages 44 to 55 in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers inevitably will experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic, because of cultural stigmas and attitudes about aging and gender. Yet menopause raises critical issues at the intersections of gender equity, disability, aging, transgender rights, and reproductive justice. This Article imagines how the law would change if it accounted for menopause and the associated unequal burdens imposed.
This Article makes four contributions to legal scholarship. First, it identifies the intersections of menopause and the law in a way that counters the larger culture of silence, stigma, and shame. Second, it analyzes the uneasy fit between menopause and existing U.S. anti-discrimination doctrines. Third, the Article uses a comparative lens to explore how and why menopause is becoming a priority issue for the government, private employers, and workers in the United Kingdom. Finally, the Article situates menopause in U.S. equality jurisprudence broadly and suggests a place for menopause in employment law in particular. It sets out a normative vision for menopause equity in the workplace and suggests possible pathways for achieving it.
Diane Hoffman & Katherine Goodman, Allocating Scarce Medical Resources During a Pandemic: Can States and Healthcare Systems Consider Sex? Should They?,
University of Maryland Legal Studies Research Paper No. 2021-13
Nearly two years into the pandemic, COVID-19 has touched all U.S. states and populations. However, severe outcomes and deaths have not been borne equally. As is now well recognized, there have been significant demographic disparities by age and race: nearly 80% of all U.S. COVID-19 deaths have been among persons aged 65 or older, and hospitalization and death rates for Black and Hispanic patients with COVID-19 are two to three times higher than the rate for White patients. What has received much less attention, however, is an additional demographic disparity evident in the COVID-19 pandemic — sex. Nationally there are 20% more COVID-19 deaths among men, and men have higher COVID-19 mortality rates in every U.S. state with publicly available data. Numerous studies have established that male sex imposes an independent, approximately 30 percent higher risk of death, even when accounting for other risk factors, such as hypertension and obesity, that are more common among men.
While there has been a significant amount of discussion in the press and the academic literature regarding the role that race can or should play in decisions to allocate scarce medical resources such as vaccines, there has been much less attention paid to the role of sex in the allocation of early-intervention treatments, such as monoclonal antibodies (mAbs) and the soon-to-be-authorized oral antivirals. In this article, we seek to remedy this gap in the literature. We use a hypothetical but realistic scenario in which states have available to them a treatment that is very similar to currently available mAbs and in which therapeutic demand greatly exceeds the available supply. Even if limited to individuals over the age of 65 with one or more comorbidities, there is not enough of the therapy to treat these high-risk individuals and some sort of further triaging would be necessary. Given the strong data that male sex is an independent risk factor for poor COVID-19 outcomes, we speculate that states and/or hospital systems might wish to use sex as one risk factor, among many, in an algorithm to calculate a patient’s probability of experiencing hospitalization or death from COVID-19. These estimates, in turn, would be used to allocate this scarce medical resource to highest-risk individuals. We then ask two questions: (1) whether, as a legal matter, sex would be a permissible factor to incorporate into allocation criteria; and (2) whether, as a normative matter, sex should be considered in allocation of early-intervention therapies for COVID-19.
In answering the legal question, we first look at the possibility of successful challenges under the Equal Protection Clause of the 14th Amendment and then at possible challenges under Section 1557 (the antidiscrimination provision) of the Affordable Care Act. As to the former, we conclude that constitutionality could depend upon whether the federal courts view the basis for differential treatment as one based primarily upon biology, or upon a combination of biology and socio-cultural factors. Although we believe there is room for the courts to find that either basis is constitutionally valid, courts would be more likely to find it so if they analyzed it as a biological difference.
Under the Affordable Care Act, we conclude that it is much more difficult to predict how a federal court would rule. Section 1557 prohibits discrimination “on the basis of sex” in healthcare facilities and in the administration of healthcare. The statute permits the importation of Title IX jurisprudence in interpreting this provision. Courts, in interpreting Title IX, have also looked to Title VII case law. Each of these Titles have exceptions that permit distinctions “on the basis of sex” under certain circumstances. Whether courts would apply Title VII jurisprudence to Section 1557 is an unknown, even if it has been imported to Title IX. Additionally, whether courts would apply the exceptions provided in Title IX and Title VII to Sec. 1557, and how they would apply those exceptions, is difficult to predict. We argue that because of the flexibility the Court possesses in applying the relatively new Section 1557, as a normative matter, the Court should permit the use of sex as a factor in allocating early treatments that can prevent severe COVID-19 outcomes. We believe such a conclusion is justified by both a utilitarian framework of maximizing lives saved and stewarding scarce medical resources and by an egalitarian framework of providing individuals with the resources they need to achieve the same or similar outcomes.
Monday, November 29, 2021
A landmark study by Uplift Lab of Oregon State University, a Research and Reproductive Equity Laboratory, offers important data supporting the safety of waterbirth. The press release first explains the significance of the study and its data set:
[The authors] compared 35,060 pregnancies from all 50 states: 17,530 water births and 17,530 non-water births. A unique aspect of the OSU study was that they were able to match pregnancies within the two groups on more than 80 covariables, such as age, education level and pregnancy characteristics. This propensity score method ensured a direct comparison between the two groups.
The authors offer a summary of the key findings here. They also offer a link to request the full study from the researchers. The press release summaries these findings:
In the propensity-matched analysis, the only maternal outcome where water births resulted in a slightly elevated risk was postpartum uterine infection. Water births were associated with an additional six postpartum uterine infections per 10,000 water births compared with non-water births. However, there was no increase in risk of being hospitalized for infection.
Furthermore, water births were associated with lower risks for several other maternal outcomes, including 64 fewer hemorrhages per 10,000 births, and 28 fewer hospitalizations in the first six weeks.
Water births were associated with 20 additional umbilical cord avulsions per 10,000 births. Avulsions occur when the umbilical cord snaps before it can be tied off and can cause hemorrhages. However, there were no infant deaths from cord avulsions and no difference in overall death rates between the two groups. There were 26 fewer infant hospitalizations per 10,000 water births, suggesting that the midwives attending these births successfully managed cases of avulsion.
Tuesday, November 23, 2021
By: Maayan Sudai
Forthcoming in: Law and Social Inquiry
Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.
Monday, November 8, 2021
Susan S. Lee & Aurora J. Grutman have published a new article Seeking Justice for Victims of the Guatemalan Sexually Transmitted Disease Experiments 1946-1948 in Volume 39 of the Columbia Journal of Gender and Law. The abstract states that:
Between 1946 and 1948, researchers sponsored by the United States government intentionally exposed more than 1,300 Guatemalan men and women to sexually transmitted diseases without their informed consent. Many of the surviving victims and their descendants suffer from the effects of untreated syphilis, gonorrhea, and similar illnesses. But the general public did not become aware of these non-consensual human experiments for more than sixty years. After a researcher uncovered the experiments, the United States government apologized to the Guatemalan victims, but the victims received no compensation for their injuries. So far, the efforts of the victims to receive legal redress for their injuries have been unsuccessful.This Article has two aims—one descriptive and the other conceptual. First, it seeks to bring awareness to the history and legacy of the Guatemalan sexually transmitted disease experiments. Second, it argues that litigation—even if unsuccessful—can play a role in amplifying the victims’ voices in a way that acknowledges their pain and helps to repair harm that was done. Even if the United States government is immune from formal legal liability, the government and the corporate interests that benefitted from the Guatemalan experiments, have a moral obligation to compensate the victims. The lens of reproductive justice makes clear this obligation. By critically investigating the Guatemalan sexually transmitted disease experiments and their legacy, one can better understand how gender, race, socioeconomic class, geopolitical power, and even geography informed the initial decision to conduct non-consensual human experimentation in that country and why the victims have been unable to obtain formal legal recognition for their suffering.
Wednesday, October 27, 2021
This piece is part of “Women on the Frontlines: COVID and Beyond,” an online symposium examining the political, economic, social and legal status of women.
Sponsored by the Cornell Law Review with the Center for Biotechnology and Global Health Policy and co-hosted by Ms. and others, the symposium brings to light the ways women labor and lead at the forefront of society, constituting the foundation of essential workers, and performing critical services from child to medical care. But during the pandemic, women (especially women of color) suffer persistent economic constraints; health and death disparities; obstruction of rights; and the troubling perceptions of expendability. Watch “Women on the Frontlines: COVID and Beyond” for a discourse about the role of women and pathways toward a more just society.
When I read that men are twice as likely to die from COVID-19 as women, I thought of science fiction books that posit pandemics that wipe out men. Only men. ***
Such scenarios could plausibly exist, given the biological differences between men and women. Women have a more aggressive immune response than do men. Women’s hormones, too, play a role in fighting infections by slowing the process that causes tissue damage, while testosterone can help an infection enter the cells.
During previous pandemics, including the 1918 Spanish flu and the SARS outbreak, men died at higher rates than women did—even when, as was the case with SARS, women had higher rates of infection.
Despite the knowledge we might gain about COVID-19 and other infectious diseases from research on women, most medical research focuses on men.
- A study of heart disease—the leading cause of death among women—was undertaken on 22,000 men and no women.
- A federal study on health and aging proceeded for twenty years with only male subjects.
- Absurdly, even though women account for 80 percent of autoimmune disorder patients, the main research subjects are—you guessed it—men.
- Even basic biological research is done mainly with male mice!
Male-Centered Research is Killing Us
The dangers from male-centered research are profound. Even though women consume 80 percent of medications in the U.S., drug research is still predominantly conducted on men and fails to consider how drugs act over the course of a woman’s menstrual cycle. Consequently, drugs can reach the market that are actually harmful to women. In fact, eight of the ten dangerous drugs removed from the market between 1997 and 2000 caused greater harm and fatalities for women.
A wide range of medications, including some antihistamines, gastrointestinal drugs, antibiotics and antipsychotics trigger potentially fatal heart arrhythmias more often in women than men.
In 1993, Congress adopted a law designed to ensure that women were allowed to participate in medical research.
When discrimination persisted, the National Institutes of Health in 2016 announced guidelines requiring federally-funded scientists to enroll women in studies, to disaggregate medical research data by sex, and to study female animals and female cells as well.