Gender and the Law Blog

Beety and Oliva on "Policing Pregnancy 'Crimes'"

Valena E. Beety and Jennifer D. Oliva have published "Policing Pregnancy 'Crimes'" in Volume 98 of the N.Y.U Law Review as an Online Feature. The abstract provides: 

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds defense attorneys of their obligation to challenge junk science in the courtroom.

The essay concludes: 

States have pursued criminal charges against pregnant people even when there was no scientific evidence to support any claim that they had caused harm to their fetus and when their children were born healthy. Worse yet, the policing of pregnant people heightens—rather than mitigates—maternal and fetal health risks because it incentivizes individuals to avoid healthcare services. It also instigates a cascade of attendant negative outcomes, including but not limited to the potential loss of custody of children, difficulty in obtaining employment, and exclusion from public benefit programs. There is little doubt that Dobbs will motivate the enhanced surveillance, policing, and prosecution of pregnant people. The post-Dobbs world is shaping up as an extraordinarily dangerous place for pregnant people and their families, and it is critical that defense attorneys are prepared to vigorously challenge the state’s evidence in these cases.

Read the full article here: https://www.nyulawreview.org/online-features/policing-pregnancy-crimes/. 

Transcript of Abortion Pill Hearing Released

NPR has posted the full transcript of the Texas hearing Judge Matthew Kacsmaryk held last Wednesday in the Alliance for Hippocratic Medicine v. FDA case challenging the agency's 2000 approval of mifepristone. 

Jessica Valenti, the author of "Abortion Every Day" has an excellent explainer of the lawsuit and its implications (authored by researcher Grace Haley). The explainer outlines the anti-abortion strategy, the bio of Judge Kacsmaryk, the groups behind the litigation, and the possible outcomes of the case.  

UN Chief Warns Gender Equality is 300 Years Away

Wash Post, "Gender Equality is 300 Years Away", UN Chief Warns

Decades of advances on women’s rights are being wound back and the world is now hundreds of years away from achieving gender equality, according to the United Nations.

Speaking to the U.N. Commission on the Status of Women on Monday, ahead of International Women’s Day on Wednesday, Secretary General António Guterres said gender equality is “vanishing before our eyes.”

He drew special attention to Afghanistan, where Guterres said women and girls “have been erased from public life” following the return to Taliban rule. The regime has barred women and girls from universities and some schools. The Taliban has also blocked many female aid workers, imperiling key aid programs, including those overseen by the U.N.

In many places, women’s sexual and reproductive rights “are being rolled back,” he said. *** Maternal mortality is on the rise, he said, and the coronavirus pandemic has forced millions of girls out of school, and mothers and caregivers out of the global workforce.***

 

The U.N. chief also said gender equality is at risk from a technology industry heavily skewed toward a male workforce. Men outnumber women by 2 to 1 in the tech industry, and in the growing field of artificial intelligence, that gender gap rises to 5 to 1, according to Guterres, putting the world-changing industry at risk of “shaping our future” in a gender-biased way.

Guterres also trained a spotlight on the “misogynistic disinformation and misinformation” he said was flourishing on social media, and what is known as gender trolling aimed at “silencing women and forcing them out of public life.”

Greer Donley and Rachel Sachs Publish Wash. Post Op-Ed on the stakes of the Texas abortion medication suit

Greer Donley and Rachel Sachs have published an Op. Ed. in the Washington Post titled "The stakes in the Texas abortion medication suit are broader than just one pill."

If successful, this case could invite copycat lawsuits to limit other forms of politicized health care. Potentially at risk would be medications for a much larger range of indications, including contraception, HIV prevention and treatment, vaccines in general (as well as those specifically for covid-19), substance use disorder, gender-affirming care, and others. The sudden loss of needed medications could be particularly harmful on short notice. * * * It could chill innovation nationwide if political actors could circumvent the agency’s data-driven process by engaging the courts. Manufacturers might become wary of investing time and money into products for a wide range of conditions which may — decades down the line — be the subject of nuisance litigation. The pharmaceutical industry has grown increasingly risk averse in recent years. 

* * * 

Companies who have learned to navigate FDA requirements could no longer rely on one, predictable regulator but would be subject to conflicting judgments from around the country. Indeed, the industry has argued in favor of regulatory harmonization globally to ensure that the trials they conduct to demonstrate safety and efficacy are accepted by a broad range of national regulators, not just one. Lawsuits such as this reduce the predictability of the regulatory process within the United States.

These concerns could exacerbate existing health disparities. The products most likely to be at risk are disproportionately used by women, LGBTQ people, those with substance use disorders, and other marginalized groups. These populations are already underrepresented in drug discovery.

* * * 

[T]he stakes in this lawsuit are broader than just one pill and one medical indication. Mifepristone’s safety and efficacy record is outstanding. The FDA followed sound procedures in approving it. If a judge can remove mifepristone from the market with such little notice, all drugs are vulnerable — those on the shelf, and those yet to be.

FDA Draft Guidance Seeks to Lift Historic Gender-Based Exclusions on Blood Donations After Years of Advocacy

The FDA published a draft guidance proposing revisions to its blood donation requirements, materials, questionnaires, and procedures to eliminate categorical exclusions against men who have had sex with men in the past three months, instead moving to gender-neutral individual assessments.

NPR reported on the history of this prohibition.  

The restrictions on donating blood date back to the early days of the AIDS epidemic and were designed to protect the blood supply from HIV. Originally, gay and bisexual men were completely prohibited from donating blood. Over time, the FDA relaxed the lifetime ban, but still kept in place some limits.

* * *   

The new proposed policy would eliminate the time-based restrictions on men who have sex with men (and their female partners) and instead screen potential donors' eligibility based on a series of questions that assess their HIV risk, regardless of gender. Anyone taking medications to treat or prevent HIV, including PrEP, would not be eligible.

The FDA stated the following: 

We, FDA, are issuing this draft guidance to receive comments on revised recommendations for evaluating donor eligibility using individual risk-based questions.  This draft guidance, when finalized will provide you, blood establishments that collect blood or blood components, including Source Plasma, with FDA’s revised donor deferral recommendations for individuals with increased risk for transmitting human immunodeficiency virus (HIV) infection.  We are also recommending that you make corresponding revisions to your donor educational materials, donor history questionnaires and accompanying materials, along with revisions to your donor requalification and product management procedures.  This guidance, when finalized, will supersede the guidance entitled, “Revised Recommendations for Reducing the Risk of Human Immunodeficiency Virus Transmission by Blood and Blood Products” dated April 2020, updated August 2020 (April 2020 guidance).  The recommendations contained in this draft guidance, when finalized, will apply to the collection of blood and blood components, including Source Plasma.

Comments may be submitted online regarding the draft guidance.  

New Lawsuit by Pill Manufacturer Challenges State Bans on Abortion Pills

NYT, New Lawsuit Challenges State Bans on Abortion Pills

A company that makes an abortion pill filed a lawsuit Wednesday morning challenging the constitutionality of a state ban on the medication, one in what is expected to be a wave of cases arguing that the federal Food and Drug Administration’s approval of the pill takes precedence over such restrictive state laws.

The case was filed in federal court in West Virginia by GenBioPro, one of two American manufacturers of mifepristone, the first pill used in the two-drug medication abortion regimen. A ruling in favor of the company could compel other states that have banned abortion to allow the pills to be prescribed, dispensed and sold, according to legal experts. If the courts reject the company’s arguments, some legal scholars say the decision could open the door for states to ban or restrict other approved drugs, such as Covid vaccines or morning-after pills.

The case is one of a number of lawsuits testing legal arguments in the aftermath of the Supreme Court’s ruling last June overturning the federal right to abortion. Also on Wednesday, an obstetrician-gynecologist sued officials in North Carolina, which still allows abortion, challenging the state’s requirements for using mifepristone because they go beyond F.D.A. regulations on the drug. In November, abortion opponents filed a lawsuit challenging the F.D.A.’s approval of mifepristone nearly 23 years ago and asked that the courts order the agency to stop allowing the use of the drug and the second drug, misoprostol, for abortion.

Taken together, the cases underscore how pivotal medication abortion has become in legal and political battles. With pills now being used in more than half of abortions in America, and with recent F.D.A. decisions allowing patients to have pills prescribed by telemedicine and obtained by mail or from retail pharmacies, states that ban or restrict abortion are increasingly targeting the medication method.

Artist Michelle Browder Honoring the "Mothers of Gynecology" with a New Museum and Clinic

Daja E. Henry with the 19th News has written about how A new museum and clinic will honor the enslaved "Mothers of Gynecology." This site is expected to break ground on Mother's Day 2023. It sits less than a mile away from Alabama's state capitol. The project will convert James Marion Sims' makeshift hospital into a $5.5MM museum that will include a clinic and training facilities for midwives, doulas, and medical students. The site will honor the enslaved women and girls who "shed blood for the creation of American gynecology, despite their inability to consent." The artist is Michelle Browder. Author, Daja Henry, writes the following about the project: 

Browder plans to expand a two-story building that has stood there since the late 1800s and add a third floor, which will house the Mothers of Gynecology Health and Wellness Clinic. The clinic will be a primary care unit that helps women who cannot afford those services, while also providing a space for doulas, midwives and OB-GYNs to collaborate to offer solutions to end the maternal health crisis.

* * *  

Sims, a well-respected figure in American medicine, is known for inventing the speculum and the Sims position, which are both used during gynecological examinations. To arrive at those advances, he purchased and leased enslaved women, whom he operated on without anesthesia, to perfect treatments for White women. For five years, they labored at Sims’ side and under his torturous hand. They were the subjects of dozens of procedures with no anesthesia. They were also tasked with holding each other down and assisting with the procedures, along with the typical work of an enslaved woman. Anarcha [one of the girls honored in a prior art work of Bowder's] underwent at least 30 surgeries during Sims’ experimentation. She was 17 years old at the time of her first surgery. 

* * * 

Today’s maternal health care crisis that is killing Black women and babies is a natural continuation of the science birthed from violence, experts said. The mistreatment of Black people and their bodies has been there every step of the way. 

New Book: Anthropological Study of Female Alliance as Protective for Domestic Violence

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.

Implicit Gender Effects in Denying Patents under Australian Law

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

Digital Privacy for Reproductive Choice in the Post-Roe Era

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.

 

Subscribe to this blog via Feedly, NewsBlur, or Inoreader or follow on Twitter @ProfTracyThomas & @jrabrams 

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

Marina Gertsberg, The Unintended Consequences of #MeToo - Evidence from Research Collaborations 

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.

Unequal Representation of Women in Clinical Research

Allison Whelan, Unequal Representation: Women in Clinical Research, Cornell Law Review Online 2021

Abstract:

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.

Introduction:

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. 

Study Shows Female Scientists Don't Get the Authorship Credit They Deserve

Female Scientists Don't Get the Credit They Deserve. A Study Proves It

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.

 

The study, published Wednesday, found that female scientists are 13 percent less likely than men to be named as authors on articles and 58 percent less likely than men to be named on patents, even while controlling for factors including job title, field, team and days worked. As the study’s authors write, the findings suggest that women’s contributions to science continue to be underestimated, 70 years after the British chemist Rosalind Franklin was denied credit for her role in the discovery of the structure of DNA.

 

“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.”

Supremacy Clause May Preempt State Restrictions on Abortion Pills

FDA Abortion Pill Policy May Preempt State Restrictions

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

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.

STEM Gender Inequality Means that Women's Ideas are Less Likely to be Built Upon

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.

A Mourning Mom Identifies Cause of SIDS

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
interventions.

These findings have implications for the patchwork of state laws governing SIDS throughout the country. 

 

 

Situating the Law of Menopause in the Broader Socio-Legal Context of Pregnancy and Menstruation

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.

Women are Calling Out Medical Gaslighting

NYT, Women are Calling Out "Medical Gaslighting"

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.