Gender and the Law Blog

Regulating the Substantive Gender Inequalities of Artificial Intelligence

Rosel Kim & Kristen Thomasen, Submission to The Standing Committee on Industry and Technology on Bill C-27, An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts 

While AI has been touted by industry as an innovative tool that will yield benefits for the public, examining the impact of AI from a substantive equality perspective reveals profound harms. As a leading national organization with a mandate to advance substantive gender equality, LEAF urges the government to centre substantive equality and human rights as the guiding principles when regulating the growing use of AI. With this goal in mind, LEAF submits that the scope of AIDA must - at least - be substantially expanded in order to enable regulations that can protect against all present and emerging harms from AI.

Gender, Health and the Constitution Conference at the Center for Con Law at Akron

 

Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas Genetin, Mike Gentithes, Dr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

National Academies Hosting Event on Legal Aftermath of Dobbs at the State Level

On October 27, 2023, at 12:00 EST, the Standing Committee on Reproductive Health, Equity, and Society within the National Academies of Sciences, Engineering, and Medicine and will host a public webinar on "legal strategies employed at the state level and their impact on the science of and access to reproductive health following the Dobbs v. Jackson Women’s Health Organization verdict."

Speakers include: 

• Ellen Wright Clayton, Craig-Weaver Professor of Pediatrics, Professor of Law, Professor of Health Policy, Vanderbilt University
• Joia Crear-Perry, Founder and President, National Birth Equity Collaborative
• Jessie Hill, Associate Dean for Research and Faculty Development and Judge Ben C. Green Professor of Law, Case Western Reserve University 
• Fran Linkin, Director of Research, Reproductive Rights, Six State Innovation Exchange
• Laurie Sobel, Associate Director, Women's Health Policy, KFF.

Following  the event, a "proceedings-in-brief will be produced by a designated rapporteur."  You can register here. 

Defining "Woman"

Camille Hebert, Defining Women, J. Gender, Race & Justice (forthcoming) 

The current debate about the meaning of the term “woman” has become a proxy for the culture wars over the rights of sexual and gender minorities, with social conservatives claiming that “sex” has traditionally meant “biological sex” and that the determination of one’s sex can easily be resolved by resort to biology. Progressives, on the other hand, argue for a broader definition of “sex,” to include gender identity. It has sometimes been assumed that the social conservatives have history on their side, but this article demonstrates that the courts, including the United States Supreme Court, have not traditionally defined “sex” in such a way as to protect only “biological sex”—better understood to mean sex assigned at birth. Instead, the courts have long interpreted statutory and constitutional prohibitions against sex discrimination to apply to a range of gender-related and sex-related characteristics, including compliance with traditional gender norms and gender roles. This article also demonstrates that the social conservatives do not have science on their side, because current understandings of biology do not support a strict male and female binary. In addition, gender identity itself is believed by scientists to have a biological basis, such that gender identity is a component of sex as defined by biology.

As state and federal legislators and some courts seek to define “sex” narrowly to mean sex assigned at birth, these efforts pose real and significant threats to the rights of transgender individuals to obtain appropriate identification documents, to use public spaces, to obtain healthcare, and to engage in other activities that cisgender individuals take for granted, including the right to participate in sports. And although these efforts are often said to be motivated by a desire to protect women, if “sex” is defined narrowly to mean sex assigned at birth, the protections that cisgender women and men are afforded by the anti-discrimination and other laws are likely to be narrowed as well. These efforts should be seen as what they are—an effort to impose a narrow and limiting definition of the meaning of “sex” in order to restrict protections for the sex-based and gender-based characteristics of all individuals and to impose their own notion of what it means to be “a woman.”

Lawsuit Challenges U.S. Dept. of Veteran's Affairs' Policy Limiting Access to IVF

The National Organization for Women is suing the United States Department of Veteran's Affairs over its policy limiting access to in vitro fertilization to only opposite-sex and married couples. For news coverage of the lawsuit, check out 19th News here.  The complaint alleges that the existing policy requires as follows:

6. Veterans and service members seeking coverage of IVF treatments must, together with a spouse, be able to provide their own sperm and eggs and are prohibited from using gametes from third parties (“Member Gamete Requirements”). Defendants’ policy also limits the benefit to service members and veterans who are lawfully married (“Marriage Requirements”).

 

7. Additionally, no matter how much an active-duty service member struggles with fertility, only active-duty service members with a “serious or severe” illness or injury from service can access IVF. Similarly, only veterans with infertility diagnosed as “service-connected” can receive IVF from VHA (“Service-Connection Requirements”).

 

8. The IVF policies facially exclude service members who are a) single or in an unmarried couple; b) unable to use their own eggs or sperm because of illness or injury; c) in a same-sex couple or couple with the same reproductive organs; or d) lacking a service-connected disability or Category II or III illness causing infertility.

 

The complaint alleges that this policy is discriminatory and it seeks injunctive and declaratory relief: 

9. By excluding service members and veterans from IVF coverage on the basis of sex, sexual orientation, marital status, and/or the cause of their infertility, Defendants’ discriminatory policies violate Section 1557 of the Affordable Care Act, the due process and equal protection guarantees of the Fifth Amendment of the Constitution, and the Administrative Procedure Act.

 

* * *  

 

11. NOW-NYC seeks injunctive and declaratory relief on behalf of itself and its members enjoining Defendants from enforcing the discriminatory eligibility provisions of their IVF policies and declaring those provisions unlawful, so that no service member or veteran is denied the care they need to start a family solely because of who they love, their choice whether or not to marry, or the precise source of their fertility challenges. Specifically, NOW-NYC asks that this court declare unlawful and permanently enjoin Defendants from enforcing the Marriage Requirements, the Member Gamete Requirements, and the Service-Connection Requirements (collectively, the “Discriminatory Provisions”).

 

The full complaint is available here. 

 

The Evolving Concept of Gender and Intersectional Stereotypes in International Norm Creation and AI

Rangita de Silva de Alwis, The Evolving Concept of Gender and Intersectional Stereotypes in International Norm Creation: Directions for a New CEDAW General Recommendation, U. Penn. J. Law & Public Affairs (forthcoming) 

A mapping of recent Concluding Observations issued to States parties by the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC), the Committee on the Rights of Persons with Disabilities (CRPD), and the Committee on the Elimination of Racial Discrimination (CERD) provides an analysis of the evolving human right standard by which to examine gender and intersectional stereotypes. The mapping exercise focused on cultural practices and gender stereotypes in the Concluding Observations reveals the CEDAW Committee is more likely than any other above-mentioned treaty body to discuss stereotypes. This provides us with a textual understanding of how stereotypes, culture and traditional practices often overlap and intersect. While gender stereotypes have replaced more overt forms of gender discrimination, these subtle stereotypes constitute different challenges as they are less visible to the untrained eye. The second part of the paper examines how a new generation of stereotypes are being baked into Artificial Intelligence (AI) through AI training data. While writing this paper, Open AI released ChatGPT and other Generative AI and Large Language Models which demand critical examination for emerging forms of gender bias. Last summer, Satya Nadella, the CEO of Microsoft, known for his love of poetry, previewed Open AI’s newest model on Generative AI and asked the chatbot to translate the Persian poet Rumi into Urdu, and then English. He recalls that he exclaimed: “God, this thing.”

Despite the strides in AI innovation, the dangers of potential gender bias are real. Prometheus stole fire from the Greek Gods and was punished for his folly and hubris. He still provided humans with the fire of life and was pardoned by the great Zeus himself. As much as these new technologies have the potential for great good and can advance medicine, science, health care, food security and other forms of human endeavor, they also have great potential for harm and pose risks to human rights. The CEDAW’s new General Recommendation (GR) 40 and the GR 41 (in the pipeline) can create important new normative frameworks that propose a human right-based approach to mitigate the emerging gender stereotypes of new technologies.

Gender Inequality in Pharmaceutical Patent Law

Sean Tu and and Tess Hardesty have published "Gender Inequality in Pharmaceutical Patent Law" on April 3 in Volume 15 of Landslide by the American Bar Association. The article concludes: 

A recent study by professors found that women represent only one-third of the top pharmaceutical patent litigators and one-quarter of lawyers who help inventors obtain these valuable pharmaceutical patents. This lack of representation in the pharmaceutical patent field is surprising because women represent the majority of law school students who have natural sciences degrees. Despite conventional wisdom, which alleges that this lack of representation is due to the absence of women within technical fields (the “pipeline” theory), this study rebuts the pipeline theory. Specifically, the study shows that women law students with natural sciences degrees outnumber their male counterparts and yet women are underrepresented when it comes to pharmaceutical patent prosecution and litigation.

Examining Whether Sex-Based Disparities Still Exist in the Experience and Treatment of Pain

Diane E Hoffman, Roger Fillingim & Christin Veasley, The Woman Who Cried Pain: Do Sex-Based Disparities Still Exist in the Experience and Treatment of Pain?, 50 Journal of Law, Medicine & Ethics 519 - 541 (2022)

Over twenty years have passed since JLME published “The Girl Who Cried Pain: A Bias Against Women in the Treatment of Pain.” This article revisits the conclusions drawn in that piece and explores what we have learned in the last two decades regarding the experience of men and women who have chronic pain and whether women continue to be treated less aggressively for their pain than men.

Based on a review of the literature, they found that women were more likely than men to experience (or at least report) a number of chronic pain conditions. These included migraines and chronic tension headaches, facial pain, musculoskeletal pain and pain from osteoarthritis, rheumatoid arthritis, and fibromyalgia. In addition, in experimental settings, women had lower pain thresholds (the least intense stimulus that produces pain), higher ratings of pain stimuli, and lower pain tolerance (the most intense pain stimulus one is willing to tolerate) than men. Hoffmann and Tarzian explored what might account for these differences including biological differences, e.g., hormones, genetics, and differences in the brain and central nervous system, and psychosocial and cultural factors, such as gender role expectations, behavioral coping, and socialization. Despite the differences in pain experience, and that women were more likely to seek treatment for their chronic pain than men, several studies indicated that women were more likely to be inadequately treated by health care providers (HCPs) for their pain. including a study that found that men were more likely to be given opioids, and women sedatives, after abdominal surgery. Hoffmann and Tarzian ascribed this finding and similar findings from other research to HCPs “who, at least initially, discount[ed] women's verbal pain reports and attribute[d] more import to biological pain contributors than emotional or psychological pain contributors.”3 Other studies hypothesized that it could be due to differences in the way men and women communicate with their physicians as well as how patients are perceived by their physicians. One study found that physicians’ treatment of female patients was related to their appearance and whether they presented with hostility, whereas these same characteristics were not related to how men were treated

In this article, we examine these questions again, twenty years later.

 

Implications of Conflicting Federal Court Rulings on the Availability of Medication Abortion

A publication by Women's Health Policy of the Kaiser Family Foundation provides a useful primer on the implications of the two conflicting federal court rulings regarding the legal accessibility of medication abortion published on Friday in Washington and Texas. The full Washington opinion is here. The full Texas opinion is here. The Women's Health Policy Q&A summarizes the plaintiffs in the lawsuits, the conflicting outcomes, and the likely next steps: 

Hours after Judge Kacsmaryk’s ruling, the FDA filed a notice of appeal to the US Court of Appeals for the 5th Circuit and Attorney General Merrick Garland said the government would request a stay to block this ruling while the appeal is considered. If the 5th Circuit does not grant this request, the FDA is likely to appeal immediately to the Supreme Court of the United States to block the ruling during the appeal process. If the case is appealed but the courts do not provide a stay, then the distribution of mifepristone could be halted across the nation pending the final outcome of the case.

 

The FDA may not appeal Judge Rice’s decision as it directs the FDA to keep the status quo. The Attorneys General who brought the case may appeal the decision to the 9th Circuit to seek an injunction to block the enforcement of the REMS approved in January 2023.

 

As both of these cases involve the FDA approval and provision of mifepristone, it is likely that if they reach the Supreme Court, it will review the cases together.

For a discussion of how the ruling threatens the FDA and federal regulatory authority, see this Washington Post article. 

For a discussion of how the Texas opinion is "lawless," check out Leah Litman's commentary in Slate closing with this powerful excerpt: 

Overturning Roe has, in fact, had the opposite effect that Justice Alito and his crew—allegedly— intended. In the opinion overruling Roe, Justice Alito quoted Justice Scalia’s dissent in Casey, which maintained that “Roe … has inflamed our national politics.” And Justice Kavanaugh wrote that Roe and Casey’s “well-intentioned effort did not resolve the abortion debate. The national division has not ended.” . . . He continued, “After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans.” Apparently, it will all be up to one guy named Matt.

International Conference on Family Planning Session Recordings Available

The International Conference on Family Planning was held in Thailand in November 2022. Conference tracks included content related to universal health care coverage, gender equality, reproductive rights, quality of care, contraceptive technology, reproductive health among youth, reproductive health in humanitarian settings, and the impact of COVID-19 on reproductive health. 

Use this spreadsheet to search for sessions presenting research and advocacy that supports your work! 

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