Gender and the Law Prof Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

LGBTQ Youth and the Promise of the SCOTUS Quartet of Cases by Justice Kennedy

Michael Higdon, LGBTQ Youth and the Promise of the Kennedy Quartet, Cardozo Law Review (forthcoming)

The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to those sexual minorities who are still children. In so doing, they have passed laws that, among other things, punish adolescent sexual activity more harshly when it involves two people of the same sex, prohibit discussions in public schools that portray homosexuality in anything other than a negative light, and deny transgender youth the ability to compete in school athletics or use restrooms that correspond to their gender identity. These laws are harmful enough in their own right but are particularly pernicious in light of the harms those children already face simply by virtue of being a sexual minority in a homophobic society. Looking at the Kennedy Quartet in conjunction with the Supreme Court’s jurisprudence regarding the constitutional rights of children, this Article argues that such laws are unconstitutional. It does so by, first, challenging the argument that the Kennedy Quartet pertains only to adults. Second, and more importantly, this Article then distills from those cases three key protections applicable to the entire LGBTQ community—children included—that these current laws violate. The hope is that this analysis will assist judges, legislators, and policy makers alike as they look for ways to put an end to this wave of discriminatory laws and, in their place, lobby for more inclusive legislation.

Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?

Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?

By: Linda C. McClain

Published in: Family Court Review (Forthcoming)

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.

. . .

This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.

 

 

SCOTUS Denies Stay of Texas Fetal Heartbeat Abortion Ban

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

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

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

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

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

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

All dissenting Justices wrote separate opinions.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Book: The Woman Behind the Supreme Court's Decision in West Coast Hotel v. Parrish

Helen Knowles, Making Minimum Wage: Elsie Parrish v. West Coast Hotel Company

The US Supreme Court’s 1937 decision in West Coast Hotel v. Parrish, upholding the constitutionality of Washington State’s minimum wage law for women, had monumental consequences for all American workers. It also marked a major shift in the Court’s response to President Franklin D. Roosevelt’s New Deal agenda. In Making Minimum Wage, Helen J. Knowles tells the human story behind this historic case.

West Coast Hotel v. Parrish pitted a Washington State hotel against a chambermaid, Elsie Parrish, who claimed that she was owed the state’s minimum wage. The hotel argued that under the concept of “freedom of contract,” the US Constitution allowed it to pay its female workers whatever low wages they were willing to accept. Knowles unpacks the legal complexities of the case while telling the litigants’ stories. Drawing on archival and private materials, including the unpublished memoir of Elsie’s lawyer, C. B. Conner, Knowles exposes the profound courage and resolve of the former chambermaid. Her book reveals why Elsie—who, in her mid-thirties was already a grandmother—was fired from her job at the Cascadian Hotel in Wenatchee, and why she undertook the outsized risk of suing the hotel for back wages.

Minimum wage laws are “not an academic question or even a legal one,” Elinore Morehouse Herrick, the New York director of the National Labor Relations Board, said in 1936. Rather, they are “a human problem.” A pioneering analysis that illuminates the life stories behind West Coast Hotel v. Parrish as well as the case’s impact on local, state, and national levels, Making Minimum Wage vividly demonstrates the fundamental truth of Morehouse Herrick’s statement.

Ruth Bader Ginsburg's Copyright Jurisprudence

Ryan Vacca & Ann Bartow, Ruth Bader Ginsburg’s Copyright Jurisprudence,  22 Nevada L.J. (forthcoming 2022)

When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.

Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This article discusses one of the most interesting: copyright law. During her time as a jurist on the Supreme Court and D.C. Circuit, she authored sixteen opinions in copyright cases and joined her colleagues’ opinions in eleven others. But unlike her gender equality and social justice opinions, in which she predictably sided with rock-slinging Davids, Justice Ginsburg tended to favor Goliath content owners in copyright cases. This article offers possible explanations for why this was so, by holistically evaluating Justice Ginsburg’s copyright writings. It identifies several themes running through her copyright opinions: incrementalism, intergovernmental deference, a preference for alternative mechanisms for relief, and stoicism, and juxtaposes her copyright jurisprudence with her approaches to gender equality and reproductive rights.

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

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

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

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

The All-Women SCOTUS Dissent in an Environmental Case -- What Does it Mean?

In a rare occurrence, all women joined the dissent in last week's SCOTUS decision in HollyFrontier and all men joined the majority, cutting across all the usual jurisprudential lines.  But why?

The decision is HollyFrontier Cheyenne Refining v. Renewable Fuels Association (June 25, 2021). The majority written by Justice Gorsuch interpreted an EPA rule to allow an extension of a prior exemption for small refiners to not have to use renewable fuels.  The dissent of all women written by Justice Barrett read the text differently, to deny the extension, and thus enforce the renewable fuels EPA rule.  Both Gorsuch and Barrett are textualists, and reasoned their different opinions on mostly text based grounds and some concern about the impact on businesses.

What other motivation might Barrett have for joining the dissent? (And Breyer, why is he joining the majority??).  The only slight clue is that Barrett notes the impact of her conclusion, finding it consistent with Congress's intent to "funnel all refineries into eventual compliance" and that such compliance had happened up until 2014, with some backtracking in 2017 and 2018.

It is sometimes argued that women are concerned more for the environment.  Whether that is due to a feminist ethic of care, ecofeminism, or cultural feminism of a maternal concern with care for families and their environment, these different gendered arguments suggest that women might see these issues differently.

See generally Cynthia Grant Bowman, Path from Feminist Legal Theory to Environmental Law & Policy, 22 Cornell J. Law & Public Policy 641 (2013); Cinnamon Pinon Carlarne, , Environmental Law & Feminism, forthcoming in The Oxford Handbook of Feminism and Law in the United States.

SCOTUS Denies Cert in Challenge to Male Only Draft, but 3 Justices Write Separately

National Coalition for Men v. Selective Service System, Denial of Cert (June 7, 2021)

The petition for a writ of certiorari is denied.

 

Statement of JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAVANAUGH join, respecting the denial of certiorari.

 

The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.’” Sessions v. Morales-Santana (quoting United States v. Virginia); see Califano v. Westcott; Califano v. Goldfarb; Weinberger v. Wiesenfeld; Frontiero v. Richardson. Cf. Bolling v. Sharpe. The Military Selective Service Act requires men, and only men, however, to register for the draft upon turning 18. See 85 Stat. 353, 50 U. S. C. §3802(a). In Rostker v. Goldberg, 453 U. S. 57 (1981), this Court upheld the Act’s gender-based registration requirement against an equal protection challenge, citing the fact that women were “excluded from combat” roles and hence “would not be needed in the event of a draft.” 

 

The role of women in the military has changed dramatically since then. Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions. Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets.  As of 2015, there are no longer any positions in the United States Armed Forces closed to women. Petitioners ask the Court to overrule Rostker in light of these developments.

 

Petitioners, however, are not the only ones asking whether a male-only registration requirement can be reconciled with the role women can, and already do, play in the modern military. In 2016, Congress created the National Commission on Military, National, and Public Service (NCMNPS) and tasked it with studying whether Selective Service registration should be conducted “regardless of sex.” 

 

On March 25, 2020, the Commission released its final report, in which it recommended “eliminat[ing] male-only
registration.” Inspired to Serve: The Final Report of the [NCMNPS] 111. Among other things, the Commission
found that “[m]ale-only registration sends a message to women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.” Just a few months ago, the Senate Armed Services Committee held a hearing on the report, where Chairman Jack Reed expressed his “hope” that
a gender-neutral registration requirement will be “incorporated into the next national defense bill.”

 

It remains to be seen, of course, whether Congress will end gender-based registration under the Military SelectiveService Act. But at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court’s decision to deny the petition for a writ of certiorari.

Vox, Justice Kavanaugh Hands Down Some Surprisingly Good News for Women's Equality

Justice Brett Kavanaugh just handed down a subtle but potentially very significant signal that he will protect at least some of the feminist victories won by Ruth Bader Ginsburg two decades before she joined the Supreme Court. Kavanaugh’s move does not mean that he is likely to tack left on questions like abortion, but it does suggest there are some limits to this Court’s willingness to toss out earlier victories by liberals.***

 

On Monday, the Supreme Court announced that it will not hear National Coalition for Men v. Selective Service System, a lawsuit challenging a federal law that requires men — and not women — to register for the draft when they turn 18.

 

That might seem like bad news to anyone hoping the court would apply gender nondiscrimination precedents to a new area. But the good news comes in a brief opinion that Justice Sonia Sotomayor wrote.

 

In it, she suggests that she believes that gender discrimination in the selective service program is unconstitutional — the main reason she’s not interested in taking up the case, she seems to say, is that Congress is considering legislation that could expand selective service registration to women.

 

Kavanaugh joined the opinion in full. And that opinion begins with a quote summarizing many of the Court’s gender equality decisions — the Constitution “prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification,’” Justice Sotomayor wrote in her opinion — followed by a long list of citations to the Court’s gender equality decisions.

 

So, in joining this opinion, Kavanaugh signaled that he agrees with Sotomayor, and with the gender equality decisions that Sotomayor cites.

 

That does not mean that these decisions are completely safe — on a 6-3 Court, Kavanaugh could be outvoted by the other five Republican appointees — but it is a hopeful sign for feminism. Kavanaugh is the Court’s median vote in most contentious cases, so it is unlikely that the Court will overrule a major line of precedents without his approval.

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

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

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

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

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

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

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

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

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

Challenging the Logic of Pro-Life Constitutionalism in June Medical

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

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

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

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

The 19th Amendment's Antisubordination Theory as a Tool for Defeating LGBT Religious Exemptions

Kyle Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, Minnesota L. Rev. (forthcoming)

In the summer of 1920, women gained the right to be free from discrimination in voting when the Nineteenth Amendment was ratified. One hundred years later, in the summer of 2020, LGBT people gained the right to be free from discrimination in the workplace when the U.S. Supreme Court ruled in Bostock v. Clayton County that sexual orientation and gender identity (“SOGI”) discrimination is sex discrimination under Title VII. Yet, LGBT people continue to face discrimination in many contexts, a prominent example of which is the national campaign by Christian business owners to obtain religious exemptions from state public accommodation laws. What does women’s suffrage have to do with today’s religious exemption debates? This Article contends that there is a through-line from a radical, antisubordination strand of the history of the Nineteenth Amendment to today’s fight over religious exemptions from SOGI antidiscrimination laws.

The antisubordination strand of Nineteenth Amendment history envisioned women’s suffrage as about more than just the right to cast a ballot. This capacious view of the Nineteenth Amendment—as a means of dismantling sex-based hierarchies and ensuring full citizenship rights regardless of sex—would allow women to engage in all aspects of life, both political and civic. Between the ratification of the Nineteenth Amendment and today’s battles over SOGI religious exemptions stands 100 years of sex discrimination law. That era saw state legislatures enact public accommodation laws prohibiting sex discrimination in the public square; these laws extended to women the right of civic engagement and thus full citizenship. This body of sex discrimination law included the Court’s 1984 decision in Roberts v. United States Jaycees, which involved a challenge to one such law. The Jaycees Court upheld a public accommodation law against a claim that enforcement of the law—which would compel the Jaycees organization to admit women as full members—would violate the Jaycees’ First Amendment free speech rights. The Court reasoned that states have a compelling interest in eradicating sex discrimination in public. Jaycees expands the reach of the equality-enhancing aspect of the suffrage movement. It embodies the antisubordination strand of the women’s suffrage movement and stiches it into the fabric of the legal doctrine governing sex discrimination.

In today’s religious exemption cases, the Christian business owners argue that although the state has a compelling interest in eradicating race discrimination in the public square, it does not have a compelling interest in eradicating SOGI discrimination. This distinction, they argue, dictates that an exemption be granted vis-à-vis SOGI discrimination, even though such an exemption would be rejected vis-à-vis race discrimination. Bostock is the contemporary bridge that connects Jaycees to the SOGI religious exemption cases. Jaycees, in turn is the bridge back to the radical strand of the Nineteenth Amendment’s history: The Nineteenth Amendment was generative not simply of the right to vote, but of a commitment to full citizenship rights regardless of sex. That equality was formalized in state public accommodation laws, which Jaycees teaches serve a compelling state interest. Bostock, when coupled with Jaycees, directs the same conclusion for public accommodation laws that prohibit SOGI discrimination, namely that such laws serve a compelling state interest that defeats claims for religious exemptions.

 

The Story of Leser v. Garnett and the Nineteenth Amendment

Time, Votes for Women: How a Supreme Court Case Solidified the Right

Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.

The Supreme Court found that both arguments flopped: when suffrage had been granted to all male citizens regardless of race the Amendment had held up, despite the change to the electorate, and the ratification powers Leser questioned had in fact been granted by the Constitution. (And in a few states where things were iffy, it didn’t matter because enough other states had ratified.)

So, while the 19th Amendment granted women the right to vote, Leser made sure that the right could actually be used, even where the state constitution said otherwise. It’s not one of the more famous Supreme Court decisions in American history, but without it the electorate would be, well, lesser.

For scholarship on Leser v. Garnett, see Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Press 2020) and Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family, 115 Harvard L. Rev. 945 (2002).

Program: The Past and Future of Reproductive Choice

Forum: The Past and Future of Reproductive Choice

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

LIVE ONLINE EVENT

 

The Past and Future of Reproductive Choice

 

Linda Greenhouse, Senior Research Scholar, Yale Law School

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

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

 

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

Cosponsored by the Department of History

In Another Shadow Docket Order, SCOTUS Stays Abortion In-Person Medication Requirement During COVID Found Unconstitutional by District Court

In another shadow docket ruling, the Supreme Court stayed a district court's preliminary injunction enjoining the unconstitutional application of a Covid abortion requirement that women seeking medicated abortions appear in person.

The order is here,  FDA v. American College of OB/GYNS (Jan. 12, 2021), with concurrence by Justice Roberts and dissent by Justice Sotomayor.

NYT, Supreme Court Revives Abortion Pill Restriction

In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

Justice ACB on Griswold

NPR, Supreme Court's Abortion Cases Could Threaten Birth Control Too

But many people overlook other things that could flow from new U.S. jurisprudence on abortion — such as erasing the right to birth control that the court recognized in a 1965 case, Griswold v. Connecticut. During her confirmation hearings, Barrett specifically refused to say whether she felt Griswold was correctly decided.

That was a flashing red warning light for Nancy Northup, president of the Center for Reproductive Rights, a legal advocacy group that argues cases on abortion and contraception. Roe, Northup says, is part of a century of jurisprudence based on the idea that the U.S. Constitution protects the liberty of individuals.

"It began with cases about how one educates one's children," Northup says, and includes same-sex marriage, contraception and abortion. You can't just take Roe out and not unravel the whole fabric."

Yet from what Barrett has said and written about the Constitution, Northup says, "it's clear she doesn't believe it protects the right to personal liberty."

NPR, On Contraception Case, Amy Coney Barrett Again Avoids Question

The 7-2 decision in Griswold v. Connecticut is viewed as the basis for Roe v. Wade, the 1973 ruling that legalized a woman's right to abortion nationwide.

Instead of directly answering Coons' question about whether the Supreme Court made the appropriate ruling in Griswold, Barrett said she found it unlikely that decision would ever be overturned.

"It seems unthinkable that any legislature would pass such a law" taking away the right to buy or use contraception, she said. "I think the only reason that it's even worth asking that question is to lay a predicate for whether Roe was rightly decided."

"I think that Griswold is very, very, very, very, very, very unlikely to go anywhere," she added.

Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett

I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court.  Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court.  The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.

Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court

 

SCOTUS Hears Arguments on Statute of Limitations for Prosecuting Military Rape

Jordan Rubin, Supreme Court Considers Limits on Prosecuting Military Rape, Bloomberg

The U.S. Supreme Court heard arguments Tuesday in a case involving time limits on prosecuting rape in the military, as the justices wondered aloud how the U.S. Constitution impacts the armed forces’ separate justice system.

 

The government’s lawyer framed the stakes as whether three convicted rapists “go scot free.” Their lawyer said the service-members should receive the same protections that civilians do from cruel and unusual punishment.

 

Congress eliminated the statute of limitations for military rape in 2006. The high court is considering in this case whether a five-year limitations period applies to assaults committed earlier. The answer determines whether the rape convictions of Air Force members Michael Briggs, Richard Collins, and Humphrey Daniels are reinstated and whether other older cases can be prosecuted, too.***

The case is United States v. Briggs , U.S., No. 19-108, oral argument 10/13/20 , United States v. Collins , U.S., No. 19-184, 10/13/20 .

 

In 1977, the Supreme Court outlawed capital punishment for the rape of an adult woman under the Eighth Amendment, which prohibits cruel and unusual punishment. The military justice code separately prohibits such punishment. But even after that high court ruling, rape was “punishable by death” under military law and there’s no limitations period for prosecuting death-punishable crimes.

 

Questions from Chief Justice John Roberts during the telephone argument illustrated a potential tension in the case. He asked acting U.S. Solicitor General Jeffrey Wall why that 1977 ruling, Coker v. Georgia, doesn’t affect military prosecutions? But Roberts likewise asked the lawyer arguing for the men, University of Texas law professor Stephen Vladeck, why Congress would want to make it impossible to prosecute military rapes after five years, no matter how heinous.

 

The Court of Appeals for the Armed Forces cited the Supreme Court’s prohibition on capital punishment in rape cases in 2018 when it said pre-2006 rapes couldn’t be tried outside a five-year statute of limitations. Following that ruling, the appeals court vacated the convictions of Briggs, Collins, and Daniels, who were all charged more than five years after their crimes, committed in 2005, 2000, and 1998.

 

Unclear Outcome

The justices’ tough questions to both sides of the dispute left the outcome unclear. Arguments were heard before an eight-member court while confirmation hearings for Judge Amy Coney Barrett are underway. A tie vote would affirm the armed forces court’s ruling in favor of the men. A ruling is expected by late June.

 

Fighting to reinstate their convictions, the Trump administration cast its appeal against the backdrop of the military’s sexual assault problem. “It’s critical to be able to go after these crimes outside of what would otherwise be the five-year window in order to make progress on rape and sexual assault in the military,” Wall told the justices.

 

Responding to Justice Stephen Breyer’s query why Coker shouldn’t apply, Wall said the goals of criminal law “are served very differently in the military because of the military environment, the need to maintain trust and discipline, the need to achieve institutional equality, the need not to damage foreign relations.”

New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.

Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.

That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).

Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).

Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.

“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***

In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.

Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.

Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.