Tuesday, January 4, 2022

New Beginnings: A Feminist Evaluation of Gendered Stigma in the Modern Legal Profession

New Beginnings: A Feminist Evaluation of Gendered Stigma in the Modern Legal Profession

By: Amanda M. Fisher

Published in: Rutgers Journal of Law and Public Policy, Volume 19:1

The modern woman lawyer faces many of the same challenges that women in law faced during their earliest entry into the profession. While circumstances have certainly improved for women in law, gendered stigma is still prevalent in the profession. In this article, “gendered stigma” refers to circumstances resulting from one’s gender as a salient feature of their work, serving to discredit one’s abilities and accomplishments. Women began to enter the legal profession in large numbers in the 1970s, gaining attention as they did so. Although early research on women in the law focused on blatant discrimination, that type of discrimination is fortunately less common now. Much of the modern research addressing women’s status in the legal profession, however, focuses on the quantitative evidence, like the number of women in the profession and their salaries as compared to men. Numerical evidence does show progress, but qualitative evidence reveals that the gender-driven experiences of women new to the profession are eerily similar to those of women who have long retired from the profession. This belies the assumption that simply improving numbers, e.g., having more women in the profession, would solve the disparities between men and women who practice law. This article relies on identity theory and stigma to inform the cycle of gendered stigma prevalent in the legal profession to critically examine basic tenets of the profession that must change for progress to flourish. This theoretical foundation can then inform practical solutions for mitigating the negative effects of gendered stigma on the profession and the individuals serving within it.

January 4, 2022 in Gender, Law schools, Masculinities, Theory, Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Wednesday, December 29, 2021

Analyzing Social Norms as Applied to Child Sex Trafficking

Melissa Breger, Stemming the Tide: Social Norms and Child Sex Trafficking, 126 Dickinson L. Rev. 135 (2021)

Despite decades of attempts to eradicate the industry, child sex trafficking continues to flourish. Arguably, there is debate about whether adults willingly choose sex work, yet there are no arguments supporting the notion that children make any such choice. When children are bought and sold for sexual purposes, it is child sex trafficking.

Academic legal research has focused comprehensively on the identification of child victims and the prosecution of child traffickers, yet there has not been as salient a focus on reducing the market of buyers of trafficked children. It is the reduction of demand where theories of re-norming and social norms could be applied to the issue of child sex trafficking. By vitiating the notion that buying children for sex is in any way acceptable, the demand for child trafficking will diminish.

The Nordic model has had moderate success in stemming sex buyer demand, and I borrow from it to propose further minimizing the demand for children. The Nordic model sets forth an approach by which the buyers of sex are specifically penalized, while those who are themselves purchased are not punished.

This Article is the next segment in a more comprehensive series about applying social norms theories to decrease negative behavior. Other segments have explored decreasing intimate partner violence, reforming a toxic sports culture, minimizing a rape culture, and discouraging corporal punishment against children. This Article will specifically analyze social norms as they apply to child sex trafficking.

December 29, 2021 in Human trafficking, Theory | Permalink | Comments (0)

Monday, December 27, 2021

Vulnerable Bodies and Invisible Work

Ellen Gordon-Bouvier has published an article titled Vulnerable bodies and invisible work: The Covid-19 pandemic and social reproduction in volume 21 of the International Journal of Discrimination and the Law. The introduction situates the project within Martha Fineman's influential Vulnerability Theory and reveals the urgency of new approaches involving the Responsive State (internal citations omitted): 

Seldom has an event so clearly illustrated the core tenets of Martha Fineman’s vulnerability theory as the global Covid-19 pandemic has – that, as embodied beings, we share a constant and inescapable vulnerability, our fragile bodies living with ‘the ever-present possibility of harm and injury’ . * * *  

In this paper, I critically analyse the UK’s response to the pandemic through a vulnerability lens. In particular, I examine how the pandemic has affected the visibility and status of socially reproductive work, as well as the impact on those who perform it. Social reproduction, defined as ‘the maintenance of life on a daily basis and intergenerationally’ , includes a wide range of labour, including supporting and nurturing those who undertake paid work, caring for infant, elderly, sick, and disabled populations (either paid or unpaid), food preparation, and domestic work in the home. * * * Yet, the state consistently devalues social reproduction, denying its essential nature and society’s reliance upon it. * * * Instead, the state organises its institutions, including law, around an artificial image of autonomous liberal personhood, whereby the individual is imagined as rational, self-interested, and economically self-sufficient.

 

I argue in this paper that the pandemic has shattered the illusion of autonomous individualism that underlies the liberal state’s actions. Socially reproductive labour and society’s undeniable reliance on it have come into public view after being concealed for so long. In this sense, an image of an embodied ‘vulnerable subject’  has been forced to the forefront of the public imagination, also revealing the state’s ultimate control (and the individual’s corresponding lack of control) over the production of resilience against vulnerability. * * *

 

* * *  Unfortunately, as I argue, the UK’s response has retained a commitment to the autonomous liberal ideal and has been inadequate and ineffective as a consequence. Despite this, I suggest that the atmosphere of exceptionality and crisis generated by the pandemic has provided a glimmer of hope that a different way forward is possible. In particular, the state’s new willingness to consider non-means tested basic income schemes could be used to improve the conditions of those who perform socially reproductive labour. However, such measures must take care to avoid further perpetuating gender inequalities.

December 27, 2021 in Family, Gender, International, Theory | Permalink | Comments (0)

Wednesday, December 22, 2021

The Fight for Reproductive Rights Insists on Women as Subjects in Their Own Right

Suzanna Danuta Walters,  Subject: Man. Object: Woman. Verb? Control.

As I listened to the arguments in the Mississippi abortion rights case on Dec. 1, a friend texted me to say, “God but they just hate us, don’t they?” And while hatred of women—what is often referred to as misogyny—is alive and well, it is undergirded by something else that is both less tangible and more terrifying. 

 

The late, great feminist philosopher Simone de Beauvoir wrote about this as women’s “otherness” in a world of gender binaries and gendered power created by (and for) men. For Beauvoir, the core of sexism is this denial of women’s subjectivity: She is not self to herself but an object for male definition. 

 

In that sense, it is not simply or only “hatred” that motivates the sexists of the world, but the very desire to define and therefore to control. 

 

How else to explain young men at, say, frat parties wanting to have sex with (e.g. rape) women who are literally not present, passed out from too much alcohol. To do this—to want this—one first needs to imagine women as both object (not fully human) but also as there in the world primarily for you, a man.

 

And here, we can see how the attacks on reproductive rights are connected with the prevalence of sexual assault and harassment: the male expectation that women are there (exist) largely for their pleasure and use—be it use as sexual objects, wifely helpmates, motherly providers of care and comfort. Both sexual assault and the denial of reproductive bodily autonomy say to women: You are here for me.  Because if women are fully self-determined—can determine when and if they have children, when and with whom they have sex—then they cannot be there, fully, inevitably, without their own desire, for you. For a man. 

 

The fear of women’s autonomy and self-actualization—the desire for us not to call the shots on our own lives—is then less about some visceral hatred but about both dehumanization (Beauvoir’s “other”) and the wish to maintain a system where women are cultivated as objects for male use.

 

Both the fight for reproductive autonomy and sexual freedom (which includes freedom from sexual assault and harassment) are dependent upon inverting this ethos and insisting that women are there for themselves, subjects in their own right whose needs and desires are expressions of their own unstoppable humanity.

December 22, 2021 in Abortion, Theory | Permalink | Comments (0)

Monday, December 20, 2021

Q&A with Editor of Feminist Judgments: Rewritten Property Opinions

Eloisa C. Rodriguez-Dod has compiled an edited volume of Feminist Judgments: Rewritten Property Opinions. This volume continues the tremendous momentum begun by the Feminist Judgments Project. Describing the book in a Q&A, Rodriguez-Dod explains: 

This book answers the question of whether feminist perspectives and methods could change the shape of property law. A group of diverse property law scholars rewrote significant fundamental property law cases from a feminist perspective. The rewritten cases cover a broad range of property law topics, including landlord-tenant, patents, zoning, publicity rights, land titles, concurrent ownership, and takings. This book demonstrates how rewritten opinions from a feminist perspective could have made property law more just and equitable for women and marginalized groups. It also shows how property law is not neutral, but rather shaped by the society that produces it and the judges who apply it.

This volume of the feminist judgments project is likely of interest to judges, scholars, and students interested in the development of property law. The larger goals of the global project are described as: 

The United States Feminist Judgments Project is part of a global collaboration of hundreds of feminist law professors who reimagine and rewrite key judicial decisions from a feminist perspective. The touchstone of the project is that the rewritten opinions must use the facts and precedent of the original opinion, but bring to the process of judging a feminist perspective that takes into account race, class, gender, disability and other status groups historically marginalized by the law. In this way, the Project seeks to show that United States jurisprudence is not objective or neutral, but rather deeply influenced by the perspectives of those who are appointed to interpret it. As a consequence, the Project also shows that previously accepted judicial outcomes were neither necessary nor inevitable, and that feminist judges could have changed the course of American jurisprudence.

December 20, 2021 in Books, Theory | Permalink | Comments (0)

Legal Education's Curricular Tipping Point Toward Inclusive Socratic Teaching

As we design our Spring syllabi, I am excited to share my own recent publication that came out this month in volume 48 of the Hofstra Law Review titled, Legal Education's Curricular Tipping Point Toward Inclusive Socratic Teaching. The article draws heavily on the work of feminist and critical pedagogies. The abstracts explains: 

Two seismic curricular disruptions create a tipping point for legal education to reform and transform. COVID-19 abruptly disrupted the delivery of legal education. It aligned with a tectonic racial justice reckoning, as more professors and institutions reconsidered their content and classroom cultures, allying with faculty of color who had long confronted these issues actively. The frenzy of these dual disruptions starkly contrasts with the steady drumbeat of critical legal scholars advocating for decades to reduce hierarchies and inequalities in legal education pedagogy.

This context presents a tipping point supporting two pedagogical reforms that leverage this unique moment. First, it is time to abandon the presumptive reverence and implicit immunity given to problematic Socratic teaching despite the harms and inadequacies of such performances. Professor Kingsfield depicted an archetype of Socratic teaching where the professor wields power over students instead of wielding knowledge to empower students. He used strategic tools of humiliation, degradation, mockery, fear, and shame. Socratic performances that are professor-centered and power-centered do not merit the reverence and immunity they still receive after decades of sound critiques. This critique is framed as a call to “cancel Kingsfield.” Socratic teaching can (must) be performed inclusively. This Article proposes a set of shared Socratic values that are student-centered, skills-centered, client-centered, and community-centered.

Second, this Article proposes refining law school accreditation standards to ensure that students achieve learning outcomes equitably in inclusive classrooms. Accreditation reforms cannot happen around the architectural perimeter of legal education. Nor can reforms be implemented solely in episodic siloes by staff, external speakers, or even robust seminar courses. Rather, accreditation standards need to hold institutions accountable to measuring learning outcomes and addressing identified disparities and inadequacies in the curricular core of legal education.

December 20, 2021 in Education, Theory | Permalink | Comments (0)

Thursday, December 16, 2021

The Long History of Feminist Legal Theory

I just published The Long History of Feminist Legal Theory in the online edition of The Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas & Verna Williams eds. Nov. 2021).

The conventional idea is that feminist legal theory began in the 1970s, in the second-wave feminist movement. However, the foundations of feminist legal theory were first conceptualized much earlier, in 1848, and developed over the next century and a half through distinct periods of thought. That development began with the establishment of the core theoretical precepts of gender and equality grounded in the comprehensive philosophy of the nineteenth-century’s first women’s rights movement ignited at Seneca Falls. Feminist legal theory was popularized and advanced by the political activism of the women’s suffrage movement, even as suffragists limited the feminist consensus to one based on women’s maternalism. Progressive feminism then expanded the theoretical framework of feminist theory in the early twentieth century, encapsulating ideas of global peace, market work, and sex rights of birth control. In the modern era, legal feminists gravitated back to pragmatic and concrete ideas of formal equality and the associated legalisms of equal rights and equal protection. Yet through each of these periods, the two common imperatives were to place women at the center of analysis and to recognize law as a fundamental agent of change.

An earlier (non-paywall) version is available here: The Long History of Feminist Legal Theory (SSRN).  

December 16, 2021 in Books, Legal History, Theory | Permalink | Comments (0)

Wednesday, December 15, 2021

Third Circuit Denies Asylum Claim on Grounds that Women are Not a Particular Social Group

Chavez-Chilel v. US (3d Cir. Dec. 6, 2021)

Finding substantial evidence supported the BIA’s conclusion that “Guatemalan women” is not a particular social group (“PSG”) for asylum or withholding purposes, we will deny the petition.***

 

At her merits hearing, Chavez-Chilel testified that she was raped as a teenager in Guatemala, the police did not take any action when she reported this crime, and the same man later threatened to rape her again. She explained that she feared she would be sexually assaulted or killed if she was removed to Guatemala. The IJ denied Chavez-Chilel’s applications for asylum and withholding of removal, finding that, while she was credible and that her rape qualified as past persecution, her proposed PSG, “Guatemalan women,” did not constitute a PSG for asylum or withholding of removal purposes. The IJ concluded that this PSG was not “sufficiently particular” because there was no evidence that Guatemalan women share a “unifying characteristic” or present a “unified target” for persecution. ***

 

Substantial evidence supports the BIA’s and IJ’s finding that “Guatemalan women” is not a cognizable PSG. A PSG must be: “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” S.E.R.L., 894 F.3d at 540 (quotation marks and citation omitted). Particularity “addresses the outer limits of a group’s boundaries and is definitional in nature, whereas social distinction focuses on whether the people of a given society would perceive a proposed group as sufficiently separate or distinct.” Id. (quotation marks omitted). To satisfy the particularity requirement, “an alleged social group [must] have discrete and . . . definable boundaries that are not amorphous, overbroad, diffuse, or subjective, so as to provide a clear standard for determining who is a member.” Id. at 553 (quotation marks and citation omitted).

 

Chavez-Chilel’s proposed PSG lacks particularity. “[N]ot every immutable characteristic is sufficiently precise to define a [PSG],” id. at 552, and courts have concluded that a proposed PSG of all women in a particular country “is overbroad[] because no factfinder could reasonably conclude that all [of a country’s] women had a well-founded fear of persecution based solely on their gender,” Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (addressing Iranian women). Reasons to depart from this general rule are not present here. For example, in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Court of Appeals for the Eighth Circuit recognized the PSG of all Somali women because “all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of” female genital mutilation. Id. at 518; see also Mohammed v. Gonzales, 400 F.3d 785, 797–98 (9th Cir. 2005) (same); In re Kasinga, 21 I. & N. Dec. 357, 365–66 (B.I.A. 1996) (recognizing PSG of “young women” in a particular tribe in Togo due to pervasive practice of female genital mutilation). Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. Cf. A.R. 170–73, 182 (Chavez-Chilel’s testimony that she knew of no other women who suffered sexual or domestic violence); A.R. 232 (report explaining that one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay). Accordingly, while the size of the group standing alone would not disqualify a group from being a PSG, Cece v. Holder, 733 F.3d 662, 674–75 (7th Cir. 2013), ChavezChilel has failed to demonstrate that her proposed PSG is sufficiently particularized. Thus, her alleged fear of persecution based upon membership in such a group does not provide a basis for asylum. 

 H/t Brian Soucek

 

December 15, 2021 in Courts, Gender, International, Theory, Violence Against Women | Permalink | Comments (0)

Wednesday, November 24, 2021

The Instrumentalization of Victims in Gender-Based Violence Prosecutions

Rachel Wechsler, Victims as Instruments, Washington L. Rev. (forthcoming)

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities.

This Article is the first to analyze the treatment of crime victims through the lens of moral philosophy and liberal legal theory. It demonstrates that the application of these concepts is helpful in evaluating the legitimacy of the state’s approach to GBV victims. Following this analysis, it proposes a normative shift in the approach, from one that conceptualizes GBV victims primarily as instruments to one that constructs them as agents whose dignity and autonomy the state must respect.

November 24, 2021 in Courts, Theory | Permalink | Comments (0)

Social Justice Theory of Tort, including its Inheritance from Feminist Theory

Martha Chamallas, Social Justice Tort Theory, 14 Journal of Tort Law Issue 2 (2021 Forthcoming)

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

November 24, 2021 in Theory | Permalink | Comments (0)

Monday, November 15, 2021

Critical Lawyering

Laila L. Hlass and Lindsay M. Harris have posted their article Critical Lawyering published in the 2021 volume of the Utah Law Review. The abstract previews the article's powerful contributions to pedagogy and theory.   

Critical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into account historical and structural biases, privileges, and the role they play in the attorney-client relationship. This Article urges law professors and legal professionals to operationalize critical legal theories into practice, and ultimately to develop experiential pedagogies to teach these critical lawyering skills. This call to developing new pedagogies is particularly urgent in the wake of nationwide uprisings in response to the killing of George Floyd and others, as well as corresponding law schools’ commitments to identify and dismantle institutional racism. In this Article, we first set forth the contours of the canonical client interviewing pedagogy. Second, we outline the tenets of critical lawyering—a lawyering practice animated by critical legal theories. Next, we advance the pedagogy of critical interviewing, building upon client-centered lawyering texts. We describe one methodology of teaching critical interviewing: the Legal Interviewing and Language Access films. Ideally positioned to use with virtual, hybrid, or in person learning, these videos raise a multitude of issues, including addressing bias and collaborating with clinic partners, interpreters, and clients. Finally, the Article considers areas ripe for further exploration within critical interviewing, concluding with a call for engagement with new pedagogical tools to teach critical interviewing, along with other aspects of critical lawyering.

November 15, 2021 in Law schools, Race, Theory | Permalink | Comments (0)

Wednesday, November 10, 2021

Women's Rights Advocacy and the Meanings of Gender Equality from 1920 to 1964

Nan Hunter, In Search of Equality for Women: From Suffrage to Civil Rights, 59 Duquesne L.Rev. 125 (2021)

This article analyzes women’s rights advocacy and its impact on the meanings of gender equality during the period from the achievement of suffrage in 1920 until the 1964 Civil Rights Act. It teaches that one cannot separate the conceptualization of equality or the jurisprudential philosophy underlying it from the dynamics and characteristics of the social movements that actively give it life. Social movements identify the institutions and practices that will be challenged, decisions that in turn determine which doctrinal issues will provide the raw material for jurisgenerative change. Without understanding a movement’s strategy and opportunities for action, one cannot know why law developed as it did.

The article also demonstrates that this phase of women’s rights advocacy comprised not one movement – as it is usually described – but three: the suffragists who turned to a campaign for an Equal Rights Amendment after winning the Nineteenth Amendment; the organizations inside and outside the labor movement that prioritized the wellbeing of women workers in the industrial economy; and the birth control movement. Each was dominated by white women, but Black women worked in and through all three branches, in addition to developing distinctive organizations. Women engaged with courts, legislatures and other lawmakers, using a variety of methods and a mixture of complementary and contradictory arguments in an effort to secure full citizenship status for women in the political, economic and family realms.

Different approaches to equality, however, created a significant movement disability. Prioritizing the ERA cemented that branch’s allegiance to what would now be called formal equality, the principle that men and women should be held to the same rights and duties under law. This absolute equality stance precluded support for laws setting protective working standards only for women, the paramount goal of those most concerned with women working in factories. ERA advocates saw protective laws as Trojan horses that promised minimum wages and a cap on hours but also disqualified women from some of the highest-paying jobs. Labor activists saw the disabilities associated with women’s political and family status as problematic, but secondary to economic issues. Birth control advocates developed arguments that sidestepped the frame of equality altogether.

The absence of a united position on the scope of gender equality under the law facilitated the silence of the Supreme Court, which perpetuated a discourse of domesticity with respect to the legal status of women that began before suffrage and continued long after. The gap in constitutional law as to gender not only stymied doctrinal development, but also deprived women’s rights advocates of the cultural power that attaches to an overarching equality narrative. Yet although the discourse of law drove the branches of women’s rights advocacy apart, it also provided a venue in which equality had to be, and ultimately could be, defined, at least for regulatory purposes.

Somewhat surprisingly, it was the labor-oriented portion of the movement that brought the kind of statutory anti-discrimination model that we know today as “civil rights” into women’s rights advocacy. Demands for equal pay combined the no-differential-treatment approach of the ERA wing with the workplace-only focus of the labor movement. This linkage brought the women workers groups substantively closer to the anti-classification position associated with the equality/sameness understanding advocated by supporters of the ERA.

The institutional mechanism that led to the embedding of this model in federal law was the 1961-1963 President’s Commission on the Status of Women. The Commission produced a report that appeared to be destined for the shelves of bureaucracy. In its work on developing the report, however, the Commission served the function of aggregating and integrating women’s rights advocacy across all three movement branches and prepared the way for the successful fight to include sex discrimination within the parameters of Title VII of the 1964 Civil Rights Act.

The conventional understanding that feminism was dormant between adoption of the Nineteenth Amendment and the eruption of rights claims in the 1960’s is wrong. Examining the campaigns for legal change across the branches of the movement during this time reveal an increase, not a diminution, in demands for full and equal citizenship in multiple arenas. What was dormant was the development of the concept of gender equality in constitutional law, but that was not for lack of activity by women on the ground

November 10, 2021 in Constitutional, Legal History, Theory | Permalink | Comments (0)

The Emotional Woman Rather than the Reasonable Man

Alena Allen, The Emotional Woman,  North Carolina Law Review (forthcoming)

The emotional woman is nonexistent in the common law, but the reasonable man is an indelible figure. Conceptions of reasonableness permeate nearly every aspect of the law while emotion is largely absent. The reasonable man determines negligence. Reasonable minds determine whether a contract has been formed. Reasonable doubt stands between freedom and incarceration. The primacy of reason in American jurisprudence is so engrained that it is rarely questioned or critiqued. Although it seems axiomatic to equate socially desirable conduct with reasonableness, this Article dissects how reasonableness became a central tenet of American law and argues that continued adherence to reasonableness as the optimal standard for evaluating conduct entrenches value-laden androcentric norms. It further argues that, in practice, reasonableness is an ill-defined construct masquerading as an objective standard. As such, instead of arguing for a reasonable woman standard of care, this Article departs from the standard feminist critique and argues that reasonableness itself is inherently androcentric. Thus, it argues that reasonableness is not the optimal standard for evaluating tortious or criminal conduct. Using current social science research, this Article argues that emotion is crucial to sound decision-making and proffers the emotional woman standard as a superior alternative to the reasonable man. Lastly, this Article discusses implications for how the emotional woman standard furthers existing paradigms of feminist discourse.

November 10, 2021 in Gender, Theory | Permalink | Comments (0)

Monday, November 8, 2021

Gender Disruption, Amelioration and Transformation: A Comparative Perspective

Rosalind Dixon and Amelia Loughland have posted their forthcoming book chapter on SSRN titled Gender Disruption, Amelioration: A Comparative Perspective. Their chapter is forthcoming in the Oxford Handbook of Feminism and the Law in the U.S. edited by Deborah L. Brake, Martha Chamallas, and Verna L. Williams.  These authors conclude as follow:  

The insights provided by U.S. feminist legal theory are rich and complex. They include the insights provided by the “first wave” of liberal, cultural and dominance feminist legal theorists, as well as those of a later wave of intersectional, sex positive/agency and poststructural/post-modern feminist legal thinkers. And together, these various waves or schools of feminist legal thought draw attention to the many different forms of gender injustice experienced by women in the U.S. today – and the ways in which sex, gender, race, sexuality and other forms of disadvantage intersect to produce constraints and disadvantage for women and men of different backgrounds. They can likewise help us understand the experiences of women worldwide, and their search for gender justice.

The difficulty we suggest, however, is that this internal complexity or richness may lead to broader legal audiences “tuning out” to the full range of insights provided by American feminist legal thought – and especially the newer, more complex insights provided by intersectional, sex positive/agency and post-structural/post-modern feminist legal thinkers.

By comparison, the approach we propose – of mapping different feminist insights onto goals of gender-based amelioration, disruption and transformation – goes a long way to avoiding those dangers. While inevitably simplifying and reducing the nuance and complexity of feminist legal insights, our approach is broad enough to encompass the key insights of all major feminist legal theoretic approaches in the U.S. today, including both older and newer feminisms.

It also provides a roadmap for understanding the nature and reasons for differences among feminists, as well as areas of commonality: the goal of amelioration can sometimes work in tandem with more radical goals of disruption or transformation, but often the two sets of goals will be in conflict. Similarly, disruption may in some cases help pave the way for transformation, but in others produce too much uncertainty as to future change to be embraced by those seeking to pursue predefined transformative goals.

It is also a roadmap that comes from a process of reflective engagement with, and can assist in, understanding legal feminist claims beyond the U.S. We illustrate this in the chapter by reference to transnational accounts of the gendered impact of the Covid-19 pandemic, and government responses to it. Although these debates are ongoing, and will no doubt evolve in the future, the basic contours of the debate to date show the value of understanding feminist and gender justice claims through the lens of the goals of amelioration, disruption and transformation in gender justice.


Ultimately, “mapping” the debates according to these goals helps to illuminate continuities between different schools of thought, as well as differences, and thus clarify the conceptual and political stakes for efforts at feminist collaboration and coalition-formation. Feminist disagreement will live on even after this mapping is done. Indeed, it is arguably essential to our ability to capture the multiplicity of women’s experiences. But it need not stand in the way of coalition-driven efforts at feminist legal change in the U.S. or elsewhere. Gender amelioration, disruption and transformation are all goals that feminists can recognize as sources of common ground, even as we continue to understand them and their priority in quite different ways.

November 8, 2021 in Theory | Permalink | Comments (0)

Thursday, November 4, 2021

Sexual Harassment: The Origins, Promise, and Limit of a Feminist Cause of Action

Theresa Beiner, Sexual Harassment: The Promise & Limits of a Feminist Cause of Action, in  
The Oxford Handbook of Feminism and Law in the United States, Oxford University Press, 2021.

This chapter explores the origins, development, and current status of workplace sexual harassment law. Sexual harassment law owes its genesis to a combination of grass roots feminist organizing and legal feminist theorizing. After initial losses in the courts, feminist lawyers and their clients scored significant victories in the court system. Employers and those accused of discrimination soon fought back, including by participating in the development of an extensive system of training and anti-sexual harassment policies that have not proven helpful to targets of sexual harassment. Feminist legal scholars have offered critiques of the courts’ decisions, taking a variety of approaches to increasing the law’s efficacy and extending its reach beyond women in the workplace to encompass the experiences of men, women of color, and sexual minorities. Yet, plaintiff’s using Title VII of the Civil Rights Act of 1964, the main federal anti-discrimination statute applicable to sex discrimination in employment, continue to find themselves thrust out of court due to formalistic rules developed in the court system. This has led other scholars to suggest different legal approaches to address this persistent and disturbing form of workplace discrimination. Whether current grass roots campaigns like the #MeToo movement will prove more effective than prior legal efforts remains to be seen.

November 4, 2021 in Equal Employment, Theory | Permalink | Comments (0)

Wednesday, October 27, 2021

Experts Weigh In on Biden's National Gender Equity Strategy

Biden's National Gender Equity Strategy: Here's What Experts Say About It

On Friday, the White House released the country’s first-ever National Strategy on Gender Equity and Equality, which aims “to advance the full participation of all people — including women and girls — in the United States and around the world,” according to a fact sheet the White House released summarizing the 42-page report. The strategy seeks “to combat discrimination and harmful gender norms that affect people of all genders: women and girls — including transgender women and girls — gender nonbinary and gender nonconforming people, as well as men and boys,” the report notes.

 

It outlines 10 priorities for reaching gender equity and equality, in the realms of economic security; gender-based violence; health; education; justice and immigration; human rights and equality under the law; security and humanitarian relief; climate change; science and technology; and democracy, participation and leadership.

 

It also suggests an intersectional approach to achieving those priorities, aiming to address the “impact of intersectional discrimination” on the basis of gender, race and other factors, such as sexual orientation, disability and socioeconomic status. And the report promises a whole-of-government implementation plan, requiring federal agencies to submit within nine months at least three internal goals supported by the strategy, including at least one that each agency can immediately implement.***

 

On Friday, the White House released the country’s first-ever National Strategy on Gender Equity and Equality, which aims “to advance the full participation of all people — including women and girls — in the United States and around the world,” according to a fact sheet the White House released summarizing the 42-page report. The strategy seeks “to combat discrimination and harmful gender norms that affect people of all genders: women and girls — including transgender women and girls — gender nonbinary and gender nonconforming people, as well as men and boys,” the report notes.

 

It outlines 10 priorities for reaching gender equity and equality, in the realms of economic security; gender-based violence; health; education; justice and immigration; human rights and equality under the law; security and humanitarian relief; climate change; science and technology; and democracy, participation and leadership.

 

It also suggests an intersectional approach to achieving those priorities, aiming to address the “impact of intersectional discrimination” on the basis of gender, race and other factors, such as sexual orientation, disability and socioeconomic status. And the report promises a whole-of-government implementation plan, requiring federal agencies to submit within nine months at least three internal goals supported by the strategy, including at least one that each agency can immediately implement.***

 

The strategy was shaped by the input of more than 250 nonprofit, community-, faith- and union- based organizations and academics, plus more than 270 girls, young women and gender nonconforming youth leaders from more than a dozen countries, the report said.

 

The effort comes as the first major initiative of the Gender Policy Council — established by the Biden administration earlier this year, and formerly known as the White House Council on Women and Girls in the Obama administration — which will partner with the Office of Management and Budget to facilitate implementation of the strategy across federal agencies. The GPC will also prepare an annual, publicly available report for submission to the president on implementation progress, the report notes.

 

Many gender equity advocates will be eagerly awaiting those implementation reports, including four experts who spoke to The Lily about the strategy, characterizing it as a crucial — and hopeful — step toward closing gender gaps and rectifying historic inequities. But, experts say, the strategy lacks clear implementation plans and measurable goals.

October 27, 2021 in Education, Equal Employment, Theory | Permalink | Comments (0)

Wednesday, October 6, 2021

Rethinking the Theory of Feminist Backlash

Sally Kenney, Backlash Against Feminism: Rethinking a Loaded Concept, The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds., Forthcoming).

Backlash is a reaction to real or perceived change leaving progressives worse off by catalyzing conservatives to oppose change by, changing their opinions to be more negative, holding opposing views more deeply, or propelling them to act violently. The claim that progressive social change has been counterproductive is an empirical one but too often those diagnosing backlash fail to distinguish what is truly a measurable setback from the fierce countermobilization of pre-existing opponents who are losing ground. Progressives themselves have famously warned against using courts in particular to advance the causes of civil rights, gender equality, or gay rights, yet careful examination reveals no regression. Once we complicate a simple linear understanding of progress, think about gender inequality intersectionally, and add an analysis of discursive countermobilizations to simple empirical measures of progress, the implicit baggage the concept carries outweighs its usefulness.

October 6, 2021 in Gender, Theory | Permalink | Comments (0)

CFP Feminist Legal Theory Network at Law and Society Annual Meeting

SUBMISSION LINK UPDATED (10/27): 1feministlegaltheory@gmail.com 

 

The Feminist Legal Theory Collaborative Research Network of the Law and Society Association
Global Meeting on Law & Society, Lisbon, Portugal & Virtual, July 13-16, 2022

Call for Papers – Friday, October 29 Deadline

Dear friends and colleagues,

We write to invite you to participate in panels sponsored by the Feminist Legal Theory Collaborative Research Network (FLT CRN) at the LSA-sponsored Global Meeting on Law & Society, July 13-16, 2022. Information about the conference (including registration and planning your visit) is at: https://www.lawandsociety.org/lisbon-2022-homepage.  Please note that the meeting is going to be held later than usual.

The theme for the Global Meeting is Rage, Reckoning, & Remedy. Feminist legal theory should and does have a lot to say about all three topics and the urgency with which we confront them now – globally but amidst vast and escalating inequality and a crisis of rising hate, fascism, and illiberal policies across the globe.

In this context, we are especially interested in papers that bring a critical feminist lens to their topics and that embrace the international character of the conference. Such papers will address the intersectional, gendered aspects of their subjects.
The following non-exhaustive list is intended to provide examples of topic areas, and not to limit scholarly and creative engagement of feminist legal theory with the conference themes:

● Present-day inequalities caused by unacknowledged and unaddressed (or inadequately addressed) legacies of slavery and colonialism.
● Consequences of neoliberal economic and social policies amidst (so-called) globalization.
● World health and environmental crises such as HIV/AIDS, Covid 19, climate change, and military, police, and other pervasive violence against marginalized people and communities around the globe.
● Critiques of international law and human rights approaches and institutions.
● Rule of law, access to justice, and legal empowerment issues and approaches.
● Inequalities related to reproduction and reproductive technologies.
● Perspectives on exploitation and resistance movements.
● Transnational/International/Comparative feminist critiques of any topic.

We especially welcome proposals that would permit us to collaborate with other CRNs and that are (give the multidisciplinary character of LSA) multidisciplinary in approach. We strongly encourage colleagues from the Global South and indigenous colleagues to submit proposals.

Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while proposals may reference work that is well on the way to publication, we are particularly eager to solicit proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.

SUBMISSION TYPES
Per the LSA guidelines, there are several types of submissions:
1. Individual papers
2. Paper Sessions: Panels that are formed around a single theme. These consist of 4-5 paper presenters, 1 Chair and 1 Discussant (who can be the same person), and last 1 hour and 45 minutes.
3. Roundtables: These may be formed around a topic and consist of 4-8 participants, 1 Chair, and last 1 hour and 45 minutes.
4. Author Meets Reader (AMR): These are for scholarly books published in 2021. For more information, please see https://www.lawandsociety.org/author-meets-reader-newbooks- in-the-field/

LSA also encourages submission of other “creative” formats for this conference. If you have an idea that you think would work well in one of these formats, please let us know.


CRN PRIORITIES FOR THIS CONFERENCE
Individual paper submissions. The CRN gives preference this year to individual submissions. A committee of the CRN will assign individual papers to panels based on the subject. Our panels will use the conference format, which requires four papers, but we will continue our custom of assigning a chair for the panel and a commentator for each individual paper. As a condition of participating as a panelist, you must also agree to serve as a chair or commentator for another panel or participant. We will of course take into account your scheduling and topic preferences to the degree possible.

Pre-formed group submissions. Although we prefer individual paper submissions, we will consider pre-formed panels, roundtables, AMR sessions, and other group submissions that meet the following guidelines:
1. The presenters have not presented together at LSA before.
2. Junior colleagues are included.
3. A diversity of institutions are represented.
4. Interdisciplinary and international perspectives are included.


If you are already planning a conference session with at least four panelists and papers that you would like to see included in the Feminist Legal Theory CRN, please let the organizers know.

The duties of a chair are to organize the panel logistically, including registering it online with the LSA and moderating the panel. The chair will develop a 100–250-word description for the session and submit the session proposal to LSA before their upcoming deadline on November 10, 2021, so that each panelist can submit his or her proposal using the panel number assigned. Chairs will also be responsible for assigning commentators but may wait to do so until panels have been scheduled later this winter.

The duties of a commentator are to read a minimum of two papers and provide verbal comments as well as brief written (email is fine) comments.

SUBMISSION PROCESS AND GUIDELINES
Individual Papers: Please email your abstract, up to three key terms (e.g., International law, violence against women, criminal law), and whether you will be virtual to 1femnistlegaltheory@gmail.com with the Email Subject: Individual Paper Last Name.

Panels and Roundtables: Please email your abstract and up to three key terms (e.g., International law, violence against women, criminal law) and all proposal members, identifying chair and discussant and whether any member will be virtual to
1femnistlegaltheory@gmail.com with the Email Subject: Panel Proposal or Roundtable Proposal Last Name.

Author Meets Reader Panels: Please email your book title and all panel members, identify chair and, whether any panelist will be virtual to 1femnistlegaltheory@gmail.com with the Email Subject: AMR Proposal Last Name.

Please remember that group proposals that are repeated from previous years, that are composed of scholars from a single institution, that contain no junior scholars and other forms of diversity may be rejected.

Be sure to first carefully read the LSA guidelines for submission formats here:
https://www.lawandsociety.org/types-of-submissions/. Please note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.

Please submit all proposals by Friday, October 29. This will permit us to organize papers into panels (and potentially other formats) and submit them prior to the LSA’s deadline on November 10. If we are unable to accept your proposal for the CRN, we will notify you by early November so that you can submit an independent proposal to the conference.

QUESTIONS OR COMMENTS
Please send any questions or comments to the CRN email address: 1femnistlegaltheory@gmail.com. Please do not send questions or submissions to individual committee members or in response to this email.

We look forward to the conference and hope you’ll join us in Lisbon or virtually to discuss our scholarship and connect with others doing work on feminist legal theory.


Best,
LSA Planning Committee
Cyra Akila Choudhury (co-chair)
Elizabeth MacDowell (co-chair)
April Cherry
Laura Kessler
Anibal Rosario-Lebron
Sheila Velez Martin
Ezgi Şerif

October 6, 2021 in Call for Papers, Conferences, International, Scholarship, Theory | Permalink | Comments (0)

Monday, September 13, 2021

Black Queers in Everyday Life

Goldburn Maynard, Jr. has posted his recent work Black Queers in Everyday Life on SSRN. This publication is forthcoming in 30 Tulane J. Law & Sex 129 (2021). The abstract previews:

I am using my Black queer identity as a starting point to consider the weaknesses I see in everyday conceptions of intersectionality. Do those who have been educated in the principles of intersectionality and who mean well apply them in online and personal conversations? Recent experiences have shown me that there is a disconnect, wherein even those individuals who know better will double-down on reified, essentialist notions of blackness that exclude the concerns of Black women, queer individuals, and other Black intersectional identities. Zero-sum perspectives are valued over coalitional appeals.

Maynard urges readers to think more critically about applying authentic and holistic commitments to intersectionality. 

To what extent are we pushing our students and ourselves to interrogate their own privileges? More work needs to be done to figure this out, since stakes are so high. A lot of the potential interventions and solutions depend on what the reasons are for the resistance to intersectionality principles. A place to start is to explore some possible explanations for the phenomenon: (1) gaps in our teaching of intersectionality (e.g., not providing enough or the most illustrative examples); (2) a mismatch between the theory and some perceived reality that at times you do have to choose between identities (3) some resistance to theory in general because of its association with intellectuals and academia; (4) an almost inevitable reproduction of hierarchy that should be expected; and/or (5) real fears about the loosening of the Black coalition and its implications. I hope we move forward on this because microaggressions within minority communities are that much more painful and traumatic for the individual to recover from.

September 13, 2021 in Gender, Race, Theory | Permalink | Comments (0)

Wednesday, September 8, 2021

Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion

Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson  allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion.  President Biden has called on Congress to act.  House Speaker Nancy Pelosi has similarly called for action.  And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021.  It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment. 

The Supreme Court too, has periodically suggested this option.  For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).  

Except that it might not be that easy.  The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare.  Congress must rely on a source of power specifically articulated in the Constitution. 

Here are some options under the Supreme Court’s existing precedent.  It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.  

  1. Commerce Clause

Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act.  Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.”  There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).

The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case.  In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause.  It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance.  Inactivity, the Court said, was not economic activity.

The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock.  Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”

The Commerce Clause power also requires that a regulate activity be “economic.”  This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity.  “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison.  While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity.  The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.

The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power.  The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause.  Abortion services is an economic activity.  It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.  

The abortion context also seems more clearly interstate.  With bans and restrictions on abortion, patients travel out of state to other providers.  They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality.  If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard.  Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court.  It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.

  1. Section 5 of the Fourteenth Amendment

A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment.  This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws. 

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion.  But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary.[1]  Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court. 

That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law.  FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors.  If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.

However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way.  Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5.  Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison

Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs.  In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality.  The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct.  In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished.  It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation.  In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.

The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right.  This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt).  These are rights that would not necessarily be struck down if Roe is overturned.  There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion.  There might also be an argument to connect to the provider’s right to work or profession.

A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination.  Hibbs provides good precedential support here.  In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process.  See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).

  1. The Necessary and Proper Clause

Congress has also cited the Necessary and Proper Clause for authority to legislate abortion.  The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case.  The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.  

  1. The Taxing Power

Following Sebelius, Congress could structure the abortion legislation as a tax.  In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power.  The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.

A Roe tax might tax the states which impose bans or regulations on abortion.  That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.

  1. The Ninth Amendment

Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion.  That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause.  Another possible source of recognizing the right is the Ninth Amendment.  In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution.  A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment.  See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).  The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.

 

[1] Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with BoerneSee Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote).  See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).

September 8, 2021 in Abortion, Constitutional, Family, Healthcare, Legislation, Reproductive Rights, Theory | Permalink | Comments (0)