And Also: Why They Marched: Untold Stories of the Women Who Fought for the Right to Vote is a collection of vignettes about women (and one man) who fought for suffrage (one chapter is about two sisters, one against). It is a brisk read without that much depth, but informative all the same. It covers a few black women, but not other women of color (Asian, Native American etc.), but does have a chapter on Mormon women. I think it has young adult reading list potential. Not really panel worthy.
===
I have gone to a few interesting events at NYU in the last year (only one had lunch though), including this one on reproductive justice with familiar faces (Kate Shaw is Chris Hayes' wife as an aside), who I read (and listened to; two are part of the Strict Scrutiny Podcast; Murray pops up regularly as a commentator and was the choice side in the Landmark Cases Roe v. Wade episode on C-SPAN) in the past in various respects. I also do want to buy the book (part of a constitutional case study series of which I read a few), but it's a bit pricey for my tastes at the moment.
It was noted that reproductive "justice" is an important way to phrase things in part because it is not just a freedom "from" but "to," in the sense of removing barriers. This also connects to a wide view of rights that is not just a matter of the courts. Thus, the Supreme Court in the 1970s did not treat pregnancy discrimination as sex discrimination (it did accept constitutional claims to a limited degree such as forced pregnancy leave for teachers) but legislation did cover that. There is an effort to expand this national legislation and there is some crossing of lines here since it is also seen as a way around abortion. This is a true "life" (or potential life) concern when often the state (e.g., strict abortion law states like Georgia and Alabama) turns out not to have them in practice by looking at infant mortality numbers etc.
Griswold (contraceptives) was noted to be one of many cases (including interracial marriage) that decriminalized certain conduct. It was also a marriage related matter, which has civil implications. I was struck by a reference to "terrifying moral conformity" in this context. Roe itself was decided on privacy and medical science grounds, but there were other cases that had a more open-ended view that saw it as an equal protection matter (race, class, sex), disparate health treatment and full with stories of the real life experiences of women. Note that "Roe" and "Doe" were class actions under pseudonyms though the true life stories of the leading parties of both were striking. RBG (somewhat unfairly) repeatedly disparaged Roe v. Wade, partially since she had her own case involving a servicewoman that actually had a pro-life sort of claim in that the military would have accepted if she had an abortion, but that went against her beliefs.
Abele v. Markle, referenced by Justice Stewart in a concurrence and as I recall also impressing Justice Powell, reflects the sort of possibly more open-ended approach as well. It actually (not noted here) was a two step affair. The court dealt with a 1860 statute and like Gaul split three ways: a broad feminist sounding opinion, a somewhat more narrow affair (the judge wrote the second opinion referenced by Stewart) and a dissent. The broad opinion is the one referenced by the panel. It brought in the recent sex equality ruling, the 19th Amendment, ERA and Title VII. This paragraph (footnotes removed) suggest the tenor:
[The ruling was somewhat limited but Roberts and Alito (in judgment) did go along. Kennedy did not. He repeatedly took a more restrictive view of national gender rights laws, including sexual harassment and pregnancy leave, in that latter case once dissenting from a Rehnquist opinion.]
State laws provide a possible window here for more protections generally. One panel member somewhat tongue in cheek argued Justice Kennedy retiring was a good thing, since him being there forced advocates to use limited arguments. Now, there was more of an ability to think big, in part in appealing to a new generation. One issue to consider here being economic justice as whole. Meanwhile, there is a pending Supreme Court case that threatens abortion rights, perhaps by reducing the ability of physicians and others to bring suits before they directly block rights.
An opening question wondered what effect the passage of the ERA might bring, the panel avoiding the "wormhole" of the various barriers of that actually happening even if the new firmly Democratic legislature in Virginia is the putative 38th vote (three votes coming long after the deadline). Not much clarity was given in the answer. There was a suggestion current sex equality law is somewhat weak and the ERA would help to make it more robust. Maybe so. But, take the Violence Against Women Case. The issue there was lack of state action. How would the ERA help there? The Civil Rights Cases (amazingly in my opinion) were held to still be good law so the same result would have occurred if race was at issue. One woman who was a teenager as the ERA battle went on told me that she thinks the ERA's time has passed.
One charm of modern day happenings is that I personally have a chance to interact with people here. For instance, Gay USA covered the Rhines case referenced on this blog. The female co-host in summarizing the case referenced an "accidental" shooting, meaning that it wasn't premeditated (it being in the course of a robbery), but confused in the moment. I flagged this in an email and she nicely responded to thank me. She then corrected it in the next episode, thanking viewers for engaging with them etc. Appreciate that sort of thing -- shows like that are clearinghouses of sorts for lots of information. Sometimes, they might get something wrong. Providing a means to provide feedback can be helpful. At any rate, I like providing feedback, especially on certain blogs, and figure it is not only a means to express my views but also to help others in some little way.
Anyway, as with another panel discussion, my question was also addressed. (Index cards were given out beforehand.) I asked how Congress might be able to interfere with liberal state abortion laws such as the expansive one recently passed by New York. This comes up in my readings online: there is basically an assumption that the Roberts Courts will open up not just restrictive abortion laws in places like Alabama, but that there will be a national anti-abortion law in place akin to The Handmaid's Tale or something. I find this a tad exaggerated, but it came to mind.
The panel was not very gung ho about delving into such dark subjects though touched upon things that came to mind. For instance, perhaps a twenty week ban. There also would be serious Commerce Clause questions though that was not addressed (Scalia/Thomas flagged this though Thomas regularly opined on things not directly addressed) in the "partial birth" abortion case decided about a decade back. Questions of fetal personhood also might come up. This latter issue might be pressed at some point given certain state laws that on some level seem symbolic, but might eventually (if they haven't already) clash with actual third party interests. This is not a new issue either.
Good talk and all four women greatly impress me.
---
* Reading the first opinion more closely, it is clearer that the best approach would be to combine the two opinions.
The first opinion provides a helpful statement on the interests of women, but does not provide a complete accounting of the state's interest. It is quite dismissive: "these statutes restrict a woman's choice in instances in which the state interest is virtually nil." The burdens on women were cited and will get no refutation here though in theory there are various ways for the state to address them. There are (hard as it is for some to believe) a segment of antiabortion types who would aim for the sort of social welfare policies that might arise here. But, it doesn't face up to the concern for fetal life, while citing the current concern for a population explosion as if mere numbers of people was the interest asserted. That concern also might not be as compelling anyways.
[The dissent has its own problems here though it gives it more in depth analysis than the dissents at the Supreme Court. This sort of thing doesn't quite work: "It should be noted that the majority decision leaves the State of Connecticut with no law or control in this area of human relationships. It invites unlimited foeticide (the murder of unborn human beings), as a way of life, in a state long known as the land of steady habits." Abortion can still be regulated and the framing itself is arguable -- what is "murder" here? It assumes the conclusion definitionally.]
This is where the second opinion comes in -- basically, the interest is a personal dispute that divides the nation too much to pick and choose, at least early in pregnancy. The debate then would be line drawing, which would be harder, but the law was quite broad. The first opinion also notes a third state interest (Roe basically handwaves it, saying the state did not rely on it; the dissent here also doesn't rely on it), "inhibition of promiscuous sexual relationships by prohibiting escape from unintentional pregnancy," but notes changing moral standards no longer makes it a compelling interest. This is a tad conclusionary.
Basically, opinions like Griswold recognized this as a private matter. Again, this turns on a constitutional right to decide such questions though a "common law" constitutional law approach very well will reflect current moral standards to some degree as well. The conclusion as a whole was correct, but I think it warranted a bit more analysis. After all, some very well still rely on such arguments. Plus, as done in contraceptives opinions, one can even grant the interest while holding that denial of abortion rights is not an appropriate approach.
(This footnote was added in part because a full accounting of these issues are appropriate.)
===
I have gone to a few interesting events at NYU in the last year (only one had lunch though), including this one on reproductive justice with familiar faces (Kate Shaw is Chris Hayes' wife as an aside), who I read (and listened to; two are part of the Strict Scrutiny Podcast; Murray pops up regularly as a commentator and was the choice side in the Landmark Cases Roe v. Wade episode on C-SPAN) in the past in various respects. I also do want to buy the book (part of a constitutional case study series of which I read a few), but it's a bit pricey for my tastes at the moment.
It was noted that reproductive "justice" is an important way to phrase things in part because it is not just a freedom "from" but "to," in the sense of removing barriers. This also connects to a wide view of rights that is not just a matter of the courts. Thus, the Supreme Court in the 1970s did not treat pregnancy discrimination as sex discrimination (it did accept constitutional claims to a limited degree such as forced pregnancy leave for teachers) but legislation did cover that. There is an effort to expand this national legislation and there is some crossing of lines here since it is also seen as a way around abortion. This is a true "life" (or potential life) concern when often the state (e.g., strict abortion law states like Georgia and Alabama) turns out not to have them in practice by looking at infant mortality numbers etc.
Griswold (contraceptives) was noted to be one of many cases (including interracial marriage) that decriminalized certain conduct. It was also a marriage related matter, which has civil implications. I was struck by a reference to "terrifying moral conformity" in this context. Roe itself was decided on privacy and medical science grounds, but there were other cases that had a more open-ended view that saw it as an equal protection matter (race, class, sex), disparate health treatment and full with stories of the real life experiences of women. Note that "Roe" and "Doe" were class actions under pseudonyms though the true life stories of the leading parties of both were striking. RBG (somewhat unfairly) repeatedly disparaged Roe v. Wade, partially since she had her own case involving a servicewoman that actually had a pro-life sort of claim in that the military would have accepted if she had an abortion, but that went against her beliefs.
Abele v. Markle, referenced by Justice Stewart in a concurrence and as I recall also impressing Justice Powell, reflects the sort of possibly more open-ended approach as well. It actually (not noted here) was a two step affair. The court dealt with a 1860 statute and like Gaul split three ways: a broad feminist sounding opinion, a somewhat more narrow affair (the judge wrote the second opinion referenced by Stewart) and a dissent. The broad opinion is the one referenced by the panel. It brought in the recent sex equality ruling, the 19th Amendment, ERA and Title VII. This paragraph (footnotes removed) suggest the tenor:
The Connecticut anti-abortion laws take from women the power to determine whether or not to have a child once conception has occurred. In 1860, when these statutes were enacted in their present form, women had few rights. Since then, however, their status in our society has changed dramatically. From being wholly excluded from political matters, they have secured full access to the political arena. From the home, they have moved into industry; now some 30 million women comprise forty percent of the work force. And as women's roles have changed, so have societal attitudes. The recently passed equal rights statute and the pending equal rights amendment demonstrate that society now considers women the equal of men.This was handed down April 1972 and the very next month the state passed a new law. The legislature seems to have been addressing the deciding judge's argument that the earlier law was basically a health law, one for which the times made outdated. The other two judges were more open to resting on the idea that the life of the unborn was at issue, but reached separate conclusions.* The new law forced the issue and in September the same panel again, this time with that judge speaking for two of them, again striking down the law. The opinion, just to cite it, early on cites who brought the suit, reflecting this all wasn't just some physician matter:
Plaintiffs in this and the earlier litigation are several hundred women including doctors, nurses, social workers and others who wish to advise concerning abortions, and pregnant women who wish to have an abortion.The opinion cites that the matter is covered by the right to privacy, explains how a "fetus" (using the usual misleading term) is not a constitutional person and noting that constitutional right at issue cannot be denied based on reasons that turn on a major individual dispute. The dissent strongly again said that the legislature's view (backed by evidence of human development) should be respected. The majority does not have the same feminist language, more privacy based. As a whole, it is arguably a better form of the Roe decision, especially since it clearly faces up to why the choice some deemed blatantly illegitimate should be left to the individual:
There are those who believe it is destructive of family life to permit the use of contraceptives. In each instance, the viewpoint behind the challenged governmental action was a serious, thoughtful judgment, deeply held by large numbers of people. But in each instance the Supreme Court ruled that such a viewpoint could not constitutionally be imposed by the power of the state upon individuals who did not share this view.Young v. UPS (pregnancy discrimination) was also addressed, it being the case one panel member covers in the book. It dealt with treating pregnant employees equally to others in respect to accommodations. The cited proposed bill seeks to expand the protections to secure a strong affirmative right to accommodation. It was noted that one issue here was that the pregnancy discrimination law was not seen to have a "disparate impact" application (talk of that being a "hunted animal") though the text arguably allows for it. OTOH, twenty-seven state laws have wider laws.
[The ruling was somewhat limited but Roberts and Alito (in judgment) did go along. Kennedy did not. He repeatedly took a more restrictive view of national gender rights laws, including sexual harassment and pregnancy leave, in that latter case once dissenting from a Rehnquist opinion.]
State laws provide a possible window here for more protections generally. One panel member somewhat tongue in cheek argued Justice Kennedy retiring was a good thing, since him being there forced advocates to use limited arguments. Now, there was more of an ability to think big, in part in appealing to a new generation. One issue to consider here being economic justice as whole. Meanwhile, there is a pending Supreme Court case that threatens abortion rights, perhaps by reducing the ability of physicians and others to bring suits before they directly block rights.
An opening question wondered what effect the passage of the ERA might bring, the panel avoiding the "wormhole" of the various barriers of that actually happening even if the new firmly Democratic legislature in Virginia is the putative 38th vote (three votes coming long after the deadline). Not much clarity was given in the answer. There was a suggestion current sex equality law is somewhat weak and the ERA would help to make it more robust. Maybe so. But, take the Violence Against Women Case. The issue there was lack of state action. How would the ERA help there? The Civil Rights Cases (amazingly in my opinion) were held to still be good law so the same result would have occurred if race was at issue. One woman who was a teenager as the ERA battle went on told me that she thinks the ERA's time has passed.
One charm of modern day happenings is that I personally have a chance to interact with people here. For instance, Gay USA covered the Rhines case referenced on this blog. The female co-host in summarizing the case referenced an "accidental" shooting, meaning that it wasn't premeditated (it being in the course of a robbery), but confused in the moment. I flagged this in an email and she nicely responded to thank me. She then corrected it in the next episode, thanking viewers for engaging with them etc. Appreciate that sort of thing -- shows like that are clearinghouses of sorts for lots of information. Sometimes, they might get something wrong. Providing a means to provide feedback can be helpful. At any rate, I like providing feedback, especially on certain blogs, and figure it is not only a means to express my views but also to help others in some little way.
Anyway, as with another panel discussion, my question was also addressed. (Index cards were given out beforehand.) I asked how Congress might be able to interfere with liberal state abortion laws such as the expansive one recently passed by New York. This comes up in my readings online: there is basically an assumption that the Roberts Courts will open up not just restrictive abortion laws in places like Alabama, but that there will be a national anti-abortion law in place akin to The Handmaid's Tale or something. I find this a tad exaggerated, but it came to mind.
The panel was not very gung ho about delving into such dark subjects though touched upon things that came to mind. For instance, perhaps a twenty week ban. There also would be serious Commerce Clause questions though that was not addressed (Scalia/Thomas flagged this though Thomas regularly opined on things not directly addressed) in the "partial birth" abortion case decided about a decade back. Questions of fetal personhood also might come up. This latter issue might be pressed at some point given certain state laws that on some level seem symbolic, but might eventually (if they haven't already) clash with actual third party interests. This is not a new issue either.
Good talk and all four women greatly impress me.
---
* Reading the first opinion more closely, it is clearer that the best approach would be to combine the two opinions.
The first opinion provides a helpful statement on the interests of women, but does not provide a complete accounting of the state's interest. It is quite dismissive: "these statutes restrict a woman's choice in instances in which the state interest is virtually nil." The burdens on women were cited and will get no refutation here though in theory there are various ways for the state to address them. There are (hard as it is for some to believe) a segment of antiabortion types who would aim for the sort of social welfare policies that might arise here. But, it doesn't face up to the concern for fetal life, while citing the current concern for a population explosion as if mere numbers of people was the interest asserted. That concern also might not be as compelling anyways.
[The dissent has its own problems here though it gives it more in depth analysis than the dissents at the Supreme Court. This sort of thing doesn't quite work: "It should be noted that the majority decision leaves the State of Connecticut with no law or control in this area of human relationships. It invites unlimited foeticide (the murder of unborn human beings), as a way of life, in a state long known as the land of steady habits." Abortion can still be regulated and the framing itself is arguable -- what is "murder" here? It assumes the conclusion definitionally.]
This is where the second opinion comes in -- basically, the interest is a personal dispute that divides the nation too much to pick and choose, at least early in pregnancy. The debate then would be line drawing, which would be harder, but the law was quite broad. The first opinion also notes a third state interest (Roe basically handwaves it, saying the state did not rely on it; the dissent here also doesn't rely on it), "inhibition of promiscuous sexual relationships by prohibiting escape from unintentional pregnancy," but notes changing moral standards no longer makes it a compelling interest. This is a tad conclusionary.
Basically, opinions like Griswold recognized this as a private matter. Again, this turns on a constitutional right to decide such questions though a "common law" constitutional law approach very well will reflect current moral standards to some degree as well. The conclusion as a whole was correct, but I think it warranted a bit more analysis. After all, some very well still rely on such arguments. Plus, as done in contraceptives opinions, one can even grant the interest while holding that denial of abortion rights is not an appropriate approach.
(This footnote was added in part because a full accounting of these issues are appropriate.)
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