Law and Gender Commons^™

How Planned Parenthood V. Casey (Pretty Much) Settled The Abortion Wars, Neal Devins

Neal E. Devins

More than twenty-one years after Robert Bork's failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this Essay, I will debunk those claims. First, I will explain how Casey's approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey- either by restoring the trimester test …

Associations' Freedom V. Freedom Of Association: Another Look At All-Male Clubs, Neal Devins

Neal E. Devins

No abstract provided.

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Richard M. Buxbaum

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Robert Bartlett

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …

Grasping Fatherhood In Abortion And Adoption.Pdf, Malinda L. Seymore

Malinda L. Seymore

Marriage Equality And Family Diversity: Comparative Perspectives From The United States And South Africa, Holning Lau

Holning Lau

What Impact The Supreme Court’S Recent Hobby Lobby Decision Might Have For Lgbt Civil Rights?, Vincent Samar

Vincent Samar

Abstract

What Impact the Supreme Court’s Recent Hobby Lobby

Decision Might Have for LGBT Civil Rights?

Vincent J. Samar

The U.S. Supreme Court’s recent decision in the Hobby Lobby case has created shockwaves of concern among civil rights groups questioning whether for-profit corporations can assert a religious exemption from civil rights legislation under a 1993 federal law, the Religious Freedom Restoration Act. The matter is of particular concern in the LGBT community given the possible impact it could have on services traditionally offered to those getting married as more and more states legalize same-sex marriage. Though the Court’s conservative majority …

Equality And Singapore’S First Constitutional Challenges To The Criminalization Of Male Homosexual Conduct, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

In 2013, in Lim Meng Suang and Kenneth Chee Mun-Leon v Attorney-General and Tan Eng Hong v Attorney-General, the High Court of Singapore delivered the first judgments in the jurisdiction considering the constitutionality of section 377A of the Penal Code, which criminalizes acts of 'gross indecency' between two men, whether they occur in public or private. The Court ruled that the provision was not inconsistent with the guarantees of equality before the law and equal protection of the law stated in Article 12(1) of the Constitution of the Republic of Singapore. The result was upheld in 2014 by the Court …

Déjala Decidir: Análisis Constitucional De La Despenalización Del Aborto En Casos De Violación Sexual, Beatriz Ramirez, Juan Carlos Díaz

Beatriz Ramirez

A Comment On Cass Sunstein's Equality, Emily Sherwin

Emily L Sherwin

No abstract provided.

Holistic Pregnancy: Rejecting The Theory Of The Adversarial Mother, Rona Kaufman Kitchen

Rona Kaufman Kitchen

In its zealous effort to protect the lives and health of unborn children, the law frequently views the expecting mother with suspicion. In its most extreme form, the law regards the potential mother as a potential murderess. This perspective does not reflect the nature of pregnancy, it undermines the autonomy of loving mothers, and it is detrimental to children. Regardless of whether there is any conflict between mother and fetus, the State presumes the mother to be a threat to her fetus and subjugates her rights as a result. The State interferes with the mother’s autonomy, bodily integrity, parental rights, …

Pregnancy As A ‘Personal Circumstance’? A Case Study Of Equality Jurisprudence Under The Canadian Charter Of Rights, Mel Cousins

Mel Cousins

This article examines the recent decision of the Federal Court of Appeal in Miceli-Riggins v Attorney General of Canada as an example of the approach which the Canadian courts are taking to the interpretation of s. 15 of the Charter of Rights (in the area of social benefits) following the Supreme Court’s recent attempts to ‘restate’ that law in a series of cases. It argued that, whatever the intention of the Supreme Court, the restatement of the law has created general confusion in the lower courts and tribunals. In addition, in cases concerning social benefits, the Court’s statements, in cases …

Street Harassment And The Informal Ghettoization Of Women, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

Punitive Injunctions, Nirej S. Sekhon

Nirej Sekhon

No abstract provided.

The Future Of Polyamorous Marriage: Lessons From The Marriage Equality Struggle, Hadar Aviram, Gwendolyn Manriquez Leachman

Hadar Aviram

Amidst the recent legal victories and growing public support for same-sex marriage, numerous polyamorous individuals have expressed interest in pursuing legal recognition for marriages between more than two consenting adults. This Article explores the possibilities that exist for such a polyamorous marriage equality campaign, in light of the theoretical literature on law and social movements, as well as our own original and secondary research on polyamorous and LGBT communities. Among other issues, we examine the prospect of prioritizing the marriage struggle over other forms of nonmarital relationship recognition; pragmatic regulative challenges, like taxation, healthcare, and immigration; and how law and …

Why Strive For Balance In A Roe Symposium?, Samuel W. Calhoun

Samuel W. Calhoun

No abstract provided.

When Free Exercise Is A Burden: Protecting "Third Parties" In Religious Accommodation Law, Kara Loewentheil

Kara Loewentheil

During the 2014 U.S. Supreme Court term, the Court considered two challenges to the contraceptive coverage requirement of the Affordable Care Act. These cases attracted enormous attention, and brought a new urgency to the principle that requests for religious accommodations should be weighed against any burdens such accommodations would impose on “third parties,” who are more accurately termed “existing rights-holders.” However, neither courts nor scholars have provided a consistent or principled way of thinking through how to evaluate such burdens and how to weigh them against free exercise rights. This Article takes up that challenge, using the example of the …

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Andrea Beauchamp Carroll

Roundtable on Regulating Assisted Reproductive Technology 2012

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Deseriee A. Kennedy

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Mujeres Invisibles, Progresos Incompletos: Reflexiones Sobre El Control Difuso De Constitucionalidad De Normas De Filiación, Beatriz Ramirez

Beatriz Ramirez

El Aborto Y Los Derechos Fundamentales., Beatriz Ramirez, Juan Carlos Diaz

Beatriz Ramirez

El Derecho, como sistema de regulación de conductas, establece cuáles están permitidas, prohibidas u ordenadas. En el caso del aborto, un enfoque conservador se orienta a su prohibición absoluta, lo que equivale a que el sistema legal indica que todos los embarazos deben culminar en nacimientos, proscribiéndose cualquier intervención en ese transcurso. No obstante lo anterior, existe otra tendencia en materia de aborto: aquella orientada a su permisión en determinados supuestos que son más bien excepcionales. En ese contexto, algunos ordenamientos jurídicos otorgan tratamientos diferentes al aborto que se produce en circunstancias en los que las mujeres no han podido …

Heroínas Forzadas: Reflexiones Sobre Aborto Terapéutico A Propósito De Las Medidas Provisionales De La Corte Interamericana De Derechos Humanos En El Asunto B. Contra El Salvador, Beatriz Ramirez

Beatriz Ramirez

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

India's Archaic Turn On Equality, Shubhankar Dam

Shubhankar Dam

No abstract provided.

Inequality's Frontiers, Melissa Murray

Melissa Murray

No abstract provided.

Roe V. Wade And The Dred Scott Decision: Justice Scalia's Peculiar Analogy In Planned Parenthood V. Casey, Jamin B. Raskin

Jamin Raskin

No abstract provided.

Conference On The Interventional Protection Of Reproductive Rights: Preface , Lauren Gilbert, Ann Shalleck, Claudio Grossman

Claudio M. Grossman

Reproductive Rights conference

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

R. Michael Cassidy

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider their spousal privilege …