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Morning-After Decisions: Legal Mobilization Against Emergency Contraception in Chile
In Chile, the Criminal Code bans all forms of abortion. Furthermore, the Constitution—drafted and enacted by the Military Junta led by General Augusto Pinochet—was inspired by a conservative version of Catholic natural law championed by prominent Chilean constitutional law scholars. This Article traces the emergence, development, and ultimately the defeat of a persistent legal mobilization driven by natural law-inspired litigants, politicians, and scholars against levonorgestrel-based emergency contraception, also known as the morning-after pill. In their decade-long efforts at legal mobilization, these natural law litigants used every tool of the Chilean legal system to challenge the legality and the constitutionality of the morning-after pill. This case of legal mobilization demonstrates both the strengths and the weaknesses of conservative political and religious networks in Latin America, and it demonstrates both the potential and limitations of litigation-led policymaking in civil law countries.An Incomplete Revolution: Feminists and the Legacy of Marital-Property Reform
As this Article shows, the conventional historical narrative of the divorce revolution is not so much incorrect as incomplete. Histories of the divorce revolution have focused disproportionately on the introduction of no-fault rules and have correctly concluded that women's groups did not play a central role in the introduction of such laws. However, work on divorce law has not adequately addressed the history of marital-property reform or engaged with scholarship on the struggle for the Equal Rights Amendment to the federal Constitution. Putting these two bodies of work in dialogue with one another, the Article provides the first comprehensive history of the role of women, both feminists and antifeminists, in revolutionizing the law of marital property in the United States. Moreover, as the Article will demonstrate, women's groups became involved and influential in the divorce debate because of, not in spite of, the ERA. In the early 1970s, women's groups like the National Organization for Women (NOW) did not focus on family law issues, be it in the context of the ERA or otherwise. However, between 1970 and 1975, anti-feminist organizations like STOP ERA and the Happiness of Women campaigned against the Amendment by highlighting its effects on divorce reform. By the late 1970s, NOW responded by campaigning for "pro-homemaker" divorce reforms: measures such as those calling for equal or equitable distribution of marital property and laws recognizing the contributions of homemakers in the division of marital property. These reforms themselves represent a revolution in divorce law. Equitable property division, rare in 1970. became the norm in all but ten states by the mid-1980s. Whereas no states had property-division rules recognizing the contributions of homemakers in 1968, 22 states had adopted such a policy by 1983. The Article also offers new perspective on the flaws in current marital-property rules. Since discussion in the 1970s focused so heavily on the value homemakers contributed to marriage, the laws produced in that period did not adequately address the human capital brought to a marriage by the wage-earning husband. The history of marital-property reform makes apparent the need for statutes and judicial decisions that define marital property more expansively. The problem with current rules is not, as scholars have argued, that divorce reforms failed to consider women's needs. Instead, as we shall see, the problem was that women involved in divorce reform did not fully consider how those needs could best be addressed.Baring Inequality: Revisiting the Legalization Debate Through the Lens of Strippers’ Rights
The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if sex work were legalized? When deploying the hypothetical, advocates elide the reality that the commercial sex industry is legal in the United States for a large swathe of workers in the industry: strippers. Stripping, as this Article will describe, is analogous to prostitution in that every interaction between stripper and customer is a performance of intimacy geared toward sexually and emotionally satisfying the customer in exchange for money. During these performances, strippers are often isolated with customers, thereby vulnerable to physical and sexual assault. Applying the argument of legalization advocates, strippers should experience better protection than individuals engaging in prostitution because their work is legal and thus subject to government oversight. But does this argument hold true? This Article examines strippers' experiences as a case study for how the legalization argument for prostitution falls short of its promises. Despite the fact that stripping for money is legal, the stripper's body remains a site of deep controversy in American culture and legal jurisprudence. Her dance is seen both as a threat to social order and an act of expression to be protected. Her work, legally recognized labor, is nonetheless ignored when it is not reviled. Unlike workers whose labor is seen as "legitimate" in the eyes of the law, the stripper operates in a murky zone of legal protection laden with qualifications and contradictions. While legalization has led to heavy regulation, it has failed to protect strippers and has arguably made them more vulnerable by lending a false veneer of legitimacy to strip clubs' labor practices. In the past thirty years, legal doctrine has developed in two distinct substantive areas that exacerbate strippers' poor working conditions: 1) strippers' classification as independent contractors and consequential exclusion from protective labor statutes, and 2) First Amendment jurisprudence that permits regulation of strip clubs, but has not produced meaningful protective regulations for strippers. These doctrinal developments are entangled in underlying social narratives about the worth of sexual labor and the place of the strip club in a morally upright community.Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender Markers on Birth Certificates: A Good Government Approach to Recognizing the Lives of Transgender People
Across the country, laws governing corrections to gender markers on birth certificates are relatively uniform, in large part because many states adopted the relevant provisions of the 1977 revision of the Model State Vital Statistics Act (MSVSA). The MSVSA, developed by the U.S. Department of Health and Human Services, guides states on the most efficient laws and procedures related to maintaining accurate birth, death, and other vital records at the state, local, and territorial level. At the time when the government promulgated the MSVSA provision related to gender corrections, it served as a forward-thinking model because it acknowledged that vital records should be corrected in the case of individuals who change their gender. Specifically, the 1977 MSVSA recommended that corrections to gender markers on birth certificates be granted after applicants change their sex by "surgical procedure" and provide a court order to that effect. Additionally, the MSVSA recommended that the correction be kept private. Over the past three decades, transgender legal rights have advanced and understanding of transgender medicine has evolved. Experts in transgender law and medicine entirely reject the idea that recognition of a person's gender should come only after surgery. This notion has also been significantly eroded in law and policy. Yet, with the exception of new laws and/or policies in three states, birth certificate statutes and policies have yet to be modernized in this respect. This Article explains why and how state, local, and territorial birth certificate laws and regulations ought to be revised based on changes in law and medicine. In addition, the Article discusses public policy factors that governments should consider when modernizing their policies, including the cost of various policies and the policies' legal and practical effects on the lives of transgender people.The Role of Networks, Mentors, and the Law in Overcoming Barriers to Organizational Leadership for Women with Children
The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of senior executive positions at Fortune 500 companies and 40% of managerial positions overall. These figures have persisted unchanged since 2005. Subtle yet entrenched forms of gender discrimination have clearly stalled women's career progress, and more must be done to rectify these disparities. The differences in gender outcome may be a function of demand-side (work-related) and supply-side (worker-related) characteristics. These include personal characteristics, human and social capital, and developmental, interpersonal, and situational factors. Gender overlaps with multiple group memberships based on family status, race, religion, national origin, and disability. These group memberships also influence women's status and power dynamics in the family, the workplace, and in other communities. The interplay of these factors makes gender-based discrimination an interesting phenomenon to explore. Having dependents is an important family status variable in the larger scheme of social differentiators that account for sex differences in careerrelated outcomes. In this study, we are interested in whether men or women benefit more from having access to networks when they have dependents. Prior studies have shown that mentoring and networking are major components of professional development that lead to career advancement. We are also interested in whether the outcome differs for those men and women who report having mentors.The Scarlet Letter: The Supreme Court and the Language of Abortion Stigma
Why does the Supreme Court refer to the woman who is seeking an abortion as "mother"? Surely the definition has not escaped the attention of a Court that frequently relies on the dictionary to define important terms or principles. And why does the Court choose to describe the fetus as a child? What message does this language send about abortion and the woman who seeks an abortion? The Court's abortion decisions embody an ongoing debate on the legitimacy of constitutional protection of the right to choose. This debate unfolds most obviously as a discourse on constitutional interpretation; disagreements within the Court are reflected in the language of constitutional principles and standards. This debate also plays out, hidden in plain view, in the vocabulary used by the Court to describe the woman who stands at the center of the constitutional controversy and the life within her. The opinions of the Court, beginning with Roe, mediate abortion stigma through both language and legal standards. The Court's framing of the abortion procedure, of the woman and physician, and of prenatal life has contributed to the ascendancy of abortion stigma. Casey, in particular, marks a turning point, where the Court's overt expression of moral disgust with abortion correlates with diminished constitutional protection. This article examines how the abortion decisions contribute to abortion stigma. It argues that several narratives emerge from the vocabulary deployed by the Court to describe both the woman who seeks an abortion and prenatal life. These narratives serve a potent expressive function. Most display considerable ambivalence about the moral authority of women, particularly women who decide, even temporarily, not to become mothers. From Roe onward, the Court has reinforced abortion stigma through discourse as well as constitutional standards. This stigma marginalizes both the abortion procedure and the woman who seeks an abortion. This marginalization, in turn, provides justification for increasing restrictions on a woman's access to abortion.The Exit Myth: Family Law, Gender Roles, and Changing Attitudes toward Female Victims of Domestic Violence
This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims ofintimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth. While the situation that gave rise to the battered womens movement in the 1970s is often presumed to be part ofa long history of state tolerance or even approval of violence against women, the real history is actually much more complicated. Indeed, at least until 1930, wife beaters were routinely brought to criminal court and fined or sentenced to a jail term. Whereas wife killers often faced life imprisonment or even the death penalty, juries acquitted many women who used lethal violence against their abusive husbands. What happened between the 1920s and the later decades of the twentieth century that changed how the public and the criminal justice system responded to domestic violence? This Article offers the following hypothesis: As women gained the vote and sought easy access to divorce, and as mothers of minor children began to compete for jobs formerly held exclusively by men, society and the criminal justice system less often saw abused wives as frail beings who needed protection against their violent husbands. Changes in employment opportunities, family and property law, and psychosocial understandings of intimate relationships combined to create a false sense of the ease with which women could exit an abusive marriage. This overestimation ofwomen ' ability to leave, paired with the new view that women did not need to be protected in paternalistic ways, contributed to waning sympathy for female victims of intimate-partner violence. In the second half of the twentieth century, such women were presumed-often unfairly and incorrectly-to be capable of safely leaving their relationships and supporting themselves. As gender roles changed to allow greater female autonomy, the criminal justice response may have become more punitive and less sympathetic toward women trapped in violent intimate relationships.Surrender and Subordination: Birth Mothers and Adoption Law Reform
For more than thirty years, adoption law reform advocates have been seeking to restore for adult adoptees the right to access their original birth certificates, a right that was lost in all but two states between the late 1930s and 1990. The advocates have faced strong opposition and have succeeded only in recent years and only in eight states. Among the most vigorous advocates for access are birth mothers who surrendered their children during a time it was believed that adoption would relieve unmarried women of shame and restore them to a respectable life. The birth mother advocates say that when they surrendered their children, their wishes were subordinated and their voices silenced. They say they want to be heard now as they raise their voices in support of adult adoptees' rights to information in government records about their birth mothers' original identities. Opponents of restoring access, in "women-protective rhetoric" reminiscent of recent anti-abortion efforts, argue that access would harm birth mothers, violating their rights and bringing shame anew through unwanted exposure of out-of-wedlock births. Opponents say they must speak for birth mothers who cannot come forward to speak for themselves. Birth mother advocates respond that the impetus historically for closing records was to protect adoptivefamiliesfom public scrutiny and from interference by birth parents, rather than to protect birth mothers from being identified in the future by their children. They maintain that birth mothers did not choose and were not legally guaranteed hfelong anonymity. They point out that when laws that have restored access have been challenged, courts have found neither statutory guarantees of nor constitutional rights to, anonymity. They also offer evidence that an overwhelming majority of birth mothers are open to contact with their now grown children. As a means of assessing these competing claims, this article analyzes the provisions in a collection of birth mother surrender documents assembled by the author-seventy-five mid-twentieth century documents executed in twenty-six different states. In order to establish the significance of the surrender document provisions with respect to these claims, the article first relates depictions by birth mothers of ajourney from silence to legislative advocacy. The article then examines the conflicting claims about birth mothers that pervade legislative contests over adult adoptee access to original birth certificates. Finally, the article analyzes the provisions of the surrender documents. The analysis of the provisions definitively supports birth mother advocates' reports that women were neither offered a choice of nor guaranteed lifelong anonymity. Their opponents' contentions to the contrary, whether motivated by concern for birth mothers or other interests, reinscribe an earlier culture ofshame and secrecy, subordinating women own wishes and silencing their newly raised voices.Beyond Seduction: Lessons Learned about Rape, Politics, and Power from Dominique Strauss-Kahn and Moshe Katsav
n the last decade, two influential international political figures, Dominique Strauss-Kahn, former head of the International Monetary Fund, and Moshe Katsav, former President of Israel, were accused of engaging in extreme and ongoing patterns of sexual violence. The collection of formal charges against the two men included rape, forcible indecent assault, sexual harassment, and obstruction of justice. The respective narratives surrounding the allegations against Katsav and Strauss-Kahn have their own individual characteristics, and each of the cases unfolded in diverging ways. Yet, the actions of these two men taken together, and the corresponding response of the legal systems in France, Israel, and the United States, offer an opportunity to evaluate contemporary issues of rape and power from a comparative perspective. This Article begins by telling the stories of how Strauss-Kahn and Katsav engaged in systematic patterns of sexual violence. It provides important background and context against which the two men are evaluated, offering a comparative analysis of the laws under which they faced accusations, formal charges, and in some instances, convictions. It is difficult to understand the ways in which the legal system and even the media responded to these allegations of sexual violence. This Article considers the victimization of women by the politically powerful by utilizing a framework created originally by Norwegian sociologist Nils Christie that identifies a set of characteristics describing the “ideal victim.” It next examines some of the legal issues impacted by stereotypes of “ideal” victims that conflict with the reality of “real” victims, making recommendations for expanding Christie’s framework to include an equally comprehensive evaluation of perpetrators and more importantly, the power differential that exists between victim and perpetrator. Midway through this Article, I explore the connection between sexuality, seduction, and sexual violence, and argue for a disentangling of these constructs. Finally, this article concludes by considering how the allegations against these powerful international political figures might advance the conversation on the intersection of sexual violence and power.The North Carolina Woman’s Right to Know Act: An Unconstitutional Infringement on a Physician’s First Amendment Right to Free Speech
The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute that mandates that an individual speak alters the content of that speech and is, therefore, subject to strict scrutiny. Pursuant to current United States Supreme Court precedents on compelled and content-based speech, the relevant portions of the Act are unconstitutional. Further, the claim made by the Act’s proponents that the speech involved is commercial speech, subject to a lesser degree of First Amendment scrutiny, fails under the Court’s commercial speech precedents. The State may reasonably regulate the medical profession by mandating that physicians obtain informed consent and convey limited, truthful information to patients. However, the Act’s extensive and one-size-fits-all approach to informed consent is not a reasonable regulation of medical practice. What is left, therefore, is an unconstitutional attempt by the State to infringe on the First Amendment rights of physicians providing abortions in North Carolina.