Category: Feminism and Gender

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Volume 60, Issue 2 (December 2012)

Volume 60, Issue 2 (December 2012)


Articles

The Battle Over Taxing Offshore Accounts Itai Grinberg 304
The Structural Exceptionalism of Bankruptcy Administration Rafael I. Pardo & Kathryn A. Watts 384
Patients’ Racial Preferences and the Medical Culture of Accommodation Kimani Paul-Emile 462


Comments

“Not Susceptible to the Logic of Turner”: Johnson v. California and the Future of Gender Equal Protection Claims From Prisons Grace DiLaura 506
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Why Did Egg Freezing Wait So Long?

Thank you to the permanent bloggers of Concurring Opinions for having me back. It is great to be here.

Egg freezing has become the new hot trend in the infertility industry. Although infertility practitioners first used  egg freezing in the mid 1980s,  it was only recently that success rates have significantly risen making this an attractive option for women.  A woman can now freeze her eggs at any age and use it a few years later or much later with the sperm of her then chosen partner or a donor to have a baby through IVF. Using egg freezing technology, a woman can today have a baby at a time that best suits her career and family situation.

There is no doubt that egg freezing as a viable option is a huge revolution for women’s autonomy. But the big question is why only now? Why has egg freezing become a really viable option only during the first decade of the Twenty-First Century. We have known how to freeze sperm since the 1950s. And, embryo freezing was first tried out around the same time as egg freezing, during the mid-1980s. Yet, unlike egg freezing, embryo freezing became common practice soon thereafter. So why did we have to wait so long for effective egg freezing technology?

The answer usually given to this question is that it was just too complicated technologically and took a long time to develop. But were technological complications the only cause for delay?  Is it really much harder to freeze and thaw eggs for later IVF use than to freeze and thaw embryos for later use? We tend to be taken by the illusion that science is value neutral — that scientific progress is not affected by choices directed by social values. But even if technological diffiuclties played a role in the delay, could egg freezing technology have been held back because resources were invested elsewhere? Unlike other forms of reproductive technology that promote the reproductive interests of both men and women, egg freezing promotes mainly the autonomy interests of women.  Egg freezing’s impact on women autonomy can be compared only to the revolutionary effect of the birth control pill. At the same time, the infertility industry is comprised overwhelmingly by male practitioners. And while some have no doubt worked relentlessly to promote egg freezing technology, it may be time to stop assuming that technological complications held back this important women emancipating technology. It may be time to begin asking whether  the advancement of egg freezing was placed on the back burner for years because of the type of interests it promotes?

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The Contraception Mandate Part II

In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.

The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA  as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.

Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.

Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.

Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.

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The Contraception Mandate Part I

The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.

It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.

While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.

What about the Religious Freedom Restoration Act? Stay tuned.

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The Normative Jurisprudence of Creepshots

My reaction to Robin West’s extraordinary scholarship always includes some mixture of distress and excitement: distress over the failures of law and humanity she describes with such devastating clarity, and excitement about the potential applications of her insights. In this post, I want to discuss how Robin’s critique of both liberal legalism and what she calls “neo-critical” legal theory in Normative Jurisprudence – particularly the former’s fetishization of individual rights and the latter’s decidedly uncritical celebration of consent – usefully illuminates the recent controversy over the outing of Michael Brutsch, aka “Violentacrez,” the man behind some of the most controversial forums on the popular social news website, reddit.com. One of these, the “/r/creepshot” forum (or “subreddit”), which encouraged users to submit surreptitious photographs of women and girls for sexual commentary, garnered national attention when it was discovered that a Georgia schoolteacher was posting pictures of his underage students. Brutsch’s outing (or “doxxing“) sparked outrage from many in the reddit community, and has led to an intriguing online and offline debate over Internet norms and practices. The defense of Brutsch and the forums he helped create – mostly sexual forums targeting women and girls – has been dominated by a highly selective conception of the right to privacy, the insistence on an unintelligibly broad conception of “consent,” and a frankly bewildering conception of the right to free speech. Attempts to criticize or curtail these forms of online abuse have also been primarily framed in terms of “rights,” to uncertain effect. Robin’s critiques of rights fetishism and the ideology of consent offer valuable insights into this developing debate.

I will attempt to briefly summarize (and no doubt oversimplify, though I hope not misrepresent) the points Robin makes that I think are most useful to this conversation. Liberal legalism’s focus on rights rests on a seductive fantasy of individual autonomy: it “prioritizes the liberty and autonomy of the independent individual, shrouds such a person in rights, grants him extraordinary powers within a wide ranging sphere of action, and in essence valorizes his freedom from the ties and bonds of community. It relegates, in turn, the interests, concerns, and cares of those of us who are not quite so autonomous or independent … those of us for whom our humanity is a function of our ties to others rather than our independence from them … to the realm of policy and political whim rather than the heightened airy domain of right, reason, and constitutional protection” (41). The critical legal studies movement attempted to correct some of this rights fetishism by pointing out that “rights” are not only radically indeterminate (i.e. rights can be interpreted and granted in conflicting ways), but that they are also legitimating (that is, bestowing the status of “right” on narrowly drawn freedoms can obscure the injustice and inequality that fall outside of them, thus insulating them from critique).

Robin persuasively demonstrates that neo-critical legal theorists held on to the indeterminacy thesis while jettisoning the critique of legitimation. Concerns about legitimation are concerns about suffering, and neo-crits are largely uninterested in, if not contemptuous of, suffering. Their primary concern is power and pleasure, which is accordingly supported by what Robin calls “the ideology of consent.” To the neo-crits, consent has the power to fully shield any act from either legal or moral critique. Robin addresses the way the ideology of consent plays out in the context of sex by looking to the work of Janet Halley. According to Robin, Halley espouses a view of sex that takes “[c]onsent to sex … as full justification for a collective blindness to both societal and individual pressures to engage in unwanted sex, so long as the sex is short of rape”(142). Sex is presumptively pleasurable, and as such presumptively immune from critique. As Robin describes Halley’s position, “sex is almost always innocent, and when consensual, there can be no ‘legitimate’ basis for criticism. Consensual sex is just too good to be circumscribed, or bound, by claims of its unwelcomeness or unwantedness. The claims that consensual sex is in fact unwelcome or unwanted are likely false in any event. The harms sustained, even if the claims are true, are trivial” (146). (I came to similar conclusions regarding Halley’s work in my review of her book, Split Decisions: How and Why to Take a Break from Feminism).

Now to apply these insights to the Michael Brutsch/creepshot controversy. The moderators of the creepshot subreddit provide this helpful definition of “creepshot” on the “subreddit details” page:

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An Accommodation Too Far

The United States Conference of Catholic Bishops (USCCB) has been leading the charge against the contraception mandate, but its opposition to the mandate does not represent the USCCB’s first entanglement with contraception lawsuits. ACLU of Massachusetts v. Sebelius involved an Establishment Clause challenge to a grant given to the USCCB pursuant to the Trafficking Victims Protection Act. The grant was to provide services to victims of sex trafficking, who are often forced into prostitution and forced to endure rape or other sexual abuse. In accepting the grant, the USCCB made very clear that its religious beliefs prevented them from providing contraception or abortion to their clients, or referring them to others who would. (More specifically, the USCCB stated it would bar its subcontractors from providing or referring these services.) Even though access to contraception and abortion are crucial for women and girls who have been sexually trafficked, the U.S. Department of Health and Human Services (HHS) nonetheless awarded the USCCB over $15 million dollars. The ACLU sued, alleging Establishment Clause violations. USCCB responded by claiming that HHS was merely accommodating its sincere religious beliefs. The ACLU won.

Sometimes the line between constitutional accommodation of religious belief and unconstitutional advancement of religion can be hard to draw. Sometimes, however, it is not. HHS should never have awarded the grant. It is true that religious groups may now compete on an equal basis with secular groups for government grants and contracts. But they should also be rejected on an equal basis if they cannot fulfill basic grant requirements. The point of the grant, after all, is to help the intended beneficiaries. Any group, secular or religious, that cannot provide the requisite services, which in this case includes contraception and abortion, is simply not qualified. To accommodate the USCCB at the expense of trafficked sex victims goes too far. At this point, “accommodation devolve[s] into an unlawful fostering of religion.”

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Expanding Bob Jones University v. United States

In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.

Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?

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Stanford Law Review Online: The Violence Against Women Act and Double Jeopardy in Higher Education

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.

He concludes:

Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.

Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.

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Is IP for People or Corporations?

Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.

Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).

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Intellectual Property Theory: An Homage and Reply

I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.

What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.

The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.

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