Women and the Law Fall 1994 Goldfarb and Ellis I. Historical Background to Women and the Law



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Women and the Law

Fall 1994

Goldfarb and Ellis
I. Historical Background to Women and the Law

A.Early history- The Women's Movement

* Declaration of Sentiments-Seneca Falls -states the numerous ways in which women are

enslaved by men for example they have no vote, are forced to submit to men;s laws, if single pay taxes, if married lose right to their property, unable to separate from husbands except by the standards men set, men monopolize all the jobs, deny women access to education-

* this class looks at how these rights are slowly gained by women.-

*today we are still -concerned with (1) suffrage because even they have the vote they are still underrepresented (2) property at divorce still is not equally shared- although now women do have property rights. (3) still employment problems (4) education-see the Citadel (5) only a few progressive religions allow woment o be ordained (6) still biases in marriage and custody (7) self esteem problems (8) still gender roles

*but also today-reproductive rights (abortion, contraception, health care), work/family conflict, domestic violence/rape, equal pay/comparable work, prisoner's rights, race gender, lesbian discrimination, pornagraphy, poor-welfare rights/compulsory sterilization, glass ceiling, disabled /elderly/girls.

* also provides a history of the women in the suffrage movement and their ties to the Abolitionist movement-



B. Civil Rights Amendments (14th) failed to include women's suffrage and limited it to "males" - see Sojourner Truth, "Ain't I a Woman?" shows how black women were nottreated as if on a pedastol like white women and ties the two movements together by showing how black women demonstrate that women are not in need of protection.

C. Constitutional Limits on Sex- a text note- gives historical subjugation of women by the law

1) 14th Amendment- used "male"

2) Bradwell v. Illinois - denied women the right to be a lawyer because they should be in the home-could have been a footnote to Gilligan except he fails to see the postives in women's nature.

3) In re Lockwood- confirmed Bradwell

4) Minor v. Happersett- right to vote not among privileges and immunities clause and therefore no Const. guarantees to women- but they may be "citizens"

5) 19th Amendment- 1920 - finally women get the vote

6) Harper v. Virginia Board of Elections- held the exercise of the franchise may not be conditioned on the payment of a poll tax therefore depriving women who earn less than mnet he right to vote.

7) Muller v. Or. -1908- ct. upheld protective economic law for women even when Lochner had still not been overturned because women ar different than men physically, and maternal functions and therefore need this protection that men don't need. It is protection that was never extended to men at least by the court and therefore, many women were hurt because they could not compete with the men who did not have these impediments of their time.

8) Goesart v. Cleary - (1948)- held const. to not allow a women to serve as bartenders and allowed men to monopolize the profitable job.

9) Hoyt v. Fl.- (1961) - held that while women have the option to serve on a jury they do not have a duty to and therefore, hen a women was convicted by an all male jury the court held it to be a const. jury of her peers.


D. Socialization or biological?

Images of Relationship -Gilligan -Essentialism-distinctions between men and women. Are they socially constructed or biological? Gilligan criticizes Colberg's discussion which concluded that women reach a different level of moral development and are lower. Gilligan says we are just different.

-suggests through a study of two children's responses to questions at the age of eight and eleven, that men solve problems logically and establish hierarchies, whereas women think about relationships and communication. Men are fair and women want care. Therefore, we need research elucidating the effects of these differences in marriages, family, and work relationships. Suggests that women say one thing and men say another but because they are using the same vocabulary thing often get misinterpreted.

* Criticisms- she compartmentalizes in maybe inaccurate ways and unfair, not statistical study, results not supported by data, results are because of socialization- both ways of looking at the world are necessary- male has a small view, and women look to alternative dispute resolution- the logical conclusion is that women should not be in the legal profession and do not have the same sense of justice as men.

Goldfarb: we need both Amy and Jake- and many women are more like Jake than Amy... Policy:should we accept that there are differences between men and women. Her work can both support and hinder women

* Susan Glaspell -A Jury of Her Peers- story of a woman who kills her husband and only the other women can find the clues that she did it because he beat her.



II. Equal Protection: Sex Equality Under the Constitution

A. What is the standard for Constitutional review?

*Reed v. Reed -1971(p.13)- held: court applied rational relations but a stricter test- de facto strict scrutiny; Facts: a minor dies intestate and the parents are fighting over being administrators. Rule: held statute unconst. because arbitrary preference in favor of men. Ct. Reas.: 14th Amendment does not deny the right to treat diff. classes differently, but class. must be reasonable...

Text notes: equal protection requires that those who are similarly situated be treated the same. (note:case was moot b/c legislature had changed actual law already.)

*Frontiero v. Richardson -1973 (p.20)-Brennan made the strongest argument for strict scrutiny. Held: unconst. a law which allowed a man to claim a woman as dependent regardless and made a servicewoman prove her spouse was dependant. Violates the due process clause of the Fifth Amendment (and not 14th b/c it was Federal Gov't). Based upon Reed v. Reed. Ct reas: sex is immutable, history of discr., usually bears no relation to distinction-it is true that they are not small and powerless but they are underepresented. Gov't failed to prove that it is cheaper to grant benefits to all men and not women-administrative argument fails. Dissent(Powell): sees it as premature because ERA about to be passed.(also against was lack of textual support, reluctance to apply broad readings, not numerical minority)

Text Notes: Frontiero was only a plurality.ERA defeated in 1982. Should Court defer to legislature or lead? Ginsberg at first argued for strict scrutiny but thinks that the court created more controversy by going to far with Roe v. Wade) Cali. Court did make sex suspect because relegated to an inferior legla status without regard to capabilities, also stigma of inferiority.

*Craig v. Boren -1976 (p.30)- Court established Intermediate Scrutiny standard-1)important governmental objectives 2) substantially related . Held: unconst. a law allowing women over the age of 18 and men 21 to buy 3.2% beer. Ct. Reas.: Court creates an objective-trafiic safety, drunk driving and finds that while .2% is statistically significant as compared to .18%, it does not satisfy gender distinction- based on broad social stereotypes therefore it discriminates against males on the basis of sex. Rhenquist Dissent:Stanton did not hold sex as a suspect class, no suggestions that men are a disadvantaged class, only dicta from Reed and Frontiero suggest that same test should be applied to all class. based on sex regardless if men or women, not court's role to question statistical significance-should defer to Congress, rasises due process questions not equal protection.

Text Note: Craig based on stereotypes that women are passive, unassertive, settled;whereas boys are adventurous and reckless. Perhaps it was based upon coupling intentions between men and younger women. General Rule: race, alienage, and nat'l origin are all suspect. Gender gets heightened scrutiny because rarely bears a relation. Age is not subject ot higher scrutiny. Mental handicaps is not but in Cleburne the rational relation test gets a stricter application. Argued by some that the test is actually the same but that different groups have diff. characteristics that can be relevant. Pros of Brennan's view: 1)rejects encouragement of traditional sex roels 2)creates presumption against the validity of all sex class.

* Kahn v. Shevin- 1974(p.136)- upheld tax exemption for women and not men under interm. scrutiny. Benign class. for women, but also based on stereotypes. Shows inconsistency of standard.

*Rostker v. Goldberg -1981 (p.86)-(Rhenquist-interm. scrutiny) Upheld as const. for Congress to register only men and not women under the Military Sel. Serv. Act. Facts: male plaintiff claimed women should have to register. Ct Reas.: defers to Congress becasue it carefully debated the point that 80,000 women could be employed. Because not quickly based on stereotypes it is ok. Women are not similarly situated as men because they are exempted from combat. Ct. will not look at unconst. of underlying restriction. Therefore, they can be treated differently.Accepts Congress' reasons for not registering 1)women not needed 2)only take 80,000 3)burden paper work 4)could be met by volunteers 5) detrimental to milit. flexibility.

*J.E.B. v. Alabama Ex Rel. T.B. -1994 (p.1 Suppl.)- Held: gender like race(See Batson) is an unconst. proxy for juror competence and impartiality. = Prot. forbids intentional discrimination on the basis of gender. Ct reas.: history of exclusion from jury service ... Ballard held that women may not be excluded from venire... With respect to jury service women are similar to race. Ct applies interm. scrutiny. -rejects stereotypes because it harms the litigants, communities and the individual juror. A party alleging gender disc. here will have to have a prima facie showing of intentional disc. (note: I did not read any of the dissents)

Notes: move on Court ot consider Strict Scrutiny because Ginsberg is now on it.(Fn.6), but could not use strict scrutiny here b/c it was disp. impact case(neutral facially) and prove through a pattern of inferences, and characteristic of preemptory striles is weird. State action b/c in a courtroom.

*Women in the Military - (p.23 Suppl.)- Nov. 1988 Pentagon opened non-combat positions to women. Presence of women in Persian Gulf in 1991 provided the force that changed the combat exclusion for women. -National Defense Authorization Act for Fiscal Years. Excluded women from direct land combat units and positions because physiological differences, small unit cohesiveness, public and military opposed to the military, . Women no tassigned to combat aircraft but allowed woman on combat vessels except submarines and amphibious vessels. Distinction because to costly to modify..still opposed women being drafted, but suggested that quotas limiting women's access be denied. Disrespect exemplified by Tailhook.

*Dates 1963-Equal Pay Act- first pay equity act. 1964-Title VII (sex added by Southerner to stop the passage. 1972-Title IX-federal funds

1977-Exec. Order-federal contractors must not discr. & affir. action


B. Scrutiny Standards-

Rational Basis Standard Intermediate Scrutiny Strict scrutiny

-------------------------------- --------------------------- -------------------

fit rational relation substantial relation narrowly tailored

interest legit. purpose important gov't interest compelling gov't interest

ex. social and economic gender(not determinative) race, nat'l origin, fund. rts...


C.Equal Protection restricted to Intentional Discrimination-

*Mass. v. Feeney -1979(p.69)- Held: Const. for MAss. statutte to prefer veterans over nonveterans in hiring preference of gov't jobs. Facts:applies to 60% of public jobs. Ct. Reas. distinguished veterans v. non-veterans instead of disp. impact on women(gender neutral language). Ct. acknowledge that it had a disp. impact on women eligibles who were not being certified. Disparate Impact elements- (1) facially neutral with either a covert or overt gender basis (2) do the adverse effects reflect invidious gender- based discr. Is the impact so inevitable so as have been intended? Ct found no facial discr.-and said it must be "because of" not "in spite of" adverse impact. The gov't intended to prefer veterans (not men). Dissent(Marshall): finds purposeful discr. and bears no substantial relationship, discr. need only be "a" motivating factor,, not a but for. Where the foreseeable impact of a facially neutral policy is so disproportionate, the burden should rest on the State to establish that sex based considerations played no part in the choice of the particular legislative scheme. Ct must apply intermediate standard, and State proved to prove substantially related.

Text Notes: Craig had not been decided when original decre in 1976 handed down. Had a disrc. intent been shown in Feeney than interm. scrutiny would have been applied. Defined discr. intent as "because of" is problematic. Washington v. Davis is parrallel race case.

To prove disc. intent- Need: direct proof (legisl. history), animus attached to knowledge, no other reason but discrimination. Exceptional case was Hunters v. Underwood(see9/22). Other choices. Ct. could have adoopted least restrictive analysis, but court did not want the floodgates opened example a state operated day care only for women.
D. State Constitutions-

*Marchioro v. Chaney -1978 (p.173)- Held:const. a statute requiring that the two members of Democratic Committee be of opposite sex under Washingotn ERA. Ct states that ERA gets rid of the old standard of strict scrutiny and instead makes a single standard :is the classification by sex discr.? Says that state still has power to make measures that assist women. Says if Plaintiff won it would do away with a statute designed to guarantee equality. Only in Washington does an ERA include "Responsibility". Dissent: the majority wrongly concludes that equality of rights and responsibilities is the same as equality of numbers, and perpetuates sex as a classification. Darrin v. Gould est. test so that all class. based on sex were prohibited. A class. cannot be based on sex alone-must be based on ability to perform.ERA's puprose was to make sex a neutral factor.

Text Notes:Democratic Party est. a model-fifty-fifty plan, but it has not proved popular.(p.181). Some states apply strict scrutiny to their ERA (Mass.) while others applied lower standard. This is an anomolous case-onlyone under an ERA where ct. upheld a facially gender based disc. Responsibilities means looking to the results. Equality of opportunity would endorse the dissent because treat them the same but don't look to results. Remember a component of affirm. action is that it is temporary.
E. What do we mean- equal or equal opportunity or equal before the law?

* MacKinnon, Toward a Feminist Theory of the State -the sexes are by nture biologically different. Prohibitions on any sexual class. must be flexible enoughto include biological differences nd heterosexual ethic in US.Problem is that the differences are defined by power.omen are forced into being the same as men, but those who want equality are different from men.Under gender neutrality the law has shifted in custody disputes to give men an improved chance, but in effect they have a better chance because of inequalities in the pay system.Womn have lost their children and financial security but have not gained their pay or work equality. Job structures do not take into account that occupant would have primary job responsibilites. Because of sex inequality women are rarely able to become "similarly situated".

She wants special protection through benign class. and gender neutrality. She'd probably endorse the majority.
F. Comparisons between race and gender-

*misleading because it fails to account for widely acceoted and differing perceptions of the situation of women as compared to ehtnic minorities. There are undeniable physical differences..theefore such class. are not inherently suspect, and may be needed to enable a woman disadvanteaged by physical difference. Kay suggests equal before the law.(p.183-5)

*Scales-Trent, Black Women and the Constititution:Finding our Place- Black women should always get "strict scrutiny" because black and women-memebers of two disenfranchised groups.(gives history). Black woemn are overrepresented among the poor. Suggests maybe black women shoul dreceive highter than strict scrutiny by lessening the requirement for a showing of intent.
G. Is pregnancy disc. based on sex?

*Geduldig says no says its discr. between pregnant and non-pregnant women. Upheld again in Ray...Title VII Pregnancy Discr. Act found it to be discr, but it only applies to employment.


III. Educational Institutions-(Class 4)-

A. Should the same standard be used to judge benign class. as invidious ones?

*MUW v. Hogan- 1982 (p.116)- Held: unconst. under 14th Amend. the exclusion of men froma n all female nursing school-applied intermediate scrutiny. Ct. REas.: rejects it as affirm. action because no historical discr. in this field. Actually women are the majority in nursing and therefore, MUW's policy perpetuates this stereotype. Also fails second part of test that subst. related because men can attend. and not affirm. action since women are already the majority. It is a state school. Dissent(Powell): we have never applied the interm. scrutiny to restrict women's choices.

Note:analogous to the Citadel situation.(see p.136-38). Also not brought under Tittle IX b/c exception that adm. policy to undergrad. schools is not covered

B. Advantages v. Disadvantages of Single Sex schools-

*Vorchheimer v. School Dist. of Phil. -1976(p.815)- Facts:four types of schools academic, comprehensive, technical and magnet.Suit aimedonly at academic.Plaintiff wants to attend Central instead of Girl's High. She met qualifications of both. Had a personal preference for Central because liked atmosphere and its academic excellence.. Courses are the same. Ct. finds no actual deprivation because falls equally on men and women. Distinguishes race as a suspect class. Finds a legit. educational policy served by utilizing single sex schools.Ct. does not decide which standard to use-rat'l or interm. because passes both. Ct will not determine the desirability of a practice only its const. Dissent: this is wrong because sep.is not equal. This is Plessy. Ct. has ignored Congress' act-Equal Educational Opportunities Act.

*Text Note: in a subsequent case three women challenged rejection of their admission to Central and won under the Penn. ERA.and 14th Amend. MUW important b/c burden is on legislature ot prove the pupose. Tightened the Purpose test. Since before Craig v. Boren unclear if it would be the same after.But it is does have spearate school for women, therefore P would have to claim sep.is not =.

*Williams v. McNair-1970(p.822)- held unconst. the schools restriction ton only women and therefore, male plaintiffs must be admitted.Distinguished from the Citadel which is military. Note:it was originally est. for white girls.

*Text Note: role for woman's schools- adolesxent girls are rewarded for grades , but not too good, and for being pretty.She is limited by the hidden curriculumthat some subjects are not for women. She needs an environment which minimalizes sexual stereotyping. Where her options are set by her value not her sex.

*US v. Virginia -1992 (p.360 Suppl)- Held:const. to deny women admissions to VMI if adequate alternatives exist. (Applied the Hogan standard) Ct. Reas. mission of VMI is "citizen-soldiers.."School did receive 300 inquiries from women. Uses interm. scrutiny. Woemnand men are physically differenttherefore dual track would be necessary for ohysicla training program.Ct. relies on stereotypes. Finds 3 parts would have to be altered-physical training, absence of privacy, and adversative approach. The homogeneity of gender provides the justification not the maleness. Reiterates the pros of single sex educ.Therefore, single sex is educ. justified = Legit state interest also diversity in type of educ. is legit.

*Faulkner v. Jones- preliminary injunction b/c time restraint- see suppl.p370.

*Cons of single sex-dividing just separates the problems form the symptoms, the problem is the teachers, short term jsutifications for single sex, but is it better to empower women in co-ed circumstances that are more lifelike? Also dangerous to only apply in private schools b/c dividing opport. by class.

*Pros-women will have role models, and not socialized that you cannot do certain things.

C.How far should Title VII extend?

*Legal Remedies- Title IX-By exec. order Title VII extends to educ instit. receiving federal funds, and to employment in such instit. Exemptions from non-discr. in admissions of educational institutions are religious and military(text books and contact sports also). Includes sexual harrassment, non-contact sports No mention of athletic programs, but generally under 1975 regulations if no other comparable team for other sex it must allow female to try out...Can have unequal funding for male and female teams, but it can be used then to assess equal opportunity for each sex. Fails to address curriculum or text books. Grove City v. Bell- a dumb decision because separates where federal funds flow to within in the school and only in those areas must the school comply with Title IX.

*Franklin v. Gwinnett Cty Public Schools -1992 (p.374 Suppl)- held that the damages remedy is available for an action brought to enforce Title IX -found intnetional discrimination and therefore entitled to money damages. Good because creates incentive to sue. Facts:10th grader sexually harrassed by coach. what about sexual harrassment by peers? analogous to Title VII where sexual harrassment in workplace is a violation.

*Text Notes: the Civil Rights Act of 1991 authorized compensatroy and punitive damages in Title VII cases but imposed a cap on recovery for "complaining parties"not covered by Section 1981 ie. white women.Academic women have often used Title VII or Section 1983 as a basis for claims of sexual harrassment.

*NOTE: if strict scrutiny applied in Citadel case the case would fall under Brown and seprate is not equal. Making a citizen soldier is not a compelling state interest. Thee might be the argument that it is a compelling state inteest to have military educ and therefore deference.However, Citadel and VMI do not enter the armed forces.
D. Are Associational Rights affected by laws banning single-sex clubs?

*Frank v. Ivy Club- 1990 (yellow handout)-.Held the clubs did discriminate against plaintiff, a female, on the basis of gender. Facts: out of the five selective eating clubs only two have accepted only men. Princetoon pays all of their taxes, maintenance, utility and insurance costs. Employees of clubs are not College employeesand it is a different zip code.The university provides no alterantive dining facilities for upper classmen. Ct. Reas.: the clubs are not "distinctively private" they have an integral relationship of mutual benefit with Princeton. They are mutually dependent. Elimination of discr. in educational institutions is particularly critical.


IV. Reproductive Rights:Abortion, Sterilization, Sexuality- (Class 5)

A. To what extent may the state regulate sexual lives and choices of citizens?

* Griswold-planned parenthood staged it -protects const. right for married couples to obtain contraception. Beard-court extended the Griswold's holding to nmarried couples so that they could use contraception-also staged.

* Roe v. Wade -1973(p.414)- held unconst. a Texas law that made it a crime to procure or attempt an abortion unless medically necessary to save the life of the mother. 1st trimester- no interestin life of the fetus, and health suggests an abortion, and woman's privacy-State cannot regulate in first trimester- up to medical decision of Dr.; 2nd trimester-balance health concerns-can regulate depending upon viability.; 3rd trimester-state interest in health of mom and life of fetus. Ct says fetus is not legally a person and no state interest until viability. 14th Amend. right of privacy is enoughto encompass a woman's decision to terminate pregnacy, nut not an unqualified right.Dissent(Rhenquist):abortion is not rooted in conscience of people therefore not protected-judiciary is legislating. -Contra-Rhenquist-abortion is historically sipposted except when it was ntotsafe.

*Amendment in Congress to Const.-that there is a potential life at the moment of conception-this would overrule Roe v. Wade .If at moment of conception what about the use of IUD . Roe criticized because trimester system is not constitutional law at all. O'Connor suggests the rat'l basis unless the state unduly burdens the woman's right(Akron). Note: Roe v. Wade only covers state and federal action becasue 14th Amendment does not cover private actors (See Bray trying to make state action)


1 2 3

Roe v. Wade

right to choose=fundamental, but not absolute------------------------------------------

decide with Dr.-not premised on equality of women-------------------------------------

maternal health

potential life of fetus

Compare Casey

right to choose (not as fundamental as Roe)---------------------------------------------

potential life of fetus----------------------------------------------------------------------------

state interest in woman's health(compelling)---------------------------------------------

*1970 NY law is still on the books that only allows an abortion on third trimester if it is meant to save mom's life but conflicts with Roe which allows it to protect mom's health. 14th Amendment does not protect life at conception. Roe based on due process- depriving life and libert.

B. Is Equal Protection a stronger legal basis for repro. rights than privacy?

*focus on the woman's right to exercise autonomous choice over her full life's course rather than based on a medical model which highlights the physician's role in collaboration with that of the woman. Ginsberg believes that it would(p.467). It then becomes an absolute right because it disparately impacts women-not able to control whena nd where you have children, prohibits women from other activities, state is discr. against women by punishing a a form of conduct exclusively engaged in by them (but Geduldig). Therefore, the Court would need ot apply strict scrutiny- court will need to find men and women are similarly situated - but does equality mean giving everyone the same size shirt to wear or a shirt that fits? M+W are similarly situated inthat they both want to have sex, but women get pregnat and the law punsihes only her by making her bear the burden.

*Frontiero was decided after Roe v. Wade. Blackmun never mentions sex and sexual intimacy-he did not argue it under equality because he wanted a majority.

*Ginsberg says court went much further than it needed to in Roe and should have jsut struck down Texas statute as overbreadth-then it would have led to a democratic process of legislation slowly modifying statutes and would not have polarized views.


C.In what ways are poor women's repro. rights esp. at risk?

*Harris v. McRae- 1980 (p.425)- held: Title XIX imposes no requirement for a state that participates in the Medicaid program to fund cost of medically necessary abortion for which no federal reimbursement is available under the Hyde Amendments and Hyde Amendment does not violate Due Process or Equal Protection.Ct reas.: it places no obstacles to abortion just chooses not to fund it, Just makes childbirth more attractive. State has no affirmative duty to subsidize and encourage abortions. Freedom of choice does not confer entitlements. Also not a violation of equal protection because indigent are not a suspect class. Therefore, applies rat'l relationship test.Rationally related to gov't interest in protecting human lives. It is Congress' role to determine social policy not the Court's. Dissent(Brennan): state intereest in fetus cannnot justify excluding medically needy women from benefit. State must refrain from influencing that decision (Roe v. Wade). Least justifiable to deny the poor an dpowerless where they are least able to defend their privacy rights from state intereference. Hyde Amendment inhibits the choice.Poor women will either have to have a child or self-abort. (Stevens): distinguish from Maher Ct. fails to expalin how it can protect an interest in the potential life of a fetus rather than the mother's health.

*ct. adopts Lockian principle of right to be left alone(negative right)

*disp. impact on women b/c men get all surgery but women don't get abortions(but again falls under Geduldig-not similarly situated). Even if men v. women it still only gets interm. scrutiny.

*Maher- did not withhold funding from medically necessary.

*Last Year Congress broadened Hyde Amendment to include rape and incest funding for abortions.


D. Sterilization-

*Buck v. Bell-Upheld involuntary sterilization of a mentally retarded girl. Many other such cases against Native Americans and other poor women...

*Walker v. Pierce-1977(p.476)- Held: no reson why Dr. Pierce cannot establish and pursue a policy publicly and freely announced if all those who come to himma re otified. Facts: Ps were two black women who he sterilized solely on account of their race and number of children. Ct. Reas.: he did not force his view on anyone.. He was not acting under color of state law. Dissent: Dr. Pierce was acting under color of state law when he chose to sterilize Medicaid patients for economic reasons not related to their health. he based his decisionof the gov't would be paying for it- a private actor has assumed state functionss.
E. Does Bowers raise more issues about homophobia than privacy rights?

*Bowers v. Hardwick -1986 (p.343)- Held: not a constitutional violation to prohibit sodomy in the privacy of one's home. Ct reas.: it is limited to homosexual sodomy, because no connection between family and homosexual activity.Griswold line of cases did nto reach this far.Sodomay is not a fundamental right, illegal under common law and forbidden by laws of original thirteen states.(originalist interp.)Distinguishes Stanley v. Ga. Dissent(Blackmun): says right to privacy includes privacy decision in certain things and the right ot be let alone in certain places. Ability to define one's identity. It is enforcing private morality. (Brennan): it cannot be enforced against all ie. hetersosexual married couples therefore, it cannot be enforced against homosexuals.

*Text Notes(p.358) underlying Bowers is a desire to regulate sexual preferences. Culmination that sexual intimacy is not included in any of the prior privacy decisions. If gay v. straight it would only get rat'l relations b/c gays are not protected class.
V. Current Issues in Reproductive Rights -(Class 6)-

A. Roe v. Wade under attack

*Akron v. Akron Center for Reproductive Health -1983 (handout)-Ct held that all the restrictions on the performance were unconst. under Roe.-(1)all abortions after first trimester be in hospital - inhibited right w/out furthering state interest in protecting woman's health (2)parental consent of one parent if minor under 15- invalid b/c no judicial by-pass (3) information requirement of physician to patient- info. unnec. to have informed consent and only to discourage abortions(4)24 hr. waiting period(5)disposal of fetus by sanitary menas. O'Connor Dissent:regulation is not unconstitutional unless it unduly burdens the right to abortion(Maher)(but hse has stretched this language). Standard applied throughout without reference to stage in pregnancy. B/c of technological advances no bright line that safety changes in 2nd trimester ...and ct will have to keep checking with medical technology to decide if regulation...Also increasing fetus viability.-framework is on a crash course with itself. Even assuming fundamental right to abortion there is no justification for trimester. State does have an interest in maintaining health and medical standards. Interest in potential life throughout pregnancy- viability is too arbitrary.Apply strict scrutiny when legislation deprives infringes..with a fundamental rights.The undue burden represents the threshhold inquiry that must be conducted before this Court can require a Satate to justify its legislative actions as compelling. Undue burden is appropriate because nature and scope of right is not absolute. Danforth ex. of undue burdens. Says Roe is wrong and should be absolute not balancing(but courts always balanceand if anyhting Roe is too absolute)

Powell-criticizes O'Connor because it will drive abortions undrground. Blackmun criticizes O'Connors crash course theory b/c threshold of fetal viability will not change always 23-24 weeels, (but who are we to seay never). O'Connor sees rt. to abortion as only a limited fund. rt. which must be unduly burdened before strict scrutiny applies-b/c of the nature and the scope of the right. Stevens: fails to see how the childbearing becomes less central the day after conception then the day before conception. White(disseent -Thornburgh)-abortion involves the destruction of the fetus.

note:she stretches Maher and Harris because they talk about affim rt not existing

* Thornburgh v. American College of OBGYN- 1986(p.10 of handout)- ct invalidated several provisions of Penn. abortion statute -informed consent requriement, reporting requirements, restricitons on post-viability abortions.

*Webster v. Reproductive Health Services -1989 (p.10 of handout)- upheld preamble of life begins at conception but only b/c it could not ascertain if it had any legal efffect. Upheld prohibition on the use of pubic facilities or employees to perform abortions. Const. confers no affirm. rt. to gov't aid.Upheld requirement that physicians make a determination of viability before performing any abortion at twenty weeks or more gestational age. Three justices argued that the Court should adopt O'Connors position in Akron.Did not overturn Roe but appears ready to do so.

*Similar casest o Harris have been brought under state const. and been struck down-increasing stratgy. State can go farther than fed. const.

*Hodgson v. Minn.-1990 (p.11 of handout)- fractured majority struck down requirement that every minor seeking an abortion must first notify both parents . O'Connors upheld it if judicial bypass.(cites Bellotti v. Baird)-if mature enough to or show that the abortion is in your best interests. If immature, have the baby!



B. Reaffirmation-

*Planned Parenthood v. Casey-1992 (p13 of handout)-reaffirm Roe's holding that a woman has a fundamental right to an abortion before fetal viability.Rejected Roe's trimester framework. Upheld:medical emergency defintion and exemption, informed consent requirement, parental consent requirement(w/judicial bypass) and record keeping provisions. Struck Down: spousla notification b/c of undue burden onwomen who fear abuse. Ct reas. Abortion rigths has protected a woman's social and economic equality. Roe based onthe const. and therefore, it cannot now be repudiated. Draws line at viability.Adopts the undue burden framework.- if a state regulation has the prpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. Spousal notification will impose a substantial obstacle. Women do not lose their bodily integrity when they marry. If no substantial obstacle then only rational basis test.

*example:if provin g24 hr waiting period is undue burden- hoards of prolifers harrassing you, must take more time off work, travel, -people now suggesting informed consent be given over the phone-but some states require face to face counseling also others argue not informed consent.

*unclear what Casey holds because it upholds 24 hour waiting period which Akron knocked down.- also with uundue burden it makes it P's burden to prove and therefore it is anexpensive case to bring.


C. The New Frontier:Men's Rights, Fetal Rights and the Rights of Gametz Donors

*Planned Parenthood v. Danforth -1076 (p.19 of handout)- struck down spouses consent requirement. State cannot delegate a right that they do not have. Balance weighs in the favor of the woman if choice between man and woman.

*Note:Casey went beyond Danforth which only talked about consent but relied on domestic wiolence

*Davis v. Davis -1992(p.22 handout)- preembryo is not a person under the Tenn law nor are they property therefore, no true property interest. Facts:rt. of husband to decide not to have a child. All men do have certain inalienable rights. The right to procreation is part of an individuals right to privacy which includes two rights the right to procreate and the right not to procreate. Women contribute more to the IVF process however they must be seen as equals. the court is having to resolve dispute over conflicting interests. Ct. balanced options with effects on the two parties. First, look to prior agreement second, if no prior agreement, then weight the interests, Third, ordinarily party wanting to avoid procreation should prevail as long as the other party has another chance to have a baby.But if the party seeling control of the preembryos intends to donate them to another couple, they have a lesser interest. Therefore, Clinic is free to get rid of unused pre-embryos.


*ct. overexaggerated but struck right balance - protecting the right not to have a baby.

*In re A.C. -1990(p30 of handout)- Held: patient has the ultimate right to decide what is to be done but if patient is incompetent or otherwise unable to give informed consent than the decision must be made through substituted judgment.Facts:Angela had cancer and neither she nor her family were given advance warning of any hearing. Her family testified that she did not want caesareanto save the life of unborn child.Although it could shorten her life, hospital did it. Lower Ct held fetal rts. outweighed her right to bodily integrity.Ct does distingusih this from th eright to hav ean abortion. This court held thtat the rt. to bodily integrity were not extinguished just b/c a person is ill-ct. must determine a person's wishes.Dissent:thinks fetus at viability becomes a person with rights-tort law supports this right.Therefore, a balancing is needed and it is rare that fetus will be chosen over the mother.

*Suppose: life and mother is not at risk, can state require a C-section to save child? It is always a bodily intrusion of a woman even if the life of the baby is on the line and the woman won't be harmed. If a woman is brain dead, you'd probably have to do substituted judgment b/c In Re AC.

*State v. Loce -1991 (p.38)- Facts:D, father, physically interefered with the mother's abortion. Ct. reas.:if a fetus is a person is a legal issue and should not be scientific or religious, but facts here are no good.Even if life did begin at conceptionit would not nec. mean that the state could prevent a woman from having an abortion. Even if it is a a person, wise moral and legal policy would seek to helpp women avoid having a an unwanted pregancy and if they did get pregnant than empower them to sustain the pregnancy and rear the child.State should stop short of forcing womento have children against their will.

*Davis and Loce -the Court is trying to get around Roe finding that the fetus is not a person.Experts are arguing that the facts under Roe have changed for ex. at two weeks you can see fingers... She had wanted Stanton to say that we as judges cannot say if life begins at coneption-Establishment Clause(personal and moral), but in Harris Establishment argument had been discussed but turned away b/c coextensive with state's interest. Judge Stanton di want to decide and is ready to day the fetus is a person.

*McIntyre v. Crouch- 1989(p.42)- Held: ORS applies to P who donates seamen because ORS is unambiguos.Facts:P donated seamento a D who slef inseertes and became pregnat. he claims that ORS requiring that donors relinquish rights does not apply to him.Ct. reas.:legit prupose of act ois to allow infertile married couples to have children and to allow an unmarried woman to bear a child without sexual intercourse and to resolve potnetial sidputes about parental rights and resp.For the purpose of due process P has no distinction from other donors, and therefore no entitlement

*In the Interest of RC-1989(p.48 of handout)-held:statute does not apply when the kown donor and unmarried recipient agreed that the donor would have parental rights and expressly agreed at time of insemination that he'd be treated as naturla father, th eagreement is relevant as to if his rights are extinguished. Now it is jsut a factual dispute as to whether agreement and paternity.


VI. A Woman's Place is in the Home:Women's Rights in the Domestic Sphere:

A. Married Woman's Loss of Identity-

*Blackstone-p.191-one person in front of the law-all compacts btwn husband and wife when single are voided are voided by marriage, if woman be indebted before the marriag eth eman is bound by them for he has adopted her , woman needs husbands approval to bring suit for redress of harm against a third party, man and woman may have separate estatees b/c in civil law they are seen as two, , amarried woman surrenders her rt to sue and be sued, control of her property...

*Bradwell v. Illinois -1872(p.2-3)-held:const to prohibit women from practicing law. Bradley is aweful-woemn belong in the domestic sphere and has no legal existence outside her husband...

*McGuire v.McGuire- 1953 (p.211)-ct refused to intervene in the marital unit even if spouse providing levle of support meager compared to funds available Facts:80 yr. old man refused to give wife any spending money.-living standards are a matter of concern for a household not a court.

*a wife can force her rt to support only by leaving himToday creditors may sue the wife directly for necessaries furnished to her during marriage



B.Public/Private Split-

*Taub and Schneider, The Politics of Law: A Progressive Critique,-woemn denied public sphere-franchise, combat, earnings, conduct business,whether thye will bear children, fringe benefits available to male workers under soc. sec. Absence of law in the private sphere-contract law does not enforce promissory obligations between husband and wife,,tort law, criminal law -cannot rape wife,, wife beating used to be excluded, . Women are relegated to self help while the man who beats he has law's tacit encouragement. Insulation of women from legal order conveys a message -devalues women, implies she is property, and he is free to control her. Woman's work is discredited when law does not enforce his obligation to support her.


C.When Private Becomes Public:Domestic Violence as a Case Study-

*Del Martin, Battered Women:Issues of Public Policy- police reports generally describe assailants and victims in gender neutral terms Danger is if unchecked it often leads to murder.Tend to view wife abuse as a domestic/personal dispute in which one or both individuals are to blame.

*Bruno v. Codd

*Scmitt, Family Violence:Protection Improves but Not Prevention-

*Thurman v. City of Torrington

* Family Violence Prevention and Response Act-


D.Family Privacy Revisited:Private Ordering-arbitration, mediation, contract, and insurance-

*adv. and disadv.-

*Rethinking the Marraige Contract -PROTEST-Blackwell and Lucy Stone-marriage should be an equal and permanent partnership adn so recognized by law-sugggests not using law but rather arbitrators.

*NewJersey Coalition for Batttered Women Position Paper on mediation of Domestic Violence(1983)-



* Schultz, Contractual ordering of Marriage: A new Model for State Policy-(1982)-


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