Category Archives: Student Contributions

Reflections on the Colloquium: Detainment, Detention, and Imprisonment: State Authority Over Marginalized LGBT Communities

There is perhaps no word that more strongly connotes academia at its stuffiest than “journal.” As someone who arrived at law school slightly suspicious of being drawn into the ivory tower, I did not sign up for a journal blindly. I had little interest in participating in an elite conversation just for the sake of having been invited to join the conversation. I decided I would only join a journal if I felt it expressed some sort of vision of what the law could be or should be, and if I felt it had some sort of relevance outside of the ivory tower. At JLG, I found a community committed to using its voice and privilege to express such a vision. Continue reading Reflections on the Colloquium: Detainment, Detention, and Imprisonment: State Authority Over Marginalized LGBT Communities


Transforming Campus Culture to Prevent Rape: the Possibility and Promise of Restorative Justice as a Response to Campus Sexual Violence

Alletta Brenner[1]

Though feminists have long argued that rape is linked to sex discrimination,[2] legal responses to rape tend to ignore the ways that social and cultural norms contribute to sexual violence.[3] One exception, however, exists in the context of federal anti-discrimination law under Title IX, which applies to colleges and universities that receive federal funds. Under the legal framework established by Title IX, rape constitutes a form of severe sexual harassment, to which educational institutions are legally obligated to respond.[4] An institution’s failure to do so is considered evidence of sex discrimination and may subject it to both federal penalties and civil liability.[5] Recently, this obligation was further strengthened by the passage of legislation that codifies particular aspects of what campus grievance processes for rape survivors must include and requires schools to take affirmative steps to transform campus culture to prevent rape.[6]

Despite this clear legal mandate, rape remains a serious and enduring problem at colleges and universities in the United States. Indeed, roughly one in five female students are victims of rape at some point in their post-secondary education.[7] If we add to this the substantial numbers of male[8] and transgender[9] students who experience sexual violence also, it is clear that the scope of the problem is huge. The overwhelming majority of these rapes are “acquaintance rapes”—nonconsensual sex between students who have some pre-existing social relationship.[10] As these numbers indicate, many institutions fail to take adequate steps to respond to and prevent campus sexual violence.[11]

In a related article, Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and Harm in Feminist Theories of Rape,[12] which was published in the Summer 2013 issue of the Harvard Journal of Law and Gender, I argued that feminist theories of rape tend to be imbued with dichotomous ways of thinking that limit both theoretical frameworks for understanding sexualized violence, and practical legal proposals for how to better prevent and respond to it. In that article I argued feminists should adopt an intersectional view of such violence that treats it as a rupture in the process of human recognition. This approach, which emphasizes the individualized effects of sexualized violence, attempts to draw attention to the ways that the construction and performance of identities can contribute to dehumanization and seeks solutions that help to re-humanize both victims and perpetrators. I concluded by arguing that a possible alternative to addressing sexualized violence may look like the emerging practice of restorative justice.

This second article aims to translate the theoretical foundation offered in Resisting Simple Dichotomies into a concrete proposal for real-world practice. In many ways, college campuses offer a rich environment for developing radically new ways of thinking about and responding to rape. For, as much as rape is a particularly serious problem on campuses, it occurs within a social and institutional framework that offers profound possibilities for the mobilization of social change.

The starting point of this paper is the premise that campus grievance processes should be more survivor-oriented and equitable. Applying an intersectional view of how and why campus rape occurs, I argue that colleges and universities should seek to engage the broader student community in dialogue and utilize the grievance process as a means of both holding offenders accountable and preventing future rapes. Restorative justice offers one model for how schools might augment their campus grievance processes to respond to acquaintance rape cases to achieve these goals. Though a restorative justice approach may not be appropriate in every case, I argue that it may provide significant benefits for some survivors and offenders, and help to fill the gaps between existing preventative and remedial approaches.

Full Article: Brenner, Transforming Campus Culture

[1] J.D., Harvard Law School, 2014.

[2] See generally Susan Brownmiller, Against Our Will (1975) (arguing that rape is a product and tool of male domination); Lorenne M.G. Clark & Debra J. Lewis, Rape: The Price of Coercive Sexuality (1977) (arguing that rape was an expression of perceived male entitlement to the control and use of female sexuality),

[3] See Susan Estrich, Rape, 95 Yale L.J. 1087 (1986) (arguing that the law of rape fails to protect women from acquaintance rape because it simultaneously considers the fact of social context, in that the victim and perpetrator know each other, to imply consent while failing to account for how social context sets up the necessary conditions for sexual coercion); Catharine Mackinnon, Women’s Lives, Men’s Laws 240–48 (2005) (arguing that criminal law fails to account for power imbalances between victims and perpetrators and that rather than using a consent standard, rape law should employ a standard of whether the sex was “wanted”).

[4] Under Title IX, once an incident of campus rape has occurred, schools must “take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again.” See U.S. Department of Education Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties 2–4, 15 (2001).

[5] Id.

[6] Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-14, Sec. 304, 127 Stat 54, 89­–92 (2013) (codified at 20 U.S.C.A. § 1092).

[7] According to the most comprehensive study available, roughly twenty to twenty five percent of women are raped at some point while in college. See Bonnie S. Fisher, et al., U.S. Dep't of Justice, The Sexual Victimization of College Women 10, 17 (2000). See also American College Health Association, National College Health Assessment Spring 2012 Reference Group Executive Summary 5 (2012) (confirming that approximately 3.5 percent of college women reported being raped in a 12-month period).

[8] See Christopher P. Krebs et al., The Campus Sexual Assault Study: Final Report 5.5 (2007) (finding that 6.1 percent of male students were victims of completed or attempted sexual assault during college). But see Mary E. Larimer, Amy R. Lydum, Britt K. Anderson, and Aaron P. Turner, Male and Female Recipients of Unwanted Sexual Contact in a College Student Sample: Prevalence Rates, Alcohol Use, and Depression Symptoms, 40 Sex Roles 295, 301–02, 305–06 (1999) (reporting findings of study where undergraduate males reported unwanted and coerced sexual activity at levels comparable to those of their female counterparts).

[9] See Rebecca L. Stotzer, Violence Against Transgender People: A Review of United States Data, 14 Aggression & Violent Behav. 170, 177–78 (2009) (surveying data and concluding that all transgender persons have an especially high lifelong risk of multiple types and incidences of violence, particularly sexual violence).

[10] See Fisher, supra note 6, at 17 (finding that more than ninety percent of female college rape victims know their attacker); Larimer, supra note 7, at 305–06 (finding that coercive sex experienced by male students was perpetrated by other students, usually female).

[11] See Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 Loy. U. Chi. L.J. 205, 210–24, 235–44 (2012) (discussing deficiencies in colleges’ and universities’ systems for responding to sexual violence and the way that inadequate enforcement of federal laws aimed at improving responses exacerbates the problem).

[12] Alletta Brenner, Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and Harm in Feminist Theories of Rape, 36 Harv. J. L. & Gender 503 (2013).


B.H. v. Easton Area School District: The Third Circuit Hearts Boobies, But Not Titties

How Labeling Terms for Women’s Body Parts “Vulgar” Can Impede Education and Advocacy for Women’s Health Issues

By Jillian Stonecipher[1]

The Third Circuit recently decided that the First Amendment prevents public school districts from punishing students for wearing wrist bands reading “I ♥ boobies! (Keep a Breast)” in school in order to advocate for breast cancer awareness.[2] In a 9–5 en banc decision, the court held that the bracelets were not “plainly lewd” and discussed an “important social issue,” and therefore could not be banned under either Tinker v. Des Moines Independent Community School District[3] or Bethel School District No. 403 v. Fraser.[4] The court rejected the school district’s arguments that the phrase “I ♥ boobies!” was plainly lewd, that the district had the authority to censor any ambiguously lewd language commenting on social issues, and that it needed to censor the students’ advocacy in order to prevent sexual harassment in the school.[5]

When the plaintiffs, two middle school girls, refused to remove their wrist bands, which were developed by the Keep A Breast Foundation to educate young women about breast cancer, the school suspended them for 1.5 days and banned them from attending the school’s winter dance.[6] The students sued for an injunction, and the district court granted one, finding that the students were likely to succeed on the merits of their claim.[7]

The Third Circuit’s affirmation of this finding is a win both for speech and for gender equality. The case will make it more difficult for school administrators to punish students for engaging in political or social speech that deals with health and/or sex and sexuality—perhaps leading to freer, less stigmatized discussions of not only breast cancer prevention and body image issues, but also safe sex practices and rape and sexual harassment prevention. The decision provides welcome support for students in light of Supreme Court precedent that has created an unfriendly environment for student advocacy. In Tinker, the Court held that students may not express their opinions in school if their speech is reasonably expected to substantially disrupt school.[8] And in Fraser, the Court found that public schools can prohibit the use of “vulgar, lewd, profane, or plainly offensive speech,” even if it is not obscene, could not be banned in an adult context, and does not disrupt the school’s operation.[9]

The Third Circuit, however, read a limitation into school’s ability to ban “offensive” speech from the Court’s 2007 decision in Morse v. Frederick.[10] The majority in Morse held that a school principal had the power to “safeguard” students from a message that could “reasonably be regarded as encouraging illegal drug use.”[11] In a concurrence, however, Justice Alito conditioned his vote (which was necessary for the majority) on the “understanding that (1) [the majority opinion] goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”[12]    

The Third Circuit read that concurrence as controlling (an approach that has been hotly contested among circuit courts), and found that it limited Fraser such that the case “does not permit ambiguously lewd speech to be categorically restricted if it can plausibly be interpreted as political or social speech.”[13] The court found that “Fraser is not a blank check to categorically restrict any speech that touches on sex or any speech that has the potential to offend.”[14]

This novel interpretation of Morse and Fraser prevents school administrators’ hang-ups about sex and sexual organs from stifling student speech on important issues affecting their bodies—a wise approach, considering the possibility that school administrators “if empowered to do so, might eliminate all student speech touching on sex or merely having the potential to offend.”[15] In fact, the administrators of EASD “initially testified that they could ban the word  ‘breast,’ even if used in the context of a breast-cancer-awareness campaign, because the word, by itself, ‘can be construed as [having] a sexual connotation.”[16] If the school district had retained the discretion to define “offensive” speech for itself, young women in the district would not have been able to use any word to discuss a serious health issue merely because other students might find any reference to a breast sexual. As the court concluded, “[i]f schools can categorically regulate terms like ‘boobies’ even when the message comments on a social or political issue, schools could eliminate all student speech touching on sex.”[17] Eliminating such speech should not be a school’s mission. Instead, the court stated, schools should “mold students into citizens capable of engaging in civil discourse [which] includes teaching students of sufficient age and maturity how to navigate debates touching on sex.”[18]

Unfortunately, the court did not broadly hold that school administrations must allow students to openly discuss political and social issues affecting their sexual organs—a holding that would have been a particularly positive development for girls who, studies have shown, struggle with body issues in their teens but suffer in silence due to the new sigma attached to their bodies as “vulgar” sexual objects.[19] Instead, the court carefully restricted its analysis to the term “boobies,” refusing to weigh in on the school’s dress code, which bans t-shirts promoting breast cancer awareness reading “Save the ta-tas” and testicular cancer awareness paraphernalia reading “,”[20] or to respond to the dissent’s fear that, under the court’s test, in the context of health advocacy, “‘I ♥ penises,’ ‘I ♥ vaginas,’ ‘I ♥ testicles,’ or ‘I ♥ breasts’ would apparently be phrases or slogans that school districts would be powerless to address.”[21] (It is unclear what terms the dissent wants students to use when promoting health awareness).  In fact, the court found that a school could “categorically restrict an ‘I ♥  tits!  (KEEP A BREAST)’ bracelet because … the word ‘tits’ (and also presumably the diminutive ‘titties’) is a patently offensive reference to sexual organs and thus obscene to minors.”[22]

Additionally, by referring to the bracelets as “touching on sex” the court failed to address the larger problem underlying the case: the over-sexualization of the breast, and the consequent labeling of common terms for breasts vulgar and obscene. As the Brief of Amici Curiae Dedicated to Gender Equality stated, “assuming that every use of the words ‘boobies’ and ‘breasts’ is lewd or vulgar” “relies on the belief that breasts are exclusively or primarily sexual, a notion that is rooted in male-centered conceptions of the female body.”[23] The school district’s ban “teach[es] middle school girls that sexualized breasts are the only acceptable kind,” which “affects whether they view themselves with a sense of self-worth.[24]” Telling young women that talking about their breasts is vulgar and forbidden also discourages young women from discussing breast cancer risks and performing breast checks. In fact, the Keep a Breast Foundation’s goal in creating the “I ♥ boobies!” bracelets was to remove the stigma from breasts in order to create a hospitable environment in which young women could feel comfortable learning about breast cancer risks and taking preventative steps.[25] The court supported young women’s right to talk about their breasts in certain contexts but failed to recognize that breasts are not exclusively or primarily sexual.

Numerous school districts around the country have banned the “I ♥ boobies!” bracelets, and a number of students have objected in court. In fact, a Wisconsin federal judge recently refused to overturn a ban on the bracelets at Sauk Prairie Middle School. Similar cases have reached court in Indiana, Wyoming, and Pennsylvania. Because the Third Circuit opinion involves a novel interpretation of precedent on an important First Amendment issue, it is possible that the issue will find its way to the Supreme Court in the near future. Easton officials have 90 days to decide whether to appeal to the Court and have not yet filed for certiorari.[26] Should the Court decide one of the “I ♥ boobies!” cases in the future, it should consider the Third Circuit opinion a helpful and appropriate way to interpret Tinker, Fraser, and Morse to provide young adults with the freedom to advocate on social issues involving health and sexuality. 

(Thumbnail image courtesy of Flickr user Christ1254 pursuant to a Creative Commons license.)

[1] J.D., Harvard Law School, 2014.

[2] B.H. v. Easton Area Sch. Dist., No. 11-2067, 2013 WL 3970093 at 5-6 (3rd Cir. Aug. 5, 2013).

[3] 393 U.S. 503 (1969).

[4] 478 U.S. 675 (1986).

[5] Easton Area Sch. Dist., No. 11-2067 at 6.

[6] Id. at 11.

[7] Id. at 13-15.

[8] 393 U.S. at 513.

[9] Easton Area Sch. Dist., No. 11-2067 at 5 (citing Fraser, 478 U.S. at 685).

[10] 551 U.S. 393 (2007).

[11] Id. at 397.

[12] Id. at 422 (Alito, J., concurring).

[13] Easton Area Sch. Dist., No. 11-2067 at 51.

[14] Id. at 35.

[15] Id. at 58.

[16] Id. at 58-59.

[17] Id. at 55-56.

[18] Id. at 35.

[19] U.S. Dep’t of Agriculture, Eating Disorders (last visited Sept. 8, 2013), available at

[20] Easton Area Sch. Dist., No. 11-2067 at 71.

[21] Easton Area Sch. Dist., No. 11-2067 at 3 (Greenaway, J., dissenting).

[22] Easton Area Sch. Dist., No. 11-2067 at 57.

[23] Brief of Amici Curiae Dedicated to Gender Equality in Support of Plaintiffs-Appellees and Supporting Affirmance at 5, B.H. v. Easton Area Sch. Dist., No. 11-2067, 2013 WL 3970093 at 5-6 (3rd Cir. Aug. 5, 2013).

[24] Id. at 9.

[25] Easton Area Sch. Dist., No. 11-2067 at 7.

[26] The Associated Press, Lift on ban of “I (heart) Boobies!” Bracelets in Pennsylvania schools (Aug. 6, 2013), available at boobies-bracelets-pennsylvania-schools-article-1.1418664#ixzz2dHWph2IO.


Student Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, Gabriella Gutiérrez y Muhs, et al., eds.

By Kate Aizpuru[1]

             We’ve all seen the brochures. Glossy pamphlets advertising sparkling university buildings, rolling green campuses, and laughing students linked arm-in-arm as benevolent faculty look on, smiling. Somehow, college and university brochures always seem to feature students and faculty of color, bedecked with tolerance, diversity, and a cheery demeanor. But something is rotten in the academy. Even as institutions of higher learning trumpet their achievements in diversity, the reality is that for women of color, the academy can be an unwelcoming, unsupportive, and sometimes overtly racist environment in which to work and live. In a masterpiece of frank conversation, convincing discussion, accessible prose, and courage, Presumed Incompetent weaves together the challenges facing women of color in the (literally) ivory tower—while providing future academics with the tools they will need to remain resilient, and allies and universities with strategies for creating a healthier environment. 

             After a short introduction, the book is organized into five sections containing a total of thirty essays: General Campus Climate, Faculty/Student Relationships, Networks of Allies, Social Class in Academia, and Tenure and Promotion. The final chapter, “Lessons from the Experiences of Women of Color Working in Academia,” derives “immediate, concrete, and applicable recommendations that may help circumvent and/or diffuse the conditions described in [the] anthology.”[2] And despite the heartrending—and occasionally hair-raising—stories, as editor Carmen G. Gonzalez writes, “[T]he ultimate lesson of Presumed Incompetent is resilience . . . Our goal as editors was to empower women of color and allies by providing tools and strategies to overcome the challenges described in this volume.”[3]

            Those challenges included both overt and subtle racism, pervasive stereotyping, lack of institutional support, lack of respect from students, misogyny, heteronormativity, class bias, and isolation from home—among others. I was shocked at the flagrant racism that both students and other faculty displayed to the contributors: the black professor who was openly mocked for her natural hair;[4] the black faculty member who reported receiving Ku Klux Klan notes under her door;[5] the Argentinian professor whose student argued that, “You don’t even speak English. How do you know my paper is bad?”[6]; the post-doc who, after her first promising job interview, was told, “Well, I’m just going to be honest with you. You’re going to get this job because you’re black and a woman. So we’re going to give you this job. But we’re going to hire someone else for the job we advertised.”[7]

             Yet the brunt of the narratives did not focus primarily on overtly racist statements, though there were plenty of those to go around. Every essay also shed light on the institutional structures that consistently worked against women of color seeking to advance their academic careers.

             One frequently referenced example was the request that women of color serve on “diversity committees.” Universities, seeking to burnish their diversity credentials, would obviously benefit from having a black, Asian, or Latina women sitting on or chairing a diversity committee. But participation in committees counts for nothing when that professor is being evaluated for tenure. So what is a professor facing the appointment to do? Agree to participate in the committee, in addition to her teaching load and other responsibilities, sacrificing the time she needs for research and publishing? Or refuse, thereby alienating those who will ultimately decide whether her career advances?

             Faculty also reported perceiving that students, who were more accustomed to seeing women of color as maids, cooks, nannies and in other subservient roles than in positions of power, simply did not view their professors as credible. Indeed, “research shows that both minorities and women are presumed to be incompetent as soon as they walk in the door.”[8] When the students challenged the professor over a grade or some other issue, universities frequently sided with the student or chose to remain neutral—thereby further undermining the authority of the women of color faculty.[9] White students resented being taught race and gender issues by women of color, whom they perceived as, at best, unable to teach the material objectively, or at worst, inflicting “reverse racism” on the classroom.[10] White professors, particularly cis-men, on the other hand, were typically viewed as capable of presenting any material without a particular political agenda.[11] Meanwhile, faculty also reported rejection by their communities of origin[12] or by students of color.[13]

             Racial and gender stereotypes seemed to follow many contributors into the academy, shaping institutional expectations. Although the white media has excoriated Paula Deen for her racist comments, Angela Mae Kupenda’s essay makes clear that racist nostalgia is not limited to aging bigots: “[B]lack female academics are asked, or required, to focus on presenting a comforting appearance for whites who miss the blacks of the ‘ole South’ . . . . In the slavery—and even in the postslavery—South, for example, black women were required to place the needs of the white families they worked for over those of their own children. Unfortunately today, black women in the South still face these ghosts. When we try to ignore their ghoulish calling, we may be punished for allegedly lacking collegiality or harboring irrational anger.”[14] Professor Kupenda described how, after she turned down an offer to run a program for entering students who needed some extra help, her white academic dean replied: “We need you to teach in the summer program because you are black, you are a woman, you are a great teacher, and you nurture, mother, feed, and nurse all the students.”[15] In disbelief, Kupenda responded, “You just described a mammy . . . . I guess I will have to be a mammy for you nine months a year, but . . . three months a year I must try to be a scholar.”[16] Years later, Kupenda continued to feel as though she had been complicit in her own oppression: “I had become a mammylike, fully accessible stereotype to make the white students more comfortable.”[17] Black woman professors like Kupenda are in a double-bind, because studies have confirmed that “likeability and warmth are key elements for women professors to get good student evaluations,”[18] and for professors of color this often means taking extra steps to put white students at ease.[19]

             As the chapters progress, the essays begin to focus more on strategies and tools for creating a healthier environment—not just for women of color in the academy, but also for the administrators who will be managing them and their white and/or male colleagues. While acknowledging that for many faculty of color the task of sustaining oneself can seem an uphill climb,[20] the consensus appears to be that, with work, the academy can be as supportive and welcoming for women of color as it is for white men.

             Many of the essays shared the tools that contributors had, themselves, employed to sustain themselves while navigating treacherous territory. Community, solidarity, and the creation of safe spaces stood out as prominent themes.[21] Relatedly, mentorship was identified as “critical for graduate students and faculty of color in white-dominated departments and disciplines.”[22] Collectives provide a space to discuss challenges and openly speak the truth about institutions, as well as create the opportunity for unified strength and advocacy.[23] As Võ writes, “anxiety is reduced if you have supportive colleagues who protect you from burdensome committee work, present you with suitable teaching assignments, and genuinely support your research agenda,” and, “[a] good mentor can help you navigate the political landmines.”[24]

             Other essays provided concrete career advice for women of color and their allies in the academy. Holling, Fu and Bubar provided specific tips for women of color contemplating joint appointments.[25] Chang described the process of developing a women of color studies curriculum that is “intersectional, that looks at the experiences of women of color living within the structures of these systems of oppression and views them as inextricably linked,” aiming to “bring research to the service of communities being studied, rather than the reverse.”[26] Spade explains how classroom agreements, like “move up/move back,” “collaboration not competition,” “constructive feedback,” and using preferred pronouns and correct pronunciations of names can go a long way to creating a safe space in the classroom.[27] Other essays discussed issues like salary and benefit negotiations, institutional politics, tenure, promotion, and work/life balance.

             In addition to the wisdom aimed at aspiring academics, several of the chapters provided guidance for administrators and department heads. Võ calls on institutions of higher education to “consider a holistic approach to hiring, retaining, and promoting diverse faculty,” pointing out that “creating equitable policies, along with transforming a hostile workplace culture, benefits all faculty.”[28] Lazos draws on research about race, gender and student evaluations to determine that “academia needs to make systemic changes to account for the factors that systemically negatively impact both women and minority professors,” and suggests looking into different ways of evaluating teaching performance.[29] In the final chapter, among other suggestions, Flores recommends that administrators “be color conscious, not color-blind”; develop an action—and outcome—based diversity plan focusing on underrepresented group members; not define white women as the de facto norm for all women by using the phrase “women and people of color” or “women and minorities”; avoid knee-jerk reactions to accusations of racism; and mandate and implement meaningful sexual harassment policies.[30] She also advises administrators on how to deal with student/faculty issues, noting, for example, that “[w]hen women of color teach topics related to social justice . . . some, if not most white students will meet their message with resentment,” and that “lesbian, bisexual, transgender and transsexual women of color are particularly vulnerable to student violence and harassment.”[31]

             Presumed Incompetent is, first and foremost, a book by and for women of color who are in the academy or aspiring to enter academia. Editor Carmen Gonzalez writes, “I wanted students who might become law professors (or professors in other disciplines) to be forewarned and fore-armed.”[32] Nonetheless, it is also a book for white people and men in academia. Gonzalez continues, “The goal is to share strategies that can be used by women of color, by allies, and by academic leaders to ensure that underrepresented groups succeed in the academic workplace and to disrupt dysfunctional hierarchies.”[33] The collection triumphantly achieves that goal.

             When I first agreed to write this review, I felt uncomfortable writing about a book that I perceived as aimed at women of color. After all, as a white woman, I can relate to some of the challenges facing women in higher education, but I also enjoy the various well-documented privileges of white skin, upper-middle-class background, and Swarthmore and (forthcoming) Harvard degrees. Nevertheless, I quickly realized that Presumed Incompetent is a book for everyone who is interested in social justice and fighting structures of oppression. Some of the passages that were the most important for my own reading experience dealt with the failures of white, straight cis-gender women to be good allies.[34] Whether it was the surprise that a white woman would bring up race because “it was unusual for white women to raise the topic of racial justice”;[35] the failure of white women to support faculty of color in issues of racial oppression;[36] or even the thoughtless assumption that, “due to my own unexamined race and class privileges . . . that I could critique social conventions, wear and study whatever I wanted, and still be respected and promoted by senior white male faculty,”[37] I saw myself and my own failures—the misunderstandings and microaggressions—reflected in the text. It is my intention that, having read Presumed Incompetent and absorbed its lessons and strategies, I can work to become a better ally in the future.

             Presumed Incompetent is a historic work for a number of reasons, not least for its frank, honest discussion of race and gender in the workplace. Moreover, it documents the lived experiences of women who have struggled, survived, and thrived in often unfriendly and unwelcoming environments—“ensur[ing] that even those women who survived and soared realize that they are part of a greater phenomenon that relates more to power and gender relations than their particular stories,” and situating their work as “clearly central to the academy of the twenty-first century.”[38] At times heartbreaking, at times hopeful, and always powerful, Presumed Incompetent is a must-read for academics, for those whose friends and loved ones are scholars, and for students of social justice anywhere.


Presumed Incompetent: The Intersections of Race and Class for Women in Academia, edited by Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carman G. González and Angela P. Harris, is available from the University Press of Colorado. For more information, visit their website:



[1] J.D., Harvard Law School, 2014. Thanks to Christine Stott and the staff of the Harvard Journal of Law and Gender for their help on this piece. Thanks to the editors and contributors of this incredible volume for speaking truth to power.


[2] Yolanda Flores Niemann, Lessons from the Experiences of Women of Color Working in Academia, in Presumed Incompetent 446, 447 (Gabriella Gutiérrez y Muhs, et al., 2012).


[3] Gwendolyn, The Academic Feminist: Women of Color, Racism and Resilience in Academia, Feministing, (last visited August 5, 2013).


[4] Angela Mae Kupenda, Facing Down the Spooks, in Presumed Incompetent 20, 24 (Gabriella Gutiérrez y Muhs, et al., 2012) (“Years later, I went natural with my hair. Then, many years after that, several of my black female students went natural. White classmates accosted them regularly and accused them of joining “Kupenda’s agenda” by stopping perming their hair and making themselves look more natural, which the white students felt was unnatural.”).


[5] Sherrée Wilson, They Forgot Mammy Had a Brain, in Presumed Incompetent 65, 70(Gabriella Gutiérrez y Muhs, et al., 2012) (“It felt hostile, and you know some very directly racist incidents happened. At one point, people in the school—it was African Americans, and I think gays and lesbians—got Klu Klux Klan notes under our doors. Or sometimes just plain old racist things were said.”).


[6] Kimberly R. Moffitt, et. al., Present and Unequal, in Presumed Incompetent 78, 89 (Gabriella Gutiérrez y Muhs, et al., 2012).


[7] Serena E, On Being Special, in Presumed Incompetent 152, 158 (Gabriella Gutiérrez y Muhs, et al., 2012)


[8] Sylvia R. Lazos, Are Student Teaching Evaluations Holding Back Women and Minorities?, Presumed Incompetent 164, 177 (Gabriella Gutiérrez y Muhs, et al., 2012).


[9] E.g., Delia D. Douglas, Black/Out: The White Face of Multiculturalism and the Violence of the Canadian Academic Imperial Project, in Presumed Incompetent 50, 56­–57 (Gabriella Gutiérrez y Muhs, et al., 2012).


[10] See, e.g., Carmen R. Lugo-Lugo, A Prostitute, a Servant, and a Customer Service Representative, in Presumed Incompetent 40, 45 (Gabriella Gutiérrez y Muhs, et al., 2012); Linda Trinh Võ, Navigating the Academic Terrain: The Racial and Gender Politics of Elusive Belonging, in Presumed Incompetent 93, 102 (Gabriella Gutiérrez y Muhs, et al., 2012); Grace Chang, Where’s the Violence?: The Promise and Perils of Teaching Women-of-Color Studies, in Presumed Incompetent 198, 198–199 (Gabriella Gutiérrez y Muhs, et al., 2012).


[11] Lazos, supra note 8, at 182.


[12] E.g., Cerise L. Glenn, Stepping In and Stepping Out: Examining the Way Anticipatory Career Socialization Impacts Identity Negotiation of African American Women in Academia, in Presumed Incompetent 133, 139 (Gabriella Gutiérrez y Muhs, et al., 2012). (“In addition to receiving responses from those inside academic institutions that African American women do not belong in our respective fields in academia as we obtain undergraduate and graduate degrees and begin interviewing for positions, these messages also come from our families, peer groups, and communities.”).


[13] See, e.g., Easton, supra note 5, at 161.


[14] Kupenda, supra note 42, at 23.


[15] Id.


[16] Id.


[17] Id.


[18] Lazos, supra note 8, at 181.


[19] Id. at 176.


[20] E.g., Michelle A. Holling, et. al., Dis/Jointed Appointments: Solidarity amidst Inequity, Tokenism and Marginalization, in Presumed Incompetent 250, 253 (Gabriella Gutiérrez y Muhs, et al., 2012) (“How come we talk of simply sustaining ourselves whereas our colleagues appear to be well positioned to explore the academy in a multitude of ways that feed them professionally? How come simply sustaining ourselves—surviving versus thriving—becomes the standard for womyn of color in the academy?”).


[21] See, e.g., id. at 263; Margalynne J. Armstrong & Stephanie M. Wildman, Working Across Racial Lines in a Not-So-Post-Racial World, in Presumed Incompetent 224, 240 (Gabriella Gutiérrez y Muhs, et al., 2012).


[22] Kari Lerum, What’s Love Got to Do With It?: Life Teachings from Multiracial Feminism, in Presumed Incompetent 266, 269 (Gabriella Gutiérrez y Muhs, et al., 2012).


[23] Michelle M. Jacob, Native Women Maintaining Their Culture in the White Academy, in Presumed Incompetent 242, 249 (Gabriella Gutiérrez y Muhs, et al., 2012).


[24] Võ, supra note 10, at 98.


[25] Holling, supra note 20, at 264.


[26] Chang, supra note 10, at 201.


[27] Dean Spade, Notes Towards Racial and Gender Justice Ally Practice in Legal Academia, in Presumed Incompetent 186, 189–90 (Gabriella Gutiérrez y Muhs, et al., 2012).


[28] Võ, supra note 10, at 108.


[29] Lazos, supra note 8, at 185.


[30] Id. at 453–62.


[31] Id. at 465, 467.


[32] Email from Carmen G. Gonzalez to Jean W. Strout (May 23, 2013, 23:42 EST) (on file with author).


[33] Id.


[34] See, e.g., Stephanie A. Shields, Waking up to Privilege, in Presumed Incompetent 29, 39 (Gabriella Gutiérrez y Muhs, et al., 2012).


[35] Armstrong & Wildman, supra note 17, at 238.


[36] See Kupenda, supra note 2, at 24–25.


[37] Lerum, supra note 18, at 268.


[38] Gabriella Gutiérrez y Muhs, Afterword, in Presumed Incompetent 501, 504 (Gabriella Gutiérrez y Muhs, et al., 2012).


Women work at a garment factory in Savar

Gender and Garment Work: The Rana Plaza Disaster

Alysa Harder*

When Rana Plaza collapsed outside Dhaka on April 24 of this year, the building didn't discriminate; it simply crumbled, burying everyone inside and killing 1,129 in the world's deadliest industrial accident since Bhopal.

But 80% of Bangladesh's garment workers are women, and according to some estimates women made up over 80% of those killed or injured in the collapse that day.[1]

They are the most recent high-profile casualties of a race to the bottom in a ready-made garment industry which has long profited from women's disadvantage. In Bangladesh, a surplus of impoverished, illiterate, socially and economically oppressed women desperate for work fuels the country's export economy. Most of the women in the garment industry are rural migrants, and for most it’s their first job.[2] Factory owners have deliberately feminized the industry, preferring to hire women for their very low wage expectations, their willingness to work longer hours than their male counterparts, and the ease of dismissing them.[3]

The day before the collapse, workers were sent home as inspectors examined the cracks that had begun to appear in the building’s walls. The next day, they were told by management they had to come to work or forfeit a month’s wages.[4] Lacking the capability to resist management’s demands, they came. 

The precariousness of poor Bangladeshi women’s social and economic position is inextricably intertwined with the root causes of the Rana Plaza tragedy. Yet gender has not been a focus of the various efforts that governments, NGOs, and mostly Western brands have made over the past few months to address weak governance in Bangladesh’s garment sector.

These players have, however, highlighted the opportunities that the garment industry has afforded the country’s women.  US retailers who have signed on to the Alliance for Bangladesh Worker Safety, which calls for independent inspections of all factories used by member retailers, as well as “safety and empowerment” training and a grievance hotline for workers,[5] acknowledge that “the Bangladesh garment industry (which employs millions of workers, roughly 80 percent of whom are women) provides invaluable economic opportunity in the country.”[6]

In their joint statement regarding the “Sustainability Compact for continuous improvements in labour rights and factory safety in the Ready Made Garment and knitwear industry,” under which the Government of Bangladesh commits to adopt amendments to Bangladesh’s labor law to improve freedom of expression and collective bargaining rights, to add hundreds of safety inspectors, and to educate and train workers on their rights as well as safety and health issues, representatives from the Government of Bangladesh and the European Union remark on “the positive impact of the RMG and knitwear sector in Bangladesh on the … empowerment of women.”[7]

At the Senate Foreign Relations Committee hearing on labor issues in Bangladesh that I attended in early June, where witnesses discussed suspending Bangladeshi trade preferences under the Generalized System of Preferences[8], Robert Blake, Assistant Secretary of State for South and Central Asian Affairs, stated in his testimony: “Bangladesh’s development gains have come in part because of the growth of its ready-made garment sector…a sector that employs between two and three million Bangladeshi women, helping to lift them out of poverty and empowering them socially and economically.”[9]

It’s true—working in garment factories gives many women regular income and a measure of personal autonomy and leverage within their households that agricultural or domestic work has rarely afforded them. But until now, abysmal working conditions have kept Bangladeshi women from benefiting from globalization in a paradigm-shifting or even sustainable way. When the garment industry’s most visible stakeholders emphasize how the industry benefits women, while neglecting to acknowledge the fact that their exclusion from the wider labor market contributes to the perpetuation of the types of conditions that lead to Rana Plaza, they obscure a critical part of the story. 

Private compliance and capacity-building initiatives like the Alliance for Bangladesh Worker Safety have historically had very limited impact on labor standards worldwide;[10] companies have got to get the story straight if their efforts are to have a chance of effecting meaningful change.  And while the labor law amendments the Bangladeshi government has begun to implement, under pressure from the US and EU, may prevent another catastrophe on the scale of Rana Plaza, sustained progress will depend on coordinated initiatives that comprehend and account for the role that gender plays in Bangladesh’s ready made garment industry. 


* JD Candidate, 2014.



[1] Suvendrini Kakuchi, Female Garment Workers Bear Brunt of Tragedy, Inter Press Service News Agency (May 10, 2013) Exact figures on the gender breakdown have not been reported.


[2] Naila Kabeer and Simeen Mahmud, Rags, Riches and Women Workers: Export-oriented Garment Manufacturing in Bangladesh, in Chains of Fortune: Linking Women Producers and Workers with Global Markets 148 (Marilyn Carr, ed. 2004). 


[3] Shamsul Khan, Trade unions, gender issues and the ready-made garment industry of Bangladesh, in Women’s Employment in the Textile Manufacturing Sectors of Bangladesh and Morocco 180 (Carol Miller and Jessica Vivian, eds. 2002).


[4] Michelle Chen, Factory Collapse in Bangladesh Shows Cracks in the System, Huffington Post (Apr. 28, 2013, 11:08 A.M.)


[5] Alliance for Bangladesh Worker Safety,, last visited Sep. 9, 2013.


[6] Statement of Purpose by Leaders of the Alliance for Bangladesh Worker Safety,, last visited Sep. 9, 2013.


[7] Joint Statement, European Commission, (last visited Sep. 9 2013).


[8]“The U.S. Generalized System of Preferences (GSP) is a program designed to promote economic growth in the developing world by providing preferential duty-free entry for up to 5,000 products when imported from one of 127 designated beneficiary countries and territories.” Office of the United States Trade Representative, Generalized System of Preferences, Office of the United States Trade Representative, (last visited Sep. 9, 2013).


[9] Robert Blake, Statement to the Senate Foreign Relations Committee, Labor Issues in Bangladesh June 6, 2013 


[10] See generally Richard M. Locke, The Promise and Limits of Private Power: Promoting Labor Standards in a Global Economy, Cambridge University Press 2013.  The Accord on Fire and Building Safety in Bangladesh, another agreement that many European brands have signed on to, may prove more successful than most, due to its legally binding nature and union involvement.  


navy image

Rape Victims Suffer due to Lack of Protections in Article 32 Hearings

Christina Gilligan*                                  

“Were you wearing a bra?”

“Were you wearing underwear?”

“Did you feel like a ho the next day?”

“How wide do you open your mouth during oral sex?”

The above list of questions reads like an example a professor of evidence might provide her students of inquiries disallowed by the Federal Rules of Evidence since 1978.[1] However, defense attorneys asked the above questions to an alleged sexual assault victim just two weeks ago, subjecting the twenty-one-year old woman to more than 24 hours of draining questioning over 5 days.[2]

This young woman, a Naval Academy midshipman, is just one of the estimated 26,000 members of the U.S. Military who experienced “unwanted sexual conduct” in 2012.[3] Her story and the legal framework that forced her to answer the inappropriate, embarrassing, and – ultimately – irrelevant questions above highlight the dire need for change in the U.S. Military’s treatment of sexual assault victims. Those instituted by Defense Secretary Chuck Hagel last month are not nearly sufficient.[4] This blog post seeks to explore that legal framework and the space it leaves open for defense attorneys to engage in bullying and victim-blaming during Article 32 hearings.

The Background

According to her testimony, the female midshipman attended a Toga and Yoga Party at an off-campus location referred to as the Naval Football House on April 14, 2012.[5] She drank heavily and remembered little of what happened that night.[6] Over the next few days, the then-twenty-year old woman encountered rumors and posts on social media sites that led her to believe that she had been sexually assaulted by three of her classmates.[7] However, out of fear, she was initially reluctant to make any sort of formal report and did not “want the case to go anywhere.”[8]

This reluctance to report the occurrence of a sexual assault is common among victims in the armed services. Through anonymous surveys and sampling research, the Pentagon estimated that about 26,000 personnel in the U.S. Military experienced “unwanted sexual conduct” in 2012, up nearly thirty-five percent from 2010.[9] Yet, the reporting rates of such crimes in the military are startlingly low – just 3,374 sexual assaults were formally reported in 2012.[10] Victims who report sexual assaults not only risk retaliation from the accused or their superiors and isolation from their peers, but also are unlikely to see results – fewer than one in ten sexual assault cases in the military results in sexual assault conviction.[11]

The prevalence of sexual violence in the military has recently garnered much media attention and has been addressed by national leaders, including President Obama and members of Congress.[12] Still, only four months after President Obama informed Naval Academy students that “those who commit sexual assault . . . threaten the trust and discipline that make our military strong,” the midshipman above experienced firsthand the military legal system’s lack of regard for the dignity and protection of victims.[13]

The Legal Framework

As members of the armed forces, the defendants in this case – if they are tried – will be tried under military law in a military court, or a court-martial. Courts-martial are governed by the Uniform Code of Military Justice (UCMJ),[14] an act passed by Congress, and the Manual for Court-Martial (MCM), an executive order that details and expands on the laws in the UCMJ. The MCM also provides discussion on the Military Rules of Evidence.[15] The Military Rules of Evidence include Rule 412, the military counterpart to the federal rape shield rule barring evidence of the victim’s past sexual experiences and sexual predisposition.[16]

Under the UCMJ, once a military member has been accused of a crime or has a charged levied against him, he has a right to a “thorough and impartial investigation of all the matters” set forth in the charges prior to appearing before a court-martial.[17] This investigation must include an “inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.”[18]

Further, under the MCM, the majority of the Military Rules of Evidence do not hold in the investigative proceedings – although Rule 412 still applies to Article 32 hearings, at least in theory.[19] However, the relaxation of the other evidence rules and procedural safeguards during the hearings, coupled with the MCM’s guidance that “the defense shall be given wide latitude in cross-examining witnesses,” [20] often leads to the virtual abandonment of the protections of Rule 412 in practice, as described in the case above.

As noted by Melinda Henneberger and Annys Shin, Article 32 hearings are often compared to grand jury proceedings, as the purpose of an Article 32 hearing is to determine whether the trial or court martial is warranted. However, unlike grand juries, Article 32 hearings take place in public and include defense attorneys – who, under the looser procedural rules of pre-court martial investigation, may subject the victim to scathing and open-ended cross examinations.[21] Furthermore, as demonstrated by the experiences of the midshipman victim above, questions often are asked during Article 32 hearings that no civilian court in any state in the country would allow.[22] In fact, a practice guide for attorneys defending military members accused of sexual assault advises using the Article 32 hearing as an opportunity for a “prudent practitioner . . . to explore any potential MRE 412 evidence and build a foundation for success at an MRE 412 hearing, or on cross-examination at trial.”[23]

The Conclusion

Thus, the structure of Article 32 hearings allows for defense counsel and other officials to play fast and loose with important procedural and evidentiary protections, rendering victims even more vulnerable and totally undermining the purpose of Rule 412. As Robert Canaff, a former prosecutor who has worked with the military on improving its sexual assault procedures, noted Article 32 proceedings are so difficult for victims of sexual assault that “a lot of cases die there as a result.”[24] In a context where sexual assault is so wildly unreported, the neglect of these cases and the harsh treatment of the victims cannot be sustained.

In May, President Obama stated, “For those who are in uniform who’ve experienced sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs.” The MCM – which explicitly advises the broad cross-examination of victims in Article 32 hearings – is an executive order. Thus, the time has come for President Obama to honor his commitment to sexual assault victims and tighten the safeguards for Article 32 hearings.



* JD Candidate, 2014.

[1] Fed. R. Evid. 412. Rule 412 rendered inadmissible, subject to some exceptions, (1) evidence offered to prove that any alleged victim engaged in other sexual behavior, and (2) evidence offered to prove any alleged victim’s sexual predisposition, subject to several exceptions. Today, nearly all jurisdictions in the United States contain similar rape shield provisions.


[2] Ruth Marcus, In Navy rape case, defense lawyers go wild, Wash. Post (Sept. 5, 2013),


[3] Craig Whitlock, Obama delivers blunt message on sexual assaults in military, Wash. Post (May 7, 2013),


[4] Secretary Hagel has “directed each branch of the military to create a legal advocacy program for victims, standardized prohibitions on inappropriate relations between recruiters and recruits, ensured that pretrial hearings are conducted by military lawyers and provided commanders with the option to reassign or transfer the accused.” However, Secretary Hagel has not called for reforms to move the prosecution of sexual assault outside of the chain of command. Nation Action & Sarah Arnold, Despite Changes, Advocates for Victims of Sexual Assault in the Military Continue to Fight for Reform, The Nation (Aug. 16, 2013), Further, neither Secretary Hagel nor Congress has instituted any major effort to directly reform the protections for sexual assault victims during Article 32 hearings. Melinda Henneberger & Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013),


[5] Ali Weinberg, Woman at center of alleged Naval Academy gang rape testifies for first time, NBC  News (Aug. 28, 2013),


[6] Id.


[7] Annys Shin, Hearing in Naval Academy rape case concludes, Wash. Post (Sept. 3, 2013),


[8] Id.


[9] Craig Whitlock, Obama delivers blunt message on sexual assaults in military, Wash. Post (May 7, 2013),


[10] Id. With respect to the low rate of reporting, Senator Claire McCaskill has said, “That is the crux of the problem here, because if a victim does not believe that the system is capable of believing her, there’s no point in risking your entire career.” Id.


[11] Id.


[12] Id.


[13] Valerie Strauss, Text: Obama’s speech at U.S. Naval Academy graduation, Wash. Post (May 24, 2013),


[14] Uniform Code of Military Justice, 10 U.S.C. §§ 801 – 946.


[15] Manual for Courts-Martial (2012 Edition).


[16] Mil. R. Evid. 412.


[17] Art. 32, Uniform Code of Military Justice, 10 U.S.C. § 832.


[18] Id.


[19] Rule 405, Manual for Courts-Martial (2012 Edition).


[20] Id.


[21] Ruth Marcus, In Navy rape case, defense lawyers go wild, Wash. Post (Sept. 5, 2013),; Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013),


[22] Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013),


[23] Kevin Smith, Navigating the Rape Shield Maze: An Advocate’s Guide to MRE 412 (2000), available at$FILE/Article%201.pdf.


[24] Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013),



A Response to Laurie Shrage’s “Is Forced Fatherhood Fair?”

By Jean Strout

On June 12, 2013, feminist scholar Laurie Shrage published an opinion piece in the New York Times decrying “forced fatherhood” as an injustice.[1] In her piece, Shrage supports child support reform, which would excuse from child support obligations “a naïve man who, in a moment of exuberance with a girlfriend, allows his name to be put on a birth certificate, and a man whose only tie to a child is biological.”[2] Shrage’s suggestion smacks of “financial abortion,” which men’s rights advocates have long championed: the man is freed from financial responsibility if the woman refuses to abort the fetus.[3]

Shrage constructs child support as a “punishment” aimed at controlling men’s sexual behavior.[4] This view neglects the most important motivator of compulsory child support: the best interests of the child. Shrage also fails to address alternatives to child support: if biological fathers don’t pay, who will?

Compulsory child support does not need to be viewed as a punishment for men, or as a construction of fathers as nothing but financial providers. Shrage argues that while women have the option to abort a fetus, men have no control over whether the child is born, and are saddled with responsibilities if it is. Leaving aside the practical and moral obstacles to abortion for many women, the different reproductive rights of men and women result from the differential physical consequences of pregnancy and birth:

It is not necessarily a sign of anti-male bias, as men’s advocates contend, that a man’s ability to control his income and his labor isn’t accorded the same respect as a woman’s ability to control her body. In our culture, bodily autonomy is seen as a more fundamental value than property; that’s why chopping off an offender’s finger seems to us far more barbaric than stiff financial penalties or even forced labor.[5]

Under this framework, it makes sense that a woman cannot be compelled to surrender her body to gestating a fetus, while a man can be compelled to financially contribute to his child once it has been born. The fact that women can decide whether to abort or not, and thus have control over whether they become parents, is the result of a biological reality. People get to have more control over what happens in their bodies than what happens to their wallets.

That doesn’t mean that compulsory child support is fair. As Shrage rightly argues, the characterizations of men who seek to terminate child support obligations for unwanted children as selfish, irresponsible, or even evil should be challenged. As Cathy Young points out:

 If men who want a right to be released from their parental obligations seem callously egocentric to many people, that’s how women who want abortion on demand look to many anti-abortion advocates. It should make us ponder the fact that, while paternal desertion is often cited as evidence of male irresponsibility and selfishness, more than a million American women every year walk away from the burdens of motherhood.[6]

Child support may seem unfair in some circumstances, but it is not a punishment; it is a way to protect innocent children from being punished for being conceived by a parent who didn’t want them. Children are indisputably expensive, and many expenses are directly related to the child’s well being, such as safe housing, medical care, and nutritious food. The child’s right to thrive should trump the parent’ interest in avoiding the financial burden; courts should not “subordinate the constitutional rights . . . of the child to those of one of the parents.”[7] It is true that the best interests argument makes less sense at economic extremes. In Massachusetts, for example, the minimum child support payment for one child is $20 a week.[8] The $20 a week minimum applies even if the custodial parent (usually the mother) has no other source of income. Nobody would argue that $20 a week is enough to support a child, so mandatory child support is clearly not sufficient to ensure the child’s well-being. The best interests argument also makes less sense when the custodial parent has a more than adequate income, or when the non-custodial parent (usually the father) must pay a certain percentage of their income even though much less would suffice to properly take care of the child. In the context of higher-income parents, maintaining proportional child support obligations can be explained in two ways: punitive treatment of fathers (making them feel the loss of income) or a sense that the child morally deserves more money because his genetic father has more money.[9]

The best interests argument gains strength when the child’s well being is considered more holistically. For instance, in 1982 the New York District Court rejected a father’s argument of reproductive fraud[10] as a defense to payment of child support.[11] The New York District Court rested its decision on consideration of the psychological, as well as financial, well-being of the child: allowing fraud as a defense to child support demands “would create a new and inferior category of an out-of-wedlock child based upon the circumstances of conception and would subordinate the constitutional rights and other interests of the child to those of one of the parents.”[12] This category of child would be acutely aware that the biological father did not want them to be conceived, and would be at a financial disadvantage compared to ‘wanted’ children; the same concerns apply to a financial abortion option. Shrage mentions the interests of the child in relation to the challenges of “manag[ing] a lifelong relationship with an absent but legal father.”[13] However, she doesn’t acknowledge the psychological toll of having legal proof that your biological father never wanted you.

Nor does Shrage explain how children’s needs will be paid for, if not by the men who helped bring them into the world. She vaguely suggests that “the government has other options, such as mandatory sex education, family planning counseling, or community service.” These programs are laudable (although I am unsure of the meaning of “community service” in this context), but they are not mutually exclusive with compulsory child support. They also do nothing to provide relief for a child that has already been brought into this world.

If we accept as a society that children need to be adequately cared for, we must also accept that someone must pay. If the custodial parent can’t do it, the burden must necessarily fall on the other parent or on the state. Just as there are objections to forcing a father to pay for child he wanted, there are practical and normative problems with asking the state to pay. It can be seen as a moral wrong, in that biological fathers are able to escape obligations to children they helped bring into the world. It increases the burden on taxpayers, who must pay for the abdication of parental responsibility.[14] This appears especially egregious in cases where the biological fathers can easily afford to pay support. State provision of child support also opens the door to government policing of women’s lives and finances.

Most importantly, the ‘welfare state’ and programs providing support for families are persistently politically controversial and underfunded; it is probably politically impossible to pass the full burden of child support onto the state in the near future. Consequently, as a practical matter, the father may be the only source of support available. If Shrage wants to free fathers from the burdens of accidental pregnancy, she needs to offer an alternative to poverty.

Finally, Shrage skirts the practical question of how to tell when a pregnancy is “accidental,” rendering the father eligible to avoid paying child support. What if, as is probably most often the case, the man and woman never discussed what would happen if pregnancy resulted? It is unclear whether the legal line would be drawn at reproductive fraud (however defined), or whether lack of or failed contraceptive use would be enough to make a pregnancy ‘accidental.’ Determining the circumstances of conception would require a complex investigation encompassing the pair’s sexual and romantic history, and would likely devolve into a he-said/she-said dispute about promises, commitments and ejaculations.

Male disempowerment in the area of abortion, combined with legal support obligations and negative stereotypes of fathers, has sparked violently outspoken responses from ‘men’s rights’ and ‘father’s rights’ advocates, many of whom have extreme views about the extent to which men should be able to control women’s bodies and avoid responsibility for their genetic children.[15] There are valid concerns underlying the vitriol, and the goals of those who wish to challenge gendered stereotypes about parenting will be furthered if we can look past the extremists and understand the plight of men who are “forced” into fatherhood. However, we need to think carefully about whose rights we are privileging. Shrage constructs the problem as two-sided: women have more rights, men have fewer. But she forgets the children.



[1] Laurie Shrage, Opinion, Is Forced Fatherhood Fair, N.Y. Times, (June 12, 2013, 9:00 AM),

[2] Id.

[3] Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women’s Sexuality, 56 Emory L.J. 1235, 1244 (2007).

[4] Shrage, supra note 1.

[5] Cathy Young, A Man’s Right to Choose, (Oct. 19, 2000, 12:47 PM),; see also Hendricks, supra note 15, at 367 (“An obligation to pay for the support of a child is entirely different in nature from either the physical imposition of compulsory pregnancy or the relational imposition of compulsory parenting.”).

[6] Id.

[7] Inez M. v. Nathan G., 451 N.Y.S.2d 607, 609 (1982).

[8] Massachusetts Child Support Guidelines Worksheet; M.G.L. c. 208 § 28 (2012).

[9] See, e.g., Pamela P. v. Frank S., 443 N.Y.S.2d 343, 348 (N.Y. Fam. Ct. 1983) (“The child is entitled in this court's opinion to no less a standard of living than his father's, because it indicates the likely level that the child would enjoy if he had been born into the still-prevalent circumstance of an intact family or a father willingly sharing his custody and care.”).

[10] Advocates of a reproductive fraud defense would include within its definition pregnancies that result from false claims of birth control use and pregnancies initiated using sperm that the parties explicitly or implicitly agreed would be disposed of. Myrisha S. Lewis, Sex and Statutory Uniformity: Harmonizing the Legal Treatment of Semen, 7 Charleston L. Rev. 235, 267 (2012). Reproductive fraud is also referred to as contraceptive fraud and birth control fraud. Id. In Inez v. Nathan G., the father argued that the failure to terminate a pregnancy as promised consisted reproductive fraud. 451 N.Y.S.2d at 609.

[11] See Inez M. v. Nathan G., 451 N.Y.S.2d. at 609.

[12] Id.

[13] Shrage, supra note 1.

[14] See Linda C. McClain, “Irresponsible” Reproduction, 47 Hastings L.J. 339, 423–424 (1996) (“Contemporary feminists identify male irresponsibility as a cause of unwanted pregnancy, abortion, single motherhood, family poverty, and family violence, often critiquing the ways that law permits or perpetuates such irresponsibility.”).

[15] [15] See, e.g., Dalton Conley, A Man's Right to Choose, N.Y. Times, Dec. 1, 2005, at A33.


Book Review: Battling Miss Bolsheviki

Book Review

Misty Wright*

Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. By Kirsten Marie Delegard. Philadelphia, PA. University of Pennsylvania Press. 217 pages.

Click here to access a PDF version of the book review.



Miss Bolsheviki has come to town,
With a Russian cap and a German gown,
In women’s clubs she’s sure to be found,
For she’s come to disarm America

…The male of the species has a different plan
He uses the bomb and the fire brand,
And incites class hatred wherever he can
While she’s busy disarming America.

His special stunt is arousing the mob,
To expropriate and hate and kill and rob,
While she’s working on her political job

In 1920, female enfranchisement marked the dawning of a new era of female power in American democracy. But rather than catapulting women’s reform efforts forward, the 1920s ushered in an era of female conservatism, whose presence and players have largely been overlooked or underplayed. In Battling Miss Bolsheviki, Kirsten Marie Delegard explains how women antiradicals recast female reformers as Bolshevik sympathizers, halting female reform “during their critical transition to full political citizenship.”[2] In fact, Delegard argues, the 1920s’ reshaping of women’s politics was just as influenced by the Russian Revolution as the Nineteenth Amendment.[3]


Prior to the Nineteenth Amendment, “maternalist” members of women’s clubs lobbied Congress to advance a reform agenda, viewing their work as a “selfless mission[] necessary for the protection of their homes, families, and children.”[4] Suffrage did not lead to the kind of social welfare reform they had imagined.[5] At first, historians supposed that women simply lost steam.[6] Others cited male opposition as the culprit.[7] But Delegard suggests that the real reason for stymied reform was that the women’s bloc divided after suffrage.[8] By the end of the 1920s, women antiradicals had linked their reform-minded sisters to dangerous revolution, delegitimizing the reform movement and its leaders.[9]

According to Delegard, assumptions of women’s history have posed a problem to our understanding of what happened to the women’s bloc in the 1920s.[10] There is an “unspoken belief that women possess an inherent affinity for demilitarization, an expanded social safety net, and greater social justice.”[11] Because of this bias, history has been written as though women who opposed radical and reform agendas—female antiradicals—did not exist.[12] But this belief is simply unfounded; female antiradicals were not merely backlash phenomena, outliers, or pawns of the War Department or other male antiradical efforts.[13] Delegard demonstrates that the female antiradical movement was a legitimate, widely supported cause of its own.

She also demonstrates that the female antiradical movement had far-reaching effects. Not only did it stifle the path of American reform[14] and “challenge[] assumptions about female political engagement,”[15] but it also was integral in the rise of the American conservative right.[16] It divided women and women’s organizations that had once been “united under the flag of social improvement.”[17] It set the stage for women’s anticommunist involvement.[18] And decades later, at the time of the Equal Rights Amendment, it was “instrumental in turning the GOP to the right.”[19] Delegard argues that the conservative political identity constructed by 1920s antiradicals later swept Reagan into the Presidency,[20] and women were the “backbone” of conservative mobilization in the 20th century.[21] Most interestingly, “[t]he power struggles . . . illustrate both the political potential and the pitfalls of using female solidarity as a foundation for organizing, a paradox that will continue to bedevil politically active women well into the twenty-first century.”[22]


Delegard begins with the philosophical inception of antiradicalism. In 1919, the Senate Overman Committee held hearings to investigate the 1917 Bolshevik revolution.[23] Testimony from an American prisoner in Russia about women becoming the state’s property, available to any man who wanted them, resulted in myths and rhetoric centered on the danger of perverting the traditional family.[24] Some of these dangers included divorce laws that “encouraged men to discard their wives” and “the ‘nationalization’ of women and children.”[25] “These stories helped recast domestic repression as necessary to shield women and children from the effects of radicalism; they gave moral legitimacy to efforts to crush quests for political, economic, and racial justice.”[26] Delegard contends that narratives about women—particularly about sexual victimization of women—provided the most powerful arguments that Bolshevism endangered America.[27] “Narratives about sexual terror transformed the fight against radicalism into a battle to protect American womanhood.”[28] From the Overman hearings emerged fear, and from that fear emerged female antiradicals.

The similarities this book reveals between female maternalist reformers and female antiradicals are striking. Both, first and foremost, desired to protect women (and children).[29] But they disagreed on how to go about doing so. Antiradicals turned to the family and patriarchy.[30] They could not imagine a society in which woman’s childcare duties and structural inequities would not limit her ability to be economically independent.[31] In comparison, female reformers’ dreams were a bit bigger, as they saw alternate, government-assisted protection as a real possibility that could enable economic independence. Further, both said their motivations were selfless—for the benefit of society and their children—but their true aim was self-preservation.[32] And both reformers and antiradicals were scared of radicalism.[33]

Not only did female reformers and antiradicals have similar aims, but they also had, on the whole, similar backgrounds—a similar activist history, middle class status, and white racial backgrounds “kept these women operating in the same political world, even as ideology was pulling them apart.”[34] They also had similar education levels and assumptions about gender, race, and the threat of immigration.[35] Both used the same institutional structure and sometimes, the very same institutions, for their activism.[36] Many organizations housed both reform and antiradical individuals, and many individuals belonged to both reform and antiradical organizations over the 1920s.[37]

Throughout her book, Delegard dances around the role of sex-stereotyping and sexism in women’s political activism. For example, Americans thought all women were innate maternalists.[38] In the early years following the ratification of the Nineteenth Amendment, women took up the peace movement and self-stereotyped themselves as natural peacemakers.[39] But antiradicals saw women as uniquely vulnerable to radical ideology on account of their sex’s tender nature.[40] Others saw them as un-American, foolishly creating a nation defenseless to radical takeover.[41] The War Department went on the offensive, labeling women’s organizations as radical.[42] Female antiradicals found that sexism shut them out of the male antiradicals’ conversation, but Delegard contends that the resulting separatism preserved the vitality of their campaign.[43]

To be clear, there was no evidence of a Russian effort to recruit American women.[44] Despite this, a diagram of “female treachery that linked all middle-class women activists [and sixteen organizations] to revolutionary radicalism” emerged in 1923.[45] This Spider Web Chart was accompanied by the poem featured at the beginning of this review.[46] It was circulated by the War Department but authored by a woman—a fact overlooked by many, including female reformers.[47]

“It takes women to fight women,” stated Claire Oliphant, the national president of the American Legion Auxiliary, in 1925.[48] Whether or not this was true, women certainly did begin to fight women in the 1920s.  Female antiradicals took up counter-subversion,[49] staged highly public confrontations with peace activists,[50] blocked conventions,[51] redefined the agendas of women’s organizations (particularly by polarizing centrist ones), created new antiradical women’s institutions,[52] and campaigned against legislation. Delegard discusses each of these strategies in extraordinary depth. For example, antiradicals’ campaign against legislation included opposition to the Child Labor Amendment, to the reauthorization of the Maternity Act,[53] and to the Equal Rights Amendment, all on grounds that they would supposedly weaken the patriarchal family or nationalize women and children, either of which would make the country vulnerable to radical takeover.[54] Antiradicals were successful at stopping the “revolution by legislation”[55] because they knew how to be effective information disseminators and fear mongerers at the local level. Both the Child Labor Amendment and the (much later) Equal Rights Amendment passed through Congress, but antiradicals prevented its ratification by the states.[56]

Antiradicals’ most effective tactic, and the tactic that receives the most page space in the book, was the systematic application of guilt-by-association to reform organizations and individuals.[57] They sought to destroy the political reputations of reform organizations and the reform and moderate women who ran them.[58] In 1927, the Daughters of the American Revolution (DAR) released six blacklists,[59] demonstrating the DAR’s broad campaign against peace activists and reformers.[60] “Magnifying once-hidden differences among women from similar backgrounds, the DAR’s blacklists served as the final nail in the coffin for long-standing alliances, an ineluctable sign that women who had considered themselves natural allies were now enemies.”[61]

And voila: a new conservative movement was born. A new female movement was born. And a unified female voting bloc, once feared by men and male elected officials, was no longer a threat.[62]


The crowning achievement of this work is its extraordinary depth. Delegard supports 217 pages of text with 79 pages of notes and an index of concepts and acronyms. She draws not only from historical analyses, but also from primary sources whose pages had been left relatively unturned by mainstream historians. She integrates the archives of the national headquarters of the Daughters of 1812[63] with newspaper records, War Department memoranda, Military Intelligence Division correspondence,[64] and many more sources.

Because this book is so well researched, it not only addresses the who’s, what’s, where’s, and when’s of the female antiradical movement. It also answers the why’s and how’s—at the individual, organizational, and philosophical levels. In order to answer these questions, Delegard delves into the evolution of women’s organizations such as the Daughters of the American Revolution (DAR), the Women’s International League for Peace and Freedom, the Women’s Joint Congressional Committee, and the General Federation of Women’s Clubs (GFWC). She makes the story even more flavorful by using abbreviated yet detailed mini-biographies of women who led and financed these organizations. For example, spotlight pages are dedicated to Flora Walker, chairman of the DAR’s National Defense Committee, whose name became synonymous with antiradicalism.[65] Delegard uses personal journals, DAR correspondence, DAR proceeding minutes, publications, and other sources to bring Ms. Walker to life.[66] She details Walker’s interest in antiradicalism, which stemmed from the Seattle labor strike, her personal romantic life, and of course her DAR involvement and leadership.[67] Similar mini-biographies of DAR president general Grace Brosseau,[68] DAR financier Helen Gould Shepard,[69] anti-suffragist and president of the Massachusetts Public Interests League Margaret Robinson,[70] Kentucky GFWC leader Georgia Martin,[71] chief of the Women’s Auxiliary Intelligence Bureau for Massachusetts Elizabeth Lowell Putnam,[72] prominent social reformer Florence Kelley,[73] reformer Helen Tufts Bailie,[74] and many more reformers, radicals, and antiradicals bring enormous insight to the narrative and humanize its characters.


One of the major difficulties of this work is that the wealth of information explored presents organizational difficulties. The author has partially solved this problem by providing summaries at the close of each chapter. Still, the author embarks on the same timeline multiple times throughout the book rather than remaining chronological throughout, resulting in a significant amount of repetition and occasional complication. This makes the read require significant focus to get the most out of it.

Overall, this work leaves the reader with an eye-opening understanding of the evolution of female and conservative political involvement and tactics. What is more exciting to me personally is that it provides a launching point for greater interest in and exploration of women’s conservative activism. For example, how does this narrative fit into the overarching narrative of the 1920s?[75] What is the significance of these developments through the lens of the conservative movement as a whole? How did these battles between middle class white women interact with the activism of women of color and of lower socioeconomic status?[76] What connections can we draw between the female antiradicals of the 1920s and the female antiradicals of today? What makes female antiradicals effective or not effective, and what could female reformers of today do to more effectively combat their efforts?

Even more questions arise in the wake of recent political events. In the age of social media, 24-hour news, and the 2008 Democratic presidential primary race, do we still need women to fight women? What does the fact that there are now more women than ever in Congress mean for that fight? And after the 2012 election cycle’s “war on women,” might this critical mass of congresswomen have the potential to realize the united reformist women’s front envisioned by the women reformers of the 1920s?

Cite as: Misty Wright, Book Review, Harv. J.L. & Gender, (Jan. 2013) (reviewing Kirsten Marie Delegard, Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States, (2012)),

* Harvard Law School, J.D., Class of 2013.

[1] Kirsten Marie Delegard, Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States 49 (2012) (internal quotations omitted) (quoting a poem accompanying the 1923 Spider Web Chart, discussed infra, Part II).

[2] Id. at 7.

[3] See id. at 16.

[4] Id. at 2.

[5] See id. at 3.

[6] See id.

[7] Id.

[8] See id. at 4.

[9] See id. at 5.

[10] Id. at 14.

[11] Id.

[12] See id. at 13.

[13] See id. at 13–15.

[14] See id. at 11.

[15] Id. at 87.

[16] See id. at 142.

[17] Id. at 209.

[18] See id.

[19] Id. at 215.

[20] See id. at 216.

[21] Id. at 216.

[22] Id. at 217.

[23] See id. at 8.

[24] See id. at 8–9.

[25] Id.

[26] Id. at 20.

[27] Id. at 28.

[28] Id. at 31. Delegard also notes that using the violation of women to justify military action was common throughout U.S. history. Id. Further, the Bureau of Free Love (where women were used sexually) was the most sensational myth about Bolshevik Russia. Id. at 29.

[29] See id. at 56.

[30] See id. at 15. Female conservative activists’ “opposition to radicalism was deeply gendered, for it was motivated by the belief that these ideologies aimed to dismantle the patriarchal protections that provided shelter and care to women and children.”

[31] See id. at 71.

[32] See id. at 56 (“Women who became conservative activists believed that radical ideologies menaced their homes, churches, and personal safety.”)

[33] See id. at 174.

[34] Id. at 179.

[35] See id. at 13, 174.

[36] See id. at 87.

[37] See id. at 173.

[38] See id. at 55.

[39] See id. at 38–39.

[40] See id. at 35–38. Antiradicals saw these female peace activists as duped, but one inherent tension left unexplored in the book is that female antiradicals were clinging to false information from the Overman Committee hearings (and other false propaganda) from the antiradical movement’s inception.

[41] Id. at 40.

[42] See id. at 39, 42.

[43] Id. at 15.

[44] See id. at 37.

[45] Id. at 48.

[46] Id. at 48–49.

[47] See id. at 54–55.

[48] Id. at 85.

[49] See id. at 68.

[50] See id. at 85.

[51] See id. at 87.

[52] See, e.g. id. at 93 (discussing the Women’s Patriotic Conference on National Defense).

[53] See id. at 149.

[54] See id. at 114, 129.

[55] Id. at 114.

[56] See id. at 120 (for a discussion of the Child Labor Amendment’s defeat at the local level); id. at 214 (for a discussion of the Equal Rights Amendment’s defeat at the local level).

[57] See id. at 147.

[58] See id. at 146.

[59] See id. at 147, 160.

[60] See id. at 161.

[61] Id. at 179–180.

[62] See id. at 144.

[63] Id. at 13.

[64] Id. at 258 n.97.

[65] See id. at 103.

[66] See id. at 97–103.

[67] See id.

[68] See id. at 95.

[69] See id. at 100.

[70] See id. at 122.

[71] See id. at 131.

[72] See id. at 137.

[73] See id. at 151.

[74] See id. at 175.

[75] See id. at 33. Female reformers did not eclipse the image of immigrant radicals as agents of subversion, raising the question: how significant were they in a broader context? Id.; see also id. at 142 (“[T]his countersubversion work likely did little to influence the activities of committed revolutionaries.”)

[76] Delegard talks intermittently about race and class.  See, e.g. id. at 4 (maternalists’ purported female unity left out many races and political persuasions); id. at 29 (fear of mixing classes and races); id. at 59, 174 (reinforcement of class and racial hierarchies); id. at 174 (reformers and antiradicals had the same racial and ethnic prejudices).


Case Comment: McCormack v. Hiedeman

Case Comment

Abbey Marr*

McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012).

Click here to access a PDF version of this case comment.

Within a political and legal landscape hostile to abortion rights,[1] the Ninth Circuit held in McCormack v. Hiedemann[2] that an Idaho law posed an undue burden to a woman’s right to an abortion by going so far as to make it a felony for a woman to obtain an abortion unless she obtained it from a physician in accordance with statutory requirements.[3] McCormack drew an important line in the sand and is a much needed “win” in the federal courts for abortion rights advocates. We should embrace it. Instead, national abortion rights advocates made little mention of the case publicly, both before and after the Ninth Circuit’s decision.[4] This is not surprising: McCormack pushes the limits of the prevailing “undue burden” standard to a precarious level. In reaching its holding, the court requires almost no proof that the challenged statute would actually constitute an undue burden to women, inviting a potentially dangerous rebuke from the Supreme Court.


The plaintiff in McCormack was a single mother of three whose only income was minimal child support.[5] She found herself pregnant in the fall of 2010, and knew that the travel cost from her home in southeastern Idaho to the nearest clinic in Salt Lake City, plus the expense of the procedure, was not something she could afford.[6] In her civil complaint, Jennie Linn McCormack stated that she believed she was in her first trimester, and she ingested medication abortion pills she had obtained online, which “she reasonably believed to have been prescribed” and sent to her “by a health care provider practicing outside Bannock County, Idaho.”[7] She was charged the next spring with violating Idaho Code §18-606, which makes it a felony for a woman to obtain an abortion outside of two exceptions laid out in Idaho Code §18-608: (1) by a physician in compliance with several requirements during the first trimester, or (2) in a hospital during the second trimester if it is judged to be “in the best medical interest of the woman.”[8] The charges were later dismissed without prejudice.[9] At that time, McCormack brought suit, challenging Idaho Code §18-606 as unconstitutional under Planned Parenthood v. Casey’s[10] “undue burden” standard.[11]

A. District Court Decision

Both the district court and Ninth Circuit decisions in McCormack were limited to the plaintiff’s motion for a preliminary injunction. At the same time that she filed her amended complaint, McCormack moved for a temporary order seeking to restrain the Bannock County prosecutor from criminally charging any woman for violating Idaho Code §18-606 while its constitutionality was decided, among other requests.[12] The district court granted a preliminary injunction preventing enforcement against any woman in Bannock County, because McCormack was “likely to succeed on the merits; … likely to suffer irreparable harm in the absence of preliminary relief; the balance of equities tips in her favor; and an injunction is in the public interest.”[13] The court found McCormack likely to succeed on the merits of her facial challenge to Idaho Code §18-606 because the law is unconstitutional under Planned Parenthood v. Casey.[14] Casey states that a restriction on abortion is facially unconstitutional if, “in a large fraction [of] cases in which the [statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”[15] In the instant case, the district court found §18-606 to operate in just this way: “A woman is put to the Hobson’s choice of finding a means to police her healthcare provider’s actions, or being threatened with criminal prosecution for her healthcare provider’s failings. Faced with these two choices, a woman will likely choose not to have an abortion through an Idaho physician.”[16] Once reaching this decision, the court easily found that McCormack satisfied the other three prongs of the preliminary injunction test because of the possibility of being recharged for the crime, and the compelling public interest in women’s health as well as in not imposing “a statutory duty to police the actions of their healthcare providers” on women.[17]

B. Ninth Circuit Decision

Both parties appealed the district court’s preliminary injunction ruling. The prosecuting attorney, Mark Hiedeman, claimed that the district court applied the incorrect legal standard for a preliminary injunction, “based its decision on clearly erroneous facts,” and that the injunction was overbroad because it granted relief beyond McCormack.[18] On these claims, Judge Pregerson for the Ninth Circuit affirmed the district court’s preliminary injunction in part and reversed in part.[19] Judge Pregerson found first that the district court did not abuse its discretion in granting the preliminary injunction because it applied the correct legal standard with respect to McCormack’s constitutional challenge.[20] He noted that permissible abortion statutes have “traditionally criminalized the behavior of third parties to protect the health of pregnant women,” rather than women themselves, [21] and that there is “no Supreme Court precedent that recognizes or suggests that third party criminal liability may extend to pregnant women who obtain an abortion in a manner inconsistent with state abortion statutes.”[22] Further, Judge Pregerson agreed with the district court that putting the onus on a woman “to explore the intricacies of state abortion statutes to ensure that they and their provider act within the Idaho abortion statute framework, results in an ‘undue burden’ on a woman seeking an abortion of a nonviable fetus.”[23] In Judge Pregerson’s view, this undue burden is “yet another substantial obstacle in the already overburdened path” many women face, above and beyond the significant challenges posed by the cost, distance, and other practical realities of obtaining an abortion.[24]

Next, Judge Pregerson held that the district court did not base its decision on “clearly erroneous findings of fact.”[25] Hiedeman asserted that the district court did in fact do just that because there was no evidence that McCormack used “FDA approved” medication prescribed by a physician.[26] Judge Pregerson disagreed, because the facts stated in McCormack’s declaration and complaint—that the medication was “approved for use in the United States” and that the medications “are currently offered for sale over the internet by abortion providers outside southeast Idaho”—were enough to beat the “clearly erroneous” standard.[27] Finally, Judge Pregerson ruled that the preliminary injunction was overbroad, and limited it to “enforcement of the applicable sections against McCormack only,”[28] in order to be “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”[29]

On cross-appeal, McCormack argued that the district court should have enjoined §18-608(2), relating to second trimester abortions, as well as §18-606 and §18-608(1).[30] In response, Judge Pregerson found that the district court should have enjoined §18-606 in conjunction with both §18-608(1) and §18-608(2), because the basis for enjoining §18-608(1) “applies with equal force” to §18-608(2)—the criminal complaint against McCormack did not cite under which section it was charging McCormack, nor did it make reference to what trimester she was in at the time of the abortion, so the threat of recharging could apply to either section.[31]


Judge Pregerson’s opinion for the Ninth Circuit is exciting for those who believe in a meaningful constitutional right to abortion, and his reasoning for why criminalizing women seeking abortions is unconstitutional includes a true understanding of the realities facing women who need abortions. However, after Jennie McCormack was charged, there was little interest from national pro-choice advocates in representing her in a civil suit, or supporting her once she filed.[32] This hesitance to bring attention to the case has remained since the Ninth Circuit’s decision, and is in keeping with abortion rights advocates’ deep fear of creating bad law. This fear is reasonable—the McCormack opinion is far from the norm on the federal bench, and the case’s vulnerability if challenged highlights the precarious position abortion rights face under the undue burden standard in its current iteration.

McCormack provides a rallying point for abortion rights advocates for two reasons. The decision includes a substantive discussion of the lived realities of poor and rural women who are seeking abortions. Judge Pregerson notes that having an abortion is complicated and full of obstacles to access the procedure, particularly for low-income and rural women grappling with the financial costs and long distances to travel, as well as the “harassment and hostility” of protesters outside clinics.[33] With a general trend on the federal bench to view the realities of women seeking abortions as an aside to the issue of abortion rights,[34] a discussion of poverty and lack of access to reproductive health care facilities is a welcome change. Second, McCormack was decided on the grounds that the Supreme Court has not authorized criminal prosecution of women for seeking abortions, and that the Idaho statute placed an onus on a woman to police her doctor at the risk of criminal charges.[35] This holding draws an important and powerful line in the sand: abortion statutes cannot criminally prosecute women seeking abortion care.

But abortion rights advocates are taking in this news quietly. Battle scarred in state houses[36] and lower courts,[37] and nervous about the tenuous five to four split of the Supreme Court,[38] national advocates can envision the Supreme Court using McCormack as an opportunity to walk back abortion rights more easily than we can see the potential of the line drawn by McCormack. This is primarily due to Ninth Circuit’s treatment of the undue burden standard.[39]

A. McCormack’s Reading of the Undue Burden Standard in Context

The court in McCormack is one of many lower courts to apply Planned Parenthood v. Casey’s undue burden standard, to varying effect. In Casey, the plurality reaffirmed the importance of promoting women’s health when regulating abortion, but it explicitly replaced Roe v. Wade’s[40] trimester framework for abortion regulations.[41] Rejecting a spousal notification requirement for women seeking abortions in Pennsylvania but upholding a 24-hour waiting period and mandatory counseling, the plurality found that an undue burden is created by a statute when “in a large fraction of the cases in which [the statute] is relevant, [it creates] a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[42] The replacement of Roe’s trimester framework with the vaguer undue burden standard allowed for much more regulation of abortion,[43] and left room for lower courts to develop a wide, and often contradictory, range of interpretations of what constitutes a “substantial obstacle” in the path of a “large fraction” of cases.

Since Casey, the Supreme Court has revisited the undue burden standard in the abortion context several times. In Stenberg v. Carhart,[44] the Court gave the undue burden standard significant meaning when it held Nebraska’s criminal ban on certain abortion procedures unconstitutional because it imposed a burden on women’s ability to choose certain abortions.[45] The Court found this burden on certain types of abortion to impose, in effect, an undue burden on a woman’s choice itself.[46] With 2007’s Gonzales v. Carhart,[47] however, any “continuing commitment that the lives and health of women remain paramount over the State’s interest in restricting abortion”[48] was reduced significantly. In Gonzales, a post-Justice O’Connor Supreme Court found a national ban on a certain abortion procedure, which was extremely similar to the Nebraska law struck down in Stenberg, constitutional.[49] The court distinguished the national law from the law in Stenberg on the basis that it was less vague,[50] and stepped away entirely from the requirement that laws restricting abortion have a health exception.[51] Further, the Court declined even to reaffirm Casey’s limited reading of Roe v. Wade, choosing instead to “accept as controlling” Casey’s principles.[52] As a result, Gonzales has been seen as a big retreat from any larger frame that women’s rights and health are primary considerations in analyzing abortion regulations under Casey’s undue burden standard at all.[53]

In light of the Supreme Court’s confusing treatment of Casey, it is still an open question to lower courts what constitutes a “substantial obstacle” for a “large fraction” of women under Casey.[54] McCormack reads these requirements to create a low bar: the decision does not discuss whether or not a “large fraction” of women is affected by the Idaho statute, and determines that the statute creates a “substantial obstacle” because it requires women seeking abortions to act in one of three ways: “(1) carefully read the Idaho abortion statutes to ensure that she and her provider are in compliance with the Idaho laws to avoid felony prosecution; (2) violate the law either knowingly or unknowingly in an attempt to obtain an abortion; or (3) refrain altogether from exercising her right to choose an abortion.”[55] The court did not require any showing about whether the statute would dissuade or prevent any women from having an abortion at all, putting it at the liberal edge of lower courts’ readings of the undue burden requirements.[56] For example, while the court in Tuscon Women’s Clinic v. Eden [57] acknowledged the larger context of economic realities and women’s equality as affecting women’s ability to access abortion, it also found that a context-specific inquiry into the increased costs a regulation posed to women seeking abortions was necessary to determine whether that regulation posed a substantial obstacle to women, and therefore an undue burden.[58] In Isaacson v. Horne,[59] the district court was not even persuaded by evidence that that a statute would make some women’s choices harder.[60]

Unlike McCormack in their willingness to find abortion restrictions constitutional and unlike Tuscon in their disinterest in conducting a fact-specific review of statutes to determine whether they meet the undue burden standard, some lower courts outside the Ninth Circuit have simply assumed that mandatory waiting periods and “counseling” requirements are presumptively valid if they resemble Pennsylvania’s in Casey, without engaging in new analysis based on whether or not those types of restrictions pose a substantial obstacle to the populations affected in the new cases.[61] And even farther on the spectrum from McCormack, many other lower courts have required incredibly extensive proof of the parts of the undue burden test, “often requiring litigants to establish their case to a statistical certainty[;] . . . disregard[ing] testimony illuminating how restrictions will affect disadvantaged women; filter[ing] evidence of extreme hardship through the lens of privilege [or] fail[ing] to consider how challenged restrictions will operate when compounded by other restrictions.”[62]

B. Moving Forward Within this Framework

Abortion rights activists fear bringing up any large abortion rights questions recently because “Roe . . . seems to be in perpetual and great danger of being overturned,”[63] particularly in light of Casey and its progeny in the Supreme Court and lower courts. McCormack’s holding that it is unconstitutional to criminally prosecute women for seeking abortions inconsistent with a state regulation, and its solid stance as a decision with one of the most liberal readings of the undue burden standard in lower courts across the country, make it just the type of bold statement that advocates are afraid of arguing in front of the Supreme Court. Within a regime ruled by the “undue burden” standard and federal courts that tend to read this standard as setting a relatively high bar, this wariness is not surprising. Going forward, however, if abortion rights advocates want to push back at abortion restrictions, we have two choices: continue to be controlled by the unfriendly “undue burden” standard, or be willing to push creative arguments and work with decisions like McCormack that seek to stretch the boundaries of undue burden while risking vulnerability to rebuke.

* J.D. Candidate, Harvard Law School, Class of 2014.

[1] Over the past several years, state houses across the country passed record numbers of abortion restrictions. This trend peeked with 135 abortion restrictions enacted in 36 states in 2011. States Enact Record Number of Abortion Restrictions in 2011, Guttmacher Institute (January 5, 2012), [hereinafter “Guttmacher”]. Increasingly, prosecutors have also brought the debate to criminal law, charging women with murder after they suffer stillbirths, or with child endangerment for using drugs while pregnant. See, e.g., Ed Pilkington, Outcry in America as pregnant women who lose babies face murder charges, The Guardian (June 24, 2011, 1:30 PM),; Seth Burkett and Ben Montgomery, Pregnant on Drugs, The Decatur Daily (Nov. 1, 2012),,106390.

[2] 694 F.3d 1004 (9th Cir. 2012).

[3] Id. at 1024.

[4] See Jessica Robinson, Idaho Woman Arrested for Abortion is Uneasy Case for Both Sides, NPR (Apr. 9, 2012),; Nancy Haas, The Next Roe v. Wade? An Abortion Controversy in Idaho Inflames Debate, The Daily Beast (Dec. 12, 2011, 12:00 AM), National Advocates for Pregnant Women, Legal Voice, and the Center for Reproductive Rights did quietly file an amicus brief on appeal, but the case was barely noted on any of their websites. See Idaho Amicus Jennie McCormack Case, National Advocates for Pregnant Women, (Feb. 15, 2012),; Legal Voice,; Center for Reproductive Rights,

[5] Id. at 1007.

[6] Id. at 1007–08.

[7] Id. at 1008. Due to the case’s preliminary injunction status and the facial nature of the constitutional challenge, the record excludes many additional facts that are commonly known about the case. McCormack was actually 20 weeks along in her pregnancy. As a result, she expelled a fetus when she aborted. She panicked and hid the fetus on her back porch, and was turned in by a friend’s sister. Since being charged, she has been entirely shunned by her community. See Robinson, supra note 4; Haas, supra note 4.

[8] McCormack, 694 F.3d at 1009.

[9] Id. at 1008.

[10] 505 U.S. 833 (1992).

[11] See id. at 1009–10. McCormack also challenged the constitutionality of the “Pain-Capable Unborn Child Protection Act,” Idaho Code Ann. §§ 18-505–18-508 (2012) (“PUCPA”). However, the Ninth Circuit upheld the district court’s ruling that McCormack did not have standing to pursue such a challenge, and her PUCPA claim will not be discussed in this case comment. For a discussion of McCormack’s PUCPA claim, see McCormack, 694 F. 3d at 1022–23.

[12] McCormack, 694 F. 3d at 1009. McCormack’s “other requests” related to her PUCPA claims, discussed supra note 11.

[13] McCormack v. Hiedeman, No. 4:11-cr-003970BLW, 2011 WL 4436548, at *6 (D. Idaho Sept. 23 2011).

[14] Id. at *6-7.

[15] Id. (citing Casey, 505 U.S. at 895).

[16] Id. at *7.

[17] Id. at *8.

[18] McCormack, 694 F.3d at 1009–10.

[19]  Id. at 1007.

[20]  Id. at 1010.

[21]  Id. at 1011.

[22]  Id. at 1012.

[23] Id. at 1016.

[24] Id.

[25] Id. at 1018.

[26] Id.

[27] Id.

[28] Id. at 1019.

[29] Id. (internal quotations omitted).

[30] Id. at 1010.

[31] Id. at 1020.

[32] See Robinson supra note 4; Haas, supra note 4.

[33] McCormack, 694 F.3d at 1017 (internal quotations omitted).

[34] “For once it was the plight of the pregnant woman, and not the state’s interest in policing her pregnancy, that caught the court’s attention.” Jessica Mason Pieklo, Finally a Limit is Reached: Ninth Circuit Rules McCormack Can’t be Prosecuted for her Abortion, RhRealityCheck (Sept. 12, 2012 7:24 AM),

[35] McCormack, 694 F.3d at 1018.

[36] See Guttmacher, supra note 1; Haas, supra note 4 (“Spooked by the recent strong challenge in Congress to federal funding for Planned Parenthood, pro-choicers are wary about mounting legal challenges to state restrictions, for fear those challenges would end up in front of an inhospitable Supreme Court.”)

[37] See, e.g., Irin Carmon, Judges Go Wild on Abortion (Jul. 27, 2012, 1:47 pm),

[38] Robin West, From Choice to Reproductive Justice: Deconstitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1400 (2009).

[39] Other possible factors in advocates’ hesitance to embrace McCormack loudly are the plaintiff’s facts, discussed supra note 7, which could be seen as less than savory in the eyes of a court and the media. Any effect the disgust of a judge would have is hard to measure because the case is a facial challenge at the preliminary injunction stage. However, as cases are often as much about public opinion and messaging as they are about winning in court, this potential “ick” factor is not to be ignored.

[40] 410 U.S. 113 (1973).

[41] 505 U.S. at 873. (“We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.”)

[42] Id. at 878. It was this prong of Casey’s undue burden standard that Judge Pregerson relied on in McCormack, but Casey also gave the test a second prong: the regulation in question could not have the purpose of creating an undue burden on a woman’s right to abortion, even if it did not have that effect. Id. at 877 (“A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it”).

[43] Id. at 872. (“A framework of [Roe’s] rigidity was unnecessary and in its later interpretation sometimes contradicted the State’s permissible exercise of its powers”).

[44] 530 U.S. 914 (2000).

[45] Id. at 930.

[46] Id.

[47] 550 U.S. 124 (2007).

[48] Linda J. Wharton et. al., Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey, 18 Yale J.L. & Feminism 317, 337 (2006) (discussing the principles of Planned Parenthood v. Casey, 505 U.S. 833 (1992)).

[49] Gonzales, 550 U.S. at 168. The act challenged in Gonzales prohibited dilation and evacuation abortion procedure, the same type of procedure targeted by the Nebraska statute. Id. at 132–33.

[50] Id. at 141–42.

[51] Martha K. Plante, “Protecting” Women’s Health: How Gonzales v. Carhart Endangers Women’s Health And Women’s Equal Right to Personhood Under the Constitution, 16 Am. U. J. Gender Soc. Pol’y & L. 387, 395 (2008).

[52] Gonzales, 550 U.S. at 156, as cited in Cynthia D. Lockett, The Beginning of the End: The Diminished Abortion Right Following Carhart and Planned Parenthood, 11 J. Gender, Race & Just. 337, 356 n. 156 (2008).

[53] Plante, supra note 51, at 395.

[54] Wharton, supra note 48, at 353.

[55] McCormack, 694 F.3d at 1016.

[56] Id.

[57] 379 F.3d 531 (9th Cir. 2004).

[58] Id. at 531, 549.

[59] No. CV–12–01501–PHX–JAT, 2012 WL 3090247 at *8 (D. Ariz. July 30, 2012).

[60]  Id. (“While H.B. 2036 may prompt a few women, who are considering abortion as an option, to make the ultimate decision earlier than they might otherwise have made it, H.B. 2036 is nonetheless constitutional because it does not prohibit any woman from making the ultimate decision to terminate her pregnancy”).

[61] Wharton, supra note 48, at 357–60.

[62] Id. at 353–54.

[63] West, supra note 38.