Monthly Archives: September 2017

The Right To Breast-Feed

Author: Melanie Cheek, University of Cincinnati Law Review, Associate Member

Women who choose to breast-feed often make the choice to do so despite social and economic barriers. Although the benefits of breast-feeding have been widely promoted,[1] there are gaps in laws and policies supporting a woman’s decision to breast-feed. This approach seems counterintuitive to the supposed governmental interest in supporting women who choose to breast-feed. Indeed, American policies seem lightyears behind countries such as Canada, where public breast-feeding is not only a woman’s rights issue, but a public health issue.[2] Although there have been advancements in the promotion of women’s right to breast-feed, there are still issues within existing laws and policies that need to be addressed by federal and state legislators, and the judiciary.

Public Brest-feeding Rights in Ohio

Although Ohio has some of the most progressive breast-feeding rights and protective laws in the country, only a little more than a decade ago, Ohio allowed open discrimination toward breast-feeding women. The laws that exist today were legislative responses to two separate court decisions that threatened to undercut federal progress made on women’s breast-feeding rights and protections.[3]

In 1999, three women sued Wal-Mart Stores Inc. after the three women were interrupted while breast-feeding their children and asked to either leave the premises or finish breast-feeding in the public restroom of the store.[4]  The women alleged that by doing so, Wal-Mart violated the public accommodations[5] provision of the Ohio Civil Rights Act,[6]  which prohibits sex discrimination by places of public accommodations.[7] Wal-Mart did not deny the factual allegations that such incidents took place.[8] Instead, Wal-Mart crafted its argument based on a statutory interpretation of Ohio’s public accommodation statute that would allow places of public accommodations to limit or even prohibit breast-feeding activities on their premises.[9]

Surprisingly, the district court[10] agreed with Wal-Mart’s argument, holding that restrictions on breast-feeding did not constitute discrimination based on sex under Ohio’s public accommodations statute.[11] Unbeknownst to the Plaintiffs when they filed suit, the battle was lost before it even began, resulting in the grant of Wal-Mart’s motion for summary judgment. The district court insisted upon evidence in which members of the male sex who breast-feed were treated differently by Wal-Mart while engaging in the same activities on the store’s premises.[12] Without such evidence, the district court reasoned, Plaintiffs could not show that they were discriminated against because of their sex.[13] To the district court, the incidents were simply illustrations of poor treatment toward the Plaintiffs, rather than discrimination.[14] Ultimately, Defendant Wal-Mart, although a place of public accommodation, had the right to limit breast-feeding activities on its premises.[15]

When the Plaintiffs appealed the case to the Sixth Circuit, the Sixth Circuit affirmed the district court’s decision.[16] Although the Sixth Circuit reviewed the case under Ohio state law, the Court looked to a federal framework to analyze claims of sex discrimination, and relied on the comparability analysis from the 1976 Supreme Court Case General Electric v. Gilbert.[17] In Gilbert, a pregnant employee brought a sex discrimination suit under Title VII against her employer, General Electric, alleging that the company’s disability benefits offered its employees a disability plan for non-occupational sicknesses and accidents, yet discriminated against women by not providing coverage for disability that result from pregnancy.[18] Ultimately, the Supreme Court held that General Electric’s disability plan did not violate Title VII, even though the plan excluded coverage for pregnancy related medical costs, because there was no benefit the plan provided for men, a comparative group, that it did not also provide women.[19] The fact that Gilbert was a federal case that dealt with sex discrimination in the workplace, and not the public accommodations context, makes the Sixth Circuit’s decision to use the Gilbert framework for their analysis of sex discrimination under a state public accommodations statute even more curious.

In its analysis of the trial court’s decision in Derungs, the Sixth Circuit looked to Ohio case law which analyzed discrimination cases based on the evidence of subclasses receiving better treatment than other subclasses.[20] The court reviewed several cases, including a barbershop that was found to discriminate against its white and black customers,[21] and a trailer park operator who ordered a tenant to leave the lot after learning that she associated with black people.[22] All the cases the Sixth Circuit reviewed involved discriminatory incidents that could conceivably produce evidence of an alternate subclass being treated differently than the Plaintiffs in those cases were treated. In contrast, the Plaintiffs in Derungs faced discrimination by engaging in behavior that biology itself restricts to only the female sex, and excludes the alternate subclass of the male sex entirely.[23] Due to this, the Sixth Circuit’s decision to compare Derungs to discrimination cases where evidence of an alternate class receiving better treatment is entirely plausible is contentious.

Although the types of discrimination in the cases the Sixth Circuit reviewed differed from the discrimination alleged in Derungs on a biological level, the Circuit inevitably affirmed the district court’s decision.[24] The rationale was that Plaintiffs’ case was a “sex plus” case, where the alleged discrimination was not only based on sex, but on sex considered in conjunction with a second characteristic.[25] Since Plaintiffs could not provide evidence of a subclass of men who were treated differently by Wal-Mart when engaged in breast-feeding, the Circuit held that there was no showing that Wal-Mart had engaged in sex based discrimination.[26]

Ohio’s Breast-feeding Statute

In 2005, after the Sixth Circuits disappointing decision in Derungs, the Ohio legislator amended the Ohio Revised Code (ORC) to include a breast-feeding statute that explicitly and affirmatively provided for a woman’s right to breast-feed in places of public accommodations in Ohio.[27] However carving out an affirmative right to breast-feed in the ORC did not invalidate the Sixth Circuit’s reasoning in its decision.[28] Unfortunately, the analysis behind the Derungs decision is still good law, and has been cited to following the amendment.[29]

The fact that Derungs is still good law is notable, specifically because Congress responded to the Supreme Court’s decision in Gilbert by amending Title VII through the Pregnancy Discrimination Act.[30] Just as the Ohio legislator did in response to Derungs, following the Gilbert decision, Congress amended Title VII to include plain English protection for women against pregnancy-based sex discrimination.[31] Unfortunately, just as Congress’s amendment to Title VII did not prohibit the Sixth Circuit from employing Gilbert’s outdated framework, there is nothing to prevent other jurisdictions from looking to Derungs. The Ohio amendment also differs from Congress’s reaction to Gilbert in that Congress reacted by amending the very definition of sex discrimination under Title VII. On the other hand, the Ohio legislators merely amended the ORC to include an affirmative breast-feeding right under a general provision, and left the Ohio Civil Rights Act unchanged.

The fact that the analysis behind Derungs is still good law, and the fact that the Ohio amendment was made under a general provision, makes amendment a small, albeit important, step in overcoming the indifferent attitude that governments and the judiciary have toward women’s breast-feeding rights.

Equity to Produce Fairness


            The Equal Protection clause that birthed civil rights laws dictates that all people be treated equally under the law.[32] Courts undoubtedly struggle with the application of equality when it comes to the differences that typically exist between the male and female sex. However, overly rigid frameworks result in legal loopholes where sex discrimination can thrive. Strict interpretations of equal protection that do not recognize such differences dictate sex discrimination, undermining the very purpose of laws that prohibit sex discrimination.

The district court and the Sixth Circuit’s hairsplitting reasoning in Derungs that discrimination resulting from the female population’s distinctive ability to become pregnant is not sex discrimination, is disappointing. Pregnancy and the effects of pregnancy, such as lactation, are conditions that are confined strictly to the female sex.[33] Those who become pregnant and lactate can do so solely because of their sex.[34]

However, the Supreme Court in Gilbert, and the district court and Sixth Circuit in Derungs, chose to dismiss this distinction in favor of a strict interpretation and application of equal treatment

In the pursuit of strict interpretations of equal protection standards, courts have come up with unrealistic and impracticable standards of comparisons. A policy that disproportionally impacts only one sex in grossly negative ways should not be glossed over as gender-neutral policies that satisfy equality. Courts must become comfortable with the notion that there can be instances where the existence of a policy could be inconsequential to one group but could produce extreme hardships and burdens for another if it did not exist. Anti-discrimination protection for breast-feeding women is one such instance where the rights of the male sex are entirely unaffected by existence of laws and policies that protect pregnancy. As such, the analysis in such instances should not be whether laws and policies affect both sexes equally, but whether such laws and policies have a disparate impact on only one sex. By doing so, courts will find that many policies that seem fair on the surface are not gender-neutral after all.[35]

Conclusion

Denying that pregnancy-based discrimination is sex discrimination is a dangerous proposition. Courts are understandably unsure how to approach the differences between the male and female sex. However, previous decisions such as Gilbert and Derungs unapologetically blanket the issue of sex discrimination faced by millions of women. Ironically, insisting that equal treatment and differences in how sexes are discriminated against are mutually exclusive is what impedes the equitable application of anti-discrimination statutes. The biological differences between the female and male sex calls for certain kinds of differences in the laws that protect the interests and liberties of each sex. This fact is something courts must become comfortable with if the promotion of equality and anti-discrimination is truly a goal.

[1] CENTERS FOR DISEASE CONTROL AND PRESENTATION. (stating that one of the most highly effective preventive measures a mother can take to protect the health of her infant is to breast-feed), at https://www.cdc.gov/breastfeeding/promotion/index.htm (last visited Mar. 10, 2017).

[2] Patricia Spurles, A Qualitative study of Attitudes toward Public Breastfeeding Among Young Canadian Men and Women, 2 J Hum. Lact. 131-37 (2011).

[3] Heather M. Kolinksy, Respecting Working Mothers With Infant Children: The Need For Increased Federal Intervention to Develop, Protect, & Support a Breastfeeding Culture in the United States 17 Duke J. of Gender L. & Pol’y 333, 361 n.224 (2010).

[4] Derungs v. Wal-Mart Stores Inc., 141 F. Supp. 2d 885, 886 (S.D. Ohio 2001).

[5] Places of public accommodations include any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public. Ohio Rev. Code Ann. § 4112.01 (Page, Lexis Advance through file 178 (HB 532)).

[6] Ohio Rev. Code Ann. § 4112.02 (Page, Lexis Advance through file 178 (HB 532)).

[7] Derungs, 141 F. Supp. 2d at 888.

[8] Id. at 886.

[9] Id.

[10] The suit was removed to federal court after Wal-Mart filed a notice for removal based on diversity jurisdiction.

[11] Derungs, 141 F. Supp. 2d at 894.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 437 (6th Cir. 2004).

[17] The comparability analysis evaluates discrimination by looking to evidence of members of a comparable group receiving better treatment. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127-30 (1976).

[18] Gen. Elec. Co. v. Gilbert, 429 U.S. at 126.

[19] Id. at 130.

[20] Derungs v. Wal-Mart Stores, Inc., 374 F.3d at 433.

[21] See Gegner v. Graham, 1 Ohio App. 2d 442, 205 N.E.2d 69 (1964).

[22] See Ohio Civil Rights Com. v. Lysyj, N.E.2d 3, 7 (1974).

[23] Benjamin B. Wolman, Adolescence: Biological and Psychological Perspectives 74 (1998).

[24] Derungs v. Wal-Mart Stores, Inc., 374 F.3d.

[25] Id. at 432.

[26] Derungs v. Wal-Mart Stores, Inc., 374 F.3d at 437.

[27] Ohio Rev. Code Ann. § 3781.55 (Page, Lexis Advance through file 178 (HB 532)).

[28] The Ohio legislator did not amend § 4112.02. Instead the legislator created a new breast-feeding statute, separate from the statute that was analyzed in Derungs.

[29] See Philipsen v. Univ. of Mich. Bd. of Regents, No. 06-CV-11977-DT, 2007 U.S. Dist. LEXIS 25898 (E.D. Mich. Mar. 22, 2007).

[30] Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 UC Davis Law Review 961, 963 (2013) (stating that Congress disagreed with the Court’s decision in Gilbert and quickly superseded the decision by enacting the Pregnancy Discrimination Act).

[31] Pub. L. No. 95-555, 92 Stat. 2076 (1978).

[32] U.S. Const. amend. XIV, § 1.

[33] Benjamin B. Wolman, Adolescence: Biological and Psychological Perspectives 74 (1998).

[34] Recognition of this distinctions between the sexes is aligned with the Seventh Circuit’s decision in Hivley v. Ivy Tech, where the court held that “[d]iscrimination on the basis of sexual orientation is a form of sex discrimination.” Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017). The court rejected the notion that the test for sex discrimination was whether a member of the opposite sex would face discrimination in the same way, and instead held that “the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.” Id. However, the Sixth Circuit very recently rejected the Hivley court’s reasoning as having no authoritative precedent in the Sixth Circuit.  See Grimsley v. Am. Showa, Inc., No. 3:17-cv-24, 2017 U.S. Dist. LEXIS 133350, at *10 (S.D. Ohio Aug. 21, 2017).

[35] Gen. Elec. Co. v. Gilbert, 429 U.S. 147-60. (Brennan, J., dissenting that the Court should have analyzed General Electric’s disability policy considering the company’s history of downgrading the role of women in the workforce, and its policy was clearly not gender-neutral).

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Undue Burdens: Legislation with an Unconstitutional Purpose

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

On January 21, 2017, two and a half million people gathered across the world to stand, speak, and march for the rights of women.[1] These women were advocating for many rights, among them, reproductive freedom. But another, much less public, march began in November and continues still today.[2] Since the election of President Donald Trump, women across the United States have been visiting their gynecologists or Planned Parenthood to request long-term contraceptive solutions.[3] Triggered by an administration that is hostile to abortion rights[4] and the Affordable Care Act,[5] fear for the loss of control of their reproductive rights has driven the recent choices of many women across the country. Unfortunately, while women are taking necessary precautions to refrain from getting pregnant, the Trump administration’s rhetoric surrounding abortion has emboldened states.[6] Many of these states have proposed and enacted bills that place undue burdens on the right of a woman to choose to have an abortion.[7] Some are even so blatantly contrary to past Supreme Court cases that the motivation behind these bills is concerning. The bulk of this article will discuss the Supreme Court precedent on abortion and how these proposed and enacted state bills are unconstitutional.

SCOTUS History on the Right to an Abortion

On January 22, 1973, the Supreme Court handed down the monumental decision Roe v. Wade. Roe recognized that the constitutional right to privacy extends to a woman’s right to make her own personal medical decisions, specifically the decision to have an abortion without undue interference.[8] This right is not absolute and must be balanced against the states’ interests in regulating abortions to protect the health of the mother and the potential for life.[9] As such, the Court noted that the state’s interests become sufficiently compelling at a certain point in the pregnancy to allow regulations to be put in place to govern the abortion decision.[10]

Almost twenty years later, the Supreme Court revisited the right to abort in Planned Parenthood v. Casey.[11] Reaffirming the central holding in Roe, the Court reminded the states that there are limits to on interference with “a person’s most basic decisions about family and parenthood, as well as bodily integrity.”[12] Casey established a new test to evaluate state regulations on the right to have an abortion. This standard prohibits regulations that impose an “undue burden” on a woman’s right to seek an abortion. The Court noted that only where a regulation has a purpose or effect of placing substantial obstacle in the path of the woman “does the . . . [s]tate reach into the heart of the liberty protected by the Due Process Clause.”[13]

At issue in Casey were five provisions of the Pennsylvania Abortion Control Act of 1982.[14] These provisions required, among other things, that a married woman seeking an abortion must sign a statement indicating that she has notified her husband.[15] Alternatively, the provision allowed the married woman, in lieu of notifying her husband, to sign a statement certifying that: (1) her husband is not the man who impregnated her; (2) her husband could not be located; (3) the pregnancy is the result of spousal sexual assault that she has reported; or (4) the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.[16] If a physician performed the abortion without one of these two written statements, the doctor’s license would be revoked and they would be liable to the husband for damages.[17]

Finding the other four provisions not unduly burdensome on the woman’s right to seek an abortion, the Court only struck down the spousal notification requirement. Looking to an earlier case, the Court reaffirmed its holding that “the State cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”[18] The Court held that the spousal notification requirement was “tantamount to [a] veto” and was unconstitutional.[19] The Court did not ignore the husband’s interest in the life of his child, but simply recognized that empowering the husband with authority over his wife, similar to a parent over a child, was problematic, especially for a woman who reasonably feared the consequences of notifying her husband that she was pregnant.[20] This holding has remained untouched since 1992 and its relevancy has not diminished.

State Legislation

In the middle of an extremely publicized national election, local politics went under the radar. Many states took this opportunity to enact legislation that not only poses a risk to the health and safety of women, but is plainly unconstitutional in light of Planned Parenthood v. Casey and Whole Women’s Health v. Hellerstedt.[21]

On January 9, 2017, Oklahoma State Representative Justin Humphrey introduced a bill, HB 1441, that was approved by the state House Public Health Committee on February 14, 2017.[22] House Bill 1441 demands that “[n]o abortion shall be performed in this state without the written informed consent of the father of the baby.”[23] The bill requires a woman to provide the identity of the father of the baby to her physician when seeking to abort her pregnancy.[24] It further states that if the person so identified as the father contests his paternity, he may demand that a test be performed to verify his paternity of the child.[25] The bill does include exceptions for a pregnancy that is the result of rape, incest, or in cases where the physician determines that carrying the baby places the woman’s life in danger.[26] If approved by both houses of the Oklahoma legislature, the bill would take effect on November 1, 2017.[27]

However, the threat is not restricted to Oklahoma. At least fourteen other states introduced anti-abortion legislation in January 2017.[28] Many states continue to push for bills reflecting the “personhood” movement, based on the belief that life begins at conception.[29] Other states, such as Arizona and Missouri, enacted regulations on healthcare facilities, known as “Targeted Restrictions on Abortion Providers” or TRAP laws.[30] These regulations purport to make abortions safer, but as shown in Whole Women’s Health v. Hellerstedt, there is little to no evidence that the regulations are needed.[31] Additionally, a new Arkansas law grants a woman’s family members or healthcare provider a private right of action against an abortion provider to stop an abortion.[32] These laws cannot withstand constitutional scrutiny as they place substantial obstacles in the way of a woman’s right to seek an abortion.

Unavoidably and Unequivocally Unconstitutional

In Planned Parenthood v. Casey, the Supreme Court prohibited a measure that required a married woman to notify her spouse before an abortion could be performed. The Court emphasized the husband’s interests and concern for his child, but ruled that this concern could not act as a veto against the woman’s decision. Oklahoma HB 1441 is directly contrary to this holding, and even attempts to expand on the unconstitutional Pennsylvania provision. This bill forces every woman to notify and obtain informed consent from any father, not just in the case of a marriage. It is unavoidably unconstitutional as it places an undue burden on the woman’s abortion right. The bill’s sponsor, in an interview with The Oklahoman, noted “[m]y bill would stop an abortion if a father does not agree to the abortion.” This bill gives the father a veto power over the woman and her body. This is unequivocally unconstitutional.

Furthermore, the bill places an undue burden on the woman by stalling the abortion for a paternity test. After eight weeks into a pregnancy, the procedure is extremely invasive into the woman’s body. To allow a man to force a woman to undergo this procedure is an undue burden on her right to have an abortion.

Ignorant to the Ripple Effect

As states continue to enact legislation to effectively prohibit women from seeking abortions, it is worth noting that many seem willfully blind to the effects that their actions have on the health and safety of these women and their families. Several states in the United States have enacted “trigger laws” in hopes and in preparation for the overturning of Roe v. Wade. These laws would completely ban abortion in their states and take immediate effect. Many of these states already lack an abortion provider in 90-100% of their counties.[33] One of the states’ reasoning for enacting regulation after regulation on abortion is the state’s concern for the health and safety of the mother. Yet, statistics show that illegal and heavily regulated abortion only leads to unsafe and extremely dangerous abortions.

Additionally, some of these states are hostile to a child once it is born. Today, half of abortions sought are by women below the federal poverty level.[34] The “Family Cap” was introduced in the early 1990s and denies a child welfare assistance if, when the mother was pregnant or gave birth, she was receiving benefits from the state or federal government. In a bill summary for HB 1441, Representative Humphrey noted that the bill would have no fiscal impact on the state. Notably, this statement remains true because Oklahoma is one of the many states that still has a family cap. States, such as Oklahoma, effectively force a woman to have a child and then turn a blind eye to the child once it is born into a family that cannot adequately support it. Policies that allow for such a result cannot truly have the health and safety of the families in mind.

Conclusion

States are becoming increasingly bold when it comes to regulations on a woman’s right to an abortion. Some are writing language so contrary to constitutional precedent that the motivation behind the bills raise grave concerns. With a Presidential administration that expressed deep disdain for Roe v. Wade, attention to local politics is urgent. After a wave of phone calls, faxes, and letters in light of the cabinet nominees, it is now time to turn to state governments. When HB 1441 makes it to the House and Senate floors in Oklahoma, activists must compel their friends, family, and colleagues to raise their voices for the rights of women. As new legislation arises and the Supreme Court gains a ninth member, it seems the march for women’s rights has only begun.

[1] Heidi Przybyla & Fredreka Schouten, At 2.6 Million Strong, Women’s Marches Crush Expectations, USA Today (2017), http://www.usatoday.com/story/news/politics/2017/01/21/womens-march-aims-start-movement-trump-inauguration/96864158/.

[2] Lisa Bonos, The IUD Rush: Why Women are Seeking out Birth Control that can Outlast a Presidency, The Washington Post (2017), https://www.washingtonpost.com/news/soloish/wp/2017/02/07/why-women-are-seeking-out-birth-control-that-can-outlast-a-presidency/?utm_term=.01063b4c3bde.

[3] Id.

[4] Rebecca Harrington & Sonam Sheth, Here’s Where Trump Stands on Abortion and Other Women’s Health Issues, Business Insider (2016), http://www.businessinsider.com/donald-trump-abortion-womens-health-platforms-positions-2016-11.

[5] Bonos, supra note 2.

[6] Julie Zauzmer & Sarah Bailey, March for Life: Pence Speaks as Thousands Assemble at Washington Monument, The Washington Post (2017), https://www.washingtonpost.com/local/march-for-life-thousands-assemble-at-washington-monument/2017/01/27/7d880d52-e40a-11e6-ba11-63c4b4fb5a63_story.html?utm_term=.0373a8f99da4.

[7] Lisa Ryan, A New Arkansas Law Could Allow Fathers to Sue to Block Abortions, The Cut (2017), http://nymag.com/thecut/2017/02/spouses-can-block-abortions-under-new-arkansas-law.html; see also Sandhya Somashekhar & Amy Wang, Lawmaker Who Called Pregnant Women a ‘Host’ Pushes Bill Requiring Fathers to Approve Abortion, The Washington Post (2017), https://www.washingtonpost.com/news/post-nation/wp/2017/02/14/oklahoma-bill-would-require-father-of-fetus-to-approve-abortion/?utm_term=.de5ac2623d6a.

[8] Roe v. Wade, 410 U.S. 113 (1973).

[9] Id. at 154.

[10] Id.

[11] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[12] Id. at 849.

[13] Id. at 874.

[14] Id. at 833.

[15] Casey, 505 U.S. at 833.

[16] Id. at 887.

[17] Id. at 887-88.

[18] Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 69 (1976).

[19] Casey, 505 U.S. at 897.

[20] Id. at 898.

[21] 579 U.S. __ (2016).

[22] Public health and safety; prohibiting abortion to be performed without consent of the father; effective date, H.B. 1441, 56th. Cong. (2017).

[23] Id. at § 1(A).

[24] H.B. 1441 at § 2(B).

[25] Id.

[26] H.B. 1441 at § 1(D).

[27] H.B. 1441 at § 2.

[28] Olivia Becker, At Least 46 Anti-Abortion Bills are Already in Front of State Legislators, VICE News (2017) https://news.vice.com/story/at-least-46-anti-abortion-bills-are-already-in-front-of-state-legislatures-in-2017.

[29] Id.

[30] Id.

[31] 579 U.S. __ (2016) (holding that there was no evidence to support the assertion these regulations would make abortions safer, but instead placed substantial burdens on a woman’s ability to choose to have an abortion).

[32] Abortion—Unborn Child Protection from Dismemberment, 2017 Arkansas Laws Act 45 (H.B. 1032) (allowing a woman’s husband, her parents, or her healthcare provider to seek an injunction to stop the abortion).

[33] Abortion Clinics: Percentage of Counties Without a Known Clinic, Guttmacher Institute (2016), https://data.guttmacher.org/states/map?topics=58&dataset=data.

[34] Abortion Patients are Disproportionately Poor and Low Income, Guttmacher Institute (2016), https://www.guttmacher.org/infographic/2016/abortion-patients-are-disproportionately-poor-and-low-income.

Copyrights? Bring It On

Author: Meg Franklin, Associate Member, University of Cincinnati Law Review

In a 2000 film called Bring It On, a high school cheerleading squad captained by Kirsten Dunst was accused of stealing cheer routines.[1] Seventeen years later, the spotlight is again on cheerleading. Yet, instead of copied cheer routines, The Supreme Court is concerned with allegedly copied cheerleading uniform designs.[2]

In Star Athletica v. Varsity Brands, the Supreme Court recently granted certiorari to end disagreement among lower courts over the “separability” test in copyright law.[3] Since a bedrock principle of copyright law is that only expression can be copyrighted, this test directs courts to separate the expressive elements from the utilitarian elements of an article in determining .[4] After refining this test, Supreme Court ruled the designs on cheerleading uniforms were eligible for copyright protection.[5] This result was noteworthy because many courts and the United States Copyright Office have copyrights for clothing designs.[6] Clothing designs were deemed inseparable from the usefulness of the clothing.[7]  Some commentators may interpret this holding as a message to fashion designers and designers of other useful articles to “bring it on” and enforce their copyrights. However, time will tell whether the fast-paced fashion industry will use litigation to protect their original designs.

Copyrights for Useful Articles

The Court’s decision in Star Athletica v. Varsity Brands— whether Varsity Brands held a valid copyright—was dependent on whether the designs on the cheerleading uniforms could be classified as copyrightable subject matter.[8] In a copyright infringement case, a threshold issue is whether a valid copyright exists, because some articles are not deemed copyrightable subject matter.[9] Under the Copyright Act of 1976,[10] copyrightable subject matter is limited to original works fixed in any tangible medium of expression such as a “pictorial, graphic, or sculptural work.”[11] Thus, a tenet of copyright law is that a copyright protects expression but not ideas.[12] In Baker v. Selden, the Court elaborated that a copyright protects an author’s original expression but not the utilitarian ends to which expression may be put.[13] Congress later codified this holding in §102(b) of the Copyright Act.[14] Yet, the difficultly in determining the boundary between the “original expression” and the “utilitarian ends” has produced a body of law regarding “useful articles.”[15]

Useful articles are not copyrightable subject matter,[16]“to qualify as a pictorial, graphic, or sculptural work on its own, the feature cannot itself be a useful article.”[17] In the leading case of Mazer v. Stein[18], the Court held that the statuette of a dancer was copyrightable even though it was used as the base of a lamp.[19] There, the lamp itself was a useful object, but the design of the stand could be protected under copyright because its design could be “conceptually” separated. Congress later codified this holding in § 101 and § 113(a) of the Copyright Act of 1976.[20] Under § 101, “the design of a useful article” can be copyrightable “only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”[21] The requirement to identify design “separately from” utility in § 101 has led to the development of the “separability test.”

The Long-Awaited Separability Test

The House Report at the time of the codification of Mazer in § 101 and § 113(a) of the Copyright Act of 1976, suggested that separability may occur either “physically or conceptually.”[23] In response, courts diverged in their development of “physical separability” and “conceptual separability” tests.[24] Basically, physical separability exists when one could physically remove a design from the useful article without impeding the function of the article.[25] On the other hand, conceptual separability exists when one can imagine the design elements apart from the useful elements of the article.[26] However, courts have not applied these test consistently. In fact, before the Court granted certiorari in Varsity Brands, Judge McKeaugue ended his dissent with a plea to the Supreme Court or Congress: “It is apparent that either Congress or the Supreme Court (or both) must clarify copyright law with respect to garment design. The law in this area is a mess—and it has been for a long time. . . . until we get much-needed clarification, courts will continue to struggle and the business world will continue to be handicapped by the uncertainty of the law.”[28]

Fortunately for those frustrated with the former iterations of the separability test, Justice Thomas clarified with a textual interpretation of the Copyright Act.[29] The majority reasoned that based on the language of § 101, there is a “separate identification” requirement and an “independent-existence” requirement.[30] It was not difficult for the Court to “look at the useful article and spot some two- or three-dimensional element that appears to have pictorial, graphic, or sculptural qualities.”[31] The cheerleading uniform’s design with shapes, colors, and lines satisfied this “separate identification” requirement.[32]  Justice Thomas’s majority explained the independent existence requirement demanded “the feature must be able to exist as its own pictorial, graphic, or sculptural work as defined in §101 once it is imagined apart from the useful article.”[33]

This imagination test may seem reminiscent of the “conceptual separability” of past cases. Yet, the Court expressly rejected this prior interpretation of § 101 by explaining, “[b]ecause we reject the view that a useful article must remain after the artistic feature has been imaginatively separated from the article, we necessarily abandon the distinction between “physical” and “conceptual” separability, which some courts and commentators have adopted based on the Copyright Act’s legislative history.”[34] Instead, “[t]he ultimate separability question . . . is whether the feature for which copyright protection is claimed would have been eligible for copyright protection as a pictorial, graphic, or sculptural work had it originally been fixed in some tangible medium other than a useful article before being applied to a useful article.”[35] In applying this test to the cheerleading uniform designs, the Court found the uniforms met the threshold requirement of copyrightable subject matter.[36]

New Role for Copyright in Clothing and Fashion

Besides clearing up the confusion regarding the separability test, some commentators believe that Star Athletica v. Varsity Brands will pave the way for copyrights in many new areas.[37] The stark contrast between prior application of the law of useful articles and the pronouncement in Varsity Brands can be illustrated by the Copyright Office’s existing guidelines. For example, 924.3(A) of the Copyright Office’s Compendium states, “Clothing such as shirts, dresses, pants, coats, shoes, and outerwear are not eligible for copyright protection because they are considered useful articles. This is because clothing provides utilitarian functions, such as warmth, protection, and modesty. As a result, the U.S. Copyright Office will not register a claim in clothing or clothing designs.” [38] Contrast that guideline with the recent Ninth Circuit ruling which upheld willful copyright infringement on a fabric pattern.[39]

Although only time will tell, some predict this ruling will have the largest impact on clothing with longer shelf-lives such as the costume and wedding industry.[40] Due to the potential for long-term returns, these industries may justify the cost of litigation more easily than industries that have styles with shorter shelf-lives. Therefore, litigation may be impractical for companies designing clothes in faster-paced markets.[41]

Conclusion

The Court’s ruling in Star Athletica v. Varsity Brands changes the traditional understanding of copyrights in clothing designs. It provides much-needed clarification on the separability test for useful articles. Additionally, it could provide wider access to copyrights for useful articles, like clothing, not formally understood as copyrightable subject matter. Since the Copyright Office has explicitly disallowed copyrights for clothing, it is likely that new guidelines will be issued to reflect the holding in Star Athletic v. Varsity BrandsFor example, the Copyright Office will have to remove § 924.3(A) of its Compendium because clothing designs are copyrightable subject matter under Star Athletic v. Varsity Brands. Yet, only time will tell whether all areas of the clothing industry will take advantage of this new avenue to copyrightability.

[1] http://www.imdb.com/title/tt0204946/

[2] See, Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, 2017 U.S. LEXIS 2026 (Mar. 22, 2017).

[3] Id.

[4] Infra, n.8.

[5] Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, 2017 U.S. LEXIS 2026 (Mar. 22, 2017).

[6] See, infra, n. 37.

[7] Id.

[8] Id. at *10-11.

[9] 4 Nimmer on Copyright § 13.01 (2017).

[10] Congress’s authority to enact the Copyright Act is found in the United States Constitution: “The Congress shall have power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]” U.S. Const. art. I, § 8, cl. 8.

[11] “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: [listing a non-exclusive list of eight copyrightable subject matter categories.]” 17 U.S.C. § 102(a).

[12] Baker v. Selden, 101 U.S. 99 (1879).

[13] Id.

[14] “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b).

[15] Supra, n. 24.

[16] “[A] ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C.S. § 101 (LexisNexis, Lexis Advance through PL 115-14, approved 3/27/17).

[17] Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, 2017 U.S. LEXIS 2026, at *17 (Mar. 22, 2017). Also,

[18] 347 U.S. 201, 74 S. Ct. 460 (1954).

[19] Id.

[20] Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, 2017 U.S. LEXIS 2026, at *12 (Mar. 22, 2017).

[21] 17 U.S.C.S. § 101 (LexisNexis, Lexis Advance through PL 115-14, approved 3/27/17).

[22] Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, 2017 U.S. LEXIS 2026, at *18-19 (Mar. 22, 2017).

[23] H. R. Rep. No. 94-1476, p. 55 (1976).

[24] 1 Nimmer on Copyright § 2A.08.

[25] Id.

[26] Id.

[27] Id. See, also, ARTICLE: THE COPYRIGHT/PATENT BOUNDARY, 48 U. Rich. L. Rev. 611 (“The sheer number of tests applied by the courts and proposals suggested by scholars for the reform of copyright’s useful article doctrine is overwhelming.”)

[28] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 496-97 (6th Cir. 2015) (McKeague, J., dissenting; internal citations omitted).

[29] “The statute provides that a ‘pictorial, graphic, or sculptural featur[e]’ incorporated into the ‘design of a useful article’ is eligible for copyright protection if it (1) ‘can be identified separately from,’ and (2) is ‘capable of existing independently of, the utilitarian aspects of the article.’ Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, 2017 U.S. LEXIS 2026, at *16 (Mar. 22, 2017).

[30] Id.

[31] Id.

[32] See, id.

[33] Id.

[34] Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, 2017 U.S. LEXIS 2026, at *27 (Mar. 22, 2017).

[35] Id. at *18.

[36] Id. at *21. See, also, Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, 2017 U.S. LEXIS 2026, at *21 n.1 (Mar. 22, 2017) (“We do not today hold that the surface decorations are copyrightable. We express no opinion on whether these works are sufficiently original to qualify for copyright protection, see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 358-359, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991), or on whether any other prerequisite of a valid copyright has been satisfied.”)

[37] See, e.g., Sandra Aistars, Courthouse Steps: Fashionable Copyright Law in the U.S. Supreme Court – Podcast, The Federalist Society (April 5, 2017), http://www.fed-soc.org/multimedia/detail/courthouse-steps-fashionable-copyright-law-in-the-us-supreme-court-podcast.

[38] Compendium of U.S. Copyright Office Practices, 3rd Ed. (Dec. 22, 2014), https://www.copyright.gov/comp3/chap900/ch900-visual-art.pdf.

[39] Unicolors, Inc. v. Urban Outfitters, Inc. , 2017 BL 107988, 9th Cir., No. 15-55507, 4/3/17.

[40] Supra, n. 33.

[41] Id.

When Do I Get My Lawyer?

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

The Sixth Amendment is a fundamental right that ensures those accused of criminal offenses have sufficient legal counsel on decisions that will affect their life and liberty. Without this right, criminal defendants would be forced to navigate the confusing and seemingly harsh world of criminal law.[1] Without this protection, the government could manipulate criminal defendants into severe restrictions of their liberty without the guidance of someone advocating their interests. One significant component of this right is the point at which the right attaches. The Supreme Court has held the right to counsel attaches at a “critical stage” of a criminal proceeding.[2] Critical stages can be pre-trial proceedings if formal charges have been filed including post indictment plea negotiations, post indictment lineups, and post indictment interrogations.[3]

Circuit courts have inconsistently interpreted whether a critical stage test should be determined using a bright line test or if there should be a rebuttable presumption incorporated into the analysis. Five circuit courts follow the bright line rule approach; while, four other circuits allow for a rebuttable presumption to the standard that the right to counsel only attaches after formal charges are filed.[4] For example, the Sixth Circuit applied the bright line approach in holding a criminal defendant did not have a right to counsel at plea negotiations before formal charges were filed. [5] In contrast, the Seventh Circuit held this standard is merely a presumption the prosecution has crossed the threshold of factfinder to adversary. [6] However, the Supreme Court should alter its holdings in order to accommodate the Seventh Circuit approach because it best protects criminal defendants.

The Bright Line Approach

            In Turner, the Sixth Circuit applied the bright line approach holding the defendant in this case had no Sixth Amendment right to counsel during plea negotiations because no formal charges had been filed. [7] During Tennessee’s prosecution of the defendant for aggravated robbery, the defendant’s attorney and U.S. District Attorney’s Office discussed a potential plea offer for federal charges arising out of the same conduct.[8] The defendant originally declined to plead but later accepted a less favorable plea offer.[9] The defendant then sued to have his conviction struck down because of ineffective counsel during his plea negotiations.[10] The court determined even though the Supreme Court had never directly addressed whether a defendant had a right to counsel at plea-negotiations, it had consistently stated the right to counsel only applies when formal charges have been filed.[11]

Furthermore, the Sixth Circuit had previously held twice the right to counsel only applies when formal charges are brought against the defendant. [12] For example, in Moody[13], even though the Court felt the result was “a triumph of the letter over the spirit of the law”, the Sixth Circuit felt bound to follow Supreme Court precedent even though it thought this interpretation was inconsistent with the Framer’s intentions for the Sixth Amendment. [14] The Sixth Circuit held the defendant’s motion must be dismissed because it was undisputed by the parties no formal federal charges had been filed during the course of the plea negotiations.

The Rebuttable Presumption Approach

            In Larkin, the Seventh Circuit applied the rebuttable presumption approach by holding a defendant could prove the government had crossed the divide from factfinder to adversary.[15] In this case, the convictions of the defendant for robbery were largely founded on the eyewitness testimony of bank employees.[16] The employees identified the defendants at a lineup six months before trial in addition to their in-court identification of the defendants.[17] The defendants argued the district court committed reversible error by not suppressing the testimony for a number of reasons including the fact that the government refused to grant the defendant’s request to furnish appointed counsel at the lineup.[18] The court first noted the right to counsel attaches at the beginning of adverse criminal proceedings.[19] Therefore, had the lineup occurred after the grand jury had indicted the defendant, refusal to provide counsel would have violated the Sixth Amendment and suppression of the evidence would have been necessary.[20] However, the lineup in this case occurred three months before the indictment so the right presumptively did not attach.[21] This presumption may be rebutted by a demonstration that even though formal charges had not been filed, the government had ceased to be a factfinder and was now an adversary.[22] The court held the defendants failed to show the government had crossed the line from factfinder to adversary and therefore ruled against the defendants.[23] The court did note that although the Constitution did not compel the government to grant the defendant’s request for appointed counsel, the government should make every effort to grant such requests at pre-indictment lineups.[24] In this way, justice is best served and  convictions are not tainted.[25]

The Supreme Court Should Follow the Seventh Circuit Approach

Because there is such a significant circuit split, it is likely the Supreme Court will rule on the split soon. When the Supreme Court chooses to rule on this split, it should follow the Seventh Circuit’s approach because this strikes the best balance between protecting the rights of criminal defendants and ensuring the government’s interest in fighting crime.

In Turner, the Sixth Circuit referred to its precedent in Moody to flesh out how its decision was rooted in the letter of the law as opposed to the spirit of the Sixth Amendment.[26] The Sixth Circuit in that case acknowledged the pretrial plea negotiations raised the certainty in many cases of the defendant waiving his trial rights in exchange for an imbalanced plea without the assistance of legal counsel.[27] Perhaps most importantly, by offering a plea deal, a prosecutor had committed himself to raising prosecution against the defendant.[28] Even in the Sixth Circuit opinion upholding the bright line approach, the court saw the wisdom in using some sort of presumption standard.

The presumption would best ensure the constitutional balance of the government’s fact finding function and the right of the defendant to an effective legal defense. The presumption the constitutional right does not attach ensures the government is still able to pursue its fact-finding function without being unnecessarily compromised by constitutional restraint. Having a rebuttable presumption also allows the court discretion to look at the facts of the case and determine whether the government crossed the line from factfinder to adversary. For example, as the Sixth Circuit noted it seemed clear the prosecution had crossed the line to adversary when it offered a plea deal.[29] Yet the government can get away with these offers to uneducated clients because they have not formally charged the defendant. This seems to make the Sixth Amendment protection ring hollow particularly when its purpose is to prevent criminal defendants from facing the rigors of prosecution without the assistance of legal counsel.

Some may argue the bright line approach has it merits because it fixes a certain standard that is easy to follow. To allow a rebuttable presumption under the standard could lead to uncertain outcomes in the legal system. Furthermore, the government would be hampered in its criminal investigations by not knowing when it has crossed the line from factfinder to adversary. However, adjusting the standard to a rebuttable one is not likely to lead to different results. As the Seventh Circuit showed in its holding in Larkin, it will still be difficult for defendants to show the government crossed the threshold from factfinder to adversary particularly in a non-plea setting.[30] Furthermore, utilizing a rebuttable presumption standard ensures a criminal defendant has the advice of legal counsel when the defendant faces the possibility of prosecution and incarceration. Therefore, changing the standard will likely not fundamentally change the prevailing norm that the Sixth Amendment does not demand a lawyer be present for most pre-trial proceedings before charges are formally filed.

Conclusion

            The Supreme Court should adopt the Seventh Circuit approach because it best balances the fact-finding needs of the government with the protections of the Sixth Amendment of criminal defendants. A rebuttable presumption standard will ensure a criminal defendant will have the advice of legal counsel when the government considers prosecuting the defendant as opposed to merely collecting information. This is critical in plea negotiations when the liberty of the defendant is at stake. Finally, applying the rebuttable presumption standard will not fundamentally change criminal procedure because defendants would have the burden of proving the nature of the fact-finding function has changed to adversarial. Therefore, the rebuttable presumption standard from the Seventh Circuit will best preserve the fundamental rights the Sixth Amendment offers to criminal defendants.

[1] United States v. Moody, 206 F.3d 609, 614-615 (6th Cir. 2000)

[2] Montejo v. Louisiana, 556 U.S. 778, 786 (2009).

[3] Turner v. United States, 848 F.3d 767, 770 (6th Cir. 2017).

[4] Id. at 771.

[5] Id. at 773.

[6] U.S. v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992).

[7] Turner, 848 F.3d at 771.

[8] Id.

[9] Id.

[10] Id.

[11] Turner, 848 F.3d at 770.

[12] Id. at 771.

[13]  Id.

[14] See id.

[15] Larkin, 978 F.2d. 964, 969 (1992).

[16] Id. at 967.

[17] Id.

[18] Id.

[19] Id. at 969.

[20] Larkin, 978 F.2d at 969.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Larkin, 978 F.2d at 970.

[26] Turner, 848 F.3d at 771.

[27] Id.

[28] Id.

[29] Id. at 773.

[30]Larkin, 978 F.2d at 969.