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Call for Authors-Feminist Judgments: Rewritten Health Law Opinions

(Posted for Seema Mohapatra and Lindsay Wiley)

Seema Mohapatra and Lindsay Wiley are pleased to announce a Call for Authors for Feminist Judgments: Rewritten Health Law Opinions. Authors interested in contributing a rewritten opinion or commentary should respond by Sept. 22 via the form found here: https://docs.google.com/forms/d/19fz5PYWMtrhJc1qgrs1gMSmEblhrD-z8hjMbNZI_Gxs/edit.

Prospective authors are asked to indicate which of 15 health law opinions – selected with the advice of our advisory committee – they would be interested in rewriting or commenting on and provide a description of why their top-choice case is a good candidate for a feminist rewrite. For more information, please see the full text of the Call for Authors that follows.

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Health Law Opinions. This edited volume, proposed to be published by Cambridge University Press, is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series focus on different courts or different subjects. This call is for contributions to a volume of health law decisions rewritten from a feminist perspective.

Health Law volume editors Seema Mohapatra and Lindsay Wiley seek prospective authors for fifteen rewritten health law opinions covering a range of topics. With the help of an Advisory Committee, the editors have chosen a list of cases to be rewritten (as noted below). Potential authors are welcome to suggest other cases, but given certain constraints (including a preference for avoiding cases that have already or soon will be rewritten for other volumes in this series), it is unlikely that the list of cases will change. Cases may come from any jurisdiction and any court in the U.S.. The definition of feminism on which the series is premised is quite broad and certainly includes intersectional analysis of cases where sex or gender played a role alongside racism, ableism, classism, and other concerns.

As the core of the Feminist Judgments Project is judicial opinions, proposals must be either to (1) rewrite a case (not administrative guidance, regulations, etc.) or (2) comment on a rewritten case. Rewritten opinions may be re-imagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000-word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made (4,000-word maximum for the commentary).

To facilitate collaboration between commentators and opinion writers across the entire volume, the editors will host a workshop on December 7, 2018 at the Indiana University Robert H. McKinney School of Law.  All commentators and opinion writers are invited, but not required, to participate in the workshop. The Hall Center for Law and Health at the Indiana University Robert H. McKinney School of Law will host a welcome dinner the night prior to the workshop and provide the meals at the workshop.  Authors must cover their own travel expenses. Selection of authors does not depend on their ability or willingness to attend the December workshop. The editors are also tentatively planning to host a conference celebrating publication of the volume at American University Washington College of Law in Washington, DC in fall 2020.

The U.S. Feminist Judgments Project approaches revised judicial opinion writing as a form of critical socio-legal scholarship. There are several world-wide projects engaged in similar efforts, including the U.K.-based Feminist Judgments: From Theory to Practice (2010); Australian Feminist Judgments: Righting and Rewriting Law (2014); Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (2017); Feminist Judgments of Aotearoa New Zealand: Te Rino – A Two-Stranded Rope (2017); the Women’s Court of Canada; and a pan-European project; and other U.S.-based projects on Tax Law (2017), Trusts and Estates, Torts, Family Law, Employment Discrimination, and Reproductive Justice that are in print or in progress.

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten Health Law cases should complete the submission form found here.  Commentators and opinion writers who wish to work together are welcome to indicate that in the application.

Applications are due by September 22, 2018 at 5:00 p.m. (EST). The editors expect to notify applicants no later than October 15, 2018.  Abstracts of rewritten opinions will be due on November 16, 2018 for circulation to fellow authors. Abstracts of commentaries will be due on November 30, 2018 for circulation to fellow authors. First drafts of rewritten opinions will be due on April 1, 2019 for circulation to commentary authors. First drafts of commentaries will be due on June 1, 2019.

Tentative List of Cases: (in chronological order)

  1. Schloendorff v. Society of New York Hospitals, 105 N.E. 92, 93 (N.Y. 1914) (unsuccessful attempt to hold hospital liable for malpractice based on failure to obtain patient consent, touching on physician supervision of nurses and the hospital’s constructive knowledge of information shared with nurses)
  2. Reynolds v McNichols, 488 F.2d 1378 (10th Cir. 1973) (unsuccessful constitutional claims arising out of coerced medical treatment of sex worker for gonorrhea)
  3. Alexander v. Choate, 469 U.S. 287 (1985)  (unsuccessful § 504 challenge to annual cap on inpatient hospital days covered by state Medicaid program)
  4. Conservatorship of Valerie N., 40 Cal.3d 143 (1985)  (successful constitutional challenge to a probate law prohibiting conservator-parents from obtaining court order to sterilize adult daughter with intellectual disability, based on conservatee’s privacy and liberty interests)
  5. Bouvia v. Superior Court, 179 Cal. App. 3d 1127 (Cal. Ct. App. 1986) (permitting a non-terminally ill, competent adult who lacked adequate social support to refuse life-sustaining force feeding)
  6. Moore v. Regents of University of California, 793 P.2d 479 (Cal. 1990) (rejecting plaintiff’s claimed property interests in his cells or other unique products of the human body)
  7. Doe v. Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir. 1999) (unsuccessful ADA challenge to private insurance cap on lifetime benefits for HIV-related conditions)
  8. Linton v. Commissioner of Health and Environment, 65 F.3d 508 (6th Cir. 1995) (unsuccessful Title VI disparate impact challenge to state certification rules permitting nursing facilities to limit beds available for Medicaid recipients)
  9. Olmstead v. L.C., 527 U.S. 581 (1999) (prohibiting segregation of people with disabilities in institutional settings under the ADA and requiring public entities to provide community-based services, with implications for state Medicaid programs and family caregivers)
  10. Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001) (unsuccessful § 1983 challenge to state Medicaid law excluding coverage for gender confirmation surgery)
  11. Burton v. State, 49 So.3d 263 (Fla. Dist. Ct. App. 2010 (permitting court-ordered medical intervention during pregnancy without patient consent)
  12. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (upholding the ACA’s individual mandate as a valid exercise of the power to tax, prohibiting mandatory Medicaid expansion under the anti-coercion doctrine)
  13. Means v. United States Conference of Catholic Bishops, No. 15-1779 (6th Cir. 2016) (dismissing claim by woman who was denied treatment during her miscarriage against organization that promulgated guidelines the hospital followed in denying standard care)
  14. Does v. Gillespie, 867 F. 3d 1034 (8th Cir., 2017) (unsuccessful § 1983 claim against state law denying payment to Planned Parenthood for services provided to Medicaid recipients; could be swapped for 2019 Supreme Court decision if Court grants certiorari in Kansas v. Andersen)
  15. National Institute of Family & Life Advocates (NIFLA) v. Becarra, 138 S.Ct. 2361 (2018) (successful First Amendment challenge to law requiring disclosures by  pregnancy crisis centers)


Nicolas P. Terry

Nicolas P. Terry

Nicolas Terry is the Hall Render Professor of Law at Indiana University McKinney School of Law where he serves as the Executive Director of the Hall Center for Law and Health and teaches various healthcare and health policy courses. His recent scholarship has dealt with health privacy, mobile health, the Internet of Things, Big Data, AI, and the opioid overdose epidemic. He serves on IU’s Grand Challenges Scientific Leadership Team, working on the addictions crisis and is the PI on addictions law and policy Grand Challenge grants. His podcast is at TWIHL.com, and he is @nicolasterry on Twitter.

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