Is Time Running Out for Tiktok?

By: Morgan Dreher

Edited by: Isabel Gortner and Sarah Wachs

Is TikTok officially banned? This question has infiltrated headlines and social media feeds in the past few years, only to end up a false alarm – but this time is different. On April 24, 2024, President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act. This legislation gives TikTok’s parent company, ByteDance, nine months to divest from the app, potentially adding three months if a sale is pending. [1] The government cites national security concerns as its justification for the ban, but the legitimacy of these concerns is questionable. 

The bill’s framing searches for a loophole to appear as a regulation, while its effects are more similar to those of a ban. It “prohibits distributing, maintaining, or providing internet hosting services for a foreign adversary controlled application,” but TikTok and ByteDance are the only companies explicitly named in the bill, suggesting that it is intended as a targeted ban. [2] If ByteDance does not divest from TikTok, the app will no longer be available through Apple and Google app stores in the United States and the inability to install updates and bug fixes will undermine the functionality of the app over time. [3] There may be potential workarounds such as virtual private networks (VPNs) that users employ to hide their locations. Nevertheless, only time will tell the speed and degree to which 170 million American users may lose access to TikTok. [4]

The Act was passed with haste: it was introduced in March and passed one month later. [5] This diversion from Congress’ usual speed implies that their national security concerns are pressing. Because Chinese law requires organizations to provide their data to China’s government upon request, US government officials fear the weaponization of data harvested from TikTok. [6] In addition, they worry the Chinese government will attempt to use the app as a political tool by influencing users with propaganda and censorship. [7] Interestingly, other countries have expressed similar concerns, with some banning the app on government devices, [8] and India banning the app entirely in 2020. [9]

So, will ByteDance make the sale? It appears that even if they wanted to, it is not feasible, “not commercially, not technologically, not legally.” [10] It is not possible to transfer all of TikTok’s source code and algorithm from ByteDance to an American company, as Chinese regulation would not permit it, and these resources are essential to maintaining the app. [11] Plus, petitioners of the Act point out that isolating the app as an American platform would create an “island,” disconnecting Americans from the global engagement currently fostered on the app. [12] So with the sale off the table, is it time to say goodbye to TikTok? Signs say not yet.

This is not the first time TikTok has been threatened in the United States. Former President Donald Trump attempted to eradicate the app in 2020 through an executive order but was blocked by federal judges who claimed he did not adequately prove a national security risk. [13] About three years later, Montana attempted a statewide ban of TikTok, but a federal district judge similarly blocked the state for lacking proof of a threat and for First Amendment concerns. [14] It is no surprise that these same grounds are bringing into question the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.

Issues detected in the Act range from Due Process violations to “unlawful taking of private property without just compensation,” but TikTok is suing the United States government on the grounds of a First Amendment violation. [15] This case will be examined under strict scrutiny. This means that for the US government to interfere with free speech, they must demonstrate a compelling reason by showing that the threat is real. [16] In addition, the government must prove that its solution is the narrowest possible, and so far they have done neither. [17]

Legal precedent clarifies that a hypothetical threat to national security is not a sufficient reason to block freedom of speech. [18] While US government officials have expressed their concerns over what might happen, they have no concrete proof of a threat. Meanwhile, TikTok claims they never have and do not plan on sharing US user data with the Chinese government. [19] Furthermore, the Act also does not oblige with the second requirement of strict scrutiny, which necessitates that it be the least restrictive option for the specified aims. Even though TikTok has invested $2 billion in “Project Texas,” a design for a firewall between US TikTok data and ByteDance, [20] the government claimed it was an inadequate solution because ByteDance would keep the algorithm and source code. [21] This means the government must prove in court that “Project Texas'' will not suffice, and that there is no less restrictive way of achieving national security. 

Of course, there is always a possibility this case is decided in favor of the government, given the conservative nature of the legislation and the courts. This could set a dangerous precedent moving forward – after all, this is the first time Congress has holistically banned an entire speech platform. [22] The Act also specifies that platforms focused mostly on “product reviews, business reviews, and travel information” are exempt, [23] meaning that the government is restricting certain types of speech they view as “disfavorable.” [24] In an age of media censorship, this precedent could have a domino effect allowing the government to ban entire platforms and discriminate between types of speech.

But do not fret about losing TikTok yet – the Constitution is on the side of the 170 million United States TikTok users. The US government has a lofty task ahead of them to withstand strict scrutiny, and so far they have not demonstrated any qualification under the standards. However, the fact that this Act was passed in the first place is an indicator of the time in which we are living. Freedom of speech is one of multiple constitutional rights that is under siege. These rights are inextricably linked to our democracy – as our rights are stripped away, we lose our power as a people. No matter whether you are a TikTok user, this legislation indicates a dire concern for the American people.

Notes:

1. “What a Tiktok Ban in the US Could Mean for You,” AP News, April 24, 2024. https://apnews.com/article/tiktok-divestment-ban-what-you-need-to-know-5e1ff786e89da10a1b799241ae025406.

2. Congress.gov, "H.R.7521 - 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act," March 14, 2024. https://www.congress.gov/bill/118th-congress/house-bill/7521. 

3. “What a Tiktok Ban in the US Could Mean for You.”

4. Bobby Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment,” NPR, May 14, 2024. https://www.npr.org/2024/05/14/1251086753/tiktok-ban-first-amendment-lawsuit-free-speech-project-texas.

5. Paul Matzko, “A TikTok Ban Passes, But the Courts Are Next,” Cato at Liberty, April 24, 2024. https://www.cato.org/blog/tiktok-ban-passes-courts-are-next.

6. Caitlin Yilek, “Why U.S. Officials Want to Ban Tiktok,” CBS News, April 24, 2024. https://www.cbsnews.com/news/tiktok-ban-congress-reasons-why/. 

7. Yilek, “Why U.S. Officials Want to Ban Tiktok.”

8. “Which Countries Have Banned TikTok and Why?” Euronews, March 14, 2024. https://www.euronews.com/next/2024/03/14/which-countries-have-banned-tiktok-cybersecurity-data-privacy-espionage-fears.

9. Krutika Pathi, “Here’s What Happened When India Banned Tiktok,” PBS, April 24, 2024. https://www.pbs.org/newshour/world/heres-what-happened-when-india-banned-tiktok.

10. Ashley Capoot, “TikTok Sued the U.S. Government to Block a Ban. Here’s What Happens Now,” CNBC, May 8, 2024. https://www.cnbc.com/2024/05/08/tiktok-sued-the-us-government-to-block-a-ban-heres-what-happens-now.html.

11. TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act,” DocumentCloud, May 7, 2024. https://www.documentcloud.org/documents/24651190-tiktok-petition.

12. TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.”

13.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

14.  Matzko, “A TikTok Ban Passes, But the Courts Are Next.”

15.  TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.”

16.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

17.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

18.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

19. “What a Tiktok Ban in the US Could Mean for You.”

20.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

21.  Yilek, “Why U.S. Officials Want to Ban Tiktok.”

22. TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.”

23. Congress.gov, "H.R.7521 - 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act." 

24. TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.”

Bibliography:

Allyn, Bobby. “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.” NPR, May 14, 2024. https://www.npr.org/2024/05/14/1251086753/tiktok-ban-first-amendment-lawsuit-free-speech-project-texas.

Capoot, Ashley. “TikTok Sued the U.S. Government to Block a Ban. Here’s What Happens Now.” CNBC, May 8, 2024. https://www.cnbc.com/2024/05/08/tiktok-sued-the-us-government-to-block-a-ban-heres-what-happens-now.html.

Congress.gov. "H.R.7521 - 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act." March 14, 2024. https://www.congress.gov/bill/118th-congress/house-bill/7521. 

Matzko, Paul. “A TikTok Ban Passes, But the Courts Are Next.” Cato at Liberty, April 24, 2024. https://www.cato.org/blog/tiktok-ban-passes-courts-are-next.

Pathi, Krutika. “Here’s What Happened When India Banned Tiktok.” PBS, April 24, 2024. https://www.pbs.org/newshour/world/heres-what-happened-when-india-banned-tiktok.

TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.” DocumentCloud, May 7, 2024. https://www.documentcloud.org/documents/24651190-tiktok-petition.

“What a Tiktok Ban in the US Could Mean for You.” AP News, April 24, 2024. https://apnews.com/article/tiktok-divestment-ban-what-you-need-to-know-5e1ff786e89da10a1b799241ae025406.

“Which Countries Have Banned TikTok and Why?” Euronews, March 14, 2024. https://www.euronews.com/next/2024/03/14/which-countries-have-banned-tiktok-cybersecurity-data-privacy-espionage-fears.

Yilek, Caitlin. “Why U.S. Officials Want to Ban Tiktok.” CBS News, April 24, 2024. https://www.cbsnews.com/news/tiktok-ban-congress-reasons-why/. 

The US Takes Last Place: The Problem of Paid Parental Leave

By: Morgan Dreher

Edited by: Isabel Gortner

Imagine welcoming a child into the world, and having a year off of work to be with your baby, all while being paid. This concept sounds radical to many people in the United States but is conventional in most other industrialized nations. The United States is the only wealthy country in the world without a national program for paid parental leave, with only 21% of employees having access to this type of leave, [1] and 46% of employees not even having access to unpaid, job-protected parental leave. [2] These numbers are even more bleak for low-income families, with a mere 12% of low-income workers receiving paid leave. [3] Since low-income workers are already less likely to be able to afford unpaid time off, this gap in access to paid leave perpetuates issues of economic disparity. [4] Public opinion is clearly in support of paid parental leave, with 82% of Americans across political identifications supporting the concept. [5] Yet, the United States lags behind every other industrialized nation in this domain, and evidence shows we should be making an effort to catch up.

First, there are distinctions between different types of parental leave. While traditional maternity leave applies to a mother who gives birth, parental leave more broadly applies to any new parent, including adoptive and foster parents. While unpaid leave is self-explanatory, paid leave signifies compensation at a certain percentage of the employee’s typical wage, and can be accompanied by stipulations or waiting periods. Another significant factor is job protection, which is a guarantee that the parent will retain their job throughout their leave. Parental leave can exist as its own policy, or it can also fit under the umbrella of family leave. 

Paid parental leave has vast health benefits for parents and children alike. Research suggests that poor mental health is common for mothers after birth, and paid leave of at least two to three months protects against this issue significantly. [6] Leave also has significant health benefits for the child, such as extending the duration of breastfeeding, [7] and decreasing infant mortality rates. [8] Research also reveals the importance of providing parental leave rather than just maternity leave, as paid leave improves the mental health of fathers, [8] and “increases gender-equitable norms and leave uptake.” [9] It even benefits employers, “with positive effects towards worker productivity, morale, job satisfaction, and reduced job turnover.” [10]

So, what does current policy look like in the United States? The US has several programs in place, although they are far from measuring up to the national programs belonging to every other country in the Organization for Economic Cooperation and Development (OECD). [11] The Family and Medical Leave Act of 1993 (FMLA) requires employers in the US to allow their employees 12 weeks of unpaid, job-protected family leave during the first year after birth, adoption, or start of foster care – but this policy has several caveats. [12] For example, this only applies to companies with over 50 employees, and the parent must have worked 32 full-time weeks the year prior to their leave, meaning small businesses are exempt from compliance and new hires and part-time workers are not covered. [13] This leaves 40% of US employees ineligible, and another large portion who cannot afford an unpaid leave. [14] Since then, the Federal Employee Paid Leave Act, implemented in 2020, makes full-paid leave available to certain federal employees. [15][16] This is an extension of FMLA, and although Congress attempted to make eligibility criteria less strict in 2021, certain groups such as USPS employees remain ineligible. [17] 

In general, parental leave policies are notably more generous in every other OECD nation as well as EU countries. For example, according to an article by Baum II and Ruhm, “Denmark, Finland, Germany, Norway, and Sweden provide at least 11 months of leave paid at more than two-thirds of earnings.” [18] Additionally, Switzerland offers 100% wage replacement for eight weeks of leave. [19] Sweden is particularly generous, with 480 days of paid leave per family. In this case, both parents are allotted 240 days but have the option to transfer up to 150 of those days to the other parent. [20] 

While these policies provide extensive leave, they are not free from issues, either. Offering leave to each parent is intended to encourage gender parity and fathers taking a larger role in caretaking, but the ability to transfer leave between spouses has proven counterproductive to this goal, with women taking the majority of the leave. [21] One reason for this is women seeking to continue breastfeeding, but gender norms also play a part in the continuity of these heteronormative roles. [22] As a result, women take significantly more leave than men, contributing to the wage gap and less female participation in the workforce. [23] Thus, policies like Sweden’s, which allot 90 “use it or lose it” days to each parent are effective in creating a “higher employment rate of women (78.0%) than the E.U average (6.7%).” [24] Another issue abroad has arisen with policy in China, where the extension of maternity leave has led to increased employment discrimination towards women. [25] Thus, while these generous policies are beneficial to families, their increased duration accentuates the importance of policies that encourage employment equity and participation of fathers in caretaking. 

Since the US has no national mandate for paid parental leave, some states have taken matters into their own hands. Currently, 13 states and the District of Columbia have implemented mandatory paid family leave programs. [26] Almost all of these states, excluding New York, utilize social insurance plans to pay the employees on leave, meaning employees’ payroll taxes fund the programs. [27] Although these programs are not as generous in terms of duration and pay compared to programs abroad, they are still effective. California’s Paid Family Leave (PFL) program offers eight weeks of leave per parent with 60-70% wage replacement, after completing an application process. [28] This policy has led to improved child health and maternal mental health, improved employment outcomes for mothers, and has little financial cost to employers. [29]

So, where does the US go from here? One option is the FAMILY Act, which was introduced to the Senate in 2021. [30] This legislation would provide 12 weeks of paid family leave to all US workers, with flexible criteria, and pay according to a sliding scale based on income. [31] Given the efficacy of state programs like California’s PFL, and widespread public support, this seems like a logical next step. However, the bill has not seen any progress, and some believe it will never be passed due to our rising debt ceiling and Congress’ resistance to expanding the “social safety net.” [32] Given these concerns, it is unlikely that the United States’ paid parental leave program will ever begin to resemble the programs implemented by other OECD countries. Nonetheless, California’s PFL program is still effective, meaning smaller-scale reform is worthwhile. Passage of the FAMILY Act would certainly be instrumental to the health of our nation, but in the meantime, states can continue to pass and improve their own programs for their residents. Overall, the United States is moving in the right direction, but it is critical to the well-being of our families that we collectively push for a more generous and widespread approach to paid parental leave. 

Notes:

1. Krystin Arneson, “Why doesn't the US have mandated paid maternity leave?” BBC, 2021. https://www.bbc.com/worklife/article/20210624-why-doesnt-the-us-have-mandated-paid-maternity-leave.

2. Sarah Coombs, “Paid Leave Is Essential for Healthy Moms and Babies,” National Partnership for Women & Families, 2021. https://nationalpartnership.org/report/paid-leave-is-essential-for/.

3. Emily Peck, “Paid family leave still out of reach for most American workers,” Axios, 2023. https://www.axios.com/2023/02/01/fmla-paid-family-leave-policy-america.

4. H. K. Davison and Adam S. Blackburn, “The Case for Offering Paid Leave: Benefits to the Employer, Employee, and Society,” Compensation and Benefits Review 55, no. 1 (October), 2022. https://doi.org/10.1177/08863687221131728.

5. Arneson, “Why doesn't the US have mandated paid maternity leave?”

6. Amy Heshmati, Helena Honkaniemi, and Sol P. Juárez, “The effect of parental leave on parents’ mental health: a systematic review,” The Lancet Public Health 8, no. 1 (January), 2023. https://doi.org/10.1016/S2468-2667(22)00311-5.

7. Heshmati, Honkaniemi, and Juárez, “The effect of parental leave on parents’ mental health: a systematic review.” 

8. Coombs, “Paid Leave Is Essential for Healthy Moms and Babies.”

9. Maria I. Olsson, “Gender Gap in Parental Leave Intentions: Evidence from 37 Countries,” International Society of Political Psychology 44, no. 6 (January): 1163-1192, 2023. https://doi.org/10.1111/pops.12880.

10. Davison and Blackburn, “The Case for Offering Paid Leave: Benefits to the Employer, Employee, and Society.”

11. Davison and Blackburn, “The Case for Offering Paid Leave: Benefits to the Employer, Employee, and Society.”

12. Lauren Hansen, “Parental Leave Policies: What Employers Should Know (2023),” TechnologyAdvice, 2023. https://technologyadvice.com/blog/human-resources/parental-leave-policies-for-business.

13. Hansen, “Parental Leave Policies: What Employers Should Know (2023).”

14. Davison and Blackburn, “The Case for Offering Paid Leave: Benefits to the Employer, Employee, and Society.”

15. “Paid Parental Leave for Federal Employees,” n.d. U.S. Department of Commerce, Accessed February 23, 2024. https://www.commerce.gov/hr/paid-parental-leave-federal-employees.

16. “The Federal Employee Paid Parental Leave Benefit,” CRS Reports, 2023. https://crsreports.congress.gov/product/pdf/IF/IF12420.

17. “Paid Parental Leave Is Available to Most Federal Employees—But Some May Not Know About It,” Government Accountability Office, 2024. https://www.gao.gov/blog/paid-parental-leave-available-most-federal-employees-some-may-not-know-about-it.

18. Charles L. Baum II and Christopher J. Ruhm, “The Effects of Paid Family Leave in California on Labor Market Outcomes,” Journal of Policy Analysis and Management 35, no. 2 (February): 333-356, 2016. https://doi.org/10.1002/pam.21894.

19. Hansen, “Parental Leave Policies: What Employers Should Know (2023).”

20. Rosalind Smith, “The 5 best countries for parental leave,” Mauve Group, 2022. https://mauvegroup.com/innovation-hub/blog/the-5-best-countries-for-parental-leave.

21. Gemma Mitchell, “Shared Parental Leave: Can Transferable Maternity Leave Ever Encourage Fathers to Care?” Industrial Law Journal 52, no. 1 (March): 149–178, 2023. https://doi.org/10.1093/indlaw/dwac015.

22. Mitchell, “Shared Parental Leave: Can Transferable Maternity Leave Ever Encourage Fathers to Care?”

23. Olsson, “Gender Gap in Parental Leave Intentions: Evidence from 37 Countries.”

24. Heewon You, “Parental Leave Practice in Sweden and Gender Equality,” Lund University Publications, 2023. https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=9118994&fileOId=9118997.

25. Guo Tian, “The Legal System of the Maternity and Parenting Leave Under the Background of China’s “Three-Child” Policy: From the Perspective of the Right to Equal Employment,” Advances in Economics, Business and Management Research, (February), 369-389, 2023. https://doi.org/10.2991/978-2-494069-99-2_28

26. “State Paid Family Leave Laws Across the U.S,” Bipartisan Policy Center, 2024. https://bipartisanpolicy.org/explainer/state-paid-family-leave-laws-across-the-u-s/.

27. “State Paid Family Leave Laws Across the U.S.”

28. “Celebrating 20 Years of Paid Family Leave,” n.d. EDD, Accessed February 23, 2024. https://edd.ca.gov/en/disability/paid-family-leave/.

29. Lindsey R. Bullinger, “The Effect of Paid Family Leave on Infant and Parental Health in the United States,” Journal of Health Economics 66 (July): 101-116, 2019. https://doi.org/10.1016/j.jhealeco.2019.05.006.

30. Congress.gov, "S.248 - 117th Congress (2021-2022): FAMILY Act," February 4, 2021. https://www.congress.gov/bill/117th-congress/senate-bill/248.

31. Molly W. Williamson, “Getting To Know the New FAMILY Act,” Center for American Progress, 2023. https://www.americanprogress.org/article/getting-to-know-the-new-family-act/.

32.  Peck, “Paid family leave still out of reach for most American workers.”

Bibliography:

Arneson, Krystin. 2021. “Why doesn't the US have mandated paid maternity leave?” BBC. https://www.bbc.com/worklife/article/20210624-why-doesnt-the-us-have-mandated-paid-maternity-leave.

Baum II, Charles L., and Christopher J. Ruhm. 2016. “The Effects of Paid Family Leave in California on Labor Market Outcomes.” Journal of Policy Analysis and Management 35, no. 2 (February): 333-356. https://doi.org/10.1002/pam.21894.

Bullinger, Lindsey R. 2019. “The Effect of Paid Family Leave on Infant and Parental Health in the United States.” Journal of Health Economics 66 (July): 101-116. https://doi.org/10.1016/j.jhealeco.2019.05.006.

“Celebrating 20 Years of Paid Family Leave.” n.d. EDD. Accessed February 23, 2024. https://edd.ca.gov/en/disability/paid-family-leave/.

Congress.gov. "S.248 - 117th Congress (2021-2022): FAMILY Act." February 4, 2021. https://www.congress.gov/bill/117th-congress/senate-bill/248.

Coombs, Sarah. 2021. “Paid Leave Is Essential for Healthy Moms and Babies.” National Partnership for Women & Families. https://nationalpartnership.org/report/paid-leave-is-essential-for/.

Davison, H. K., and Adam S. Blackburn. 2022. “The Case for Offering Paid Leave: Benefits to the Employer, Employee, and Society.” Compensation and Benefits Review 55, no. 1 (October). https://doi.org/10.1177/08863687221131728.

“The Federal Employee Paid Parental Leave Benefit.” 2023. CRS Reports. https://crsreports.congress.gov/product/pdf/IF/IF12420.

Hansen, Lauren. 2023. “Parental Leave Policies: What Employers Should Know (2023).” TechnologyAdvice. https://technologyadvice.com/blog/human-resources/parental-leave-policies-for-business.

Heshmati, Amy, Helena Honkaniemi, and Sol P. Juárez. 2023. “The effect of parental leave on parents’ mental health: a systematic review.” The Lancet Public Health 8, no. 1 (January). https://doi.org/10.1016/S2468-2667(22)00311-5.

Mitchell, Gemma. 2023. “Shared Parental Leave: Can Transferable Maternity Leave Ever Encourage Fathers to Care?” Industrial Law Journal 52, no. 1 (March): 149–178. https://doi.org/10.1093/indlaw/dwac015.

Olsson, Maria I. 2023. “Gender Gap in Parental Leave Intentions: Evidence from 37 Countries.” International Society of Political Psychology 44, no. 6 (January): 1163-1192. https://doi.org/10.1111/pops.12880.

“Paid Parental Leave for Federal Employees.” n.d. U.S. Department of Commerce. Accessed February 23, 2024. https://www.commerce.gov/hr/paid-parental-leave-federal-employees.

“Paid Parental Leave Is Available to Most Federal Employees—But Some May Not Know About It.” 2024. Government Accountability Office. https://www.gao.gov/blog/paid-parental-leave-available-most-federal-employees-some-may-not-know-about-it.

Peck, Emily. 2023. “Paid family leave still out of reach for most American workers.” Axios. https://www.axios.com/2023/02/01/fmla-paid-family-leave-policy-america.

Smith, Rosalind. 2022. “The 5 best countries for parental leave.” Mauve Group. https://mauvegroup.com/innovation-hub/blog/the-5-best-countries-for-parental-leave.

“State Paid Family Leave Laws Across the U.S.” 2024. Bipartisan Policy Center. https://bipartisanpolicy.org/explainer/state-paid-family-leave-laws-across-the-u-s/.

Tian, Guo. 2023. “The Legal System of the Maternity and Parenting Leave Under the Background of China’s “Three-Child” Policy: From the Perspective of the Right to Equal Employment.” Advances in Economics, Business and Management Research, (February), 369-389. https://doi.org/10.2991/978-2-494069-99-2_28

Williamson, Molly W. 2023. “Getting To Know the New FAMILY Act.” Center for American Progress. https://www.americanprogress.org/article/getting-to-know-the-new-family-act/.

You, Heewon. 2023. “Parental Leave Practice in Sweden and Gender Equality.” Lund University Publications. https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=9118994&fileOId=9118997.

Abortion and the Presidential Election: Examining Laws in the Swing States

By: Cate Bikales

Edited by: Sarah Wachs and Jonathan Perkins

It has been almost two years since the federal right to abortion was overturned in the‬ monumental‬‭ Dobbs v. Jackson Women’s Health Organization decision. In that time, the‬ pro‭-choice/pro-life debate has come to the forefront of politics. As many GOP lawmakers push for stronger abortion restrictions, Democrats are fighting to restore the federal right to abortion once guaranteed in‬ Roe v. Wade.‭[1]‬ For‭ pro-choice lawmakers and activists, abortion has served as a winning issue.‬ Ballot measures protecting and/or expanding abortion rights won in all six states where they appeared in 2022, including red‬ and‭ purple states, and elections in Ohio, Virginia and Kentucky in November proved that voters‬ are‭ ready and willing to turn out to maintain their right to bodily autonomy.[2] Many‬ Republican politicians have struggled to articulate a position on abortion that would satisfy the beliefs of strictly‬ pro‭-life evangelical Christians and pro-choice moderate/swing voters.[3]‬ Abortion is set to be a‬ critical‭ issue of debate as this year’s presidential election draws closer.[4] Since the overturning of Roe in 2022, President Biden — who seeks‬ re‭-election this year — has called on Congress to codify abortion rights and has expanded access to‬ abortion‭ medication and emergency abortions at hospitals through executive orders.[5] He has‬ also‭ attacked Republican presidential nominee Donald Trump for eroding reproductive rights.[6]‬ Trump‭ released a video on April 8 stating his official stance on abortion: “My view is now that‬ we‭ have abortion where everybody wanted it from a legal standpoint, the states will determine by vote‭ or legislation or perhaps both, and whatever they decide must be the law of the land. In this‬ case,‭ the law of the state.”[7] The former president’s‬ stance‭ on abortion has shifted greatly over time, from being “very pro-choice” in 1999 to vowing to overturn Roe and defund Planned Parenthood in 2016.[8]‬ There are six swing states in the 2024 election; a swing states is a state with similar levels of Republican and Democratic support and which are crucial in determining the outcome of presidential elections.[9] These states are Arizona, Georgia, Michigan, Nevada,‬ Pennsylvania,‭ and Wisconsin, and each one has differing‭ laws on abortion.[10] It remains to be seen how abortion will impact this year’s presidential election, but it could be a determining factor in which candidate wins these swing states. Below is a summary of abortion laws in each swing state.‬

ARIZONA‬‭

On‭ April 9, 2024, the Arizona Supreme Court issued a decision that allows the state to‬ renforce‭ a pre-statehood, near-total ban on abortion from 1864 against medical providers, except those‬ necessary‭ to save a pregnant person’s life.[11] The ban will not be enforced until June 8. [12]‬ Until‭ then, abortion remains legal up to 15 weeks into a pregnancy.[13]‬ Both‭ Democratic and Republican lawmakers have criticized the Arizona Supreme Court’s‬ recent decision. “This ruling is a result of the extreme agenda of Republican elected officials‬ who‭ are committed to ripping away women’s freedom,” Biden said in a statement following the‬ decision‭. “Vice President Harris and I stand with the vast majority of Americans who support a‬ woman’s‭ right to choose. We will continue to fight to protect reproductive rights and call on‬ Congress‭ to pass a law restoring the protections of‬ Roe v. Wade for‭ women in every state.”[14]‬ Even‭ Trump said that the ban goes “too far” and called on Arizona lawmakers to change‬ it;‭ however, he still defended the overturning of‬ Roe v. Wade which‭ has allowed states to ban the procedure‭.[15]‬

GEORGIA‬‭

Under‭ current law, abortion is banned after six weeks — the earliest that a fetal heartbeat‬ can‭ be detected — except in cases when the pregnant person’s life is at risk or in cases of rape and‬ incest‭ given that a police report is filed; the Georgia Supreme Court upheld this law in an‬ October‭ 2023 ruling, reversing a lower court decision that struck down the law.[16] This decision‭ has made abortion largely inaccessible in the South.[17]‬ Following‭ the decision, Press Secretary Karine Jean-Pierre released a statement on behalf‬ of‭ the Biden administration: “Today, the Georgia Supreme Court upheld a devastating abortion‬ ban‭ that has stripped away the reproductive freedom of millions of women in Georgia and‬ threatened‭ physicians with jail time for providing care… President Biden and Vice President‬ Harris‭ won’t stop fighting until the protections of‬ Roe v. Wade are‭ restored in federal law.”[18]‬ Since‭ stating that abortion rights should be left to the states, Trump has come‬ under‭ fire from Georgia conservatives, who are calling for national restrictions on abortion.[19]‬

MICHIGAN‬‭

In‭ 2022, voters enshrined the right to abortion into the state constitution, eliminating abortion restrictions in the state of Michigan.[20]‬ Michigan‭ Gov. Gretchen Whitmer (D) has been outspoken about her thoughts on‬ abortion,‭ saying that “it would be good” if President Biden was more vocal on the issue of‬ abortion‭ rights.[21] “I think people want to know that this is a president that is fighting… To use‬ more‭ blunt language, maybe that would be helpful,” she said in an interview with CBS News in‬ January‭.[22]‬ She‭ has also criticized Trump for his role in overturning‬ Roe.‭ “When Donald Trump says‬ he’s‭ proud that he overturned Roe, pay attention to what he really means: he’s proud to lead the‬ charge‭ to let politicians interfere in women’s private medical decisions,” she said in a social‬ media‭ post in April. “[President Biden] and [Vice President Harris] will stop a nationwide‬ abortion‭ ban and protect reproductive rights. We need to fight like hell to make sure they win in‬ November‭.”[23]‬

NEVADA‬‭

In‭ Nevada, abortion is legal up to the 24th week of pregnancy.[24] Lawmakers advanced a bill in 2023 that would‬ enshrine‭ protections for abortion in the state constitution.‬[25]‭ If passed again in 2025, and voters support the measure on the 2026 ballot, these protections‬ will‭ be added to the state constitution.[26]‬ President‭ Biden’s aides have said they see abortion rights as one of the keys to winning‬ the‭ battleground state. “...President Biden and Democrats won [Nevada] in 2020 and again in‬ 2022‭. And this year, we have the message and the infrastructure to win yet again,” a Biden‬ campaign‭ aide told reporters, according to ABC News. “These are states where voters‬ overwhelmingly‭ support a woman's right to choose and where abortion rights will likely be on‬ the‭ ballot [as well in November].”[27]‬ In‭ a visit to Las Vegas on April 15, Vice President Harris warned Nevadans that a Trump‬ presidency‭ may limit access to abortion and birth control in the state.[28]

‭PENNSYLVANIA

Abortion‭ is legal up to the 24th week of pregnancy in Pennsylvania.[29] According to‬ Axios,‭ about half of Pennsylvania swing voters said that the presidential candidates’ stances on‬ abortion‭ will influence how they vote in the fall.[30] While the data, which comes from two‬ online‭ focus groups conducted by Engagious/Sago on Pennsylvanians who voted for Trump in‬ 2016‭ and Biden in 2020, does not represent a statistically significant sample, it does illustrate  how‬ some‭ voters are thinking and talking about this issue.[31] Out of the 11 participants, six said‬ they‭ would take Robert F. Kennedy Jr. over either of the presumptive nominees, although they‬ wanted‭ more clarity on his specific abortion policies.[32] Only one agreed with Trump’s opinion that‬ abortion‭ policy should be left to the states.[33]‬

WISCONSIN‬‭

In‭ Wisconsin, abortion is legal up to the 22nd week of pregnancy.[34] Following the‬ Dobbs decision‭ in June 2022, providers across Wisconsin‬‭ had stopped offering abortion because‬ of‭ a state law that was widely interpreted as banning abortions except in cases when the pregnant‬ person’s‭ life was at risk.[35] However, in Sept. 2023, Dane County Circuit Court Judge Diane‬ Schlipper‭ ruled that the 19th-century law banned feticide, rather than abortions performed with a‬ patient's‭ consent, allowing for abortion services to resume in the state.[36]‬ In‭ late April, two Wisconsinites harmed by Trump’s abortion restrictions traveled to four‬ spots‭ across Wisconsin to tell their stories and campaign for President Biden.[37] “What I went‬ through‭ was nothing short of barbaric and it did not need to happen,” said Amanda Zurawski at a‬ round‭ table event in Madison. Zurawski suffered from “catastrophic complications” at 18 weeks‬ but‭ could not get an abortion because Wisconsin’s abortion ban at the time made it illegal. “It‬ was‭ completely avoidable. It was preventable, but it did happen because of Donald Trump.”[38]‬

Notes:‬‭

1. Amiri,‭ Farnoush. “In post-roe era, House Republicans begin quiet push for new‬ restrictions‭ on abortion access.” AP News, 25 June 2023.‬ ‭https://apnews.com/article/abortion-access-estrictions-house-republicans-mife‬pristone‭-0d4c0b1dedd9e7f7408ecc84899d5c16‬.‭‬

2. ‭Cohen,‭ Rachel. “How abortion rights advocates won every ballot measure this‬ year‭.” Vox, 11 November 2022.‬ ‭https://www.vox.com/policy-and-politics/23451074/abortion-ballot-measure-mi‬dterms‭-kentucky-montana-michigan‬.‭‬

3. Ax,‭ Joseph. “How abortion could impact the 2024 US elections.” Reuters, 14‬ Dec‭. 2023.‬ ‭https://www.reuters.com/world/us/how-abortion-could-impact-2024-us-election‬s‭-2023-12-14/‬.‭

4. R&WS‭ Research Team. “Swing State Voters’ Support For Abortion Rights Ofers‬ Hope‭ to Democrats.” Redfeld & Wilton Strategies, 7 Dec. 2023.‬ ‭https://redfeldandwiltonstrategies.com/swing-state-voters-support-for-abortion‬-‭rights-ofers-hope-to-democrats/.‭‬‬

5. Wang,‭ Amy and Guild, Blair. “How Biden’s abortion stance has shifted over the‬ years‭.” The Washington Post, 17 April 2024.‬ https://www‭.washingtonpost.com/politics/2024/04/17/biden-abortion-stances/‬.‭‬

6. Wang and Guild. “How Biden’s abortion stance has shifted over the‬ ‭years.”

7. Knowles,‭ Hannah and LeVine, Marianne. “Trump says abortion should be left to‬ states,‭ does not endorse national limit.” The Washington Post, 8 April 2024.‬ ‭https://www.washingtonpost.com/elections/2024/04/08/trump-abortion-stateme‬nt

8. Wang, Amy and Usero, Adriana. “How Trump’s abortion stance has shifted over‬ ‭the years.” The Washington Post, 8 April 2024.‬ https://www‭.washingtonpost.com/politics/2024/04/08/trump-abortion-stances/‬.‭‬

9. “Swing‭ state.” Merriam-Webster, accessed 21 April 2024.‬ https://www‭.merriam-webster.com/dictionary/swing%20state‬.‭‬

10. Davis Jr., Elliott. “Biden Visits Pennsylvania. Here’s What to Know About the‬ Swing‭ State.” U.S. News, 18 April 2024. ‭https://www.usnews.com/news/elections/articles/the-2024-swing-states-pennsy‬lvania‭-could-sway-the-2024-election‬.‭‬‬‭

11. “Abortion in Arizona.” ACLU Arizona, 10 April 2024.‬ ‭https://www.acluaz.org/en/issues/abortion-arizona‬‭‬.

12. Bushard, Brian. “Arizona Will Not Enforce 1864 Abortion Law Until June.”‬ Forbes,‭ 19 April 2024. ‭https://www.forbes.com/sites/brianbushard/2024/04/19/arizona-will-not-enforce‬-‭1864-abortion-law-until-june/?sh=42c51f681b1.

13. Haines, Julia. “Where State Abortion Laws Stand Without Roe.” U.S. News, 10‬ April‭ 2024.‬ ‭https://www.usnews.com/news/best-states/articles/a-guide-to-abortion-laws-by‬-‭state‬.‭‬

14. “Statement from President Joe Biden on Arizona Supreme Court Decision to‬ Uphold‭ Abortion Ban from 1864.” White House, 9 April 2024.‬ https://www‭.whitehouse.gov/briefng-room/statements-releases/2024/04/09/stat‬ement‭-from-president-joe-biden-on-arizona-supreme-court-decision-to-uphold-‬abortion‭-ban-from-1864/‬.‭‬

15. Barrow, Bill and Gomez Licon, Adriana. “Trump says Arizona’s abortion ban‬ ‭goes too far while defending the overturning of Roe v. Wade.” AP News, 10 April‬ 2024‭.‬ https://apnews‭.com/article/trump-abortion-arizona-law-forida-ban-7cdd6d2e3c‬320a89ec7a7c037824e7cd‭.‭‬‬

16. ‬‭“SisterSong v. State of Georgia (Georgia).” Center for Reproductive Rights, 26‬ July‭ 2022.‬ ‭https://reproductiverights.org/case/post-roe-state-abortion-ban-litigation/sisters‬ong‭-v-state-georgia/#:~:text=Status%3A%20The%20Georgia%20Supreme%20‬Court,remaining%20claims%20in%20the%20case‭.‭‬‬

17. “Georgia Supreme Court Allows Six-Week Abortion Ban to Remain in Efect as‬ Legal‭ Challenge Continues.” ACLU, 24 Oct. 2023. ‬‭https://www.aclu.org/press-releases/georgia-supreme-court-allows-six-week-ab‬‭ortion-ban-to-remain-in-efect-as-legal-challenge-continues‬‭‬.

18. ‬‭“Statement from Press Secretary Karine Jean-Pierre on Georgia Supreme Court‬ Decision‭ Upholding Abortion Ban.” White House, 24 Oct. 2023.‬ ‭https://www.whitehouse.gov/briefng-room/statements-releases/2023/10/24/stat‬‭ement-from-press-secretary-karine-jean-pierre-on-georgia-supreme-court-decis‬‭ion-upholding-abortion-ban/‬‭‬.

19. Bluestein, Greg. “Trump’s abortion stance faces Georgia backlash on both sides‬ ‭of the issue.” AJC Politics, 9 July 2024.‬ https://www‭.ajc.com/politics/trumps-abortion-stance-faces-georgia-backlash-o‬n‭-both-sides-of-the-issue/IKTOTV6HUJDO7CMXPKOBVEIEHI/.‭‬‬

20. ‭Haines. “Where State Abortion Laws Stand Without Roe.”

21. ‬‭Barkof, Sophia. “Gretchen Whitmer says it "would be good" if Biden was more‬ vocal‭ on abortion.” CBS News, 20 Jan. 2024.‬ ‭https://www.cbsnews.com/news/gretchen-whitmer-wants-biden-more-vocal-on‬‭-abortion/‭‬.‬

22. ‬‭Barkof. “Gretchen Whitmer says it "would be good" if Biden was more‬ ‭vocal on abortion.”

23. @gretchenwhitmer, “When Donald Trump says…,” X, 8 April 2024. ‭https://twitter.com/gretchenwhitmer/status/1777355934831886338‬‭‬.

24. Haines. “Where State Abortion Laws Stand Without Roe.”

25. Haines. “Where State Abortion Laws Stand Without Roe.”

26. ‬‭Haines. “Where State Abortion Laws Stand Without Roe.”

27. Cathey, Libby et al. “Biden campaign sees abortion rights, independent voters‬ ‭as key in Arizona and Nevada.” ABC News, 18 Mar. 2024.‬ https://abcnews‭.go.com/Politics/biden-sees-abortion-independents-key-arizona‬-‭nevada/story?id=108253332‬.‭‬

28. ‬‭Solis, Jenifer. “Harris warns a second Trump term would endanger abortion‬ rights‭ in Nevada.” Nevada Current, 15 April 2024. ‬‭https://nevadacurrent.com/2024/04/15/harris-warns-a-second-trump-term-woul‬‭d-endanger-abortion-rights-in-nevada/‭‬.‬

29. ‬‭“Abortion.” Department of Health, accessed on 21 April, 2024.‬ https://www‭.health.pa.gov/topics/disease/Maternal-Health/Pages/Abortion.aspx‬#:~:text=Under%20Pennsylvania%20law%2C%20an%20abortion,life%20of%2‬‭0the%20pregnant%20person‬‭

30. Scott, Eugene. “Focus groups: Swing voters aren't buying Trump's abortion‬ stance‭.” Axios, 11 April 2024.‬ https://www‭.axios.com/2024/04/12/abortion-trump-biden-voters-poll‬.‭‬

31. ‬‭Scott. “Focus groups: Swing voters aren't buying Trump's abortion‬ stance‭.”

32. Scott. “Focus groups: Swing voters aren't buying Trump's abortion stance‭.”

33. ‬‭Scott. “Focus groups: Swing voters aren't buying Trump's abortion‬ stance‭.”

34. “Interactive Map: US Abortion Policies and Access After Roe.” Guttmacher‬ Institute,‭ 8 April 2024.‬ https://states‭.guttmacher.org/policies/wisconsin/abortion-policies‬.‭‬

35. ‬‭Sherman, Carter. “Planned Parenthood in Wisconsin to resume abortion care‬ after‭ judge’s ruling.” The Guardian, 14 Sep. 2023.‬ ‭https://www.theguardian.com/world/2023/sep/14/wisconsin-abortion-planned-p‬arenthood‭.‭‬‬

36. ‬‭Lehr, Sarah. “Abortions resume in Wisconsin after 15 months of legal‬ uncertainty‭.” NPR, 21 Sep. 2023.‬ ‭https://www.npr.org/sections/health-shots/2023/09/21/1200610927/abortions-re‬sume‭-in-wisconsin-after-15-months-of-legal-uncertainty‬.‭‬

37. ‬‭Spears, Baylor. “Women harmed by abortion restrictions campaign against‬ ‭Trump in Wisconsin.” Wisconsin Examiner, 17 April 2024.‬https://wisconsinexaminer.com/2024/04/17/women-harmed-by-abortion-restrict‬ ‭ions-campaign-against-trump-in-wisconsin/‬‭‬.

38. Spears. “Women harmed by abortion restrictions campaign against‬ Trump‭ in Wisconsin.”

Bibliography:‬‭

“Abortion‭.”‬ Department of Health,‭ accessed on April 21,‬‭ 2024.‬ https://www‭.health.pa.gov/topics/disease/Maternal-Health/Pages/Abortion.aspx#:~:text=Und‬er%20Pennsylvania%20law%2C%20an%20abortion,life%20of%20the%20pregnant%20pers‬‭‭on. 

‭“Abortion in Arizona.”‬ACLU Arizona, 10 April 2024.‬ https://www.acluaz.org/en/issues/abortion-arizona.‬

‭Amiri, Farnoush. “In post-roe era, House Republicans begin quiet push for new‬ ‭restrictions on abortion access.”‬AP News, 25 June‬‭ 2023.‬ https://apnews‭.com/article/abortion-access-estrictions-house-republicans-mifepristone-0d4c0‬b1dedd9e7f7408ecc84899d5c16.‬ 

‭Ax, Joseph. “How abortion could impact the 2024 US elections.”‬ Reuters, 14 Dec. 2023.‬ ‭https://www.reuters.com/world/us/how-abortion-could-impact-2024-us-elections-2023-12-14‬/‭.‬

Barkoff,‭ Sophia. “Gretchen Whitmer says it "would be good" if Biden was more vocal on‬ abortion‭.” ‬CBS News,‭ 20 Jan. 2024.‬ ‭https://www.cbsnews.com/news/gretchen-whitmer-wants-biden-more-vocal-on-abortion/.

‭Barrow, Bill and Gomez Licon, Adriana. “Trump says Arizona’s abortion ban goes too far while‬ ‭defending the overturning of Roe v. Wade.”‬ AP News‭,‬‭ 10 April 2024.‬ https://apnews‭.com/article/trump-abortion-arizona-law-florida-ban-7cdd6d2e3c320a89ec7a7‬‭c037824e7cd.‬ 

Bluestein,‭ Greg. “Trump’s abortion stance faces Georgia backlash on both sides of the issue.”‬ AJC Politics,‭ 9 July 2024. https://www‭.ajc.com/politics/trumps-abortion-stance-faces-georgia-backlash-on-both-sides-o‬f‭-the-issue/IKTOTV6HUJDO7CMXPKOBVEIEHI/.

Bushard,‭ Brian. “Arizona Will Not Enforce 1864 Abortion Law Until June.”‬ Forbes,‭ 19 April‬ 2024‭.‬ ‭https://www.forbes.com/sites/brianbushard/2024/04/19/arizona-will-not-enforce-1864-aborti‬on‭-law-until-june/?sh=42c51ff681b1.‬

Cathey,‭ Libby et al. “Biden campaign sees abortion rights, independent voters as key in Arizona‬ and‭ Nevada.”‬ABC News,‭ 18 Mar. 2024. https://abcnews‭.go.com/Politics/biden-sees-abortion-independents-key-arizona-nevada/story?‬‭id=108253332.‬ 

Cohen,‭ Rachel. “How abortion rights advocates won every ballot measure this year.” ‬Vox,‭ 11‬ November‭ 2022.‬ ‭https://www.vox.com/policy-and-politics/23451074/abortion-ballot-measure-midterms-kentu‬‭cky-montana-michigan.‬ 

Davis‭ Jr., Elliott. “Biden Visits Pennsylvania. Here’s What to Know About the Swing State.”‬ U.S. News,‭ 18 April 2024.‬ ‭https://www.usnews.com/news/elections/articles/the-2024-swing-states-pennsylvania-could-s‬way‭-the-2024-election.‬ 

‭“Georgia Supreme Court Allows Six-Week Abortion Ban to Remain in Effect as Legal‬ ‭Challenge Continues.”‬ ACLU‭, 24 Oct. 2023.‬ https://www‭.aclu.org/press-releases/georgia-supreme-court-allows-six-week-abortion-ban-to-‬‭remain-in-effect-as-legal-challenge-continues.‬ 

@gretchenwhitmer,‭ “When Donald Trump says…,”‬ X,‭ 8‬‭ April 2024,‬ https://twitter‭.com/gretchenwhitmer/status/1777355934831886338.‬ 

‭Haines, Julia. “Where State Abortion Laws Stand Without Roe.” ‬U.S. News, 10 April 2024.‬ ‭https://www.usnews.com/news/best-states/articles/a-guide-to-abortion-laws-by-state.‬ 

“Interactive‭ Map: US Abortion Policies and Access After Roe.” ‬Guttmacher Institute,‭ 8 April‬ 2024‭. https://states.guttmacher.org/policies/wisconsin/abortion-policies.‬

Knowles,‭ Hannah and LeVine, Marianne. “Trump says abortion should be left to states, does not‬ endorse‭ national limit.”‬ The Washington Post,‭ 8 April‬‭ 2024.‬ ‭https://www.washingtonpost.com/elections/2024/04/08/trump-abortion-statement/

Lehr,‭ Sarah. “Abortions resume in Wisconsin after 15 months of legal uncertainty.”‬ NPR,‭ 21 Sep.‬ 2023‭.‬ ‭https://www.npr.org/sections/health-shots/2023/09/21/1200610927/abortions-resume-in-wisc‬onsin‭-after-15-months-of-legal-uncertainty.‬ 

R&WS‭ Research Team. “Swing State Voters’ Support For Abortion Rights Offers Hope to‬ Democrats‭.”‬ Redfield & Wilton Strategies,‭ 7 Dec. 2023.‬ https://redfieldandwiltonstrategies‭.com/swing-state-voters-support-for-abortion-rights-offers-‬hope‭-to-democrats/.‬ 

Scott,‭ Eugene. “Focus groups: Swing voters aren't buying Trump's abortion stance.” ‬Axios,‭ 11‬ April‭ 2024. https://www.axios.com/2024/04/12/abortion-trump-biden-voters-poll.‬

‭Sherman, Carter. “Planned Parenthood in Wisconsin to resume abortion care after judge’s‬ ‭ruling.”‬ The Guardian, ‭14 Sep. 2023.‬ https://www‭.theguardian.com/world/2023/sep/14/wisconsin-abortion-planned-parenthood.‬

“SisterSong‭ v. State of Georgia (Georgia).”‬ Center for Reproductive Rights,‭ 26 July 2022.‬ https://reproductiverights‭.org/case/post-roe-state-abortion-ban-litigation/sistersong-v-state-ge‬orgia/#:~:text=Status%3A%20The%20Georgia%20Supreme%20Court,remaining%20claims‬‭‭%20in%20the%20case.‬

Solis,‭ Jeniffer. “Harris warns a second Trump term would endanger abortion rights in Nevada.”‬ Nevada Current,‭ 15 April 2024.‬ https://nevadacurrent‭.com/2024/04/15/harris-warns-a-second-trump-term-would-endanger-ab‬ortion‭-rights-in-nevada/.‬

‭“Statement from President Joe Biden on Arizona Supreme Court Decision to Uphold Abortion‬ ‭Ban from 1864.”‬ White House‭, 9 April 2024.‬ https://www‭.whitehouse.gov/briefing-room/statements-releases/2024/04/09/statement-from-p‬‭resident-joe-biden-on-arizona-supreme-court-decision-to-uphold-abortion-ban-from-1864/.‬

“Statement‭ from Press Secretary Karine Jean-Pierre on Georgia Supreme Court Decision‬ Upholding‭ Abortion Ban.”‬ White House,‭ 24 Oct. 2023.‬ ‭https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/24/statement-from-p‬‭ress-secretary-karine-jean-pierre-on-georgia-supreme-court-decision-upholding-abortion-ban‬‭.‬/

“Swing‭ state.” ‬Merriam-Webster,‭ accessed 21 April 2024.‬ https://www‭.merriam-webster.com/dictionary/swing%20state.‬

‭Wang, Amy and Guild, Blair. “How Biden’s abortion stance has shifted over the years.”‬ The Washington Post,‭ 17 April 2024.‬ https://www‭.washingtonpost.com/politics/2024/04/17/biden-abortion-stances/.‬

Wang,‭ Amy and Usero, Adriana. “How Trump’s abortion stance has shifted over the years.”‬ The Washington Post,‭ 8 April 2024.‬ https://www‭.washingtonpost.com/politics/2024/04/08/trump-abortion-stances/.‬

Restrictions on the Use of Michelangelo’s David: Cultural Curation or Cultural Censorship?

By: Faith Magiera

Edited by: Jared Fischer and Angie Chung

Michelangelo’s David is an iconic part of the culture of not only Italy but the whole world. The Renaissance sculpture nicknamed “The Giant” which depicts David from the Bible’s David and Goliath story, quickly became a well-known piece of Italy’s history after its completion in 1504. [1] However, it has recently been the subject of censorship and national control debates in Italy, as museum curator Cecilie Hollberg has started to win suits on behalf of the David in order to limit its use as a merchandise item or promotional tool. [2] As the director of the Galleria Dell’Accademia Di Firenze, the main art museum in Florence, Hollberg has come under fire for likening Florentine tourism to a process that has made the city a “prostitute,” an ideology that is consistent with her lawsuits against the widespread use of David. [3] While restricting the use of the sculpture’s image may initially seem like a violation of intellectual property law, the Italian Cultural Heritage Code, made constitutional under article nine of the Italian Constitution “promotes the development of culture” and “safeguards…the historical and artistic heritage of the nation,” complicates the issue. [4]

Italy’s intellectual property law, and the specific implications it holds for museum artworks, is a complex issue that was changed by the advent of Italy’s Code of Cultural Heritage and Landscape, which was updated in 2004. [5] Yet before we dive into the legal implications of Italy’s newest cultural code, let us investigate what is unique about Michelangelo’s David. To understand why David is such an interesting case study, it is first important to delve into how it came to be. A piece commissioned during the Renaissance in Florence, it was meant to be exhibited in the Florence Cathedral but was moved for unknown reasons to the Palazzo Vecchio, which operated as the town hall of Florence at the time. [6] Significant to note here is the shift of David from its traditional religious significance into a nonreligious, political context. [7] During this time, there was also the shift of Florence from a Medici-led dictatorship to an attempted restoration of the Republic, so the sculpture became a “symbol of the Florentine Republic.” [8] Consequently, David came to hold a symbolic significance for the people of Florence, which considered it to represent their “strength and independence,” as explained by the Galleria Dell’Accademia, which now houses the sculpture. [9] This complicated historical, and political context is a reason why it is now considered as the cultural property of Italy, a categorization explained below.

The United States does not have a comparable Act that serves to protect its national heritage, so it is essential to dive into Italy’s Cultural Code to understand what is so different about this categorization of public works. As defined in Italy’s Cultural Code, cultural property is a category of “things which… present historical, archaeological, ethnoanthropological, archival and bibliographic interest” or act as “testifying to the values of civilization,” which includes museum artifacts. [10] As investigated above, David seems to fall into this unique classification because of its historical production and symbolism that allows the Italian government and other institutions, such as the Galleria, to have greater control over its image. Protection of cultural property is defined in this Act as “provisions aimed at conforming or regulating the rights and behavior inherent to cultural heritage” while also making room for “public enjoyment” of these artifacts. [11] This Act also created the Ministry for Cultural Heritage and Activities in order to ensure that the government had an institution ready to deal with the potential actions that would be taken on the act’s behalf, including whether or not the Act can be reproduced or used in merchandise. [12] Unlawful use of cultural property is defined as “a use that is incompatible with [its] historical or artistic nature or which is harmful to [its] conservation or integrity,” which does not necessarily consider reproductions, but certainly shows the commitment of the Italian government to preserving cultural artifacts from being used in contexts that it deems unseemly. [13] As seeking approval from the government is the only alternative in order to ensure that the use will not result in a suit, it is easy to see how Hollberg has been able to leverage this Act in order to stop the proliferation of the image of David on pieces of merchandise that are deemed to be demeaning to David’s image as a cultural icon. This is seen pointedly in one case that ruled that Conde Nast would have to pay fees back to the Galleria because of its unauthorized use of David in a magazine article. [14]

Italy’s Cultural Heritage Code, an unprecedented and extensive Act, clashes with ideas about intellectual property set by the Berne Convention, which Italy agreed to in 1886 and amended in 1979. [15] This treaty set the standard for works entering the public domain 50 years after the death of the author––or in David’s case, the artist––and was signed by 181 countries since its conception in 1886. [16] After a work enters the public domain, there are usually no protections regarding how the work can be used. Therefore, Italy’s Cultural Heritage Code has created a new category of work that can require protection not because of its status as being the copyrighted work of a particular author or artist, but because of its inherent worth or value to Italy’s cultural identity. This new, liminal category allows those interested in intellectual property a lens to see the interaction of cultural, and moral values with ideas of freedom of speech and expression inherent to public domain images. Additionally, it potentially clashes with an agreement in the European Union that puts all works that are no longer copyrighted under the Berne Convention into the public domain, another legal implication of this new type of law. [17]

As Cecilie Hollberg explained in a recent piece for The Guardian, she wants to take a more sustainable approach to tourism that prioritizes preserving not only knowledge of great works but also the character of Florence as a city. [18] She explains that, after her successful suits have stopped the proliferation of David’s likeness, “visitors also look at other objects and give them the dignity and respect they merit.” [19] The question then becomes: is it the power of the museum, or the government on the museum’s behalf, to regulate the use of an image in order to curate an educational or cultural environment? Hollberg’s repeated attacks on tourism and merchandise she sees as “in bad taste” raises legal questions about what the role of the museum is in building a national culture, and how that can be regulated by a national government that is focused on curating a specific image of itself. [20] Whether or not a sculpture, which has been in the public domain for centuries, can be regulated in its use is a question that has ethical and moral implications for what an artwork represents in today’s global, not just national, culture. Currently, the decision for Italy specifically seems to be leaning to the idea of cultural curation as opposed to the free proliferation of images, but the future of global legality is still an open question.

Notes:

1. Victoria and Albert Museum. 2018. “V&A · The Story of Michelangelo’s David.” Victoria and Albert Museum. V&A. 2018. https://www.vam.ac.uk/articles/the-story-of-michelangelos-david. 

2. Barry, Colleen. “A Fight to Protect the Dignity of Michelangelo’s David Raises Questions about Freedom of Expression.” 2024. AP News. March 28, 2024. https://apnews.com/article/michelangelo-david-statue-italy-protection-heritage-3fa1b7185fea36003e064fa6e2c309fd.

3. Greenberger, Alex. 2024. “Florence Museum Director Says Tourism Has Turned the City into a ‘Prostitute,’ Drawing Pushback.” ARTnews.com. January 30, 2024. https://www.artnews.com/art-news/news/florence-prostitute-accademia-director-cecilie-hollberg-controversy-1234694564/. 

4. Constitution of the Italian Republic, Art. 9. and Cassady, Daniel. 2023. “Florence’s Gallerie Dell’Accademia Wins Image Rights to Michelangelo’s ‘David.’” ARTnews.com. May 31, 2023. https://www.artnews.com/art-news/news/michelangelos-image-rights-1234670119/. 

5. Code of Cultural and Landscape Heritage, 42, It. (2004). 

6. Dill, Vithória Konzen. 2022. “Masterpiece Story: David by Michelangelo.” DailyArt Magazine. September 8, 2022. https://www.dailyartmagazine.com/david-by-michelangelo/. 

7. Dill, Vithória Konzen. 2022. “Masterpiece Story: David by Michelangelo.”

8. Dill, Vithória Konzen. 2022. “Masterpiece Story: David by Michelangelo.”  

9. “Michelangelo’s David.” 2021. Galleria Dell’Accademia Di Firenze. November 17, 2021. https://www.galleriaaccademiafirenze.it/en/artworks/david-michelangelo/. 

10. Code of Cultural and Landscape Heritage, 42, Article 2, It. (2004). 

11. Code of Cultural and Landscape Heritage, 42, Article 3, It. (2004).

12. Code of Cultural and Landscape Heritage, 42, Article 4, It. (2004).

13.  Code of Cultural and Landscape Heritage, 42, Article 170, It. (2004).

14. Borgogni, Daniel. 2023. “The Court of Florence Finds against Condé Nast for Use of the Image of the David by Michelangelo, Recognizing Image Rights to the Work of Art.” Italy Intellectual Property Blog. June 13, 2023. https://www.ipinitalia.com/copyright/the-court-of-florence-finds-against-conde-nast-for-use-of-the-image-of-the-david-by-michelangelo-recognizing-image-rights-to-the-work-of-art/.

15. “Berne Convention for the Protection of Literary and Artistic Works.” n.d. Www.wipo.int. https://www.wipo.int/treaties/en/ip/berne/#:~:text=The%20Berne%20Convention%2C%20adopted%20in. 

16. World Intellectual Property Organization. 2019. “Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886).” World Intellectual Property Organization. 2019. https://www.wipo.int/treaties/en/ip/berne/summary_berne.html. 

17. Barry, Colleen. “A Fight to Protect the Dignity of Michelangelo’s David Raises Questions about Freedom of Expression.” 

18. Hollberg, Cecilie. 2024. “Hit-And-Run Tourism Is Tearing the Heart out of Florence – There Is a Better Way.” The Guardian, April 18, 2024, sec. Opinion. https://www.theguardian.com/commentisfree/2024/apr/18/tourism-florence-michelangelo-david-visitors-souvenirs. 

19. Hollberg, Cecilie. 2024. “Hit-And-Run Tourism Is Tearing the Heart out of Florence – There Is a Better Way.”  

20. ‌Barry, Colleen. “A Fight to Protect the Dignity of Michelangelo’s David Raises Questions about Freedom of Expression.” 

Bibliography:

Barry, Colleen. “A Fight to Protect the Dignity of Michelangelo’s David Raises Questions about Freedom of Expression.” 2024. AP News. March 28, 2024. https://apnews.com/article/michelangelo-david-statue-italy-protection-heritage-3fa1b7185fea36003e064fa6e2c309fd.

Borgogni, Daniel. 2023. “The Court of Florence Finds against Condé Nast for Use of the Image of the David by Michelangelo, Recognizing Image Rights to the Work of Art.” Italy Intellectual Property Blog. June 13, 2023. https://www.ipinitalia.com/copyright/the-court-of-florence-finds-against-conde-nast-for-use-of-the-image-of-the-david-by-michelangelo-recognizing-image-rights-to-the-work-of-art/. 

Cassady, Daniel. 2023. “Florence’s Gallerie Dell’Accademia Wins Image Rights to Michelangelo’s ‘David.’” ARTnews.com. May 31, 2023. https://www.artnews.com/art-news/news/michelangelos-image-rights-1234670119/.

Code of Cultural and Landscape Heritage, 42 It. (2004)

Constitution of the Italian Republic, Article 9.

Dill, Vithória Konzen. 2022. “Masterpiece Story: David by Michelangelo.” DailyArt Magazine. September 8, 2022. https://www.dailyartmagazine.com/david-by-michelangelo/.

Greenberger, Alex. 2024. “Florence Museum Director Says Tourism Has Turned the City into a ‘Prostitute,’ Drawing Pushback.” ARTnews.com. January 30, 2024. https://www.artnews.com/art-news/news/florence-prostitute-accademia-director-cecilie-hollberg-controversy-1234694564/.

‌ Hollberg, Cecilie. 2024. “Hit-And-Run Tourism Is Tearing the Heart out of Florence – There Is a Better Way.” The Guardian, April 18, 2024, sec. Opinion. https://www.theguardian.com/commentisfree/2024/apr/18/tourism-florence-michelangelo-david-visitors-souvenirs. 

“Italy: New Code of Cultural Heritage and Landscape.” n.d. Library of Congress, Washington, D.C. 20540 USA. https://www.loc.gov/item/global-legal-monitor/2016-05-20/italy-new-code-of-cultural-heritage-and-landscape/. 

“Michelangelo’s David.” 2021. Galleria Dell’Accademia Di Firenze. November 17, 2021. https://www.galleriaaccademiafirenze.it/en/artworks/david-michelangelo/. 

‌‌ Victoria and Albert Museum. 2018. “V&A · The Story of Michelangelo’s David.” Victoria and Albert Museum. V&A. 2018. https://www.vam.ac.uk/articles/the-story-of-michelangelos-david. ‌

World Intellectual Property Organization. 2019. “Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886).” World Intellectual Property Organization. 2019. https://www.wipo.int/treaties/en/ip/berne/summary_berne.html.