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Symposium: Gender, Health & The Constitution: On The Constitutional Requirement For Adequate Prenatal Care Post-Dobbs, Ainslee Johnson-Brown
Symposium: Gender, Health & The Constitution: On The Constitutional Requirement For Adequate Prenatal Care Post-Dobbs, Ainslee Johnson-Brown
ConLawNOW
This Essay argues that state abortion statutes codifying government interests in the health and welfare of the unborn trigger a constitutional right to prenatal care where adequate medical care is constitutionally required in the penal system. It explores the healthcare mandates required by the U.S. Constitution in the era before the passage of the Supreme Court’s decision in Dobbs, specifically looking at abortion access and prenatal provisions in the penological system. It then dissects abortion-related legislation passed by various states in the wake of Dobbs—emphasizing language within the legislative findings that could trigger a constitutional obligation for prenatal …
Symposium: Gender, Health And The Constitution: More Than Merely "Two-Legged Wombs": Lessons On Metaphor And Body Politics From Atwood's The Handmaiden's Tale (1985), Rachel Conrad Bracken
Symposium: Gender, Health And The Constitution: More Than Merely "Two-Legged Wombs": Lessons On Metaphor And Body Politics From Atwood's The Handmaiden's Tale (1985), Rachel Conrad Bracken
ConLawNOW
This essay explores the dehumanizing potential of metaphors used to describe women’s reproductive biology through literary analysis of Margaret Atwood’s canonical feminist novel The Handmaid’s Tale (1985). Attending to the rhetoric that both justifies and contests ritualized rape and forced surrogacy in Atwood’s novel, this essay begins by interrogating the ubiquitous cultural and biomedical metaphors that reduce women and pregnant people to their bodies’ reproductive potential. The first section draws from scholarship in medical anthropology, medical rhetoric, and literary studies to illuminate how gendered stereotypes pervade biomedical, cultural, and legal representations of reproduction, reifying the conflation of women and people …
Symposium: Gender, Health, And The Constitution: Reforming Clinical Trial Pregnancy Exclusions, Jennifer D. Oliva
Symposium: Gender, Health, And The Constitution: Reforming Clinical Trial Pregnancy Exclusions, Jennifer D. Oliva
ConLawNOW
This essay argues the exclusion of pregnant people from drug and biologic clinical trials is paternalistic, unjust, and counterproductive because the failure to include pregnant people in experimental trials can enhance risks to maternal and fetal health. Bioethicists, legal scholars, and other researchers have pleaded for reform in this context for decades. This article describes pregnancy medical drug use and the genesis and evolution of federal regulations and policies that operate to exclude pregnant people from clinical trials. It argues that the implementation of legal reforms that ensure the inclusion of pregnant people in clinical trials is imperative given Covid, …
Abortion Rights And Federalism: Some Lessons From The Nineteenth Century United States, Kate Masur
Abortion Rights And Federalism: Some Lessons From The Nineteenth Century United States, Kate Masur
ConLawNOW
The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has prompted frequent allusions to slavery and the antebellum United States. The history of those struggles reminds us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights. The history of the United States in the nineteenth century …
Symposium: The Future Of Reproductive Rights: Reevaluating Regional Law Reform Strategies After Dobbs, Jamie R. Abrams
Symposium: The Future Of Reproductive Rights: Reevaluating Regional Law Reform Strategies After Dobbs, Jamie R. Abrams
ConLawNOW
This article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence” to garner insights to inform the vital work of regional law reform in a post-Dobbs America. While these campaigns, each located in the regional mid-South, were motivated by restrictive state abortion bills, they uniquely positioned menstruation and women’s bodies at the center of their activism—not abortion alone. They leveraged, as a political fault line, the contradiction of these states’ governors’ perceived disgust relating to basic women’s reproductive health, relative to their patriarchal assuredness in regulating and controlling women’s bodies. In so doing, they …
Symposium: The Future Of Reproductive Rights: Dobbs And Unenumerated Parental Custody Rights And Interests, Jeffrey A. Parness
Symposium: The Future Of Reproductive Rights: Dobbs And Unenumerated Parental Custody Rights And Interests, Jeffrey A. Parness
ConLawNOW
This article addresses issues involving custodial parents after Dobbs. It first briefly describes the federal constitutional right to an interest in custodial parentage under pre-Dobbs U.S. Supreme Court precedents. It finds few precedents on defining parents at birth and no precedents on defining parentage arising from post-birth acts. The paper then reviews Dobbs, particularly its varying takes on unenumerated constitutional rights. Finally, it explores how Dobbs should influence future precedents on federal constitutional custodial parentage that arises either at birth or after birth. It urges federal courts to expand custodial parentage in light of societal changes in …
Symposium: The Future Of Reproductive Rights: An Embryo Is Not A Person: Rejecting Prenatal Personhood For A More Complex View Of Prenatal Life, Cynthia Soohoo
Symposium: The Future Of Reproductive Rights: An Embryo Is Not A Person: Rejecting Prenatal Personhood For A More Complex View Of Prenatal Life, Cynthia Soohoo
ConLawNOW
This essay considers current claims for prenatal personhood after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. It first explains how the Dobbs decision unnecessarily adopts a binary view of prenatal life, suggesting that the only option for courts and legislatures is to recognize prenatal personhood or deny protection for prenatal life. This ignores popular understandings that certain laws can and should protect prenatal life, especially where criminal or tortious actions are concerned, but not grant full legal personhood. The Dobbs decision also refused to draw meaningful lines about the value of prenatal life in …
Symposium: The Future Of Reproductive Rights: Big, Bad Roe, B. Jessie Hill
Symposium: The Future Of Reproductive Rights: Big, Bad Roe, B. Jessie Hill
ConLawNOW
After the Supreme Court’s reversal of Roe v. Wade, the question of a constitutional right to abortion goes to state courts where there is a potential for resurgence of a Roe-like standard. This Essay thus evaluates whether Roe’s doctrinal framework is worth resurrecting, and concludes that it is good law to retain. It criticizes the work of liberal legal scholar John Hart Ely, who famously attacked Roe’s reasoning in a much-cited essay entitled The Wages of Crying Wolf: A Comment on Roe v. Wade. Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization cited …
Symposium: The Future Of Reproductive Rights: Situating Dobbs, Paula Monopoli
Symposium: The Future Of Reproductive Rights: Situating Dobbs, Paula Monopoli
ConLawNOW
This Article applies the concept of constitutional memory to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to dispute the dominant view that the case was unique in erasing a constitutional right. It offers three examples—voting, Prohibition, and protective labor legislation—to illustrate how situating Dobbs within an expansive view of feminist legal history teaches us that it is not the only—just the most recent—example of the Court’s eroding or erasing previously recognized legal protections or rights that had a positive impact on women’s lives. It concludes that Congress, the Supreme Court, and the People themselves have been …
Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry
Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry
ConLawNOW
This article critiques the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization for its unprincipled and superficial use of foreign law sources to overturn Roe v. Wade. It explains the surprising use of foreign law by conservative justices who had previously opposed all use of non-US law in decision-making. And it shows how international and foreign law can be used on by either side to both expand and retrench rights. The article thus argues for a more principled framework for when and how to use international law sources including a more contextual analysis of that law.
Symposium: The Future Of Reproductive Rights: Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes
Symposium: The Future Of Reproductive Rights: Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes
ConLawNOW
This Article will describe two ways in which Dobbs v. Jackson Women’s Health Organization has muddied the Supreme Court’s precedent on precedent. First, it will examine how the Court’s decision to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey undermines not only its substantive due process holding, but also its status as a precedent on precedent. Without Casey in place, Dobbs further elevates a weakened version of stare decisis that has been ascendant on the Court in recent decades, one which threatens to undermine legal stability in all areas of constitutional law. Second, the Article will examine the Dobbs majority’s …
Justice Gorsuch's Choice: From Bostock V. Clayton County To Dobbs V. Jackson Women's Health Organization, Marc Spindelman
Justice Gorsuch's Choice: From Bostock V. Clayton County To Dobbs V. Jackson Women's Health Organization, Marc Spindelman
ConLawNOW
Informed speculation holds that the Supreme Court’s decision to hear and decide Dobbs v. Jackson Women’s Health Organization spells bad news for constitutional abortion rights. Recognizing both the stakes and the odds, this brief commentary engages Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County and the prospects that it opens up in Dobbs for a future for—not against—abortion rights. Bostock’s pro-gay and pro-trans sex discrimination rulings are built atop—and go out of their way to reaffirm—women’s statutorily-grounded economic and social rights, and hence women’s equal citizenship stature. Moreover, the final decision in the case emerges after judicial wrestling …