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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.
Roe V. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights, Simona Grossi
Roe V. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights, Simona Grossi
ConLawNOW
This Article details the Texas litigation on abortion rights in and out of the U.S. Supreme Court in 2021 and its implications for the future of constitutional rights. The litigation focused primarily on procedural issues like standing and sovereign immunity that prevented the plaintiffs’ claims of violation of fundamental constitutional rights to proceed to their merits. Such procedural doctrines have become a powerful tool in the hands of the Supreme Court used to control social and economic development. Thus procedure, originally conceived as the handmaid of justice, has become one of its main antagonists. This Article argues against such abuses …
Abortion Rights In The Supreme Court: A Tale Of Three Wedges, Jennifer S. Hendricks
Abortion Rights In The Supreme Court: A Tale Of Three Wedges, Jennifer S. Hendricks
ConLawNOW
In May 2021, the Supreme Court granted certiorari in a case designed to overrule Roe v. Wade. The assumption is that six justices are inclined to repudiate Roe, and that some of those six would like to go further, declaring a constitutional right to life that would prevent the abortion issue from going “back to the states” at all. The question for the next year is not whether Roe will be overruled—it already was, in Planned Parenthood v. Casey—but how far the Court will go. This essay describes the arc of the Supreme Court’s abortion jurisprudence in …