Law Commons^™

Decreasing The United States’ Maternal Mortality Rate: Using Policies Of Other High-Income Countries As A Model, Leah Frattellone

Pace International Law Review

The United States has the highest maternal mortality rate among high-income countries. This article focuses on policies the United States can implement to decrease the maternal mortality rate, with a focus on access to abortion, the standard of care for pregnant women and new mothers, access to healthcare, and family leave. This article also explores policies surrounding those areas in other high-income countries and analyzes the differences in both the actual policies and the outcomes of those policies. To effectively decrease the maternal mortality rate in the United States, policies from other high-income countries, with lower maternal mortality rates should …

Brief Of Amici Curiae In Support Of The United States: Moyle & Idaho V. United States, David S. Cohen, Greer Donley, Rachel Rebouché

Amici Briefs

This amicus brief, submitted to the Supreme Court in Moyle v. United States, argues that Moyle, and the impending circuit split surrounding it, is a symptom of a larger workability problem with the Dobbs v. Jackson Women’s Health Organization framework. Dobbs is already proving, in its brief existence, to be unworkable, and must be overturned. In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current …

The Impact Of Us Abortion Policy On Rheumatology Clinical Practice: A Cross-Sectional Survey Of Rheumatologists, Bonnie L. Bermas, Irene Blanco, Rosalind Ramsey-Goldman, Ashira D. Blazer, Megan E.B. Clowse, Cuoghi Edens, Greer Donley, Leslie Pierce, Catherine Wright, Mehret Birru Talabi

Articles

In June of 2022, the US Supreme Court's decision in Dobbs v Jackson Women’s Health overturned Roe v Wade, finding that there was no federal constitutional right to abortion. Subsequently, almost one third of states have near-total abortion bans in effect. Our team distributed a confidential web-based survey to a sample of US-based rheumatologists to assess how the Dobbs decision is affecting the clinical care of reproductive-age females with rheumatic diseases (RMDs), including teratogen prescribing, pregnancy termination referrals, and rheumatologists’ perceived vulnerability to criminalization.

The Independent Existence: A Look At Florida's Wrongful Death Statute In The Wake Of Dobbs And Changing State Abortion Laws., Katherine Bolliger

Child and Family Law Journal

Following the Supreme Court’s overturning of the federally mandated fundamental right to abortion founded in Roe¹ and Casey,² the decision of whether a woman may terminate a pregnancy has returned to the states with the current Court’s implementation of Dobbs v. Jackson Woman’s Health.³ In Florida, the state government decided to reduce the gestational age for termination to fifteen weeks in July 2022, and further reduced the gestational age to six weeks in April 2023 provided that the Florida Supreme Court upholds the fifteen week ban.⁴ This note operates under the fifteen week standard …

The Dobbs Effect On West Virginia, Anne Marie Lofaso, Cameron Kiner

West Virginia Law Review

Humans have practiced birth control, including abortion, for thousands of years. Pregnant individuals have sought abortions for many reasons even though the abortion procedure itself has often been dangerous to the pregnant person’s life. Moreover, a stable consensus concerning the debate about when life begins and other questions surrounding abortion has rarely if ever been attained. Notwithstanding the numerous questions raised by this indisputably controversial subject, this article is quite limited in scope. In Section I, we review the development and retrenchment of an individual’s right to terminate their pregnancy starting on January 22, 1973, the day that the United …

Equal Protection In Dobbs And Beyond: How States Protect Life Inside And Outside Of The Abortion Context, Reva Siegel, Serena Mayeri, Melissa Murray

All Faculty Scholarship

In two paragraphs at the beginning of Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi’s abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief’s arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case …

Originalism: Erasing Women From The Body Politic, Malinda L. Seymore

Faculty Scholarship

In Dobbs v. Jackson Women's Health, the Court relied on originalism to excise women from the Constitution. Originalism is purposefully backward-looking. With cherry-picked history, the Court created a future that looks to the past: a past where unwed pregnancy is shameful and can be redeemed only by secret adoption. Yet the case has revealed originalism as a flawed method, harmed the legitimacy of the Court, and energized those supporting abortion rights.

Abortion Pills, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Though antiabortion advocates and legislators are attacking pills with all manner of strategies, clinics, websites, and informal networks are openly facilitating the distribution of abortion pills, legally and illegally, across the United States. This Article is the first to explain this defining aspect of the post-Roe environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.

This Article first details antiabortion strategies to stop pills by any means necessary. These tactics …

Abortion—A Question Of Human Rights, Geoffrey J. Bennett, Christina M. Lyon

Journal Articles

Unlike the American Supreme Court which has been prepared to acknowledge, confront, and attempt to resolve the many problems associated with abortion, the European Commission of Human Rights in two cases that have only recently been reported has disappointingly side-stepped many of the difficult issues involved, and raised more questions than it answers. Furthermore, the reasoning in these decisions, which are concerned with the interpretation of several of the Articles of the European Convention on Human Rights, is at times vague and curiously ill-argued. The two decisions are first a German case, Bruggeman and Scheuten v Federal Republic of Germany …

Out Of Bounds?: Abortion, Choice Of Law, And A Modest Role For Congress, Susan Frelich Appleton

Scholarship@WashULaw

This invited contribution to a symposium on the multiple intersections of family law and constitutional law grapples with the emerging problems of jurisdictional competition and choice of law in interstate abortion situations in the wake of Dobbs v. Jackson Women’s Health Organization—as abortion-hostile states seek to impose restrictions beyond their borders and welcoming states seek to become havens for abortion patients, regardless of their domicile. Grounded in a conflict-of-laws perspective, the essay lays out the interstate abortion chaos invited by Dobbs and the threat to our federal system that it presents, given Congress’s failure to codify a national right to …

Why Reproductive Health Rights Should No Longer Be A Partisan Issue: A Call To Invest In Family Planning, Sofia Waterhouse

University of Miami Inter-American Law Review

The concepts of family planning and reproductive health rights are often obscured by the controversy that surrounds the topic of abortion. This controversy has substantially impacted the U.S.’s outlook on reproductive health rights and its support toward family planning organizations, often limiting funding and aid depending on each administration’s political views. While international law has recognized the importance of reproductive health rights and the necessity of family planning programs, the U.S. continues to fall be-hind when it comes to promoting such rights. This article calls for a bipartisan effort to end these regressive and harmful anti–abortion policies so that the …

Frozen Embryos, Male Consent, And Masculinities, Dara E. Purvis

Indiana Law Journal

Picture two men facing the possibility of unwanted fatherhood. One man agreed to go through in vitro fertilization (IVF) with his partner, but years later has changed his mind. Despite the fact that the embryos created through IVF are his partner’s last chance to be a genetic parent, a court allows him to block her use of the embryos.

By contrast, another couple’s sexual relationship broke the law. The woman was a legal adult, and her partner was a child under the age of eighteen. Their encounter was thus statutory rape. Her crime led to pregnancy, and after she gave …

The New Abortion Battleground, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

This Article examines the paradigm shift that is occurring now that the Supreme Court has overturned Roe v. Wade. Returning abortion law to the states has spawned perplexing legal conflicts across state borders and between states and the federal government. This article emphasizes how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for the immediate aftermath of Roe’s reversal and what lies ahead.

Judges and scholars, and most recently the Supreme …

Miscarriage Of Justice: Early Pregnancy Loss And The Limits Of U.S. Employment Law, Laura T. Kessler

Utah Law Faculty Scholarship

This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen percent will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States.

The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with …

Law School News: Rwu Law Remembers Sarah Weddington 12/30/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Haunting Of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape, Jordan S. Miceli

Washington and Lee Law Review Online

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction …

Under Ten Eyes, Anthony Michael Kreis

Washington and Lee Law Review Online

Carliss Chatman’s If a Fetus Is a Person, It Should Get Child Support, Due Process and Citizenship brilliantly captures the moment America is in, where abortion rights hang in the balance as state legislators, like those in Alabama, Georgia, Ohio, and elsewhere clamor to embrace fetal personhood. But, as Professor Chatman illustrates, legislators have expressed no interest in the full logical extent of this policy or the rights that should attach to a fetus if their measures ultimately become effective. The article incisively demonstrates how fetal personhood is singularly focused on ending abortion in the United States and is gaining …

Personhood: Law, Common Sense, And Humane Opportunities, Helen M. Alvaré

Washington and Lee Law Review Online

It is pointless to approach Professor Chatman’s argument on its own terms (to wit, “tak[ing] our laws seriously,” or equal application across myriad legal categories of “full personhood” rights) because these terms are neither seriously intended nor legally comprehensible. Instead, her essay is intended to create the impression that legally protecting unborn human lives against abortion opens up a Pandora’s box of legal complications so “ridiculous” and “far-fetched” that we should rather just leave things where they are under the federal Constitution post-Roe v. Wade and Planned Parenthood v. Casey. This impression, in turn, is a tool to …

If A Fetus Is A Person, It Should Get Child Support, Due Process, And Citizenship, Carliss N. Chatman

Washington and Lee Law Review Online

This Article was originally published in The Washington Post on May 17, 2019. It has been edited and updated prior to its publication in the Washington and Lee Law Review.

Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act subjects a doctor who performs an abortion to as many as ninety-nine years in prison. The law has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “[a] human being, specifically including an unborn child in utero …

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.

There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more …

When Law Is Complicit In Gender Bias: Ending De Jure Discrimination Against Women As An Important Target Of Sustainable Development Goal 5, Rangita De Silva De Alwis

All Faculty Scholarship

Ending all forms of discrimination against women and girls is not only a basic human right, but also crucial to accelerating sustainable development. The very first target of Goal 5. 1.1 calls to end all forms of discrimination against all women and girls everywhere and the indicator for the goal is: “Whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex”. In many countries around the world the legal frameworks themselves allow for both direct (de jure) and indirect (de facto) discrimination against women. This essay identifies some areas …

Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore

Malinda L. Seymore

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy--it is easy …

Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore

Faculty Scholarship

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy--it is easy …

Will Focusing On Men's Moral Calculus Make Abortion Less "About" Gender?, Linda C. Mcclain

Faculty Scholarship

Decades ago, feminist leader Gloria Steinem quipped that, “if men could get pregnant, abortion would be a sacrament.” As President Trump reinstates restrictions on women’s reproductive rights that the Obama Administration lifted (such as the “global gag rule”), the visual imagery of Trump signing executive orders while surrounded by an audience of white men raises – once again – the question of how gender shapes the abortion issue. In the recent unsuccessful Republican effort to repeal “Obamacare,” when Kansas Senator Pat Roberts was asked whether he supported removing the mandate that insurance companies cover “essential health benefits” such as maternity …

Criminalizing Substance Abuse And Undermining Roe V. Wade: The Tension Between Abortion Doctrine And The Criminalization Of Prenatal Substance Abuse, Myrisha S. Lewis

William & Mary Journal of Race, Gender, and Social Justice

woman’s constitutional right to have an abortion. Although other scholars have criticized prenatal substance abuse prosecutions based on various constitutional and public policy arguments, the tension between prenatal substance abuse prosecutions and the Supreme Court’s abortion doctrine has not been adequately examined. I argue that prosecuting women for the crime of prenatal substance abuse punishes women for not exercising their right to an abortion and could even incentivize some women to obtain abortions in order to avoid criminal prosecution. I also examine the science underlying abortion doctrine, fetal health, and substance abuse which reveals that (1) the right to abort …

Abortion, Moral Law, And The First Amendment: The Conflict Between Fetal Rights & Freedom Of Religion, Barbara Pfeffer Billauer

William & Mary Journal of Race, Gender, and Social Justice

The status of abortion as murder, and therefore amenable to governmental intervention and criminalization, has been asserted by those favoring limits on abortion. Opponents claim a superior right of privacy and/or equality exists under the Constitution, vesting in a woman the right to decide activities and actions that affect her physical corpus. The claimed interest of a State to protect the fetus is impliedly based on the concept of “morality” or “natural law,” specifically on the premise that feticide is violative of the basic code of conduct of societal norms. To my knowledge, until now, this is the first investigation …

Grasping Fatherhood In Abortion And Adoption.Pdf, Malinda L. Seymore

Malinda L. Seymore

Marriage, Abortion, And Coming Out, Scott Skinner-Thompson, Sylvia A. Law, Hugh Baran

Publications

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?

This Piece argues that one explanation—or at least partial explanation—for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Piece, popular media portrayals of lesbian and gay individuals have proliferated, broadening the …

Minors, Parents, And Minor Parents, Maya Manian

Articles in Law Reviews & Other Academic Journals

As numerous scholars have noted, the law takes a strikingly incoherent approach to adolescent reproduction. States overwhelmingly allow a teenage girl to independently consent to pregnancy care and medical treatment for her child, and even to give up her child for adoption, all without notice to her parents, but require parental notice or consent for abortion. This Article argues that this oft-noted contradiction in the law on teenage reproductive decision-making is in fact not as contradictory as it first appears. A closer look at the law’s apparently conflicting approaches to teenage abortion and teenage childbirth exposes common ground that scholars …

Minors, Parents, And Minor Parents, Maya Manian

Maya Manian