Law Commons^™

Through The Looking Glass: What Abortion Teaches Us About American Politics, Neal Devins

Neal E. Devins

No abstract provided.

The Countermajoritarian Paradox, Neal Devins

Neal E. Devins

No abstract provided.

Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins

Neal E. Devins

No abstract provided.

How Planned Parenthood V. Casey (Pretty Much) Settled The Abortion Wars, Neal Devins

Neal E. Devins

More than twenty-one years after Robert Bork's failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this Essay, I will debunk those claims. First, I will explain how Casey's approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey- either by restoring the trimester test …

How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins

Neal E. Devins

No abstract provided.

When Pregnancy Is An Injury: Rape, Law, And Culture, Khiara M. Bridges

Khiara M Bridges

This Article examines criminal statutes that grade more severely sexual assaults that result in pregnancy. These laws, which define pregnancy as a “substantial bodily injury,” run directly counter to positive constructions of pregnancy within culture. The fact that the criminal law, in this instance, reflects this negative, subversive understanding of pregnancy creates the possibility that this idea may be received within culture as a construction of pregnancy that is as legitimate as positive understandings. In this way, these laws create possibilities for the reimagining of pregnancy within law and society. Moreover, these laws recall the argumentation that proponents of abortion …

Capturing The Judiciary: Carhart And The Undue Burden Standard, Khiara Bridges

Khiara M Bridges

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court replaced the trimester framework, first articulated nineteen years earlier in Roe v. Wade, with a new test for determining the constitutionality of abortion regulations — the “undue burden standard.” The Court’s 2007 decision in Gonzales v. Carhart was its most recent occasion to use the undue burden standard, as the Court was called upon to ascertain the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute proscribing certain methods of performing second- and third-trimester abortions. A majority of the Court held that the regulation was constitutionally permissible, finding …

Abortion Access In An Era Of Constitutional Infidelity, Khiara Bridges

Khiara M Bridges

Abner Greene’s Against Obligation and Louis Michael Seidman’s On Constitutional Disobedience offer provocative, subversive, and frequently convincing arguments against wholesale fidelity to the Constitution. Greene makes the case that individuals, at times, have no duty to obey the Constitution as it has been interpreted and articulates a methodology for how the government should accommodate these legitimate acts of disobedience. Seidman, however, makes the case that we should abandon the “pernicious myth” that we are obligated to obey the Constitution at all. He argues that if the fiction of constitutional obedience was jettisoned altogether, the national discourse about the issues that …

Life In The Balance: Judicial Review Of Abortion Regulations, Khiara Bridges

Khiara M Bridges

Since the Supreme Court’s decision in Roe v. Wade, scholars have been preoccupied with the test that ought to be applied to abortion regulations. Debate has swirled around the question of whether laws that burden the abortion right should be reviewed with strict scrutiny, rational basis review, or some other multi-factor or categorical test and at what point during pregnancy these tests are appropriate. Moreover, since Planned Parenthood v. Casey, in which the Court replaced Roe’s trimester framework with the undue burden standard, commentators have questioned the propriety of this new test. This Article argues that the most important change …

Informed Consent As Compelled Professional Speech: Fictions, Facts, And Open Questions, Nadia N. Sawicki

Nadia N. Sawicki

No abstract provided.

Tort Law's Devaluation Of Stillbirth, Jill W. Lens

Jill Wieber Lens

"Never Having Loved At All": An Overlooked Interest That Grounds The Abortion Right, Sherry F. Colb

Sherry Colb

Feminist and some other abortion rights advocates typically ground the right to abortion in bodily integrity, thus conceptualizing abortion as vindicating a right to disassociate oneself from an intruder. Although valid as a matter of logic, the bodily integrity argument is libertarian and seemingly selfish. But a fundamentally associative interest also grounds the abortion right. A woman who cannot raise a child but is legally required to bear one must undergo the psychic pain of forced separation from an infant whom she is biologically programmed to love. Human mothers, like other mammalian mothers, grieve the loss of their young, as …

To Recognize The Tyranny Of Distance: A Spatial Reading Of Whole Women's Health V. Hellerstedt, Lisa R. Pruitt , Michele Statz

Lisa R Pruitt

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 …

Civil Rights, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Abortion And The Catholic Church: A Summary History, John T. Noonan Jr.

John Noonan

No abstract provided.

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

Malinda L. Seymore

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square. This Article examines the question of how scientific methods and …

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Dara Purvis

One thread of abortion criticism, arguing that gender equality requires that men be allowed to terminate legal parental status and obligations, has reinforced the stereotype of men as uninterested in fatherhood. As courts facing disputes over stored pre-embryos weigh the equities of allowing implantation of the pre-embryos, this same gender stereotype has been increasingly incorporated into a legal balancing test, leading to troubling implications for ART and family law.

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

O. Carter Snead

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

Replacing Myths With Facts: Sex-Selective Abortion Laws In The United States, Brian Citro, Jeff Gilson, Sital Kalantry, Kelsey Stricker

Sital Kalantry

Several countries in the world have sex ratios at birth that are as high or higher than China and India, including countries with predominantly white populations. Nonetheless, immigrant communities in the United States from China and India are consistently accused of harboring a preference for sons. It is supposedly this preference for sons that leads Asian Americans to abort female fetuses. In response, eight states have enacted bans on sex-selective abortion and 21 states and the United States Congress have considered such bans.

Proponents of sex-selective abortion bans claim that the United States is one of the few countries in …

Sex-Selective Abortion Bans: Anti-Immigration Or Anti-Abortion?, Sital Kalantry

Sital Kalantry

In the last five years, over half of the state legislatures in the United States have considered banning sex-selective abortion because of the (false) belief that Asian Americans are disproportionately giving birth to more boys than are European Americans. Supported by the data that applies to a very small subset of Asian Americans, proponents of the law stereotype Asian Americans by assuming that their birthing patterns are the same as those of people in India and China.

Because of the undue focus on Asian immigrants in the discussions of sex selection bans, the real conversation that should occur in the …

Sex Selection In The United States And India: A Contextualist Feminist Approach, Sital Kalantry

Sital Kalantry

Seven states in the United States have passed sex selection abortion bans, bills are pending in several other states, and a bill has been reintroduced in the U.S. Congress. In analyzing state legislative hearings, this article documents how the wide-spread practice of sex selection in other countries, particularly India and China, is being used by anti-abortion groups as a way to restrict women's right to autonomy in the United States. The dominant feminist paradigm in the United States takes a universal position on sex selection bans - these bans contravene women's right to autonomy and should not be permitted in …

Abortion Rights, Michael C. Dorf

Michael C. Dorf

No abstract provided.

The Legacy Of Colonialism: Law And Women's Rights In India, Varsha Chitnis, Danaya C. Wright

Danaya C. Wright

The relationship between nineteenth century England and colonial India was complex in terms of negotiating the different constituencies that claimed an interest in the economic and moral development of the colonies. After India became subject to the sovereignty of the English Monarchy in 1858, its future became indelibly linked with that of England's, yet India's own unique history and culture meant that many of the reforms the colonialists set out to undertake worked out differently than they anticipated. In particular, the colonial ambition of civilizing the barbaric native Indian male underlay many of the legal reforms attempted in the nearly …

Justice Lewis F. Powell's Baffling Vote In Roe V. Wade, Samuel W. Calhoun

Samuel W. Calhoun

No abstract provided.

Why Strive For Balance In A Roe Symposium?, Samuel W. Calhoun

Samuel W. Calhoun

No abstract provided.

Prenatal Caretaking: Limits Of State Intervention With And Without Roe, Sharon E. Rush

Sharon E. Rush

With or without Roe, difficult questions regarding the state's role in prenatal caretaking remain. Unless the Supreme Court addresses the assumptions underlying the abortion controversy, overruling Roe would not resolve the problem of allocating decisionmaking responsibility between the woman and the state during the woman's pregnancy. Fundamental constitutional questions about life and death, parental authority over the fetus, and the scope of the woman's right of privacy outside of abortion have not been answered by the Supreme Court.

Who Deserves The Right To Decide On Abortion?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Fundamental Rights, Moral Law, And The Legal Defense Of Life In A Constitutional Democracy, Martin Rhonheimer, Paolo G. Carozza

Paolo G. Carozza

Article by Martin Rhonheimer, translated by Paolo G. Carozza.