Law Commons^™

The Ninth Amendment: An Underutilized Protection For Reproductive Choice, Layne Huff

Journal of Law and Health

Concern about individual rights and the desire to protect them has been part of our nation since its founding, and continues to be so today. The Ninth Amendment was created to assuage the Framers’ concerns that enumerating some rights in the Bill of Rights would leave unenumerated rights unrecognized and unprotected, affirming that those rights are not disparaged or denied by their lack of textual support. The Ninth Amendment has appeared infrequently in our jurisprudence, and Courts initially construed it rather narrowly. But starting in the 1960s, the Ninth Amendment emerged as a powerful tool not just for recognizing unanticipated …

Growing, Growing, Gone: How Dobbs Fundamentally Altered The Way Reproductive Freedom, Private And Professional Liability, And Constitutional Rights Will Be Analyzed In A Post–Roe America, Amanda J. Sharp

San Diego Law Review

This Note examines the Dobbs decision and its implications. Part II analyzes the history of abortion rights in the United States, including the role Dobbs played in overturning precedential cases. Part III describes the legal implications of Dobbs, including the status of abortion rights and how this decision altered the state of women’s healthcare. It then addresses Dobbs’ indirect implications, including its potential impacts on the foster care system, implied liability in healthcare professions, data privacy laws, and the employer-employee relationship. Part IV briefly proposes next steps that could be taken and concludes with a call to action.

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 Abortion Archipelago: A Potential Return To San Juan Post Dobbs, Grant Albert

FIU Law Review

This paper will discuss whether the U.S. territory of Puerto Rico could be another option for women to travel to and from to terminate their pregnancy following Dobbs v. Jackson Women’s Health Organization.

Dobbs And The Future Of Liberty And Equality, Kim Forde-Mazrui

Cleveland State Law Review

This lecture critiques Dobbs v. Jackson Women’s Health Organization and assesses its implications for liberty and equality. Dobbs’ immediate effect was major disruption to abortion rights. In the longer term, by discarding fifty years of precedent and by basing constitutional rights exclusively on long-standing history and tradition, Dobbs jeopardizes liberty and equality rights that the Court has recognized in the late twentieth and early twenty-first centuries. Such modern liberty rights include contraception, interracial marriage, adult sexual intimacy and same-sex marriage. Modern equality rights include strong bars on discrimination based on race and sex, and moderate protections for LGBTQ+ status. …

The Anti-Constitutionality Of The Deeply Rooted Test In Dobbs V. Jackson, Reginald Oh

Cleveland State Law Review

The deeply rooted in history test used by Justice Alito in Dobbs v. Jackson to overturn Roe v. Wade is anti-constitutional. In Dobbs, Alito concluded that, because a majority of states in 1868 criminalized abortion, abortion is not deeply rooted in history, and is therefore not a fundamental liberty under the Fourteenth Amendment Due Process Clause. However, relying on state laws in 1868 to interpret constitutional text not only has no basis in the Constitution, it goes against the fundamental nature of the Constitution as an integrated whole. What I call the Integrated Constitution is based on Chief Justice John …

Legal And Health Risks Of Abortion Criminalization: State Policy Responses In The Immediate Aftermath Of Dobbs, Adrienne R. Ghorashi, Deanna Baumle

Journal of Law and Health

Major changes to the landscape of abortion law and service delivery have rapidly proliferated since the Supreme Court’s decision in Dobbs, in some cases overnight. Using legal epidemiology methods, the authors of this Article and a team of researchers created a legal dataset that identifies and tracks state laws impacting abortion access in the months immediately following the Dobbs ruling. This Article explores the dataset's findings, detailing changes in abortion laws including abortion bans and related penalties, interstate shield laws, and data privacy protections, from June 1, 2022 through January 1, 2023. While several states moved quickly to restrict …

Defending Dobbs: Ending The Futile Search For A Constitutional Right To Abortion, Robert J. Pushaw, Jr.

San Diego Law Review

In short, the Court is on the right track in cases like Dobbs by retreating from eccentric, unreviewable, common law policymaking and instead focusing on the Constitution itself.

Alas, average Americans, politicians, pundits, and even lawyers rarely read Court opinions but instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. One can hardly blame them, as the Court’s constitutional opinions have often featured legal window dressing for results already reached on political or ideological grounds. Therefore, the current majority of Justices must illuminate the public about the Court’s proper role in interpreting …

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 …

“A Solemn Mockery”: Why Texas’S Senate Bill 8 Cannot Be Legitimized Through Comparisons To Qui Tam And Environmental Protection Statutes, Laura Blockman

University of Miami Law Review

On September 1, 2021, the Texas Legislature enacted the Texas Heartbeat Act, an anti-abortion statute popularly known as Senate Bill 8 (“S.B. 8”). Although many states passed anti-abortion legislation in 2021, S.B. 8 received national attention due to the law’s unusual enforcement mechanism: S.B. 8 empowers private citizens, not state actors, to sue individuals who perform or aid in the performance of an abortion after a fetal heartbeat is detected.

Unsurprisingly, the authors of S.B. 8 received extreme back- lash from the public, and many academics and legal scholars viewed the law’s private enforcement mechanism as an effort to evade …

Pro-Choice Plans, Brendan S. Maher

Faculty Scholarship

After Dobbs v. Jackson Women’s Health Organization, the United States Constitution may no longer protect abortion, but a surprising federal statute does. That statute is called the Employee Retirement Income Security Act of 1974 (“ERISA”), and it has long been one of the most powerful preemptive statutes in the entire United States Code. ERISA regulates “employee benefit plans,” which are the vehicle by which approximately 155 million people receive their health insurance. Plans are thus a major private payer for health benefits—and therefore abortions. While many post-Dobbs anti-abortion laws directly bar abortion by making either the receipt or provision of …

The Future Of Roe And The Gender Pay Gap: An Empirical Assessment, Itay Ravid, Jonathan Zandberg

Indiana Law Journal

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court upheld a Mississippi law that prohibits nearly all abortions after the fifteenth week of pregnancy and overruled the holding in Roe v. Wade. Among the many arguments raised in Dobbs in an attempt to overturn Roe, the State of Mississippi argued that due to “the march of progress” in women’s role in society, abortion rights are no longer necessary for women to participate equally in economic life. It has also been argued that there is no empirical support to the relationship between abortion rights and women’s economic success in society. …

After Roe, After Dobbs, Angela Onwuachi-Willig

Shorter Faculty Works

Being able to control reproductive choices—having the ability to decide if and when to give birth and become a parent—is central to determining how one may build a life and future. For some, having control over their reproductive capacities could mean the difference between completing or not completing their education, taking advantage of a particular job opportunity or having to decline it, or moving or not moving to a different location. These decisions shape our economy and our society.

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

Articles in Law Reviews & Other Academic Journals

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

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 …

The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis

Pepperdine Law Review

In the post-Roe world, can a state rationally claim that the value of human life justifies the imposition of abortion bans but does not demand that a state protect the vulnerable young who are “born human beings”—commonly called “minors” or “children”—and are entitled to protection under a state’s laws? This essay advances the claim that it cannot. This essay asks that those who say they are “Pro-life” in politics and law demonstrate that they protect vulnerable life beyond the abortion context, and that they do so in the most minimal fashion: through a demonstrated commitment to protecting the basic welfare …

Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus

Faculty Scholarship

On June 24, 2022, the Supreme Court released the final Dobbs majority opinion, which is substantially identical to the draft opinion. Consequently, the critique contained in this essay applies equally to the final Dobbs opinion.

On May 2, 2022, a draft majority opinion dated February 2022 and authored by Justice Alito in Dobbs v. Jackson Women’s Health Organization was leaked to the public. This Essay addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion.

The …

Abortion, Pregnancy Loss, & Subjective Fetal Personhood, Greer Donley, Jill Wieber Lens

Articles

Longstanding dogma dictates that recognizing pregnancy loss threatens abortion rights—acknowledging that miscarriage and stillbirth involve a loss, the theory goes, creates a slippery slope to fetal personhood. For decades, anti-abortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss, and more recently, remained silent, alienating those who suffer a miscarriage or stillbirth.

This Article is the first to argue that this perceived tension can be reconciled through …

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 …

Re-Thinking Strategy After Roe, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturns nearly fifty years of precedent and radically changes abortion law, throwing both sides of the debate into uncharted territory. This essay, published in the immediate aftermath of Dobbs, offers some initial thoughts about what the changed legal landscape means for abortion rights legal advocacy. Our focus in recent writings has been to identify concrete measures federal and state actors can take to secure abortion access after Dobbs. Here, we investigate a more overarching concern: what fundamental values and strategies should govern the abortion rights movement going …

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

Life of the Law School (1993- )

No abstract provided.

Equal Protection And Abortion: Brief Of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, And Reva Siegel As Amici Curiae In Support Of Respondents In Dobbs V. Jackson Women's Health Organization, Reva Siegel, Melissa Murray, Serena Mayeri

All Faculty Scholarship

Equal Protection changes the questions we ask about abortion restrictions. In Dobbs v. Jackson Women’s Health Organization, an amicus brief filed on our behalf demonstrated that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause. The brief continues a tradition of equality arguments that preceded Roe v. Wade and will continue, in new forms, after Dobbs. Our brief shows how the canonical equal protection cases United States v. Virginia and Department of Human Resources v. Hibbs extend to the regulation of pregnancy, hence provide an independent constitutional basis for abortion rights.

Under equal …

Forget Pro-Life And Pro-Choice: Refocus Transvaginal Ultrasound Abortion Laws On Medicine, Casey Hughes

Journal of Civil Rights and Economic Development

(Excerpt)

This Note reconciles the divide between the TV US debate and the original intent of abortion regulations to protect women’s health. By first analyzing the medicine and then applying it to the law, this Note proves transvaginal ultrasound regulations are not undue burdens on women’s access to abortion. Part I of this Note discusses transvaginal ultrasounds and their medical use in obstetrics, demonstrating they are not undue burdens, but rather beneficial to women and often necessary to support women’s health prior to abortions. Part II of this Note discusses abortion and ultrasound-related legal decisions and how they apply to …

My Body, Not My Say: How Roe V. Wade Endangers Women's Autonomy, Kisha K. Patel

Politics Honors Papers

When defining women’s rights to reproductive decisions in Roe v. Wade, Justice Blackmun fails to ensure protection for women by defining this right in the privacy doctrine. Justice Blackmun’s opinion allows the government to interpret and apply the doctrine to deny women access and availability to reproductive health. This can be shown by the subsequent Supreme Court decisions on privacy that allow the government to overrule the right of the individual woman. This allows for the government to effectively deny women the right to abortion and ultimately prevents women from making independent autonomous decisions. The laws and regulations against …

The Abortion Closet (With A Note On Rules And Standards), David E. Pozen

Faculty Scholarship

An enormous amount of information and insight is packed into Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First Century America. The book is anchored in post-1973 American case law. Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.

My Body, Not My Say: Justice Blackmun's Influential Decision In Roe V. Wade, Kisha K. Patel

Gender, Women's, and Sexuality Studies Summer Fellows

Abortion laws have regulated women’s bodies since the beginning of the country. Many people associate regulation with the case of Roe V. Wade in 1973, in which the Supreme Court ruled that states could not outlaw abortion during the first trimester. Roe v. Wade remains controversial to this day as it failed to establish consensus that women’s decision whether or not to terminate a pregnancy falls within their constitutional right to privacy. Understanding the implications of this decision is fundamental to analyze the debate over the constitutionality of abortion today. This paper examines the opinion written by Justice Blackmun in …

Abortion Rights, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Abortion Rights, Michael C. Dorf

Touro Law Review

No abstract provided.

Whistleblowing And Free Speech: Garcetti's Early Progeny And Shrinking Constitutional Rights Of Public Employees, J. Michael Mcguinness

Touro Law Review

No abstract provided.

Fueling Controversy, Randy Beck

Randy Beck

In a recent Yale Law Journal article, Linda Greenhouse and Reva Siegel question the received wisdom that the Supreme Court’s decision in Roe v. Wade generated a political backlash, inflaming conflict over abortion and damaging the political process. The evidence they highlight shows that political conflict over abortion predated the Roe opinion, spurred by the Catholic Church and by Republican Party strategists seeking to foster party realignment. This enriched picture of the political and social landscape at the time of the decision undermines any simplistic suggestion that Roe served as “the sole cause of backlash” or “single-handedly caused societal polarization …