Constitutional Law Commons^™

Decoding Dobbs: A Typology To Better Understand The Roberts Court's Jurisprudence, Katie Yoder

Honors Projects

The U.S. Supreme Court first recognized Substantive Due Process (“SDP”) in the early twentieth century. In Lochner v. New York, the Court established that there are certain unenumerated rights that are implied by the Fourteenth Amendment.Though SDP originated in a case about worker’s rights and liberties, it quickly became relevant to many cases surrounding personal intimate decisions involving health, safety, marriage, sexual activity, and reproduction.Over the past 60 years, the Court relied upon SDP to justify expanding a fundamental right to privacy, liberty, and the right to medical decision making. Specifically, the court applied these concepts to allow for freedoms …

Ruth Bader Ginsburg Essay/Art Contest 2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Rwu Law Alumni Newsletter April 2024, Roger Williams University School Of Law

RWU Law

No abstract provided.

Fireside Chat With Chief Judge Jeffrey S. Sutton And Professor Nikolas Bowie: A Discussion About The Relevance And Impact Of State Constitutional Law, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

An Exegesis Of The Meaning Of Dobbs: Despotism, Servitude, & Forced Birth, Athena D. Mutua

Journal Articles

The Dobbs decision has been leaked. Gathered outside of New York City's St. Patrick's Old Cathedral, pro-choice protesters chant: "Not the church, not the state, the people must decide their fate."

A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: "l am the people, l am the people, l am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you're having my baby."

Despicable but not unexpected,³ this man's comments …

The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake

Articles

The scope and pace of legislative activity targeting transgender individuals is nothing short of a gender panic. From restrictions on medical care to the regulation of library books and the use of pronouns in schools, attacks on the transgender community have reached crisis proportions. A growing number of families with transgender children are being forced to leave their states of residence to keep their children healthy and their families safe and intact. The breadth and pace of these developments is striking. Although the anti-transgender backlash now extends broadly into health and family governance, sport was one of the first settings—the …

"Exceedingly Unpersuasive” - Discrimination, Transgender Students, And School Bathrooms, Mark Dorosin

Journal Publications

This Article is organized chronologically, in an effort to more effectively reflect the nearly identical fact patterns, timelines, and intersecting opinions of these cases. Part I provides the factual background of both cases. Part II summarizes the substantial preliminary litigation in Grimm; Part III examines the district court ruling in Adams; Part IV analyzes the summary judgment ruling in Grimm. Part V covers Adams’ first appellate ruling; Part VI discusses the Fourth Circuit’s ruling in Grimm three weeks later, and Part VII considers the aftermath of that decision. Parts VIII and IX explore the second panel ruling in Adams and …

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 …

Child Sacrifices: The Precarity Of Minors’ Autonomy And Bodily Integrity After Dobbs, Teri Dobbins Baxter

Scholarly Works

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that there is no constitutional right to abortion. The decision has had a devastating impact on people seeking abortions in many states, and it will have an even more profound effect on the rights and lives of minors. Pregnant minors face greater risks than pregnant adults when they are forced to continue a pregnancy that can harm their physical and mental health and their educational and financial futures. Very young minors are incapable of consenting to the sexual acts that result in pregnancy, but many states require even these …

Symposium On Transformative Gender Law: A Roger Williams Law Review Event 11-3-2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Same-Sex Marriage Judgment Asks Queer Citizens To Wait For True Equality At A Future Time That May Never Arrive, Kunal Ambasta

Popular Media

Excerpt:

"For about the last 15 years, the queer rights movement has enriched the constitutional law of this country. Some of the most cherished constitutional values and rights have been fleshed out with the movement as its springboards at the Supreme Court.... The Court fully acknowledges, in abstract, the rights of queer couples to equal treatment before the law, dignity, and of the numerous tangible and intangible benefits of the institution of marriage, but refuses to ensure any of these rights to a clear case of legal discrimination or to craft a suitable remedy."

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Four Pathbreaking Women Judges To Participate In Iu Conference And Public Discussion Monday, Sept. 25, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Four distinguished women judges from the Middle East and North Africa—including the first female judge in Jordanian history—will visit the Indiana University Bloomington campus Sept. 25-26 for a conference titled “Women Judges in Dialogue,” where they will discuss their own experience as women in the judiciary as well as issues surrounding constitutional adjudication in the region. They will be joined by faculty from the Hamilton Lugar School of Global and International Studies and the Maurer School of Law.

Sponsored by the Center for the Study of the Middle East (CSME) at HLS and the Center for Constitutional Democracy (CCD) …

Care Work, Gender Equality, And Abortion: Lessons From Comparative Feminist Constitutionalism, Linda C. Mcclain

Faculty Scholarship

Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023).

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment …

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.

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

Era Project Faq On The Court Of Appeals Decision In Illinois V. Ferreiro, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

Illinois v. Ferriero is a lawsuit filed by the Attorneys General of the last three states that ratified the Equal Rights Amendment (ERA) — Nevada, Illinois, and Virginia — asking the court to require that the ERA be officially published by the U.S. Archivist as the 28th Amendment to the Constitution. On March 5, 2021, the District Court dismissed the lawsuit on standing grounds, meaning that the three states had not shown that they suffered a legally recognized injury. The court reasoned that the Archivist’s actions have no legal effect and, as such, the states were not harmed by the …

Possible Avenues For Action Related To The Equal Rights Amendment, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

Resolutions have been introduced into both the House and the Senate declaring the Equal Rights Amendment (ERA) to be fully ratified as the 28th Amendment to the U.S. Constitution. There are other legislative steps that—while short of declaring the ERA fully ratified — could be taken to advance the measure toward final ratification, and to create political facts that would reinforce the position that the ERA is already the 28th Amendment.

Testimony To The Senate Judiciary Committee By The Era Project At Columbia Law School And Constitutional Law Scholars On Joint Resolution S.J.Res. 4: Removing The Deadline For The Ratification Of The Equal Rights Amendment, Katherine M. Franke, Laurence H. Tribe, Geoffrey R. Stone, Melissa Murray, Michael C. Dorf

Faculty Scholarship

The Equal Rights Amendment Project at Columbia Law School (ERA Project) and the undersigned constitutional law scholars provide the following analysis of S.J.Res. 4, resolving to remove the time limit for the ratification of the Equal Rights Amendment (ERA) and declaring the ERA fully ratified.

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …

Thinly Rooted: Dobbs, Tradition, And Reproductive Justice, Darren L. Hutchinson

Faculty Articles

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These two cases held that the Due Process Clause of the Fourteenth Amendment encompassed a right of women to terminate a pregnancy. Roe reflected over 60 years of substantive due process precedent finding and reaffirming a constitutional right of privacy with several animating themes, including bodily integrity, equality, and dignity. The Court’s substantive due process doctrine had established that the analysis in such cases would involve multiple points of inquiry, such as tradition, contemporary practices, and …

The Promise Of Telehealth For Abortion, Greer Donley, Rachel Rebouché

Book Chapters

The COVID-19 pandemic catalyzed a transformation of abortion care. For most of the last half century, abortion was provided in clinics outside of the traditional healthcare setting. Though a medication regimen was approved in 2000 that would terminate a pregnancy without a surgical procedure, the Food & Drug Administration required, among other things, that the drug be dispensed in person. This requirement dramatically limited the medication’s promise to revolutionize abortion because it subjected medication abortion to the same physical barriers of procedural care.

Over the course of the COVID-19 pandemic, however, that changed. The pandemic’s early days exposed how the …

Situating Dobbs, Paula A. Monopoli

Faculty Scholarship

The recent decision in Dobbs v. Jackson Women’s Health has been characterized as an outlier because its effect is to erase a previously recognized constitutional right. This paper situates Dobbs in a broader feminist constitutional history. It asks if this retrenchment is really such a unique turn in American jurisprudence when it comes to protections or “rights” that matter most to women’s lived experience. The paper argues that if one opens the aperture of constitutional history to embrace a more capacious view of rights, those afforded to women have often been eroded or erased by state legislatures, Congress, and courts. …

Menstruation In A Post-Dobbs World, Emily Gold Waldman, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In this Essay, we re-examine our 2022 book, Menstruation Matters: Challenging the Law's Silence on Periods, through multiple related lenses, including the human rights, sustainability, and workplace issues emphasized by our three reviewers; the COVID-19 pandemic; and the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. All of these perspectives converge on the inherent dignity and autonomy interests in being able to manage one's own body. Menstruation and related conditions like breastfeeding, pregnancy, and menopause should not be sources of shame or stigma. Nor should they be vectors of formal control by the government or de facto exclusion …

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

Scholarly Works

Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

Title Ix And "Menstruation Or Related Conditions", Bridget J. Crawford, Emily Gold Waldman, Marcy L. Karin, Naomi R. Cahn, Elizabeth B. Cooper, Margaret E. Johnson

Elisabeth Haub School of Law Faculty Publications

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law's ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there …

Methodological Gerrymandering, David Simson

Articles & Chapters

The U.S. Supreme Court has come to decide many of the most consequential and contentious aspects of social policy via its interpretations of the U.S. Constitution. Institutional features of the Court create significant pressure on the Justices to justify their decisions as applications of “law” rather than the practice of “politics.” Their perceived failure to do so calls forth criticism sounding in a variety of registers—ranging from allegations of a lack of neutrality, lack of impartiality, or lack of “principle,” to allegations of opportunism, disingenuousness, and hypocrisy. Analyzing the Justices’ choices in relation to interpretational “methodology”—choosing one lens through which …

Reevaluating Regional Law Reform Strategies After Dobbs, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence.” 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 tapped into meaningful disruptions in the geographies, religiosities, and masculinities of abortion politics. These campaigns achieved regional …

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 …