Constitutional Law Commons^™

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. …

Protecting A Woman’S Right To Abortion During A Public Health Crisis, San Juanita Gonzalez

The Scholar: St. Mary's Law Review on Race and Social Justice

As COVID-19 infected our nation, states were quick to issue executive orders restricting various aspects of daily life under the pretense of public safety. It was clear at the outset that certain civil liberties were going to be tested. Among them, the constitutional right to an abortion.

This comment explores Texas’ response to the COVID-19 pandemic and the limitations it imposed on abortion access. It will attempt to address the legitimacy of the “public health concerns” listed in executive orders issued throughout numerous states and will discuss the pertinent legal framework and judicial scrutiny to apply.

According to the Fifth …

Reproductive Privacy In The World: Critical Examination Of June Medical Services, L.L.C. V. Russo And Buck V. Bell, Kumiko Kitaoka

Washington and Lee Journal of Civil Rights and Social Justice

Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.

Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection …

The Era Brief October 2021, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

We are excited to return to campus and rejoin the vibrant law school community. Our work at the ERA Project has taken on a renewed sense of urgency as we seek to advance sex equality in a time when the right to bodily autonomy is under threat from restrictions on reproductive and transgender rights.

The Era Brief June 2021, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

At the ERA Project we get asked all the time: “Why do we need the Equal Rights Amendment (ERA)?” “Doesn’t the Constitution already prohibit sex discrimination?” “What difference would it make to add explicit sex discrimination protections in the Constitution as the 28th Amendment?”

Third-Party Standing And Abortion Providers: The Hidden Dangers Of June Medical Services, Elika Nassirinia

Northwestern Journal of Law & Social Policy

Standing is a long held, judicially-created doctrine intended to establish the proper role of courts by identifying who may bring a case in federal court. While standing usually requires that a party asserts his or her own rights, the Supreme Court has created certain exceptions that allow litigants to bring suit on behalf of third parties when they suffer a concrete injury, they have a “close relation” to the third party, and there are obstacles to the third party's ability to protect his or her own interests. June Medical Services, heard by the Supreme Court on June 29, 2020, …

Pregnancy And The Carceral State, Khiara M. Bridges

Michigan Law Review

A Review of Policing the Womb: Invisible Women and the Criminalization of Motherhood. by Michele Goodwin.

The Scales Of Reproductive Justice: Casey’S Failure To Rebalance Liberty Interests In The Racially Disparate State Of Maternal Medicine, Mallori D. Thompson

Michigan Journal of Race and Law

Despite the maternal medicine crisis in the U.S., especially for Black women, legislatures are challenging constitutional abortion doctrine and forcing women to interact with a system that may cost them their lives. This Article proposes that because of abysmal maternal mortality rates and the arbitrary nature of most abortion restrictions, the right to choose an abortion is embedded in our Fourteenth Amendment right to not be arbitrarily deprived of life by the State. This Article is a call to abortion advocates to begin submitting state maternal mortality data when challenging abortion restrictions. The call for attention to life was central …

Prescription Restriction: Why Birth Control Must Be Over-The-Counter In The United States, Susannah Iles

Michigan Journal of Gender & Law

This Note argues that it is harmful and unnecessary to require women to obtain prescriptions for access to hormonal birth control. Requiring a prescription is necessarily a barrier to access which hurts women and hamstrings the ability to dictate their own reproductive plans. It is also an irrational regulation in light of the relative safety of hormonal birth control pills, particularly progestin-only formulations, compared to other drugs readily available on the shelves.

Leading medical organizations, including the American College of Obstetrics and Gynecologists, advocate for over-the-counter access to hormonal birth control. While acknowledging that not every woman will have positive …

Pregnancy And The First Amendment, Helen Norton

Publications

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear.

If the government funds your clinic’s program, the U.S. Supreme Court has held that it does not violate the First Amendment’s Free Speech Clause when it forbids your health-care provider from offering you information about available abortion services. Nor does the government violate the Free Speech Clause, the Court has held, when …

Female Autonomy: An Analysis Of Privacy And Equality Doctrine For Reproductive Rights, Elizabeth Levi

Political Science Honors Projects

What is the constitutional basis for women’s equality? Recently, scholars have suggested that as the right to privacy has floundered against the political undoing of women's access to abortion, equal protection arguments have grown stronger. This thesis investigates the feminist utility and limits of the equality and privacy arguments. Taking liberal feminism and feminist legal theory as analytical lenses, I offer interpretations of gender discrimination, reproductive rights, and marriage equality case law. By this framework, I argue that while an equality argument is less inherently oppressive towards women than the privacy doctrine, equality doctrine has been constructed thus far to …

The Incest Horrible: Delimiting The Lawrence V. Texas Right To Sexual Autonomy, Y. Carson Zhou

Michigan Journal of Gender & Law

Is the criminalization of consensual sex between close relatives constitutional in the wake of Lawrence v. Texas and Obergefell v. Hodges? Justice Scalia thought not. The substantive due process landscape has changed dramatically in response to the LGBTQ movement. Yet, when a girl in a sexual relationship with her father recently revealed in an anonymous interview with New York Magazine that they were planning to move to New Jersey, one of the only two states where incest was legal, the New Jersey legislature introduced with unprecedented speed a bill criminalizing incest. But who has the couple harmed? The very …

Griswold, Geduldig, And Hobby Lobby: The Sex Gap Continues, Maya Manian

Articles in Law Reviews & Other Academic Journals

In her article, The (Non)-Right to Sex, Professor Mary Ziegler excavates the fascinating legal history of the “sex gap” — the historical failure to address sexual liberty — in the constitutional canon and offers an important cautionary tale for contemporary advocacy of marriage equality. By surfacing lost efforts to expand sexual liberty, and by linking that liberty to intersectional concerns about class, gender, and racial equality, Professor Ziegler both explains why sexual freedom has received such limited constitutional protection and shows how incrementalist litigation strategies aimed at progressive legal change have inadvertently strengthened the state’s power to delimit sexual expression. …

Does The Right To Elective Abortion Include The Right To Ensure The Death Of The Fetus?, Stephen G. Gilles

Stephen G Gilles

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within …

When Free Exercise Is A Burden: Protecting "Third Parties" In Religious Accommodation Law, Kara Loewentheil

Kara Loewentheil

During the 2014 U.S. Supreme Court term, the Court considered two challenges to the contraceptive coverage requirement of the Affordable Care Act. These cases attracted enormous attention, and brought a new urgency to the principle that requests for religious accommodations should be weighed against any burdens such accommodations would impose on “third parties,” who are more accurately termed “existing rights-holders.” However, neither courts nor scholars have provided a consistent or principled way of thinking through how to evaluate such burdens and how to weigh them against free exercise rights. This Article takes up that challenge, using the example of the …

Money, Sex, And Religion--The Supreme Court's Aca Sequel, George J. Annas, Theodore Ruger, Jennifer Prah Ruger

All Faculty Scholarship

The Supreme Court decision in the Hobby Lobby case is in many ways a sequel to the Court's 2012 decision on the constitutionality of the Affordable Care Act (ACA). The majority decision, written by Justice Samuel Alito, is a setback for both the ACA's foundational goal of access to universal health care and for women's health care specifically. The Court's ruling can be viewed as a direct consequence of our fragmented health care system, in which fundamental duties are incrementally delegated and imposed on a range of public and private actors. Our incremental, fragmented, and incomplete health insurance system means …

Benign Sex Discrimination Revisited: Constitutional And Moral Issues In Banning Sex-Selection Abortion , George Schedler

Pepperdine Law Review

No abstract provided.

Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

Roe v. Wade grounds constitutional protections for women’s decision wheth­er to end a pregnancy in the Due Process Clauses. But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equal­ity arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims …

Does The Constitution Protect Abortions Based On Fetal Anomaly?: Examining The Potential For Disability-Selective Abortion Bans In The Age Of Prenatal Whole Genome Sequencing, Greer Donley

Articles

This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation …

Looking Back On Planned Parenthood V. Casey, Christina B. Whitman

Articles

Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar's articles on coerced confessions, Terry Sandalow's essay on affirmative action, Joe Sax and Phillip Hiestand's description of the emotional impact of living in a slum, Martha Chamallas and Linda Kerber's demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, and, most …

Expanding The Feminist Imagination: An Analysis Of Reproductive Right, Edith L. Pacillo

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Human Rights Law And Reproductive Self-Determination Conference On The Interventional Protection Of Reproductive Rights, Rebecca J. Cook

American University Law Review

No abstract provided.

The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill

Law Faculty Articles and Essays

Lawyers seeking constitutional protection for reproductive rights have relied almost exclusively on a liberty/privacy theory under the Federal Constitution. In the wake of Planned Parenthood of Southeastern Pennsylvania v. Casey, this theory may be seen as providing a floor of minimum protection-preventing states from banning abortion outright. But it is not strong enough to prevent states from enacting restrictions on the availability of abortion. Thus, the battle over reproductive rights may be seen as shifting from one phase ("Can abortion be banned?") to another ("How far can states go in restricting access to abortion'?"). If proponents of reproductive freedom are …

Compromising On Abortion, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

A Civil Liberties Analysis Of Surrogacy Arrangements, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this essay the author comes to the following conclusions based upon a civil liberties analysis. First, surrogacy arrangements cannot be prohibited or criminalized. Second, the state cannot ban the exchange of money for surrogacy services, provided the money is paid for conception, gestation, and birth. Money, however, cannot be paid on condition that the gestational mother waive her parental rights over the child. Third, contractual provisions that require the gestational mother to waive her parental rights or her rights to privacy and autonomy are void and unenforceable. Fourth, when the child is born, both the gestational mother and the …

Three Continuities Of Choice In Abortion, Patrick L. Baude

Articles by Maurer Faculty

No abstract provided.

The Creation Of Fetal Rights: Conflicts With Women's Constitutional Rights To Liberty, Privacy, And Equal Protection, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Rewriting Roe V. Wade, Donald H. Regan

Articles

Roe v. Wade is one of the most controversial cases the Supreme Court has decided. The result in the case - the establishment of a constitutional right to abortion - was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court's opinion. Others before me have attempted to explain how a better opinion could have been written. It seems to me, however, that the most promising argument in support of the result of Roe has not yet been made. This essay contains my suggestions for "rewriting" Roe v. Wade

Constitutional Reflections On Abortion Reform, Patrick L. Baude

Articles by Maurer Faculty

No abstract provided.