Law Commons^™

Free Exercise, The Respect For Marriage Act, And Some Potential Surprises, Mark Strasser

Cleveland State Law Review

Congress recently passed the Respect for Marriage Act to assure that certain marriages would remain valid even if the Supreme Court were to overrule past precedent and hold that the Constitution does not protect the right to marry a partner of the same sex or of a different race. However, the Act, as written, may not offer protection for certain same-sex or interracial marriages and may open the door to the federal protection of plural marriages, congressional intent notwithstanding, because of the Court’s increasingly robust free exercise jurisprudence.

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. …

Serving Only To Oppress: An Intersectional And Critical Race Analysis Of Constitutional Originalism Inflicting Harm, Ethan Dawson

Indiana Journal of Law and Social Equality

“[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” - Justice Anthony Kennedy, Lawrence v. Texas (2003)

This Note will first focus on a historical analysis of originalist constitutional interpretation, drawing attention to initial disparities in the Constitution incompatible with our current social context. It will discuss modern originalism as a method of perpetuating systemic shortcomings, drawing specific attention to originalist interpretation as a method of oppression against white women and people of color, specifically Black women. In analyzing the harm originalism does to …

Domestic Emergency Pretexts, Amy L. Stein

Indiana Law Journal

Whereas emergencies used to be the exception to the rule, they now seem to be the norm. Wildfires, hurricanes, flooding, and contagious diseases dominate our daily lives. Although these are not the traditional types of military emergencies of our past, these non-wartime emergencies can trigger some of the same emergency powers. And with their use comes some of the same concerns about abuses of such emergency powers. Much ink has been spilled analyzing the tradeoffs associated with necessary emergency powers and frequent abuses in the context of foreign threats—resulting in reduced privacy, civil liberties, and freedoms.

This Article is not …

Anti-Abortion Statutes As Religious Beliefs, Scott Devito

American University Journal of Gender, Social Policy & the Law

In Dobbs v. Jackson Women’s Health Organization, Justice Alito ruled there is no right, under the U.S. Constitution, for a woman to have an abortion. Since then, eleven states have either enacted or activated statutes that forbid the performance of an abortion. Others may soon follow suit. This Article does not attempt to dispute the reasoning of the Dobbs decision. Instead, it asks whether the eleven state statutes, now construed as constitutionally permitted, are, in fact impermissible intrusions into the constitutionally required separation of church and state. This Article approaches this problem from both a historical and philosophical perspective. First, …

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 …

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

William & Mary Law Review

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.

Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …

An Examination Of Oppression Via Anti-Abortion Legislation, Saphronia P. Carson

The Pegasus Review: UCF Undergraduate Research Journal

Significant disparities in reproductive health care access and outcomes exist along race, ethnicity, and income lines. One of the starkest examples of this is the dramatic reduction in abortion access over the past 45 years that disproportionately affects minority and low-income women. While existing literature has exposed these disparities and potential reasons for them, there is less attention to the ways reduced access to reproductive health care, specifically abortion, can coerce, exploit, and systematically oppress women of color and low-income women. This research uses a reproductive justice framework to discuss the impact of anti-abortion legislation and the anti-abortion movement on …

Sexual Exploitation Of Black Women From The Years 1619-2020, Dominique R. Wilson

Journal of Race, Gender, and Ethnicity

No abstract provided.

Personhood Seeking New Life With Republican Control, Jonathan F. Will, I. Glenn Cohen, Eli Y. Adashi

Indiana Law Journal

Just three days prior to the inauguration of Donald J. Trump as President of the United States, Representative Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H.R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. Then, in October 2017, the Department of Health and Human Services released its draft strategic plan, which identifies a core policy of protecting Americans at every stage of life, beginning at conception. While often touted as a means to outlaw abortion, protecting the “lives” of single-celled zygotes may also have implications for the practice …

Slavery Rhetoric And The Abortion Debate, Debora Threedy

Michigan Journal of Gender & Law

There are many things that could be, and have been, said about the question of abortion. This article focuses on the rhetoric of the abortion debate. Specifically, I discuss how both sides of the abortion debate have appropriated the image of the slave and used that image as a rhetorical tool, a metaphor, in making legal arguments. Further, I examine the effectiveness of this metaphor as a rhetorical tool. Finally, I question the purposes behind this appropriation, and whether it reflects a lack of sensitivity to the racial content of the appropriated image.