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Articles 1 - 15 of 15
Full-Text Articles in Law
Disability And Reproductive Justice, Samuel Bagenstos
Disability And Reproductive Justice, Samuel Bagenstos
Articles
In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written …
Dignity And Civility, Reconsidered, Leah Litman
Dignity And Civility, Reconsidered, Leah Litman
Articles
People often talk about the Chief Justice, Justice Kagan, and Justice Breyer as the institutionalists on the modern Supreme Court. And that’s true, they are. Those Justices care about the Court as an institution and the Court’s reputation. They do not want people to look at the Court as a set of politicians in robes; and they do not want people to see judges as having ideological or partisan agendas. That is how they think of themselves, and they are willing to make compromises to maintain that image of the Court, and to set aside their personal beliefs in order …
Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea
Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea
Michigan Law Review
A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.
Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey
Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey
Michigan Journal of Gender & Law
This Note focuses on two cases, Maher v. Roe and Harris v. McRae, and argues that they represent watershed moments in the reproductive rights movement because they positioned abortion as a fundamental right in name only. In both cases, the Supreme Court sanctioned severe funding restrictions and refused to grant poor women the right to state and federal assistance for elective and “nontherapeutic” abortions. “Non-therapeutic abortion” refers to those abortions performed or induced when the life of the mother is not endangered if the fetus is carried to term or when the pregnancy of the mother is not the …
Roe As We Know It, Cary Franklin
Roe As We Know It, Cary Franklin
Michigan Law Review
The petitioners in last year’s historic same-sex marriage case cited most of the Supreme Court’s canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control and the right to guide the upbringing of one’s children, was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases. Not once, however, did the petitioners or the majority in Obergefell cite the Court’s most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade.
The Scarlet Letter: The Supreme Court And The Language Of Abortion Stigma, Paula Abrams
The Scarlet Letter: The Supreme Court And The Language Of Abortion Stigma, Paula Abrams
Michigan Journal of Gender & Law
Why does the Supreme Court refer to the woman who is seeking an abortion as "mother"? Surely the definition has not escaped the attention of a Court that frequently relies on the dictionary to define important terms or principles. And why does the Court choose to describe the fetus as a child? What message does this language send about abortion and the woman who seeks an abortion? The Court's abortion decisions embody an ongoing debate on the legitimacy of constitutional protection of the right to choose. This debate unfolds most obviously as a discourse on constitutional interpretation; disagreements within the …
The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar
The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar
Michigan Journal of Gender & Law
The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute …
Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker
Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker
Michigan Journal of Gender & Law
If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique …
Looking Back On Planned Parenthood V. Casey, Christina B. Whitman
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 …
Losing Faith: America Without Judicial Review?, Erwin Chemerinsky
Losing Faith: America Without Judicial Review?, Erwin Chemerinsky
Michigan Law Review
In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He …
Dissent, Free Speech, And The Continuing Search For The "Central Meaning" Of The First Amendment, Ronald J. Krotoszynski Jr.
Dissent, Free Speech, And The Continuing Search For The "Central Meaning" Of The First Amendment, Ronald J. Krotoszynski Jr.
Michigan Law Review
Since the Warren Court's expansive construction of the Free Speech Clause of the First Amendment, there has been no shortage of legal scholarship aimed at justifying the remarkably broad protections afforded the freedom of speech under landmark cases such as Brandenburg v. Ohio, New York Times Co. v. Sullivan, and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. At the same time, in recent years, a growing chorus of free speech skeptics have made their voices heard.5 These legal scholars have questioned why a commitment to freedom of expression should displace other (constitutional) values such as equality, …
Judging Girls: Decision Making In Parental Consent To Abortion Cases, Suellyn Scarnecchia, Julie Kunce Field
Judging Girls: Decision Making In Parental Consent To Abortion Cases, Suellyn Scarnecchia, Julie Kunce Field
Articles
Judges make determinations on a daily basis that profoundly affect people's lives. On March 28, 1991, the Michigan legislature enacted a statute entitled The Parental Rights Restoration Act (hereinafter "the Michigan Act" or "the Act"). This statute delegated to probate court judges the extraordinary task of deciding whether a minor girl may have an abortion without the consent of a parent. Nothing in law school and little in an average judge's experience provide a meaningful framework for making such a decision. Although many commentators, including the authors, argue that decisions about abortion should be left to the woman regardless of …
Slavery Rhetoric And The Abortion Debate, Debora Threedy
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.
Rewriting Roe V. Wade, Donald H. Regan
Rewriting Roe V. Wade, Donald H. Regan
Book Chapters
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.
Rewriting Roe V. Wade, Donald H. Regan
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