Law Commons^™

The Haunting Of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape, Jordan S. Miceli

Washington and Lee Law Review Online

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction …

Comparative Limitations On Abortions: The United States Supreme Court V. The European Court Of Human Rights, Sunaya Padmanabhan

Northwestern Journal of Law & Social Policy

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion.

This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the …

The Public Health Turn In Reproductive Rights, Rachel Rebouché

Washington and Lee Law Review

Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects. …

Justice Gorsuch's Choice: From Bostock V. Clayton County To Dobbs V. Jackson Women's Health Organization, Marc Spindelman

ConLawNOW

Informed speculation holds that the Supreme Court’s decision to hear and decide Dobbs v. Jackson Women’s Health Organization spells bad news for constitutional abortion rights. Recognizing both the stakes and the odds, this brief commentary engages Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County and the prospects that it opens up in Dobbs for a future for—not against—abortion rights. Bostock’s pro-gay and pro-trans sex discrimination rulings are built atop—and go out of their way to reaffirm—women’s statutorily-grounded economic and social rights, and hence women’s equal citizenship stature. Moreover, the final decision in the case emerges after judicial wrestling …

Preventing The Preventable: A Review Of Maternal Mortality Rates In South Carolina, Sydney J. Douglas

South Carolina Law Review

No abstract provided.

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia Sawicki

Indiana Law Journal

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article …

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

South Carolina Law Review

No abstract provided.

Abortion Rights In The Supreme Court: A Tale Of Three Wedges, Jennifer S. Hendricks

ConLawNOW

In May 2021, the Supreme Court granted certiorari in a case designed to overrule Roe v. Wade. The assumption is that six justices are inclined to repudiate Roe, and that some of those six would like to go further, declaring a constitutional right to life that would prevent the abortion issue from going “back to the states” at all. The question for the next year is not whether Roe will be overruled—it already was, in Planned Parenthood v. Casey—but how far the Court will go. This essay describes the arc of the Supreme Court’s abortion jurisprudence in …

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 …

Abortion Restrictions During A Pandemic At The Intersection Of The 13th Amendment And Electoral Legislation, Dr. Cynthia Boyer

The University of New Hampshire Law Review

The current pandemic is intensifying restrictions on a wide range of fundamental rights which form a key pillar of the rule of law, it includes access to reproductive rights. Some states have moved forward with their ideological quest of control and infringement of constitutional rights in order to ban or limit abortion what is a fundamental attack on constitutional rights and in particular those associated with the Thirteenth Amendment. These restrictions on abortion resulting from the proclamation of a state of emergency follow the path already taken by certain states to reinforce their coercive measures. They raise major legal and …

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …

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, …

June Medical And The Marks Rule, Owen P. Toepfer

Notre Dame Law Review

This Note, proceeding in three parts, describes the history of the Court’s abortion jurisprudence, evaluates the current state of the Marks rule, and demonstrates that Chief Justice Roberts’s concurrence in June Medical is the controlling opinion for Marks purposes under each definition of “narrowest” that several federal circuit courts of appeals employ. Part I first traces the historical arc of abortion jurisprudence from Roe v. Wade to June Medical and thereafter provides background on the history of and academic reactions to the Marks rule. Part II considers the various approaches to the Marks rule taken by the several federal circuits …

Overruling Roe V. Wade: Lessons From The Death Penalty, Paul Benjamin Linton

Pepperdine Law Review

In Furman v. Georgia (1972), the Supreme Court struck down the Georgia and Texas death penalty statutes, thereby calling into question the validity of every other state death penalty statute. In their concurring opinions, Justices Brennan and Marshall expressed the view that, given society’s gradual abandonment of the death penalty, capital punishment violated the Eighth Amendment’s prohibition of “cruel and unusual punishments.” Justice Powell and three other justices dissented, arguing that the Court had misread the state of the law regarding society’s acceptance of the death penalty. Four years after Furman, in a quintet of cases, the Court held that …

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 …

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 …

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

Journal of Race, Gender, and Ethnicity

No abstract provided.

Promoting Gender Equity And Foreign Policy Goals Through Ratifying The Convention On The Elimination Of All Forms Of Discrimination Against Women, Raj Telwala

Journal of Race, Gender, and Ethnicity

No abstract provided.

Growing Burdens On Abortion Rights: An Individual Freedom During Covid-19 And Changing Judicial Interpretation, John Simpson

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Covid-19, Abortion, And Public Health In The Culture Wars, Laura D. Hermer

Mitchell Hamline Law Review

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

The First Amendment And The Female Listener, Loren Jacobson

New Mexico Law Review

When the Supreme Court has considered whether laws that affect women’s decisions about their health and bodies violate the Free Speech Clause, it has ignored the informational needs of the very women that such laws regulate. I argue that, instead, the Supreme Court should value women’s informational and decision-making needs and properly place them at the center of a First Amendment analysis of laws that affect women in particular. Towards that goal, the Supreme Court should take a listener-centered approach to laws that affect women’s decision-making. There is a strong basis for a listener-centered approach in the Court’s Free Speech …

“It Didn’T Matter What The Bill Said...”: Influences On Abortion Policy Legislative Decision-Making In Georgia, Erica Barton, Subasri Narasimhan, Dabney P. Evans

Journal of the Georgia Public Health Association

Background: In March 2019 the Georgia legislature passed HB 481 described as a “heartbeat bill”, prohibiting abortion at around six weeks gestation. Given the prevalence of anti-abortion legislation and the public health implications of abortion restrictions, we sought to understand how Georgia legislators made decisions on this early abortion ban legislation.

Methods: We conducted in-depth interviews with nine legislators from the Georgia House of Representatives who participated in the 2019 legislative session. In-depth interviews were conducted in-person and over the phone. Interview recordings were transcribed verbatim and inductive codes identified. Codes focused primarily on views of: abortion in general; specific …