Law Commons^™

Law School News: Rwu Law Remembers Sarah Weddington 12/30/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Texas Heartbeat Act Poses Threat To The Future Of Abortion Access, Kodie Mcginley

GGU Law Review Blog

As the abortion debate in the United States has grown increasingly tense over the recent years, a newly enacted Texas law could lay the groundwork for a national trend of restrictive abortion laws. SB 8, also known as the Texas Heartbeat Act, was first signed by Texas Governor Greg Abbott in May 2021, and came into effect on September 1st. The Texas Heartbeat Act is not the only recent bill that attempts to challenge Roe v. Wade. In 2018, Mississippi passed the Gestational Age Act, which bans abortions after 15 weeks of pregnancy. The Texas Heartbeat Act is even …

The Supreme Court, The Texas Abortion Law (Sb8), And The Beginning Of The End Of Roe V Wade?, I. Glenn Cohen, Eli Y. Adashi, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Thirteen states have enacted so-called “fetal heartbeat” laws banning abortions once embryotic cardiac activity can be detected. Courts have enjoined their enforcement as unconstitutional. However, on September 1, 2021, the Supreme Court declined to block a Texas fetal heartbeat law, which virtually eliminates access to abortion services. Texas Governor Greg Abbott signed SB8 into law on May 19th, with an effective date of September 1st. The law essentially prohibits abortion after 6 weeks of gestational age, before most women know they are pregnant.

Texas’ fetal heartbeat law has a unique feature. It empowers private individuals to bring civil lawsuits not …

Equal Protection And Abortion: Brief Of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, And Reva Siegel As Amici Curiae In Support Of Respondents In Dobbs V. Jackson Women's Health Organization, Reva Siegel, Melissa Murray, Serena Mayeri

All Faculty Scholarship

Equal Protection changes the questions we ask about abortion restrictions. In Dobbs v. Jackson Women’s Health Organization, an amicus brief filed on our behalf demonstrated that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause. The brief continues a tradition of equality arguments that preceded Roe v. Wade and will continue, in new forms, after Dobbs. Our brief shows how the canonical equal protection cases United States v. Virginia and Department of Human Resources v. Hibbs extend to the regulation of pregnancy, hence provide an independent constitutional basis for abortion rights.

Under equal …

Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner

Faculty Scholarship

Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve …

“She Blinded Me With Science”: The Use Of Science Frames In Abortion Litigation Before The Supreme Court, Laura Moyer

Faculty Scholarship

While much of the work on amicus briefs focuses on whether such briefs affect Supreme Court outcomes or doctrine, much less is known about the content of these briefs, particularly how groups opt to frame issues as part of their litigation strategy. In this study, I leverage an approach to content analysis that has previously been used to analyze judicial opinions and use it to assess the frames used by amicus groups in a single policy area over four decades. Using an original dataset of amicus briefs filed in Supreme Court cases on the right to abortion, I test the …

Abortion Privilege, Ederlina Co

McGeorge School of Law Scholarly Articles

This Article launches a critical dialogue about the abortion privilege. On the one hand, most abortion patients are low income or live below the poverty line and are disproportionately women of color. Many of these patients encounter multiple restrictions on abortion and must travel lengthy distances to abortion care facilities. These patients take center stage in abortion rights cases and in abortion rights discourse. On the other hand, there is a smaller but not insignificant group of abortion patients for whom abortion care is paid for by private or public health insurance or available out-of-pocket funds. Many of these patients …

Civil Disobedience In The Face Of Texas’S Abortion Ban, Alexi Pfeffer-Gillett

Scholarly Articles

This Article uses Texas’s abortion ban to demonstrate why civil disobedience is the best strategy against such private-enforcement schemes. It proceeds in three parts. Part I demonstrates that Texas’s private enforcement scheme in fact directly implicates state court officials and potentially state police forces. It then explains why bringing about the involvement of state courts and police through civil disobedience will put SB8 on constitutionally weaker ground. Part II details potential arguments against civil disobedience as a means of challenging private enforcement schemes. This Part also explains why relying on the federal government to challenge such laws will be insufficient. …

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

Faculty Publications & Other Works

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 …

The Geography Of Abortion Rights, B. Jessie Hill

Faculty Publications

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion …

Second-Trimester Abortion Dangertalk, Greer Donley, Jill Wieber Lens

Articles

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale—the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling …

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

Scholarly Works

No abstract provided.

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Faculty Publications

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Immoral Patents, David O. Taylor

Faculty Journal Articles and Book Chapters

Only to a limited extent have U.S. legislators recognized the moral and ethical implications of the patentability of controversial technologies. I find this absence of legislative debate curious for several reasons, including the fact that for decades there has been an intense public debate over the government’s involvement in, and regulation of, research and development related to biotechnology, including reproduction technologies, and particularly the use and destruction of embryonic stem cells, embryos, and fetuses—areas of considerable moral and ethical concern. Nor has there been debate regarding patentability with respect to other areas of concern, such as technologies that damage the …

Religion, Conscience, And The Law: Reasons, Bases, And Limits For Exemptions, Kent Greenawalt

Faculty Scholarship

Kent Greenawalt discusses the permissibility, scope, and rationale for law to provide exemptions to protect religious and nonreligious conscience in the United States. It may be difficult for the law to determine which sentiments amount to conscience given differences in individuals’ perception and the strength of their convictions. Even the notion of a religious conscience is complex. Religious citizens’ conclusions about matters of interest to religion may proceed from both religion and reason, or only from reason. It is not clear what should count as religious, given differences between denominations and their ideas over time. There are a host of …

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

Two Constitutional Rights, Two Constitutional Controversies, Michael J. Perry

Faculty Articles

My overarching aim in the Article is to defend a particular understanding of two constitutional rights and, relatedly, a particular resolution of two constitutional controversies. The two rights I discuss are among the most important rights protected by the constitutional law of the United States: the right to equal protection and the right of privacy. As I explain in the Article, the constitutional right to equal protection is, at its core, the human right to moral equality, and the constitutional right to privacy is best understood as a version of the human right to moral freedom. The two controversies I …

The Future Of Facts: The Politics Of Public Health And Medicine In Abortion Law, Aziza Ahmed, Jason Jackson

Faculty Scholarship

While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries make decisions between competing sets of public health and medical claims and second, courts …