Law Commons^™

Reproductive Rights And Felony Disenfranchisement: The New Frontier Of An Old Voter Suppression Tactic, Jessie Rubini

Northwestern Journal of Law & Social Policy

Voter suppression and anti-abortion, anti-reproductive care efforts are mutually reinforcing, working together to diminish political participation, especially for women of color. I argue that politicians could use the Dobbs decision to further suppress Black voters, specifically Black women voters, by prosecuting abortions as felonies. The effect would be disenfranchisement of thousands of people. This Comment covers the connected histories of voting rights and abortion rights in America. The first section of this Comment will briefly cover the history of voting rights in America with a focus on racial discrimination. The second section will cover one voter suppression, felony disenfranchisement. Finally, …

Brief For Amici Curiae Legal Scholars Supporting Respondent, Nicole Huberfeld, Timothy S. Jost, Linda C. Mcclain, Wendy E. Parmet, Erwin Chemerinsky, Elizabeth Mccuskey, Danielle Pelfrey Duryea, Gabriel Scheffler, George J. Annas

Faculty Scholarship

QUESTION PRESENTED: Whether the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd, preempts Idaho law in the narrow but important circumstance where terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to the pregnant woman’s health but the State prohibits an emergency-room physician from providing that care.

Exploring The African Regional Human Rights Standards As The Basis For An Enabling Environment For Self-Managed Abortion, Lucia Berro Pizzarossa, Michelle Maziwisa, Ebenezer Durojaye

Washington and Lee Journal of Civil Rights and Social Justice

Self-managed abortion holds great promise to save lives and promote reproductive autonomy, particularly in Africa. Indeed, the African region records very high numbers of unsafe abortions, and the burden of abortion-related mortality is the highest globally. Abortion remains generally criminalized in violation of numerous internationally and regionally recognized human rights standards. The advent of abortion medicines and the increased grassroots energy geared towards curbing the harms of unsafe abortion evince medical abortion holds great promise for revolutionizing people’s access to high-quality reproductive care. This study discusses regional human rights frameworks, policy, case law, and a few representative domestic legislative frameworks …

The Independent Existence: A Look At Florida's Wrongful Death Statute In The Wake Of Dobbs And Changing State Abortion Laws., Katherine Bolliger

Child and Family Law Journal

Following the Supreme Court’s overturning of the federally mandated fundamental right to abortion founded in Roe¹ and Casey,² the decision of whether a woman may terminate a pregnancy has returned to the states with the current Court’s implementation of Dobbs v. Jackson Woman’s Health.³ In Florida, the state government decided to reduce the gestational age for termination to fifteen weeks in July 2022, and further reduced the gestational age to six weeks in April 2023 provided that the Florida Supreme Court upholds the fifteen week ban.⁴ This note operates under the fifteen week standard …

Femtechnodystopia, Leah R. Fowler, Michael Ulrich

Faculty Scholarship

Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral …

After Roe, After Dobbs, Angela Onwuachi-Willig

Shorter Faculty Works

Being able to control reproductive choices—having the ability to decide if and when to give birth and become a parent—is central to determining how one may build a life and future. For some, having control over their reproductive capacities could mean the difference between completing or not completing their education, taking advantage of a particular job opportunity or having to decline it, or moving or not moving to a different location. These decisions shape our economy and our society.

Symposium: The Future Of Reproductive Rights: Big, Bad Roe, B. Jessie Hill

ConLawNOW

After the Supreme Court’s reversal of Roe v. Wade, the question of a constitutional right to abortion goes to state courts where there is a potential for resurgence of a Roe-like standard. This Essay thus evaluates whether Roe’s doctrinal framework is worth resurrecting, and concludes that it is good law to retain. It criticizes the work of liberal legal scholar John Hart Ely, who famously attacked Roe’s reasoning in a much-cited essay entitled The Wages of Crying Wolf: A Comment on Roe v. Wade. Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization cited …

Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry

ConLawNOW

This article critiques the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization for its unprincipled and superficial use of foreign law sources to overturn Roe v. Wade. It explains the surprising use of foreign law by conservative justices who had previously opposed all use of non-US law in decision-making. And it shows how international and foreign law can be used on by either side to both expand and retrench rights. The article thus argues for a more principled framework for when and how to use international law sources including a more contextual analysis of that law.

Originalism: Erasing Women From The Body Politic, Malinda L. Seymore

Faculty Scholarship

In Dobbs v. Jackson Women's Health, the Court relied on originalism to excise women from the Constitution. Originalism is purposefully backward-looking. With cherry-picked history, the Court created a future that looks to the past: a past where unwed pregnancy is shameful and can be redeemed only by secret adoption. Yet the case has revealed originalism as a flawed method, harmed the legitimacy of the Court, and energized those supporting abortion rights.

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. …

Employer-Sponsored Reproduction, Valarie Blake, Elizabeth Mccuskey

Faculty Scholarship

This Article interrogates the current and future role of employer-sponsored health insurance in reproductive choice, revealing the magnitude of impact that employers’ insurance coverage choices have on Americans’ access to reproductive care, as well as the legal infrastructure that prioritizes employer choice over individual autonomy.

Over half the population depends on employers for health insurance. The laws regulating those plans grant employers discretion in what services to cover, with exceptionally wide latitude for employers’ choices about reproductive care services, like abortion, contraception, infertility, and pre-exposure prophylaxis (PrEP). In their role as health care funders, employers pursue their own economic interests, …

Feminist Legal Theory And Praxis After Dobbs: Science, Politics, And Expertise, Aziza Ahmed

Faculty Scholarship

Fifty years ago, in Roe v. Wade, Justice Blackmun set into motion the idea that abortion should be a decision between a woman and her doctor.' That idea traveled from the Supreme Court decision to popular discourse; with it, came the notion that when it comes to reproduction, medical experts are a key part of women's liberation. In Dobbs v. Jackson Women's Health Organization, the court ignored the role of experts and threw the question of who should decide when and how a person has an abortion to the people. In my essay for this symposium issue dedicated to feminist …

Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha

All Faculty Scholarship

In June of 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent by eliminating the federal constitutional right to abortion care established by the Court’s 1973 decision in Roe v. Wade. The Dobbs decision leaves the decision about abortion services in the hands of the states, which created an immediately variegated checkerboard of access to women’s healthcare across the country. This in turn laid bare a profusion of privacy issues that emanate from our technologized world. We review these privacy issues, including healthcare data, financial data, website tracking and …

Political Equality, Gender, And Democratic Legitimation In Dobbs, Aliza Forman-Rabinovici, Olatunde C.A. Johnson

Faculty Scholarship

This Article examines the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, demonstrating how the Court deploys new arguments about women’s political equality — alongside long-standing arguments about federalism and judicial minimalism — to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy — such as partisan politics and gerrymandering — as well the absence of women in the …

A World Without Roe: The Constitutional Future Of Unwanted Pregnancy, Julie C. Suk

William & Mary Law Review

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing …

Era Project Summary Of Argument Before Pa Supreme Court On Whether Medicaid Abortion Ban Amounts To Sex Discrimination, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

This morning, the Pennsylvania Supreme Court heard oral arguments in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, a case in which reproductive rights advocates have challenged the state’s ban on Medicaid funding for abortion (Coverage Ban), arguing that the ban violates the state constitution’s explicit prohibitions against sex discrimination.

Era Project Summary Of Argument Before Pa Supreme Court On Whether Medicaid Abortion Ban Amounts To Sex Discrimination, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

On October 26, 2022, the Pennsylvania Supreme Court heard oral arguments in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, a case in which reproductive rights advocates have challenged the state’s ban on Medicaid funding for abortion (Coverage Ban), arguing that the ban violates the state constitution’s explicit prohibitions against sex discrimination.

Thinking Outside The Box: Preimplantation Genetic Diagnosis, In Vitro Fertilization, And Disability Screening In The Wake Of Box V. Planned Parenthood, Christian J. Sorensen

William & Mary Bill of Rights Journal

A circuit split has recently emerged regarding the constitutionality of state laws banning trait-selective abortions, i.e., abortions based on fetal characteristics like disability. Much of the dialogue surrounding trait selection has revolved around whether such abortions are eugenic in nature and whether they could be regulated differently than other forms of abortion—under either Roe and Casey or the post- Roe regime ushered in by Dobbs. However, the same concerns underlying this debate over eugenic abortions apply with equal force to preimplantation genetic diagnosis (PGD) coupled with in vitro fertilization. Because PGD seems certain to be the next battlefield in …

Surrogacy Law Reformed: Bringing New York Into The Twenty-First Century, Natalie Burke

Pace Law Review

No abstract provided.

What Comes Now? Religious Liberty And The End Of Roe, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

New York, NY – The Law, Rights, and Religion Project at Columbia Law School, an academic think tank that conducts research and policy analysis on the complex ways in which religious liberty rights interact with other fundamental rights, has a number of materials that can help to shed light on three key issues around the possible end of Roe v. Wade in light of the draft Supreme Court opinion released yesterday.

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 …

Insuring Contraceptive Equity, Jennifer Hickey

Northwestern Journal of Law & Social Policy

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.

While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is …

We Shouldn't Need Roe, Carliss Chatman

Scholarly Articles

In the face of state-by-state attacks on the right to choose, which result in regular challenges to Roe v. Wade in the U.S. Supreme Court, this essay asks whether Roe is needed at all. Decades of state law encroachments have caused Roe to fail to properly protect the right to choose. Building on prior works that challenge the premise of fetal personhood and highlighting the status of Roe-based rights after decades of challenges, this essay proposes an alternative solution to Roe. Federal legislative and executive efforts, including the Women’s Health Protection Act, are necessary to ensure the right …

Abortion, Pregnancy Loss, & Subjective Fetal Personhood, Greer Donley, Jill Wieber Lens

Articles

Longstanding dogma dictates that recognizing pregnancy loss threatens abortion rights—acknowledging that miscarriage and stillbirth involve a loss, the theory goes, creates a slippery slope to fetal personhood. For decades, anti-abortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss, and more recently, remained silent, alienating those who suffer a miscarriage or stillbirth.

This Article is the first to argue that this perceived tension can be reconciled through …

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 Dilemma Of Liberal Pluralism, Abner S. Greene

Faculty Scholarship

Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …

Big Bad Roe, B. Jessie Hill

Faculty Publications

Now that Roe v. Wade is gone, what should replace it? This moment presents a rare opportunity to re-imagine the right to reproductive autonomy, given that the longstanding constitutional framework governing that right has been tossed out the window. For the most part, constitutional litigation over the right to abortion has shifted to state courts and is brought under state constitutions. Thus, as state courts begin to recognize the existence of a constitutional right to reproductive autonomy under state constitutions, they must decide what the right looks like. In several cases currently being litigated in state courts, advocates have argued …

Foreword: The Disability Frame, Jasmine E. Harris, Karen Tani

All Faculty Scholarship

This essay is the Foreword to the 2022 University of Pennsylvania Law Review symposium on “The Disability Frame.” “The disability frame” refers to the characterization of a particular controversy or problem as being “about” disability, which in turn can imply that disability-focused laws ought to resolve or adjudicate the issue. We see this frame function in at least four ways. First, the disability frame is sometimes invoked as a shield, with the hope that it will insulate someone from the reach of the state or exempt a person from an unwelcome or onerous responsibility (e.g., jury service, vaccination, a criminal …

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.

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 …