Law Commons^™

Washington V. Glucksberg’S Original Meaning, Marc Spindelman

Cleveland State Law Review

This Article elaborates and defends Washington v. Glucksberg’s original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.

The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court’s Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. …

Abortion Access: A Strain On The Most Vulnerable Women In Texas Post-Dobbs, Aleea Costilla

The Scholar: St. Mary's Law Review on Race and Social Justice

No abstract provided.

Standing Up To Bounty Laws: Examining State Standing Jurisprudence And Its Effect On Laws Enforced Through Private Rights Of Action, Olivia A. Luzzio

Washington and Lee Journal of Civil Rights and Social Justice

The Texas Heartbeat Act (SB 8) adopted a unique enforcement scheme that succeeded in circumventing Roe v. Wade’s protection of a woman’s right to abortion before viability. By prohibiting enforcement of the Act by public officials and instead authorizing enforcement solely through civil actions by “any person,” SB 8 effectively ended a women’s right to abortion after a fetal heartbeat is detected. The passage of this law placed the protection of other constitutionally endowed rights in jeopardy and facilitated the passage of similarly constructed legislation, such as California’s Senate Bill 1327, which authorizes “any person” to sue anyone who manufactures …

“I Wish I Knew How It Would Feel To Be Free”: A Lamentation On Dobbs V. Jackson’S Pernicious Impact On The Lives And Liberty Of Women, April L. Cherry

Cleveland State Law Review

On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women’s Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court’s evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court’s outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning …

June 24, 2022, Bisma Shoaib

Seattle Journal for Social Justice

No abstract provided.

The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi

Touro Law Review

The Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. …

Retaining A Constitutional Right To Terminate A Pregnancy By Reinterpreting Pregnancy As An Implied Contract, Esra Coskun-Crabtree

Golden Gate University Law Review

This Comment considers the question of abortion as a fundamental right by reframing pregnancy as a ground for implied contract. The recent decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) rejected the Fourteenth Amendment’s Due Process Clause as a basis for asserting a fundamental right to abortion. However, other constitutional limits on state power may provide different avenues to such an assertion. Specifically, the Contracts Clause of Article I, Section 10 of the U.S. Constitution prohibits the states from impairing the freedom to contract. This Comment argues that the key issue in the abortion …

Transcript: The Future Of Ivf Post Dobbs, Rebecca Feinberg

Journal of Law and Health

The following is a transcription from The Healthcare and Privacy Law Consequences Following Dobbs presented at Cleveland State University College of Law by The Journal of Law & Health on February 17, 2023. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.

(Re)Criminalizing Abortion: Returning To The Political With Stories, George J. Annas

Faculty Scholarship

Abortion stories have always played a powerful role in advancing women’s rights. In the abortion sphere particularly, the personal is political. Following the Court’s reversal of Roe v. Wade, abortion politics, and abortion storytelling, take on an even deeper political role in challenging the bloodless judicial language of Dobbs with the lived experience of women.

Introduction: Securing Reproductive Justice After Dobbs, Aziza Ahmed, Nicole Huberfeld, Linda C. Mcclain

Faculty Scholarship

When we conceptualized this symposium, Roe v. Wade¹ was still the law of the land, albeit precariously. We aimed to commemorate its fiftieth anniversary by exploring historical, legal, medical, and related dimensions of access to abortion as well as the challenges ahead to secure reproductive justice. With the leak of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization on May 2, 2022, we shifted to mark the dawn of a new era. In the nearly identical official opinion announced on June 24, 2022,² Justice Samuel Alito, writing for the majority (6-3), overturned Roe and …

Continuous Reproductive Surveillance, Michael Ulrich, Leah R. Fowler

Faculty Scholarship

The Dobbs opinion emphasizes that the state’s interest in the fetus extends to “all stages of development.” This essay briefly explores whether state legislators, agencies, and courts could use the “all stages of development” language to expand reproductive surveillance by using novel developments in consumer health technologies to augment those efforts.

Jane Crow Constitutionalism, Evan D. Bernick

Northern Illinois University Law Review

On June 24, 2022 The United States Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization; overturning Roe v. Wade, and destroying fifty years of precedent to protect the constitutional right to abortion in the United States. This overturning sets a dangerous, new precedent that reinforces the State’s control of reproduction, and criminalizes a woman’s right to choose, with very few exceptions. In states like Mississippi, Black women are already experiencing the highest rates of maternal mortality, incarceration, and poverty.

This article posits that Dobbs operates to maintain a racialized and gendered underclass, and names this phenomenon …

“A Solemn Mockery”: Why Texas’S Senate Bill 8 Cannot Be Legitimized Through Comparisons To Qui Tam And Environmental Protection Statutes, Laura Blockman

University of Miami Law Review

On September 1, 2021, the Texas Legislature enacted the Texas Heartbeat Act, an anti-abortion statute popularly known as Senate Bill 8 (“S.B. 8”). Although many states passed anti-abortion legislation in 2021, S.B. 8 received national attention due to the law’s unusual enforcement mechanism: S.B. 8 empowers private citizens, not state actors, to sue individuals who perform or aid in the performance of an abortion after a fetal heartbeat is detected.

Unsurprisingly, the authors of S.B. 8 received extreme back- lash from the public, and many academics and legal scholars viewed the law’s private enforcement mechanism as an effort to evade …

Roe And The Original Meaning Of The Thirteenth Amendment, Kurt T. Lash

Law Faculty Publications

The current debate over Roe v. Wade as a substantive due process right has prompted scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery” and “involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument con-cede that the right to abortion was not the expected application of the Thirteenth Amendment but insist that a forced continued pregnancy falls within the original meaning of the Amendment’s terms.

Sounding The Legitimacy Alarm Bell: When Does The Media Discuss The U.S. Supreme Court’S Legitimacy?, Rachael Houston

Journal of Race, Gender, and Ethnicity

These media outlets cover the Court in such ways because they openly promote a particular political ideology through endorsements, donations, ownership, or slant in coverage. They cater to audiences with similar political beliefs and tailor their coverage accordingly. For example, Fox News was created by Rupert Murdoch to appeal to a conservative audience. So, its content is purposefully conservative and assessed as right-leaning by media bias charts. As a result, polling data reveals that Republicans trust Fox News more than any other outlet. At the same time, Robert “Ted” Turner, the founder of CNN, is a donor to left-progressive causes …

A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq

Journal of Race, Gender, and Ethnicity

This article will discuss in detail exactly how the court is illegitimate and makes decisions that are illegitimate, using examples from the October 2021 term. It will also explain why action needs to be taken immediately to reign in this run-away Court to restore public trust. As discussed herein, we cannot sit by and patiently wait for the Court to right itself over time because there are important issues on the current docket, such as race-conscious admissions policies of colleges and universities to ensure student bodies are diverse as future leaders are prepared to live and work in a diverse …

Menstruation In A Post-Dobbs World, Emily Gold Waldman, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In this Essay, we re-examine our 2022 book, Menstruation Matters: Challenging the Law's Silence on Periods, through multiple related lenses, including the human rights, sustainability, and workplace issues emphasized by our three reviewers; the COVID-19 pandemic; and the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. All of these perspectives converge on the inherent dignity and autonomy interests in being able to manage one's own body. Menstruation and related conditions like breastfeeding, pregnancy, and menopause should not be sources of shame or stigma. Nor should they be vectors of formal control by the government or de facto exclusion …

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

Articles in Law Reviews & Other Academic Journals

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis

Pepperdine Law Review

In the post-Roe world, can a state rationally claim that the value of human life justifies the imposition of abortion bans but does not demand that a state protect the vulnerable young who are “born human beings”—commonly called “minors” or “children”—and are entitled to protection under a state’s laws? This essay advances the claim that it cannot. This essay asks that those who say they are “Pro-life” in politics and law demonstrate that they protect vulnerable life beyond the abortion context, and that they do so in the most minimal fashion: through a demonstrated commitment to protecting the basic welfare …

Menstrual And Fertility Tracking Apps And The Post Roe V. Wade Era, Samantha T. Campanella

Undergraduate Student Research Internships Conference

In the first section of the paper, I will place current conversations about data privacy within the broader context of restrictions that have been placed on reproductive rights by examining historical trajectories. Emphasis will be placed on the historical trajectory of how past policies and ideologies have worked against Roe v. Wade, and how this trajectory contributes to a decrease in access to abortions. In addition, recent news stories have documented the overturning of Roe v. Wade in several jurisdictions within the United States, which confirms the criminalization of abortion. In light of this, experts have raised awareness about the …

A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro

Faculty Online Publications

When the Supreme Court overruled Roe v. Wade, the justices in the majority insisted they were merely returning the issue of abortion to the democratic process. But a case the court has announced it will hear in its October term could make that democratic process a lot less democratic.

Abortion Rights And Disability Equality: A New Constitutional Battleground, Allison M. Whelan, Michele Goodwin

Washington and Lee Law Review

Abortion rights and access are under siege in the United States. Even while current state-level attacks take on a newly aggressive scale and scope—emboldened by the United States Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey—the legal landscape emerging in the wake of Dobbs is decades in the making. In this Article, we analyze the pre- and post-Roe landscapes, explaining that after the Supreme Court recognized a right to abortion in Roe in 1973, anti-abortionists sought to dismantle that right, first …

Sandy’S Joyfully Divided Soul And A Glimpse At A Constitutional Poethics In View Of Roe’S Leaked Demise, Richard Weisberg

Faculty Online Publications

In his version of the iconic story, Goethe has his hero say, “There are two Fausts in my soul!” And a century or so later, Camus’ lawyer narrator in The Fall puts his own first-person story under the sign of Janus, the Roman god with two faces looking in opposite directions. There is a bit of this doubleness in my friend Sandy's soul. I’ve thought for a while that his trained intuition follows a literary tune, but that his less Dionysical and more Apollonian mind points him towards history and the social sciences.

Constitutional Law—Fourteenth Amendment And Fetal Personhood—Established Injustice: American Abortion Jurisprudence And The Irreducible, Geoffrey "Chip" Gross

University of Arkansas at Little Rock Law Review

No abstract provided.

Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe

Law Faculty Scholarship

[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].

Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …

Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus

ConLawNOW

The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe …

Pov: What Rights Could Unravel Next, In Light Of Draft Opinion By Scotus Overturning Roe V. Wade, Robert L. Tsai

Shorter Faculty Works

Beyond what Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization portends for the future of abortion rights is the striking method of analysis he employs in the reported draft. Despite his many efforts to reassure that the opinion “does not undermine” other constitutional rights “in any way,” it actually outlines a roadmap for the withdrawal of other cherished constitutional rights.

Is The End Of Roe V. Wade Near? Leaked Scotus Brief Says Yes, Nicole Huberfeld, Linda C. Mcclain

Shorter Faculty Works

Protesters on both sides of the abortion debate descended on the US Supreme Court Monday night and into Tuesday after a leaked secret draft of a US Supreme Court opinion indicated that a majority of justices support overturning Roe v. Wade, after almost 50 years of legalized abortion rights in America. If finalized, possibly as soon as this summer, the bombshell could trigger a cultural tsunami across American life, forcing some women to travel to another state for an abortion and putting the divisive issue at the heart of the fall midterm elections.

The Never-Ending Struggle For Reproductive Rights, Stephanie Toti

Michigan Law Review

For me, the annual Book Review issue is a time for reflection. It provides an opportunity to take stock of scholarly trends, reassess conventional wisdom, and gather new insights to apply to the practice of law. The reviews contained in this year’s issue address a wide range of subjects, including the history of public defenders, the use of bigotry rhetoric in conflicts over marriage and civil rights law, the role of cost-benefit analysis in federal policymaking, and racial inequities in tax policy. This impressive commentary on an astute and varied collection of books about the law will inspire many of …

Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes

Con Law Center Articles and Publications

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will be remembered primarily for its destabilizing effect on abortion rights across the country; in its wake, the legality of abortions performed in various states and at various stages of pregnancy was thrown into turmoil that will take years to resolve. In Dobbs’s immediate aftermath, substantive due process jurisprudence has been at least destabilized, if not prepared for greater limitation in the terms to come. But the Court’s approach to that line of cases has also turned stare decisis doctrine into an unclear jumble that may be considered …