Health Law and Policy Commons^™

Interjurisdictional Abortion Wars In The Post-Roe Era, Maya Manian

Scholarly Articles in Law Reviews & Journals

The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a postion of "neutrality" on abortion. Justice Kavanaugh's assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the …

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 …

Supreme Court Ruling On The Texas Abortion Law: Beginning To Unravel Roe V Wade, I. Glenn Cohen, Rebecca Reingold, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In 2021, Texas enacted an abortion statute, SB8, stating “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” SB8’s prohibition applies broadly against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” The law’s design is unprecedented, enforced solely by private lawsuits, providing damages of $10,000 or more for each abortion. SB8 prohibits government enforcement, with the explicit intent of preventing federal judicial review. SB8 clearly violates current Supreme Court precedent creating a constitutional right to …

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 …

Denouncing The Revival Of Pre-Roe V. Wade Abortion Bans In A Post-Dobbs World Through The Void Ab Initio And Presumption Of Validity Doctrines, Nora Greene

American University Journal of Gender, Social Policy & the Law

The United States Supreme Court voted to overturn Roe v. Wade in a leaked draft of Dobbs v. Jackson Women’s Health Organization. Written by Justice Alito and joined by four of the other conservative justices, the decision describes Roe as “egregiously wrong from the start” and blatantly overrules the landmark holding and its prodigy, Planned Parenthood v. Casey. In their state codes, nine states—Alabama, Arizona, Arkansas Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin— have unrepealed criminal abortion bans enacted before Roe. These bans prohibit abortion at any point in pregnancy unless to preserve the life of the pregnant person …

How To Survive The Culture Wars: Conflict Of Laws Post-Dobbs, Roger Michalski

American University Law Review

Abortion is the latest flashpoint in the culture wars. Post-Dobbs, red and blue states are hard at work codifying different approaches within their boundaries. However, pills, women, transactions, medical services, and information will cross those boundaries. Both sides already fight about who gets to regulate such boundary-crossing activity with each accusing the other of trespassing on the regulatory space of their disagreeing neighbors.

This is dangerous terrain. A house divided against itself needs tools to mediate and constructively tackle conflict. Without such tools, divisions will deepen and provide an endless stream of incidents to further divide the country. The choice …

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 …

A Critique Of Expertise For Health Law, Aziza Ahmed

Faculty Scholarship

A health justice approach requires a progressive critique of expertise. This article considers two recent high-profile cases – the mask mandate and medication abortion -- to understand how we should think the mobilization of expertise in the context of public health law. Following from this, the article offers news ways to better understand how to think of the relationship between health law, expertise, and politics.

American Motherhood - A Taking, Nicole Knight

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Why The Equal-Protection Case For Abortion Rights Rises Or Falls With Roe's Rationale, Sherif Girgis

Journal Articles

From the Post

For nearly 50 years, legal scholars who favor Roe v. Wade’s outcome but scorn its rationale have tried to find firmer footing for a constitutional abortion right. Roe and its follow-on case, Planned Parenthood v. Casey, claimed to derive such a right from the Due Process Clause. That proved deeply controversial, for reasons laid out in Dobbs v. Jackson Women’s Health Organization. Most prochoice critics of Roe would have relied instead on the Equal Protection Clause. Scores of essays on abortion rights have endorsed, developed, and refined the equality arguments over decades. A book of proposals about …

Misreading And Transforming Casey For Dobbs, Sherif Girgis

Journal Articles

From the Article

In Dobbs, Mississippi has asked the Supreme Court to uphold a 15-week abortion ban by overturning Roe and Casey. Some have proposed that the Court could instead uphold the ban under Casey’s undue-burden test, on the ground that a law that leaves women a fair opportunity to choose whether to abort (here, up to the 15th week) creates no undue burden. Many have noted that this proposal would flout Casey’s rejection of undue burdens until viability, which comes long after 15 weeks. This essay focuses on another problem: that the proposal would transform the meaning of the …

Trust, Brutality, And Human Dignity: How “Partial Birth Abortion” Helps Shape American Biopolitics, George J. Annas

Faculty Scholarship

In this Article, I explore how nearly continuous public rhetorical challenges to abortion in the political realm first led the public and the courts to turn away from a particular abortion procedure (intact dilation and extraction, also known as partial-birth abortion) which political agitators labeled as “barbaric” and then to view physicians who performed abortions not as legitimate professionals, but simply as “abortionists,” and sometimes as evil “Frankensteins.” “Abortionists” use no “medical judgment” and are unworthy of deference by state legislatures, Congress, or the courts when deciding how or when to perform an abortion. The concentration on the welfare of …

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

Life of the Law School (1993- )

No abstract provided.

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. …

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 …

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 …

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 …

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

South Carolina Law Review

No abstract provided.

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

South Carolina Law Review

No abstract provided.

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 …

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 …

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. …

“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 …

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

Mitchell Hamline Law Review

No abstract provided.

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

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 …

International Law And The Legalization Of Abortion In Northern Ireland, Emily Uterhark

Journal of Law and Health

On July 24, 2019, the Parliament of the United Kingdom passed an act that included an amendment requiring Northern Ireland to implement recommendations from the Committee on the Elimination on Discrimination Against Women. The amendment required Northern Ireland to repeal the 1861 abortion act and requires the decriminalization of abortion. The law went into effect on October 22, 2019, since the Northern Ireland power-sharing government (Stormont) did not reconvene before October 21, 2019. Since the law did go into effect, it gave women the right to obtain abortions under the CEDAW recommendations; however, when the Northern Irish government (Stormont) reconvenes, …

Reclaiming Access To Truth In Reproductive Healthcare After National Institute Of Family & Life Advocates V. Becerra, Diane Kee

Michigan Law Review

Crisis Pregnancy Centers (CPCs) are antiabortion organizations that seek to “intercept” people with unintended pregnancies to convince them to forego abortion. It is well documented that CPCs intentionally present themselves as medical professionals even when they lack licensure, while also providing medically inaccurate information on abortion. To combat the blatant deception committed by CPCs, California passed the Reproductive FACT Act in 2015. The Act required CPCs to post notices that disclosed their licensure status and informed potential clients that the state provided subsidized abortion and contraceptives. Soon after, CPCs brought First Amendment challenges to these disclosure requirements, claiming that the …

Redefining Reproductive Rights And Justice, Leah Litman

Michigan Law Review

Review of Reproductive Rights and Justice Stories edited by Melissa Murray, Katherine Shaw, and Reva B. Siegel.