Law and Gender Commons^™

My Body, Not My Say: Justice Blackmun's Influential Decision In Roe V. Wade, Kisha K. Patel

Gender, Women's, and Sexuality Studies Summer Fellows

Abortion laws have regulated women’s bodies since the beginning of the country. Many people associate regulation with the case of Roe V. Wade in 1973, in which the Supreme Court ruled that states could not outlaw abortion during the first trimester. Roe v. Wade remains controversial to this day as it failed to establish consensus that women’s decision whether or not to terminate a pregnancy falls within their constitutional right to privacy. Understanding the implications of this decision is fundamental to analyze the debate over the constitutionality of abortion today. This paper examines the opinion written by Justice Blackmun in …

Ministering (In)Justice: The Supreme Court's Misreliance On Abortion Regret In Gonzales V. Carhart, J. Shoshanna Ehrlich

Nevada Law Journal

No abstract provided.

Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey

Michigan Journal of Gender & Law

This Note focuses on two cases, Maher v. Roe and Harris v. McRae, and argues that they represent watershed moments in the reproductive rights movement because they positioned abortion as a fundamental right in name only. In both cases, the Supreme Court sanctioned severe funding restrictions and refused to grant poor women the right to state and federal assistance for elective and “nontherapeutic” abortions. “Non-therapeutic abortion” refers to those abortions performed or induced when the life of the mother is not endangered if the fetus is carried to term or when the pregnancy of the mother is not the …

Abortion, Informed Consent, And Regulatory Spillover, Katherine A. Shaw, Alex Stein

Indiana Law Journal

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other …

The Health Exception, Monica E. Eppinger

All Faculty Scholarship

The abortion doctrine laid out in Roe v. Wade permits a procedure necessary to preserve the life or the health of the pregnant woman, setting out what has come to be called the “life exception” and the “health exception.” This Article investigates the background and antecedents of the health exception, identifying three periods of formation and change up to the drafting of the Model Penal Code in 1959. It argues that theories of health lie at the heart of legal doctrine, shaping common-law treatment of abortion and persisting in nineteenth- and twentieth-century statutes. This account reveals origins of a health …

Marriage, Abortion, And Coming Out, Scott Skinner-Thompson, Sylvia A. Law, Hugh Baran

Publications

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?

This Piece argues that one explanation—or at least partial explanation—for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Piece, popular media portrayals of lesbian and gay individuals have proliferated, broadening the …

From Rights To Dignity: Drawing Lessons From The Movements For Aid In Dying And Reproductive Rights, Yvonne F. Lindgren

Faculty Works

In Roe v. Wade the Supreme Court identified the abortion right as “inherently, and primarily, a medical decision” to be decided between doctors and their patients. Early abortion case law closely linked the right to the doctor-patient relationship and situated abortion within the context of healthcare. Over the last forty years, however, the abortion right has come to be viewed almost exclusively as a constitutional right of decision-making or “choice.” Under the Court’s current analysis, the abortion right is cabined exclusively as a constitutional right to decide to terminate a pregnancy and, as a result, the Court has upheld significant …

Minors, Parents, And Minor Parents, Maya Manian

Scholarly Articles in Law Reviews & Journals

As numerous scholars have noted, the law takes a strikingly incoherent approach to adolescent reproduction. States overwhelmingly allow a teenage girl to independently consent to pregnancy care and medical treatment for her child, and even to give up her child for adoption, all without notice to her parents, but require parental notice or consent for abortion. This Article argues that this oft-noted contradiction in the law on teenage reproductive decision-making is in fact not as contradictory as it first appears. A closer look at the law’s apparently conflicting approaches to teenage abortion and teenage childbirth exposes common ground that scholars …

Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras

Michigan Journal of Gender & Law

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …

Section 8: Looking Ahead: Abortion And The Aca Contraception Mandate, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

My Body, Not My Say: Regulation Of Reproductive Freedom In America, Kisha K. Patel

Gender, Women's, and Sexuality Studies Summer Fellows

Women’s bodies have been legislated for years. Many people associate regulation beginning in 1973 when Roe V. Wade was decided, however legislation has affected women for much longer. These infringements on women’s rights create a major roadblock in gender equality. During summer fellows I researched how the law regulates aspects of American women's lives particularly in reproductive freedom (birth control, day-after pill, abortion, maternity discrimination). Conducting this research included thorough research of 48 pieces of congressional legislation from the 114^th Congress that limit women's reproductive freedom through abortion bans, non-accessible health care, and cuts in federal spending towards Planned …

Northeast Women's Center, Inc. V. Mcmonagle: A Message To Poltical Activists, Jo Anne Pool

Akron Law Review

This note examines Northeast Women's Center, Inc v. McMonagle a successful civil RICO claim brought by an abortion clinic against antiabortion activists who "used force, threats of force, fear and violence in their efforts to force the clinic out of business " As a background to examining the case, this note will explore the RICO statute, the judicial extension of RICO, and the current congressional action concerning reform.

Analysis of Northeast reveals an emerging extension of civil RICO. Civil RICO is applied to curb unlawful political protest. Such an extension allows certain victims of domestic terrorism private recovery of damages. …

The Case Of Beatriz: An Outcry To Amend El Salvador’S Abortion Ban, Jonathan Alvarez

Pace International Law Review

This Note examines the evolution of El Salvador’s existing penal code, specifically focusing on the abortion legislation. Further, it examines the significance of The Case of Beatriz and it suggests reform for El Salvador’s government to include exceptions in their penal code, similar to exceptions available in the United States, to provide women with access to safe abortions in extreme circumstances. Part II will illustrate the struggle that women face in El Salvador. Part III will briefly explore the historical background of the current Penal Code, exclusively the abortion ban. Part IV will also discuss women’s rights violated by the …

False Framings: The Co-Opting Of Sex-Selection By The Anti-Abortion Movement, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Does The Right To Elective Abortion Include The Right To Ensure The Death Of, Stephen G. Gilles

University of Richmond Law Review

No abstract provided.

Sex-Selective Abortion Bans: Anti-Immigration Or Anti-Abortion?, Sital Kalantry

Cornell Law Faculty Publications

In the last five years, over half of the state legislatures in the United States have considered banning sex-selective abortion because of the (false) belief that Asian Americans are disproportionately giving birth to more boys than are European Americans. Supported by the data that applies to a very small subset of Asian Americans, proponents of the law stereotype Asian Americans by assuming that their birthing patterns are the same as those of people in India and China.

Because of the undue focus on Asian immigrants in the discussions of sex selection bans, the real conversation that should occur in the …

A Primer On Hobby Lobby: For-Profit Corporate Entities’ Challenge To The Hhs Mandate, Free Exercise Rights, Rfra’S Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Pepperdine Law Review

Earlier this term, the United States Supreme Court heard oral argument in the consolidated case of Hobby Lobby Stores, Inc. v. Sebelius, the first of a litany of cases in which for-profit business entities are invoking the Religious Freedom Restoration Act ("RFRA") in support of their claim that the Affordable Care Act’s HHS Mandate violates their freedom of religion. In particular, these plaintiffs argue that the Mandate’s requirement that employer-provided health insurance covers the costs of contraceptives, the "morning after" pill, and other fertility-related drugs conflicts with their deeply-held religious belief that life begins at conception and is, therefore, unconstitutional. …

Introduction: Issues Of Reproductive Rights: Life, Liberty & The Pursuit Of Policy, Lauren Orrico, Gordon Gantt Jr.

Journal of Law and Health

On March 7, 2014, the Journal of Law and Health of Cleveland-Marshall College of Law hosted a symposium entitled “Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy” in response to recent developments in the regulation of women’s reproductive rights. The discussion about women’s reproductive rights has expanded far beyond the morality of abortion and right to privacy, established by the United States Supreme Court in Roe v. Wade, and has been complicated by new technology, statutory developments, and case law discussing the nature of a corporation. The symposium presenters addressed key legal developments in each stage of …

Respecting Intent And Dispelling Stereotypes By Reducing Unintended Pregnancy, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

State Court Protection Of Reproductive Rights: The Past, The Perils, And The Promise, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Testing Sex, Rachel Rebouché

University of Richmond Law Review

No abstract provided.

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Faculty Scholarship

One thread of abortion criticism, arguing that gender equality requires that men be allowed to terminate legal parental status and obligations, has reinforced the stereotype of men as uninterested in fatherhood. As courts facing disputes over stored pre-embryos weigh the equities of allowing implantation of the pre-embryos, this same gender stereotype has been increasingly incorporated into a legal balancing test, leading to troubling implications for ART and family law.

Falling Into The Trap: The Ineffectiveness Of ‘Undue Burden’ Analysis In Protecting Women’S Right To Choose, Laura Young

Pace Law Review

This Comment will first examine existing Supreme Court abortion and reproductive autonomy jurisprudence before seguing into an exploration of the limits of the ‘undue burden’ analysis through the Jackson Women’s Health Organization v. Currier temporary and preliminary injunction decisions. The final section of this Comment explores potential solutions from other areas of constitutional law, and proposes that some techniques for limiting the reach of state regulatory power might be imported from environmental law, which frequently must deal with interactions amongst complex regulatory regimes.

Upholding A 40-Year-Old Promise: Why The Texas Sonogram Act Is Unlawful According To Planned Parenthood V. Casey, Vicki Toscano, Elizabeth Reiter

Pace Law Review

This Article begins with a brief review in Part II of the three crucial Supreme Court cases on abortion rights: Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and Gonzalez v. Carhart. Based on these cases, Part III formulates a constitutional test that courts should be using to determine whether an abortion regulation is constitutional that includes all of the factors identified by the Supreme Court as part of the “undue burden” analysis, factors that have been overlooked by many courts. Finally, Part IV applies this constitutional test to the Texas Sonogram Act, concluding that the act is …

Replacing Myths With Facts: Sex-Selective Abortion Laws In The United States, Brian Citro, Jeff Gilson, Sital Kalantry, Kelsey Stricker, University Of Chicago Law School. International Human Rights Clinic, National Asian Pacific American Women's Forum (U.S.), Advancing New Standards In Reproductive Health (Organization)

Cornell Law Faculty Publications

Several countries in the world have sex ratios at birth that are as high or higher than China and India, including countries with predominantly white populations. Nonetheless, immigrant communities in the United States from China and India are consistently accused of harboring a preference for sons. It is supposedly this preference for sons that leads Asian Americans to abort female fetuses. In response, eight states have enacted bans on sex-selective abortion and 21 states and the United States Congress have considered such bans.

Proponents of sex-selective abortion bans claim that the United States is one of the few countries in …

Abortion And The Constitutional Right (Not) To Procreate, Mary Ziegler

University of Richmond Law Review

No abstract provided.

Little Emperors And An Army Of Orphans: The Government’S Control Over The Idea Of Family In An Overpopulated World, Corinna L. Miller

Honors College Theses

This research elaborates on the connection between governmental policies for population control and the psychological effects felt by its citizens. Governments enact laws to form and shape their country, but when plans to benefit society as a whole overspill into the personal rights of families, there can be unforeseen consequences that span across cultural, economic and physiological wellbeing. These side effects can have debilitating outcomes for countless generations to come, even after the policy has been abolished. In an age where exponential population growth is a severe problem, this study attempts to understand what happens when governmental policies influence the …

Overcoming Barriers To The Protection Of Viable Fetuses, Randy Beck

Scholarly Works

I start this Article from the premise that the Court was correct in Roe v. Wade concerning the significance of fetal viability. I assume for the sake of argument that viability is a momentous point in pregnancy and that “logical and biological justifications” support a compelling state interest in protecting the lives of fetuses that have crossed the viability threshold. The goal of this Article is to highlight factors that individually and in concert significantly hinder legislative attempts to preserve the lives of viable fetuses, and to identify measures that, if permitted by the courts, could facilitate the pursuit of …

The Medical Assumption At The Foundation Of Roe V. Wade And Its Implications For Women's Health, Clarke Forsythe

Washington and Lee Law Review

No abstract provided.

Re-Reading Roe V. Wade, Richard S. Myers

Washington and Lee Law Review

No abstract provided.