Reproductive Rights Prof Blog

Neil S. Siegel and Reva B. Siegel on Equality Arguments for Abortion Rights

UCLA Law Review Discourse has published Equality Arguments for Abortion Rights, by Neil S. Siegel (Duke University School of Law) & Reva B. Siegel (Yale Law School).  Here is the abstract:

Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. But in the forty years since Roe, the U.S. Supreme Court has come to understand the abortion right as an equality right, as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, equality arguments have appeared in the opinions of the Court and of the justices. Finally, we explain why there may be independent political significance in grounding abortion rights in equality values.

NGOs Challenge Speech-Related Conditions Placed on Federal Funds for Global HIV/AIDS Prevention

SCOTUSblog - SCOTUS for law students: SCOTUS for law students: Prostitution and Free Speech, by Stephen Wermiel:

Prostitution seems like an unlikely topic for a battle over freedom of speech, but that is precisely the focus of an important case to be argued in late April that tests the limits of the federal government’s ability to attach conditions to federal spending.

The case is Agency for International Development v. Alliance for Open Society International, Inc., to be argued on April 22.

The dispute involves a challenge by nongovernmental organizations (NGOs) to regulations implementing a federal law that provides funds to help combat the spread of HIV and AIDS throughout the world. . . .

Linda Greenhouse and Reva Siegel on Roe, Perry, and Court-Caused Backlash

Linda Greenhouse (Yale Law School) and Reva Siegel (Yale Law School) have posted Backlash to the Future? From Roe to Perry on SSRN. Here is the abstract:

Does a judicial decision that vindicates minority rights inevitably give birth to a special kind of backlash, a more virulent reaction than legislation achieving the same result would produce? We examine this question with respect to Roe v. Wade, so often invoked as the paradigmatic case of court-caused backlash, and with the pending marriage cases in mind. As we have shown, conflict over abortion escalated before the Supreme Court ever ruled in Roe, driven by movements struggling over legislative reform and Republican Party efforts to recruit voters historically aligned with the Democratic Party. These and other features of the abortion conflict suggest that the Court's decision in Roe was not the abortion conflict's sole or even its principal cause.

When change through adjudication or legislation threatens the status quo, it can prompt counter-mobilization and "backlash." We do not doubt that adjudication can prompt backlash. But we do doubt that adjudication is distinctively more likely than legislation to prompt backlash and that the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement.

More Fretting About Roe v. Wade as Supreme Court Addresses Marriage Equality

Below, another article that assumes that Roe v. Wade nipped inevitable state reform in the bud and fueled the anti-choice movement.  As mentioned in Friday's post, it's far from clear that this is true. Reform had largely stopped by 1973, and those few reform laws that were enacted were not even as protective as the Roe decision.  (New York's pre-Roe reform law, for example, is still on the books, and it bars all but life-saving abortions after 24 weeks, regardless of viability and with no health exception. This is one of the reasons why the Reproductive Health Act, championed by Governor Cuomo, is needed.) And there are surely many conservative states -- including those now passing early abortion bans, like Arkansas and North Dakota -- that would never have liberalized their laws.  When a right is fundamental, it's the Supreme Court's job to ensure that it is protected nationwide and is not subject to the state in which a person resides.

The New York Times: Shadow of Roe v. Wade Looms Over Ruling on Gay Marriage, by Adam Liptak:

When the Supreme Court hears a pair of cases on same-sex marriage on Tuesday and Wednesday, the justices will be working in the shadow of a 40-year-old decision on another subject entirely: Roe v. Wade, the 1973 ruling that established a constitutional right to abortion. . . .

See also: The Los Angeles Times - LA Now: As Supreme Court considers gay marriage, abortion comparisons rise, by Robin Abcarian.

Comparing a Supreme Court Decision on Same-Sex Marriages to Roe v. Wade

The Economist - Democracy in America blog: A hard Roe to hoe, by J.F.:

TO WHAT extent does the debate over same-sex marriage resemble the debate over abortion? Both involve thorny, intersecting questions of religious freedom, personal liberty and sex. Both involve conflicting narratives and costs. The division between the two sides is wide, and like many debates fuelled by religious fervour; at times it risks becoming absolute. But not always: witness the conversion of Rob Portman, a conservative senator from Ohio, from gay-marriage opponent to supporter thanks to the coming-out of his son. Mr Portman came to realise that gay marriage represents not "a threat but a tribute to marriage, and a potential source of renewed strength for the institution." Indeed. . . .

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This author adopts the common (but, I think, questionable) position that Roe v. Wade "short-circuited a growing state-level trend toward liberalisation of abortion laws" and  "galvanised, perhaps even created, the pro-life movement."  For a different perspective, see Before (and After) Roe v. Wade: New Questions About Backlash, by Linda Greenhouse & Reva B. Siegel.

Linda Greenhouse on Backlash after Roe

SCOTUSblog:  Ask the author:  Linda Greenhouse on "Before (and After) Roe v. Wade:  New Questions About Backlash", by Kali Borkoski:  

In 2010, Linda Greenhouse, the Pulitzer Prize-winning journalist who spent three decades covering the Court for The New York Times, and Reva Siegel, Professor of Law at Yale, published Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling. (SCOTUSblog’s Q&A with both authors is here.) The authors recently released a second edition of the book, which is available for free from the Yale Law Library or can be printed on demand ($10) from Amazon, with proceeds going to the Yale library.  The second edition includes a new afterword, Before (and After) Roe v. Wade: New Questions About Backlash, in which Greenhouse and Siegel use the source materials republished in the book to challenge the conventional wisdom that, “if the Court had stayed its hand or decided Roe v. Wade on narrower grounds, the nation would have reached a political settlement and avoided backlash.” Once again, Linda Greenhouse has graciously agreed to answer a few questions about her work on this subject. . . .

Oklahoma Files Cert. Petition Seeking to Revive Law Imposing Conditions on Medication Abortions

SCOTUSblog: Oklahoma appeals on abortion, by Lyle Denniston:

Oklahoma officials, arguing that their state supreme court is repeatedly blocking state laws that restrict access to abortions, have asked the Supreme Court to revive a law that confined the use of any drug that induces a medical abortion.  The officials filed a petition Monday in the case of Cline v. Oklahoma Coalition for Reproductive Justice. (A docket number has not yet been assigned.) . . .

Linda Greenhouse on Roe's Legacy

NPR  Roe v. Wade at 40:  A Look at Its Legacy:

Roe v. Wade, which legalized abortion, just turned 40. Host Neal Conan speaks with Linda Greenhouse, who covered the Supreme Court and writes in a New York Times opinion piece that it  was about "the rights of doctors...acting in what they considered to be the best interest of their patients." . . .

The New York Times: Misconceptions, by Linda Greenhouse:

Francis Lorson, the longtime chief deputy clerk of the Supreme Court, once told me the following story. On a January day in the mid-1970s, he and Justice Potter Stewart were in an official car traveling from the court to the White House, where the justice was to preside at a swearing-in ceremony. As they rode along Pennsylvania Avenue, they saw a crowd heading in the opposite direction, up Capitol Hill toward the court. . . .

Challenges to Contraception Mandate Likely to Reach Supreme Court

The New York Times: A Flood of Suits Fights Coverage of Birth Control, by Ethan Bronner:

In a flood of lawsuits, Roman Catholics, evangelicals and Mennonites are challenging a provision in the new health care law that requires employers to cover birth control in employee health plans — a high-stakes clash between religious freedom and health care access that appears headed to the Supreme Court. . . .

Abortion Opponents March in Washington to Protest Roe's 40 Year Legacy

Reuters - FaithWorld blog: Washington anti-abortion marchers protest 40 years of legal abortion in the U.S.:

Anti-abortion activists marched in Washington on Friday to protest the U.S. Supreme Court ruling that made abortion legal in the United States 40 years ago.

Condemning abortion as an abuse of human rights, people from across the country participated in the March for Life that takes place annually in the nation’s capital. . . .

Roe v. Wade 40th Anniversary Round-Up

Adapted from Feministing:  Daily Feminist Cheat Sheet:  40 years of "Roe v. Wade" Edition, by Alexandra Zbrodsky (more links provided at Feministing):

 

Center for Reproductive Rights (video): Happy 40th anniversary, Roe!

Another poll shows seven out of ten Americans oppose overturning Roe.

The Economist: Abortion law: Roe turns 40

Ezekiel Reis Burgin on why abortion rights are critical to him as a trans man.

Jill Filipovic on the broader implications of Roe.

Naomi Cahn and June Carbone ask: Did the pro-life movement lead to more single moms? 

Let's not forget about those who risk their lives for women's autonomy.

The Nation reprints a 1973 editorial about Roe.

A New York Times op-ed reminds us of the lengths to which women will go to end untenable pregnancies.

Michael Dorf on Criticisms of Roe v. Wade

Justicia:  Marking the Fortieth Anniversary of Roe v. Wade, Part One:  Where Three Common Criticisms Go Wrong, by Michael C. Dorf:

Tuesday, January 22, 2013, will mark the fortieth anniversary of Roe v. Wade, the Supreme Court ruling that recognized a constitutional right of a woman to have an abortion. What lessons can we learn from the case and the ensuing years?

In this, the first of a two-part series on Roe, I consider three common criticisms of the ruling: (1) that the constitutional text nowhere mentions abortion; (2) that the original meaning of the Fourteenth Amendment did not encompass a right to abortion; and (3) that the courts ought to stay out of socially divisive issues. . . .

Dorf on Law: Roe v. Wade at 40:  Acts, Omissions, and Abortion, by Michael C. Dorf:

On Justia's Verdict, my column today--part 1 of a 2-part series--marks the 40th anniversary of Roe v. Wade.  Part 2 will appear next Wednesday, Jan. 23, one day after the actual 40th anniversary. In today's column, I explain why three common criticisms of Roe are either mistaken or, if credited, are not really arguments against Roe but much broader arguments against unenumerated rights and perhaps against all of judicial review. Here I want to expand a bit on one point I make in passing in the column. . . .

No End in Sight to Battle over Abortion

USA Today: Protracted fight over abortion rights comes due, by Richard Wolf:

As Roe v. Wade ruling turns 40, the latest restrictions passed by states range from required ultrasound tests before abortions to waiting periods.

Forty years after the Supreme Court legalized abortion, the constitutional right many Americans take for granted is coming under increased scrutiny.

State legislatures are passing limits on abortion-related services. More abortion providers face stepped-up regulations, and more patients face strictly worded counseling sessions or ultrasound tests. At least four states have just one clinic performing abortions. . . .

Even with the limitations, an average of 3,300 abortions are performed daily in the USA, according to the Guttmacher Institute.

"Abortions are still constitutionally protected," says Caitlin Borgmann, a City University of New York law professor who maintains a blog on reproductive rights. "They're still widely available in the U.S., and the polling has not changed." . . .

Roe at 40: Still Controversial, Or Not That Important?

It depends on whom you ask:

The New Yorker: Political Scene: Abortion Rights Forty Years After Roe v. Wade (podcast featuring Jeffrey Toobin):

Forty years after the Supreme Court’s decision in Roe v. Wade—the anniversary is on January 22nd—the debate over the case, and abortion, hasn’t cooled off. If anything, it has only become more controversial. . . .

Slate: Most Americans No Longer Think the Abortion Debate is All That Important, by Abby Ohlheiser:

Here's the main takeaway from a new Pew study on abortion: Most Americans have more important things to care about than the abortion debate. That being said, a majority are against overturning Roe v. Wade, the Supreme Court's landmark decision that turns 40 this month. . . .

The Washington Post: 40 years after Roe v. Wade, abortion foes are winning -- and losing, by David Gibson:

Four decades after Roe v. Wade, the landmark Supreme Court ruling that legalized abortion, many opponents of the decision are in a celebratory mood while those backing abortion rights are glum, feeling that momentum is turning decisively against them.

Yet in reality, little has changed in the fiercest and most protracted battle of the nation’s bitter culture war. . . .

 

Majority of Americans Oppose Overturning Roe v. Wade

Reuters: As "Roe v. Wade" turns 40, most oppose reversing abortion ruling, by Mary Wisniewski:

Most Americans remain opposed to overturning the controversial Supreme Court decision in Roe v. Wade, which 40 years ago legalized abortion at least in the first three months of pregnancy, according to a poll released Wednesday.

The poll by the Pew Research Center found that 63 percent of Americans believe that Roe v. Wade should not be completely overturned, compared to 29 percent who believe it should be. . . .

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The Pew report is available here.

Contraception Mandate Commentary Round-Up

The Hill - Healthwatch:  Group cheers Obama birth-control mandate, by Elise Viebeck:

The left-leaning National Women's Law Center (NWLC) praised the Obama administration's birth-control coverage mandate as it took effect Jan. 1 for many health plans. 

The policy remains controversial among employers who disagree with birth control or consider some forms equal to abortion. It is the subject of more than 40 legal challenges now pending in the courts. . . .

UPI.com:  Religious convictions vs. the 'morning-after pill', by Michael Kirkland:

A bitter fight is heading for the U.S. Supreme Court, between employers who say their religious convictions make them abhor contraception -- especially the "morning after pill" seen by many as an abortion-inducing drug -- and the Obama administration, which says contraception is a healthcare right under the law. . . .

The Volokh Conspiracy:  Contraception Mandate Faces Justice Sotomayor and the Seventh Circuit, by Jonathan H. Adler:

It’s been a significant week for litigation over the contraception mandate. On December 20, a motions panel of the U.S. Court of Appeals for the Tenth Circuit denied employer Hobby Lobby’s motion for an injunction pending appeal. As a private employer, Hobby Lobby is not eligible for the safe harbor from enforcement, and will be subject to the mandate at the start of the new year. As a consequence, Hobby Lobby filed an emergency application for a stay with the Supreme Court, which Justice Sonia Sotomayor denied with a brief four-page opinion. According to Justice Sotomayor, Hobby Lobby could not meet the extraordinarily demanding standard for such an injunction. Lyle Denniston has a brief report on SCOTUSBlog, and Ed Whelan critiques the decision on Bench Memos (see also here). for what it’s worth, I am not as convinced as Whelan that Hobby Lobby’s rights under the Religious Freedom Restoration Act are “indisputably clear.” While I think religious institutions have a strong RFRA-based free exercise claim, and that religious institutions — and not the government — define the contours of what the exercise of a given religious faith requires — I am not sure that private, for-profit corporations can avail themselves of RFRA in the same way as avowedly religious institutions., even when privately held by religiously devout individuals, nor am I aware of any case law that would clearly establish this point (but see below). . . .

Supreme Court Will Not Review Anti-Abortion Group's Challenge to FEC PAC Disclosure Rules

Reuters: Supreme Court won't hear challenge over PAC disclosures, by Terry Baynes & Jonathan Stempel:

The Supreme Court on Monday refused to review a challenge to federal regulators' method for determining which political groups need to register as political action committees and reveal their donors.

Without comment, the court declined to hear the appeal of The Real Truth About Abortion, an anti-abortion group that had sued in 2008 to challenge numerous Federal Election Commission rules that govern disclosures of political spending. . . .

Supreme Court Declines to Review Challenge to Obama's Stem Cell Research Policy

The Los Angeles Times: Supreme Court rejects challenge to Obama stem cell policy, by David G. Savage:

The Supreme Court has turned away a challenge to President Obama’s policy of expanding government-funded research using embryonic stem cells that scientists say may offer hope for new treatments for spinal injuries and Parkinson’s disease.

The court’s action brings a quiet end to a lawsuit that briefly threatened to derail all funding for such research. . . .

After Supreme Court Denies Emergency Relief, Hobby Lobby Faces Fines for Refusing to Comply with Contraceptive Mandate

The Hill - Healthwatch blog: Supreme Court won't block Obama health law's contraception mandate, by Sam Baker:

The Supreme Court on Wednesday refused to block the Obama administration's contraception mandate from taking effect.

Justice Sonia Sotomayor rejected a request for an emergency injunction that would have shielded employers from the mandate. . . .

CNN - Belief blog: Hobby Lobby faces millions in fines for bucking Obamacare, by Eric Marrapodi:

Craft store giant Hobby Lobby is bracing for a $1.3 million a day fine beginning January 1 for noncompliance with the Patient Protection and Affordable Care Act, dubbed Obamacare.

The company opposes providing some contraceptives to employees through its company health care plan on religious grounds, saying some contraceptive products, like the morning after pill, equate to abortion.

After failing to receive temporary relief from the fines from the Supreme Court, Hobby Lobby announced late Thursday through its attorneys that it "will continue to provide health insurance to all qualified employees. To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs." . . .

Hobby Lobby Files Petition with Supreme Court Seeking Relief from Contraceptive Coverage Mandate

The Huffington Post: Petition against Obama birth control rules reaches the Supreme Court, by Elise Viebeck:

A Christian-run arts and crafts chain has filed for an emergency injunction with the Supreme Court to block President Obama's birth control coverage rules. 

Hobby Lobby and its founders, the Green family, filed the petition Friday after an appeals court rejected their motion for relief this week. . . .