Gender and the Law Blog

Care Post-Roe Study Findings

Advancing New Standards in Reproductive Health has published an updated report in September 2024 on Care Post-Roe: Documenting Cases of Poor-Quality Care Since the Dobbs Decision.  The Executive Summary is excerpted here: 

 

This report presents the findings of the Care PostRoe Study to date. Between September 2022 and August 2024, we received 86 submissions from health care providers describing detailed cases of care that deviated from the usual standard due to new laws restricting abortion. The patients described in the narrative submissions lived in one of 19 states that banned abortion following Dobbs. Patients described in the narratives submitted by health care providers represent a range of different ages, income levels, and racial and ethnic backgrounds, with a notable proportion involving patients reported to be Black or Latinx, populations that often face more barriers to care.

 

Cases in the narratives fell into several categories: 1. Obstetric complications in the second trimester prior to fetal viability, including preterm prelabor rupture of membranes, hemorrhage, cervical dilation, and hypertension; 2. Ectopic pregnancy, including cesarean scar ectopic; 3. Underlying medical conditions that made continuing a pregnancy dangerous; 4. Severe fetal anomalies or other fetal compromise; 5. Miscarriage; 6. Extreme delays in obtaining abortion care; 7. Intersection with the carceral system; 8. Difficulty obtaining post-abortion care; and 9. Delays obtaining medical care unrelated to abortion.

 

The post-Dobbs laws and their interpretations altered the standard of care across these scenarios in ways that contributed to delays, worsened health outcomes, and increased the cost and logistic complexity of care. In several cases, patients experienced preventable complications, such as severe infection or having the placenta grow deep into the uterine wall and surrounding structures, because clinicians reported their “hands were tied,” making it impossible for them to provide treatment sooner. One physician described a case of a patient who had ruptured membranes at 16-18 weeks’ gestation but was denied an abortion because of a new state law. She was sent home and developed a severe infection requiring management in the intensive care unit. The patient subsequently delivered her fetus but required a procedure to remove her placenta. The physician wrote, “The anesthesiologist cries on the phone when discussing the case with me—if the patient needs to be intubated, no one thinks she will make it out of the OR.” Health care providers described feeling moral distress when they were unable to provide evidencebased care, and some reported considering moving their practices to a state where abortion remains legal. 

March of Dimes Report on Maternal Care Deserts

The March of Dimes has published a report titled Nowhere to Go: Maternity Care Deserts Across the US. Excerpts from the Executive Summary are below: 

Our latest national report on maternity care access in the United States (US) reveals a stark reality; where you live matters when it comes to the options available for maternity care. While some progress has been made to increase access to care, such as expanding and extending Medicaid, we continue to witness steady reports of obstetric unit closures and workforce shortages. In fact, 1 in every 25 obstetric units in the US shuttered their doors in the last 2 years, resulting in fewer choices, increased stress, and greater travel times for birthing people. The 2024 Nowhere to Go: Maternity Care Deserts in the US report reveals that over 35% of counties are considered maternity care deserts. This means that in 1,104 US counties, there is not a single birthing facility or obstetric clinician. These counties are home to over 2.3 million women of reproductive age and are the resident county of women who gave birth to over 150,000 babies in 2022.

 

Our most comprehensive analysis to date confirms that women living in maternity care deserts and counties with low access to care have poorer health before pregnancy, receive less prenatal care, and experience higher rates of preterm birth. Our analysis revealed an excess of over 10,000 preterm births among those living in maternity care deserts and limited access counties in 2020-2022. These findings affirm that US systems, policies, and environments are failing moms and babies.

 

Over 1 in 3 US counties lack a single obstetric clinician, and in many parts of the country obstetriciansgynecologists (OB-GYNs) and family physicians who deliver babies are leaving the workforce. Moreover, while midwives could supplement the obstetric workforce, 23 states have policies that inhibit them from administering the level of care they were trained to provide. Furthermore, 70% of birth centers in the US are within just 10 states. Our report examines policies that reduce barriers to integrating midwives into the healthcare system and make opening and sustaining birth centers more attainable. Both could provide more options for birthing people, decrease health expenditures, and improve satisfaction and birth outcomes. In addition, the report offers insights into how low insurance reimbursement rates and payment structures contribute to hospital closures, especially in rural areas. 

Scholarly Forum on the History of Comstock Acts and Anthony Comstock

Anthony Comstock and the Comstock Laws: A JGAPE Forum Preview, Society for Historians of the Gilded Age and Progressive Era

Over the next several weeks, we are going to be publishing a forum on the history and legacy of Anthony Comstock. This forum is forthcoming in the Journal of the Gilded Age and Progressive Era and is formally titled The History and Legacy of Anthony Comstock and the Comstock Laws. Given our current debates on abortion following the Dobbs decision and the Heritage Foundation’s Project 2025, which proposes to revive the Comstock Act, we hope this forum will provide useful historical context about the Act’s influence on American life. This is the first of seven installments.

Forum Introduction

By Magdalene Zier, Lauren MacIvor Thompson, Cathleen Cahill, and Kimberly A. Hamlin

Anthony Comstock arrived in Washington, D.C., in January 1873 with a collection of pornography and big plans for what to do with it. Bearing a veritable grab bag of explicit images, books, pamphlets, contraceptives, and sex toys that he had ordered expressly for the purposes of shock, he set up displays, first in the private homes of legislators and then in the office of the vice president inside the congressional building. As congressmen trooped by to gawk, Comstock spoke to them about the “nefarious business” of obscenity. In just a few weeks, Congress would pass a sweeping law bearing his name, one that criminalized mailing anything to do with sex. “An Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” included not just pornography and sexual material, but also personal correspondence, educational pamphlets, contraceptives, and items related to abortion. To enforce this sweeping new law, Comstock was appointed Special Agent of the Post Office and endowed with the power to search the mail, seize obscene items, and make arrests. He would soon proudly declare of his accomplishments: “I have endeavored to raise a legal barrier between the youth and this hydra-headed monster of Obscenity.” He was not yet thirty years old.

This blog series aims to provide vital historical context for those seeking to understand the modern revival of Anthony Comstock and his namesake law. The Comstock Act has never been repealed and remains part of Sections 1461 and 1462 in the United States Code, although many Americans have little to no idea about the details of this law, if they have even heard of it. Anthony Comstock himself seems like an odd joke today: a repressed, puritanical, anti-sex reformer and a relic of a bygone past (Figure 1). And yet, because the act has been revived as a strategy for limiting access to reproductive healthcare, Comstock is no joke.

Abortion on the Ballot

Carrie Baker, Feminists Need to Know Ballot Measures

In nearly a dozen states, voters this fall will have a chance to protect abortion rights and advance equality for women.

In overturning Roe v. Wade, the Supreme Court declared, “The authority to regulate abortion is returned to the people and their elected representatives.” But with rampant gerrymandering—greenlit by the Supreme Court—these “elected representatives” often do not fairly represent the people. This makes ballot initiatives a critically important avenue for ensuring women’s rights in states with conservative legislatures.

Since June 2022, when the Supreme Court made its decision in Dobbs v. Jackson Women’s Health Organization, seven states have voted on abortion-related ballot measures. Voters chose to protect abortion rights in all seven states.

• • In August 2022, voters in Kansas rejected an antiabortion measure by 59 to 41.
  • Then, in November 2022, voters overwhelmingly supported constitutional amendments to guarantee abortion rights in California (67 to 33), Michigan (57 to 43) and Vermont (77 to 23), while voters rejected antiabortion ballot referenda in Kentucky (52 to 48) and Montana (53 to 47).
  • In November 2023, Ohioans voted 57 to 43 in favor of a constitutional amendment protecting abortion rights.

With a 100-percent success rate so far, reproductive rights activists are pushing for ballot measures in another 11 states this fall, with the added hope of turning out voters in battleground states like Arizona and Nevada. Abortion and women’s rights combined remains a top issue for women voters—especially young women—ranking above inflation and/or rising prices.

Missouri Rules Abortion Ballot Measure Invalid

A Missouri court late Friday moved toward striking a ballot measure in November that would ask voters whether to establish a right to abortion in the state Constitution.

Judge Christopher Limbaugh of Cole County Circuit Court sided with anti-abortion lawmakers and activists who said that the abortion rights groups that gathered signatures to sponsor the ballot measure had not sufficiently explained its potential ramifications on the petitions they asked voters to sign.

With the state scheduled to print ballots on Tuesday, the judge said he would wait until then to issue an injunction instructing the secretary of state to remove the measure that was certified last month. That will give the abortion rights groups a chance to appeal to a higher court.

Moving Towards a Feminist Constitutional History of the Nineteenth Amendment After Dobbs

Paula Monopoli, The Nineteenth Amendment and Dobbs, 15 ConLawNOW 227 (2024) from Prof. Monopoli's keynote Spring Lecture for The Center for Constitutional Law at Akron. 

There was a surge in legal scholarship around the Nineteenth Amendment to the United States Constitution—the Woman Suffrage Amendment—leading up to its centennial in August 2020. But this scholarly interest around the Nineteenth peaked two years before the U.S. Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization in June 2022. This paper revisits the Nineteenth Amendment in light of the Court’s decision in Dobbs. It argues that the Nineteenth should be understood as a ban on sex discrimination that extends beyond the right to vote. The Amendment expands the scope of women’s citizenship as a matter of federal constitutional law by prohibiting legislation which denies or abridges a woman’s right to self-govern. And it situates the power to enforce this prohibition in Congress—not state legislatures—as a matter of federalism.

The paper traces the historical understanding of voting as self-government, and self-government as the means by which a citizen operationalizes self-determination. Suffragists understood self-government to include self-ownership and voluntary motherhood. A feminist constitutionalism would incorporate the Nineteenth’s capacious, seventy-two-year history into a robust reading of the Amendment. Such a reading provides support to courts that choose to invalidate legislation denying or abridging not only political but also reproductive self-determination. Although such a reading is unlikely to be embraced by the current Supreme Court’s conservative majority, it should be introduced into judicial discourse for use by future courts in reasoning around women’s reproductive liberty.

Ohio's 24-Hour Waiting Period Abortion Law Enjoined by Judge

Susan Tebben, Ohio's 24-hour Waiting Period Abortion Law Paused by Judge

An Ohio law requiring a 24-hour waiting period before abortion services will not be enforced as a lawsuit seeking to eliminate the law entirely sees its way through court, a judge ruled on Friday.

Franklin County Court of Common Pleas Judge David C. Young not only put a temporary pause on the 24-hour waiting period, but also a minimum of two in-person visits and certain information about abortion that the state required doctors to provide before an abortion.

That information includes the “probable gestational age of the zygote, blastocyte, embryo or fetus” and “nature and purpose of the particular abortion procedure to be used,” according to state law.

Young cited the newest amendment to the state constitution as reason to rule in favor of the clinics and physicians.

“The plain language of the amendment clearly sets forth the applicable legal standard,” Young wrote. “This language is easily understood and clear.”

The decision comes following an oral argument hearing last week, in which Young heard from the Ohio Attorney General’s Office representing the state, and an attorney for abortion clinics and a physician party in the case.

The state said by legal definition, the “status quo” should be maintained in a preliminary injunction, and according to the AG’s office’s arguments, that would leave state law as it is and the regulations in place. The office of Ohio Attorney General Dave Yost issues a release Friday saying they plan to appeal the ruling and that they disagree with the judge that the waiting period and extra appointments constitute a burden.

According to Jessie Hill, attorney for the parties attempting to eliminate the laws, the status quo is now the constitutional amendment that placed reproductive rights including abortion into the Ohio Constitution after being passed by 57% of Ohio voters last November.

The amendment bars any state laws that “burden, penalize, prohibit, interfere with or discriminate” against abortion care and abortion providers.

See also Columbus Dispatch, Ohio's 24-Hour Waiting Law for Abortions is Put on Hold

Huberfeld, McClain, and Ahmed on "Rethinking Foundations and Analyzing New Conflicts: Teaching Law After Dobbs"

Nicole Huberfeld, Linda McClain, and Aziza Ahmed have published "Rethinking Foundations and Analyzing New Conflicts: Teaching Law After Dobbs" in volume 17 of the Saint Louis University Journal of Health Law & Policy. The abstract is excerpted here: 

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs’ overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”—and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes.

 

Interrogating Dobbs's Claim to Vindicate Democracy

Katherine Shaw & Melissa Murray, Dobbs and Democracy, 137 Harvard L. Rev. 738 (2024)  In Dobbs v. Jackson Women’s

Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree of this claim and its substantive vision of democracy.

In grounding its decision in democracy, the Dobbs majority relied on a well-worn but dubious narrative: that Roe, and later Casey, disrupted ongoing democratic deliberation on the abortion issue, wresting this contested question from the people and imposing the Court’s own will. The majority insisted that this critique had always attended Roe. However, in tracing the provenance of the democratic deliberation argument, this Article finds more complicated intellectual origins. In fact, the argument did not surface in Roe’s immediate aftermath, but rather emerged years later. And it did so not organically, but through a series of interconnected legal, movement, and political efforts designed to undermine and ultimately topple Roe and Casey. The product of these efforts, the Dobbs majority’s claim that democracy demanded overruling Roe and Casey, was deployed to overcome the force of stare decisis in Dobbs — and may ultimately reshape the scope and substance of the Court’s stare decisis analysis in future cases.

Having identified the intellectual origins of the democratic deliberation argument and its contemporary consequences, this Article examines the contours of the Dobbs majority’s vision of democratic deliberation. We show that although Dobbs trafficked in the rhetoric of democracy, its conception of democracy was both internally inconsistent and extraordinarily limited, even myopic. The opinion misapprehended the processes and institutions that are constitutive of democracy, focusing on state legislatures while overlooking a range of other federal, state, and local constitutional actors. As troublingly, it reflected a distorted understanding of political power and representation — one that makes political power reducible to voting, entirely overlooking metrics like representation in electoral office and in the ecosystem of campaign finance. The opinion was also willfully blind to the antidemocratic implications of its “history and tradition” interpretive method, which binds the recognition of constitutional rights to a past in which very few Americans were meaningful participants in the production of law and legal meaning. The deficits of the Dobbs majority’s conception of democracy appear even more pronounced when considered alongside the Court’s recent and active interventions to distort and disrupt the functioning of the electoral process. Indeed, Dobbs purported to “return” the abortion question to the people and to democratic deliberation at the precise moment when the Court’s own actions have ensured that the extant system is unlikely either to produce genuine deliberation or to yield widely desired outcomes.

Ultimately, a close examination of the Dobbs majority’s invocation of democracy suggests that the majority may have employed the values and vernacular of democracy as a means to a different end. As we explain, the majority’s embrace of democracy and democratic deliberation allowed it to shield its actions from claims of judicial activism and overreach. More profoundly, and perhaps paradoxically, the opinion may lay the groundwork for the eventual vindication and protection of particular minority interests — those of the fetus. With this in mind, the Dobbs majority’s settlement of the abortion question is unlikely to be a lasting one. Indeed, aspects of the opinion suggest that this settlement is merely a way station en route to a more permanent resolution — the recognition of fetal personhood and the total abolition of legal abortion in the United States.

Updated #WeCount Data Released

The Society of Family Planning released its next installment of #WeCount data. #WeCount measures "monthly abortion utilization, nationally and by state."  Its findings are excerpted below. The full report is available here. 

• Abortion volume was higher in 2024 than it was in 2023 or 2022, as captured by #WeCount. Abortion volume continues to vary modestly month-to-month, consistent with prior #WeCount findings (Table 1-2022, 1-2023, and 1-2024).
• For the first time since #WeCount began, the national monthly total number of abortions has exceeded 100,000. In the three most recent months of data collection, January 2024 to March 2024, we observed between 94,670 and 102,350 abortions per month, with a monthly average of 98,990 (Figure 1).
• Analysis of monthly abortion volume in the US from April 2022 through March 2024 (Figure 2) illustrates both the seasonality of abortion provision and increases throughout 2023 and 2024. Part of the increase, starting in July 2023, is due to the provision of abortions under shield laws. These abortions may have previously occurred outside the formal healthcare system prior to the use of shield laws.
• Even excluding abortions provided under shield laws, we still observe more abortions per month in January-March 2024 (monthly average of 89,770 abortions) as compared to the same period January-March 2023 (monthly average of 86,967 abortions), a 3% increase.
• This increase in the national totals appears to be driven by the increase in telehealth abortions. Excluding abortions provided under shield laws and by brick-and-mortar Page 3 of 34 clinics (as collection of these data by #WeCount began in July of 2023), the national monthly number of telehealth abortions in January-March 2024 is 28% higher than the national monthly number of telehealth abortions in January-March 2023. The national monthly number of in-person abortions in January-March 2024 is about the same (1% lower) than the national monthly number of in-person abortions in January-March 2023.

 

 

Montana Supreme Court Upholds Minors' Right to Abortion

Montana Supreme Court Rules Minors Don't Need Parental Permission for Abortion

Montana’s Supreme Court ruled Wednesday that minors don’t need their parents’ permission to get an abortion in the state – agreeing with a lower court ruling that found the parental consent law violates the privacy clause in the state constitution.

“We conclude that minors, like adults, have a fundamental right to privacy, which includes procreative autonomy and making medical decisions affecting his or her bodily integrity and health in partnership with a chosen health care provider free from governmental interest,” Justice Laurie McKinnon wrote in the unanimous opinion.

The ruling comes as an initiative to ask voters if they want to protect the right to a pre-viability abortion in the state constitution is expected to be on the Montana ballot in November. County officials have verified enough signatures to qualify the issue for the ballot, supporters have said. The Secretary of State’s Office has to certify the general election ballots by Aug. 22.

See also Montana Supreme Court Strikes Down Abortion Law Requiring Parental Consent

The unanimous decision is here,  Planned Parenthood of Montana v. State of Montana (Aug. 14, 2024), authored by Judge Laurie McKinnon. Of the seven justices, three are women.

Montana is a little different than other states. As I have written here, Protecting Abortion with Health Care Freedom of Choice, 51 Journal Law, Medicine & Ethics 601 (2023), Montana has an express right to health care in its state constitution. When combined with rights to privacy under due process, there is a synergism that strengthens reproductive rights. 

This broader meaning of the right to health care freedom was adopted by Montana in interpreting its constitution to protect abortion. In 1972, Montana adopted a health care freedom amendment guaranteeing the right to seek “safety, health and happiness.” In 1999, the Montana Supreme Court applied the amendment to abortion, defining this health freedom in Armstrong v. State as “the right to seek and obtain medical care from a chosen health care provider and to make personal judgments affecting one’s own health and bodily integrity without government interference.” The court emphasized: “Unless fundamental constitutional rights—procreative autonomy being the present example—are grounded in something more substantial than the prevailing political winds, Huxley’s Brave New World or Orwell’s 1984 will always be as close as the next election.” “Fortunately,” the court held, “the roots of Montana’s constitutional 
right of procreative autonomy go much deeper and are firmly embedded in the right of individual privacy.”

The Supreme Court has affirmed this holding three times: Armstrong v. State, 989 P.2d 364 (Mont. 1999); reaffirmed in Weems v. State, 440 P.3d 4 (Mont. 2019); declined to overrule in Planned Parenthood v. Knudsen, 515 P.3d 301, 307-08 (Mont. 2022). 

 

 

Utah's Majority-Women Supreme Court Upholds Injunction of Strict Abortion Ban and Includes Women's Legal Scholarship of History in its Analysis

The majority-female Utah Supreme Court upheld an injunction preliminarily enjoining an abortion ban by a vote of 4-1. The case is Planned Parenthood of Utah v. State, ___P.3d___, 2024 WL 3612730 (Utah Aug. 1, 2024)

    Wash Post, Utah Abortion Ban Remains on Hold After Ruling by State's High Court

    NYT, Utah Supreme Court Upholds Block on Strict Abortion Ban

In the discussion of the state history of abortion regulation in the late 19th century, the majority includes a discussion of my work: 

In addition, the State's evidence does not necessarily demonstrate that abortion was illegal at statehood because Utahns understood that a woman lacked the legal ability to decide whether to carry a pregnancy to full term. There is evidence suggesting that concern for the life of the mother motivated, at least in part, abortion bans. See, e.g., Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle U. L. Rev. 1, 21 (2012). Tracy Thomas writes that “early legislation” (taking place around 1841) “continued to focus on medical malpractice and protection of the life and health of the mother from the consequences of abortion.” Id. ***

 Some scholars also suggest that the push for anti-abortion laws that determined fetal life started from conception was a way to standardize the medical profession. Thomas writes: “The lobbying effort to criminalize abortion was spearheaded by the medical profession.” Thomas, supra ¶ 145, at 21. Doctors “claim[ed] pregnancy as an area solely for medical expertise. ... Quickening, the physicians argued, could not be relied upon as an indicator of fetal life because it did not occur at a standard moment.” Id. at 21–22. Reva Siegel writes that “[d]uring the period of the criminalization campaign, the gynecologists and obstetricians of the AMA [American Medical Association] were seeking to appropriate management of the birthing process from midwives, and to prevent women from entering the medical profession.” Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 300 (1992). The period Thomas and Siegel examine—the 1850s to the 1880s—parallels the founding of the Utah Territory and its development toward statehood. See Thomas, supra ¶ 145, at 21; Siegel, supra at 286 (discussing the AMA's 1859 resolution “condemning abortion as an unwarranted destruction of human life” and the AMA's 1860s campaign to save “the nation from the evils of abortion” (cleaned up)).

Report on Medicaid Coverage of Telehealth Abortion Services in Six States

The National Health Law Program has published a report on Medicaid Coverage of Telehealth Abortion Services in Six States (IL, MN, NM, NY, RI, WA). Here is a summary of the report scope: 

In 2022, the National Health Law Program started a project to comprehensively map the Medicaid coverage and reimbursement policies that impact access to telehealth medication abortion (TMAB) services. We published an in-depth report investigating the policy landscape in six states that use their own funding to provide abortion coverage for Medicaid enrollees. You can find that report and fact sheets for the six states here.

 

This report is the next installment in that series, examining the policies and regulations in a new set of states: Illinois, Minnesota, New Mexico, New York, Rhode Island, and Washington. This issue brief provides a thorough analysis of the major policies impacting coverage and reimbursement of TMAB, including detailing the major trends and highlighting policy barriers that impede comprehensive coverage and thus access to TMAB for Medicaid enrollees. It concludes with a discussion of the importance of Medicaid coverage of TMAB and highlight forthcoming work.

 

Here is the report conclusion: 

Comprehensive coverage of TMAB can combat travel and resource obstacles, facilitate faster access to care, and address privacy concerns. The costs associated with seeking an abortion in the post-Dobbs landscape disproportionately harm people facing structural barriers to care, like Black, Indigenous, and other people of color, LGTBQ+ individuals, people living in rural areas, young people, individuals with disabilities, and those struggling to make ends meet. This research shows that Medicaid coverage of TMAB has improved significantly, as states have established more robust coverage of the full spectrum of telehealth modalities, enhanced telehealth payment parity policies, and removed some restrictions around sites of care and patient-provider relationships. But gaps remain and the National Health Law Program will continue our research and advocacy to ensure that Medicaid enrollees have equitable access to all models of TMAB and in-person care.

Abortion's New Criminalization--A History and Tradition Test Right to Healthcare Access After Dobbs

Reva Siegel & Mary Ziegler, Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term  

Since Dobbs v. Jackson Women's Health Organization reversed Roe v. Wade as contrary to the nation's history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before. Cases in the Court's 2023 Term, Moyle v. United States and Food and Drug Administration v. Alliance for Hippocratic Medicine, demonstrate these trends. Under Dobbs, do abortion bans that break with history and tradition in obstructing access to urgently needed health care violate liberty guarantees of state or federal constitutions?

We present evidence that the nation has long had a tradition of exempting health care from criminalization that extended to abortion law and was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. This tradition demarcated quite self-conscious limits on state action that were reiterated across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically understood as a right. We show that courts in states with abortion bans view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend this account of our law against an originalist reading of Dobbs advanced by Professor Stephen Sachs asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s reading conflicts with important aspects of Glucksberg and Dobbs, misconstrues Dobbs’s reasons for turning to history and tradition, and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. Posing concrete questions of Dobbs illustrates how much of Dobbs has yet to be written, showing the many senses in which, as Justice Barrett writes in Vidal v. Elster, “a rule rendering tradition dispositive is itself a judge-made test.” 

Teaching Law After Dobbs: Rethinking Foundations and Analyzing New Concepts

Nicole Huberfeld, Linda C. McClain & Aziza Ahmed, Rethinking Foundations and Analyzing New Concepts: Teaching Law After Dobbs, 17 St. Louis U. J. Health L. & Pol'y 243 (2024) [Westlaw Access]

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs' overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”--and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes.

Samantha Prince on "Deducting Dobbs: The Tax Treatment of Abortion-Related Travel Benefits"

Samantha J. Prince has published Deducting Dobbs: The Tax Treatment of Abortion-Related Travel Benefits in Volume 98 of the Tulane Law Review. The abstract is excerpted here:   

In 2022, Dobbs v. Jackson Women’s Health Organization overturned both Roe v. Wade and Planned Parenthood v. Casey thereby giving the states carte blanche to do as they wish regarding abortion access. The decision created upheaval in the United States. However, it also provided the impetus for the creation of a new employee benefit, abortion-related travel benefits.

Thirteen states had anti-abortion trigger bans that were unenforceable until Dobbs. Several other states have passed legislation that criminalizes, or significantly restricts, abortion access. Women residing in these states will now endure greater financial, health, and temporal challenges to travel out of state for abortion access. As a result, a profusion of private employers enhanced their mployee benefit packages by providing abortion-related travel benefits. An assessment of the current and potential future tax treatment of such benefits is warranted.

This Article provides past examples of employee benefits that were created around pivotal United States Supreme Court cases. It then covers women’s need to travel, and the time and expense of such travel, including the disparate impact on women of color and those in lower socio-economic positions. Then this Article focuses on the creativity and swiftness with which companies responded to Dobbs to assist women who will need to travel and the federal income tax treatment of these responses. The Article explores the potential deductibility issues that could arise due to state laws criminalizing abortion and enacting aiding and abetting laws. Lastly, the Article concludes with a discussion on how the government can best proceed equitably.

Understanding the Original Meaning of Washington v. Glucksberg and its Use in the Dobbs Abortion Decision

Marc Spindelman, Washington v. Glucksberg's Original Meaning

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. Wade and constitutional abortion rights. As Dobbs figures it, Glucksberg signs the constitutional warrant that Dobbs enforces by overturning Roe.   

Proceeding in stages, the Article traces Dobbs' reliance on Glucksberg before pivoting to a detailed account of Glucksberg's original meaning, which engages and surmounts Dobbs' undefended tally of Glucksberg. Having shown Dobbs' reading of Glucksberg cannot be squared with Glucksberg's text and its meaning--as crosschecked against other Supreme Court decisions, as well as new sources found in the Supreme Court archives--the work explains that Dobbs is also deficient in not providing an independent, full-blown justification, beyond Glucksberg's invocation, for its basic, if contoured, constitutional interpretive method of decision. In context, Dobbs' failure to offer this kind of public accounting, consistent with constitutional and rule-of-law demands, means that Dobbs stands exposed as lawless at its foundations. Dobbs is thus primed for challenge on these grounds, the very terms of legality that Dobbs deploys as it eliminates Roe and constitutional abortion rights.

 

Kansas Supreme Court Strikes Down Abortion Restrictions

Kansas Supreme Court Strikes Down Abortion Restrictions, Clinic Rules in Major Decisions, Kansas City Star

The Kansas Supreme Court struck down a series of abortion rules and restrictions on Friday in twin opinions affirming its landmark decision that the state constitution protects the right to end a pregnancy. The justices in two near-unanimous decisions tossed a ban on dilation and evacuation abortions, a common second-trimester surgical procedure, and a series of abortion-specific clinic regulations that providers have long fought. The opinions marked the end of two years-long legal battles over rules, which never took effect.

The rulings delivered a stinging but expected blow to anti-abortion activists and Republicans, who for years sought to steadily chip away at access. The opinion built upon the court’s key 2019 decision, which upheld the right to an abortion under a broader guarantee of bodily autonomy. “We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen, appointed by Democratic Gov. Kathleen Sebelius in 2005, wrote in the majority opinion striking down the dilation and evacuation ban.

Rosen wrote that the state “must show any infringement of that right withstands strict scrutiny.” The decision was 5-1 in both cases, with Justice Caleb Stegall, an appointee of Republican Gov. Sam Brownback, the sole dissenting vote. Justice K.J. Wall, an appointee of Democratic Gov. Laura Kelly, didn’t participate.

 

Ohio Appellate Court Says Frozen Embryos are Life and Awards to Wife in Divorce Case

Bryce Buyakie, Akron Beacon J., Do Ohio courts consider frozen embryos property or life, July 2, 2024

Recently in Ohio, Ninth District Court of Appeals Judge Donna Carr ruled in a divorce case that frozen embryos are "life, or the potential for life," though legal experts say the court still treated embryos as marital property.

Reproductive freedom advocates are concerned such a decision could limit access to IVF and other medical care.

For legal experts, this ruling emphasizes Ohio's complicated relationship with frozen embryos, which state law views as property.

Why are embryos considered property in Ohio?

Ohio treats embryos as property, not life, which means a person who owns an embryo can do what they want with it — gestate, destroy, donate or give it away for research.

This has been the precedent for much of Ohio's history, said Tracy Thomas, a professor of constitutional law and gender equality law at the University of Akron.

"Historically, it wasn't a thing at all," she said about the personhood debate. "It's genetic material, but even disconnected from that, they treated it like an organ donation."

Frozen embryos most often appear in divorce cases, where one or both parties are seeking ownership of the embryos produced during their relationship. Instead of diving into a custody dispute, Ohio courts historically have distributed the embryos as property.

How do courts treat pre-IVF contracts?

Before undergoing IVF, patients sign a pre-IVF agreement, which describes what happens to frozen embryos if one or both parents die or in the event of a divorce, Thomas said.

"The whole point of contracts is to leave no open question and to avoid litigation," Thomas said. "It's so you supposedly have the best idea of what you want to happen in a [divorce or death]."

Contracts should specify who can use the frozen embryos, or the parties agree to destroy or donate to another couple or research, she said.

If there is no contract or an ambiguous contract, the courts decide on how to proceed.

What did the Ninth District Court of Appeals' ruling say about frozen embryos?

A recent Summit County case in the Ninth District Court of Appeals lacked a clear contract, so the judges balanced the interests of the divorcing wife and husband when they couldn't agree on how to distribute the embryos, Thomas said.

The husband wanted the embryos to be used by other couples, but not by his wife, as he didn't want to have biological children with her, according to the ruling. The wife wanted to use the embryos.

In the decision giving the wife all 14 embryos, Carr wrote that the chances of achieving pregnancy "will only decrease" as the wife ages.

The decision, Thomas said, protects the wife's reproductive freedom as she wants to become pregnant.

The case is E.B.N. v. R.N. (Ohio App. 9th Dist. April 17, 2024).

Suzanne A. Kim on "Bringing Visibility to AAPI Reproductive Care After Dobbs"

Suzanne A. Kim has published "Bringing Visibility to AAPI Reproductive Care After Dobbs" in Volume 71 of the UCLA Law Review Discourse (2024). The article abstract is excerpted here: 

Dobbs’ impact on growing AAPI communities is underexamined in legal scholarship. This Essay begins to fill that gap, seeking to bring together an overdue focus on the socio-legal experiences of AAPI communities with examination of the effects of reversing Roe and Casey on women of color. It does so by prompting a research agenda that connects diverse AAPI women’s experiences, abortion access, and Dobbs’ impact.

 

Teneille R. Brown on "The Criminalization of Care: Health and the Home"

Teneille R. Brown has posted The Criminalization of Care: Health and the Home on SSRN. This article was a forward, published in 2024 Utah Law Review 761 (2024), to a Symposium issue. Brown summarizes the scope of the Symposium:

The lines between private care and criminal law are being deliberately obscured. In the last few years, states have criminalized life-saving forms of reproductive and trans health care, normalized police provision of sub-standard mental health “treatments” to people in crisis, and in general have allowed law enforcement to invade the private lives of vulnerable families. This is not entirely new. But perhaps emboldened by the Dobbs decision1 and to retaliate against those protesting police brutality, the pace of the criminalization of care is off-the-charts. This fall, we had the pleasure of welcoming scholars in health care law and policy, medical ethics, trans rights, and feminist legal theory, to discuss the legal issues that arise when doctors and other institutional actors are asked to serve the interests of law enforcement. The central question we asked is this: how are communities harmed when we criminalize care both in health care settings and the home? In this issue of the Utah Law Review, our readers will hear from a variety of perspectives on how the criminalization of care is impacting our communities.

 The symposium volume is available here. It includes the following articles: 

Gender Regrets: Banning Abortion and Gender-Affirming Care, Noa Ben-Asher & Margot J. Pollans

We Cannot Police Systemic Racism and Systemic Poverty: Why Policing Is Not a Solution to Our Public Health Crisis, Semir Bulle, MD

Caught in the Middle: Providing Obstetric Care When Pregnant Women Have Complications, Ellen Wright Clayton, MD, JD & Luke A. Gatta, MD

Preempting Red State Restrictions on the Use of FDA-Approved Drugs in Gender-Affirming Care?, Lars Noah

Panel Presentation, The Criminalization of Trans Lives and Health Care: Provider and Patient Perspective, Dr. Dana N. Johns

Examining the Constitutionality of Legislative Medical Care Bans for Transgender Youth, John Mejia