Gender and the Law Blog

Center for Reproductive Rights Report Documents Poor-Quality Care After Dobbs

The Center for Reproductive Rights published a report documenting poor quality care after Dobbs. 

The Care Post-Roe Study seeks to learn about how clinical care has changed by documenting cases of care that was different from the usual standard due to abortion laws that went into effect since the Dobbs ruling. This study allows health care providers to share these narratives anonymously and confidentially, at a time when they are being forbidden by their employers or hospital leadership from speaking with the press about these cases.

* * *     
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; 5. Early miscarriage; 6. Extreme delays in obtaining abortion care; and 7. 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.   

Access the full report here. 

 

 

Reclaiming Tort Law to Protect Reproductive Rights

Yvonne Lindgren & Nancy Levit, Reclaiming Tort Law to Protect Reproductive Rights, 75 Alabama L.Rev. (2023)  

In Dobbs v. Jackson Women’s Health, the Supreme Court overruled Roe v. Wade, the constitutional floor that had protected the abortion right for nearly fifty years, and returned the issue of abortion to the states to regulate, restrict, criminalize, or protect at the state-level. In the post-Roe era, states are increasingly turning to private law to restrict travel, access to medical care, and undermine privacy of individuals seeking abortion. Three states have passed antiabortion civil enforcement “bounty” provisions patterned on Texas’s SB8 that allows private citizens to sue providers or third parties who aid and abet an abortion that violates the state’s six-week ban. At least half a dozen states have signaled that they will pass their own civil bounty antiabortion provisions. Other states, such as Missouri, have introduced legislation that would permit any private citizen to sue anyone who helps a pregnant person travel out of state to obtain an abortion. Aggressive protesting at abortion clinics and surveillance of out-of-state license plates and people entering abortion clinics have also been on the rise as private citizens take up the charge of enforcing state antiabortion laws. Under this private law scheme, pregnant bodies become politicized legal subjects to be disciplined and surveilled by the public to enforce a state’s policy agenda without constitutional and civil law protections.

This Article argues that the use of private law to enforce abortion bans — a function that had been previously exclusively patrolled through public law — is antithetical to the purpose and function of private law to protect individuals from tortious harms by third parties. Private law is designed to compensate individuals for harms and to protect the community more broadly by discouraging individuals from engaging in harmful behavior through the deterrent force of damage awards. However, civil enforcement regimes are eroding the boundary between public and private law and exposing people to private harms through state capture of private law. These civil provisions are often coupled with criminal enforcement regimes that deprive pregnant persons of necessary medical care. Rather than protect individuals from privacy invasions by third parties, these laws incentivize the surveillance and privacy intrusions that will necessarily result from the regime of private enforcement and aggressive protesting at abortion clinics. Thus, in the post-Roe landscape, abortion patients and providers have lost both constitutional protection and private law’s protection against harms inflicted by private actors. This Article sets forth a framework to both reassert tort law’s function to offer protection against privacy invasions by third parties and restore private law’s role in expressing normative values of the community — rather than of the state — that rests at the heart of a private law regime.

It is a critical moment to challenge the emerging trend of state capture of private law and reestablish private law’s traditional role to guard against privacy intrusions by third parties. Torts such as intrusion upon seclusion, public disclosure of private facts, infliction of emotional distress, and federal civil rights violations, as well as tort claims for providers such as interference with prospective business relations and civil RICO to name only a few may serve to reclaim private law’s primary purpose to protect individuals from infringement by third parties. Shielding abortion patients and providers from surveillance, detection, and violations of medical privacy may limit overreach by bounty hunters and protestors. More importantly, it will reclaim private law’s role to protect individuals and providers in the constitutional vacuum left in the wake of Dobbs.

The Feminist-Neutrality Paradox of Women Judges

Alissa Rubin Gomez, The Feminist-Neutrality Paradox, 127 Dick. L. Rev. 101 (2023)

Female judges are vital to a well-functioning third branch of government given the long-documented link between diversity and judicial legitimacy. Beyond appearances, however, the article explores the reasons why so many empirical studies have shown that judges do not decide cases differently on account of their gender. This article describes how women must act like men to gain acceptance into the male-dominated judicial sphere and then are expected to apply precedent that has been overwhelmingly decided by men. In other words, the decisions of female (and feminist) judges are largely the same as those of their male counterparts because of systemic pressures on female judges to conform to the unstated male norm under the guise of neutrality and the rule of law. These observations are not new. But in the wake of Dobbs v. Jackson Women’s Health Organization – the case that erased the constitutional right to abortion with little concern for the appearance of judicial neutrality or stare decisis – this article asks whether feminists should stop playing by the rules as well.

Center for Reproductive Rights publishes report on "Failures to guarantee the sexual and reproductive health and rights of refugees from Ukraine"

The Center for Reproductive Rights published a report on "Care in Crisis: Failures to guarantee the sexual and reproductive health and rights of refugees from Ukraine in Hungary, Poland, Romania, and Slovakia."  The report chronicles how millions of people, mostly women and children, have migrated from Ukraine to the EU, including Hungary, Poland, Romania and Slovakia. 

However, Hungary, Poland, Romania and Slovakia are some of the most challenging contexts in Europe when it comes to sexual and reproductive healthcare and gender-based violence support services. Decades long failures by national governments to invest in and prioritize these forms of care and support, combined with restrictive and unclear legal and policy frameworks and ongoing stigma and rollbacks on sexual and reproductive rights, heavily constrain access to good quality care.

 

As millions of women and girls from Ukraine arrived in Hungary, Poland, Romania and Slovakia, serious concerns arose regarding their ability to obtain essential forms of healthcare, services and support. It became clear that violations of fundamental rights within Ukraine were being compounded by rights violations outside of the country. There was particular concern for refugees who had suffered conflict related sexual and gender-based violence in Ukraine, including rape and other gender-based crimes.

 

Between July 2022 and April 2023, our organizations undertook in-depth, multi-country fact-finding to examine the gaps and barriers in access to sexual and reproductive healthcare and gender-based violence support services that are faced by refugees from Ukraine in Hungary, Poland, Romania and Slovakia. Over nine months, we collected information from semi-structured interviews with over 80 experts, professional stakeholders and refugees from Ukraine based across these four countries.

The article describes the legal barriers, cost barriers, and information barriers, as well as the poor quality care, stigma, and discrimination that these refugees faced in each country. The report offers concrete recommendations to each of the countries.

Dobbs, Plessy, and the New Jane Crow

Evan D. Bernick, Dobbs, Plessy, and the Constitution of the New Jane Crow,  Northern Illinois U. Law Rev. (2023)

Women and girls enter U.S. jails and prisons every year. Nearly a million are on probation, parole, or pretrial release. This carceral control is unevenly distributed, being primarily exercised over poor women of color. And it is growing. These realities are part of what has been conceptualized as “the New Jane Crow.”

This Essay contends that Dobbs v. Jackson Women’s Health Org. gives the New Jane Crow the U.S. Supreme Court’s constitutional blessing. In justifying its decision to overrule Roe v. Wade and hold that the Fourteenth Amendment does not protect the right to terminate a pregnancy, Dobbs invokes Plessy v. Ferguson and its overruling by Brown v. Board of Education. The profound evil of Plessy’s constitutional endorsement of “separate but equal” railcars and its legitimation of Jim Crow segregation is said to illustrate the importance of overruling egregiously wrong precedents. But Justice Samuel Alito’s opinion for the Court in Dobbs has more in common with Plessy than its author recognizes.

Part I provides an overview of the New Jane Crow, tracing the genealogy of the phrase and describing the phenomenon that it names. Though provocative, I argue that the phrase fits the phenomenon, given substantive and functional continuities between state control of female reproduction past and present. Part II describes how Dobbs constitutionally legitimates key components of the New Jane Crow and encourages its expansion.

Part III analogizes Dobbs to Plessy in three respects. First, in its disregard of relevant history. Second, in its lack of attention to present socioeconomic realities. Third, in its capacity to provide constitutional legitimation to an entire political-economic order that perpetuates racialized and gendered subordination.

How the 19th Century Comstock Obscenity Law a the Key to the Abortion Fight

Emily Bazelon, NYT, How a 150-Year Old Law Against Lewdness Became a Key to the Abortion Fight

Anthony Comstock, a 19th-century crusader against sexual liberty, was mocked as a prude in his own time, but wielded real power. He persuaded Congress in 1873 to pass the Comstock Act, written by and named for him, making it a federal crime to send or deliver “obscene, lewd or lascivious” material through the mail or by other carriers, specifically including items used for abortion or birth control.

By the 1960s, the Comstock Act had fallen out of use — narrowed by court rulings, partly gutted by congressional repeals — and it was made an unconstitutional relic by the Supreme Court’s decision in 1973 in Roe v. Wade, recognizing a national right to abortion. But it stayed on the books.

Now, Comstock is back, once more being wielded as a weapon by social conservatives. Their arguments use the language of the act to target the mailing of abortion pills, and they are pushing judges and the Biden administration to reopen seemingly long-settled questions.

NYT, What to Know About the Comstock Act

The Comstock Act’s definition of what was lewd material would be “radically unfamiliar” to people living today, according to Mary Ziegler, professor of law at University of California, Davis. Examples she cited included “somebody writing a letter to somebody asking them for a date if they weren’t married,” and “somebody mentioning the existence of an abortion in a newspaper.”

“The early Comstock Act enforcement is extraordinarily broad, and gets broader and broader,” Professor Ziegler said.

I have written some about the origins of the Comstock law: See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 91, 174-75 (NYU Press 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).

See also Gender & the Law Blog, Siegel and Ziegler on SCOTUS, Mifepristone, and the 19th Century Comstock Act

For a fictionalized story of the crusader Anthony Comstock and feminist activist Elizabeth Cady Stanton, see Marge Piercy, Sex Wars: A Novel of Gilded Age New York

Pizzarossa et al., on "Self-Managed Abortion in Africa"

Scholars Lucía Berro Pizzarossa, Michelle Maziwisa, and Ebenezer Durojaye have published "Self-Managed Abortion in Africa: The Decriminalization Imperative in Regional Human Rights Standards, in the Health and Human Rights Journal (May 2023). The abstract provides:   

Self-managed abortion holds particular promise for revolutionizing people’s access to quality reproductive care in Africa, where the burden of abortion-related mortality is the highest globally and where abortion remains criminalized, in violation of various internationally and regionally recognized human rights. Increasingly safe and effective, self-managed medication abortion is still subject to many restrictions, including criminal laws, across the continent. Drawing on recent evidence and human rights developments around self-managed abortion, this paper explores whether and to what extent Africa’s regional legal framework builds a normative basis for the decriminalization of self-managed abortion. We conclude that the region’s articulation of the rights to dignity, to freedom from cruel, inhuman, and degrading treatment, and to nondiscrimination, among others, provides strong grounds for decriminalization, both concerning individuals who need abortions and concerning the constellation of actors who enable self-management.

New Report on Accessing Emergency Obstetrics Information in Oklahoma

A recent report was published on "Accessing Emergency Obstetrics Information as a Prospective Prenatal Patient in Post-Roe Oklahoma." The report was jointly authored by Physicians for Human Rights (PHR), the Oklahoma Call for Reproductive Justice (OCRJ), and the Center for Reproductive Rights (CRR). The Executive Summary provides: 

In the wake of the 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, Oklahoma residents are currently living under three overlapping and inconsistent state abortion bans that, if violated, impose severe civil and criminal penalties on health care providers. * * * Because the exceptions drafted by legislators are often conflicting and use non-medical terminology, they sow confusion around what kinds of care and procedures health care providers can legally offer when a pregnancy threatens a person’s health or life. These challenges, combined with the significant penalties under these bans, constitute a situation of “dual loyalty”: health professionals are forced to balance their obligation to provide ethical, high-quality medical care against the threat of legal and professional sanctions. The decision to provide emergency medical care risks becoming a legal question – determined by lawyers – rather than a question of clinical judgment and the duty of care to the patient – determined by health care professionals.

 

In light of the extensive anti-abortion legal framework newly in place in the state, Oklahoma offers an important insight into the potential effects of near-total abortion bans on pregnant patients and the clinicians who care for them. 

 

* * *

 

The results of this research are alarming. Not a single hospital in Oklahoma appeared to be able to articulate clear, consistent policies for emergency obstetric care that supported their clinicians’ ability to make decisions based solely on their clinical judgement and pregnant patients’ stated preferences and needs. Of the 34 out of 37 hospitals offering obstetric care across the state of Oklahoma that were reached, 65 percent (22 hospitals) were unable to provide information about procedures, policies, or support provided to doctors when the clinical decision is that it is necessary to terminate a pregnancy to save the life of a pregnant patient; only two hospitals described providing legal support for clinicians in such situations. In 14 cases (41 percent), hospital representatives provided unclear and/or incomplete answers about whether doctors require approval to perform a medically necessary abortion. Three hospitals indicated that they have policies for these situations but refused to share any information about them; four stated they have approval processes that clinicians must go through if they deem it necessary to terminate a pregnancy; and three stated that their hospitals do not provide abortions at all.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

CFP AALS Teaching Reproductive Justice in a Post-Dobb World

The Section on Family & Juvenile Law is pleased to announce a Call for Participants for its pedagogy panel on Teaching Reproductive Justice in a Post-Dobbs World.  The program is co-sponsored by the Sections on Minority Groups, Sexual Orientation & Gender Identity, and Women in Legal Education.

The panel will be held during the AALS Annual Meeting in early January 2024 in Washington, DC. The goal of the session is to discuss and share our ideas about teaching reproductive justice, both in regards to the  Dobbs decision and related developments as well as how to create a separate course on reproductive justice.  The panel will show how family and juvenile law professors are integrating these teaching methods into their courses and the overall family and juvenile law curriculum. Presenters will be asked to share relevant materials in advance of the Annual Meeting.

 

If you are interested in participating, please send a 400-600 word description of what you'd like to discuss. Submissions should be sent to Naomi Cahn, [email protected] and Jeffrey Dodge, [email protected]. The due date for submissions is June 23, 2023.  We will notify the selected presenters by July 1, 2023. 

Justice Alito's Contempt as Seen in the Abortion Pill Dissent

Jennifer Rubin, Washington Post, Opinion, The Supreme Court Delivers a Sign of Relief -- and an Outrageous Dissent

Amy Davidson Sorkin, What's Going on With Samuel Alito?, New Yorker

How many people and organizations can Justice Samuel Alito accuse of having bad will or dishonest motives in a short dissent—fewer than nine hundred words—to a Supreme Court order granting a stay? Let’s try to count.

As a preface, the case involves a lawsuit brought by the Alliance for Hippocratic Medicine, an advocacy group whose members vow, “in the presence of the Almighty,” that they “will not help a woman obtain an abortion.” The A.H.M. is attempting to block access to mifepristone, or RU-486, a drug used in medication abortions, in a suit against the Food and Drug Administration, which was joined in the case by a manufacturer of the drug, Danco Laboratories. ***

Even beyond this case, there is something troubling and unsettling about Alito’s tone and approach. As I’ve written before, observers of the Court have come to expect notes of scornfulness in Alito’s opinions. He may not be the most conservative of his colleagues—Thomas is another contender—but he’s looking like the Court’s sourest Justice. His approach to legal argument is a sad reflection of the state of political discourse generally, as well as a contributor to it. Contempt is a guiding principle of what might now, with a right-wing super-majority, be called the Alito Court—at least until Alito turns on the rest of his colleagues, too