Thursday, June 30, 2022

A Resource List of the New Legal, Political, and Practical Issues on Abortion Post-Roe

Updated 6/29/22

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            Trigger Laws:

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

                        Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to Trigger Laws: 

Judge Grants Restraining Order to Restore Abortion Access in Kentucky (6/30/22)

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:22

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

NM Governor to Sign Executive Order on Abortion Access (6/30/22) 

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

           Prosecutors:

Cuyahoga Cty Prosecutor Says He Won't Enforce 6 Week Abortion Bam (6/30/22) 

FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            First Amendment Rights of Speech and Advise

First Amendment Confrontation May Loom in Post-Roe Rights (6/30/22)

            Validity of State Travel Bans:

WP, Anti-Abortion Lawmakers Want to Block Patients From Crossing State Lines (6/30/22)

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Lauren Van Schilfgaarde, Aila Hoss, Sarah Deer, Ann Tweedy, Stacy Leeds, The Indian Country Abortion Safe Haven Fallacy

            Other Constitutional Liberties: contraception, marriage, LGBTQ

State Legislation:

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

           See generally:

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

Abortion Defenders in MI and OH Get It: Take it to the Voters (6/30/22)

            Fetal Personhood:

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

How Green Bandanas Became the International Color of Abortion Rights

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Election issue

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            Contraception: double layer contraception, increase in vasectomies

Plan B:

Missouri AG Says State Abortion Ban Does not Prohibit Plan B or Contraception (6/30/22)

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

            Digital Privacy & Period Tracking Apps:

Why Deleting Your Period Tracking App Won't Protect You (6/30/22) 

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Women's Medical Care: 

Physicians Face Confusion and Fear in Post-Roe World

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies paying travel expenses:

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Information & Assistance:  

Abortion Finder Org Site ("The pink book" of where to access providers)

ABJ, Experts Say Helping OH Patients Get Abortions Isn't Illegal (6/30/22)

            Rebecca Traister, The Necessity of Hope: "It means doing the thing that people have always done on the arduous                             path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity."

June 30, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, June 29, 2022

Ohio Lawsuit Filed to Enjoin 6 Week Abortion Ban on State Constitutional Grounds of Due Process, Equal Protection, and Freedom to Choose Health Care

Lawsuit Filed Against Ohio Abortion Ban After Roe v. Wade Ruling

Just days after the United States Supreme Court overturned Roe v. Wade in a historic decision, multiple groups have come together to file a lawsuit in the Ohio Supreme Court “seeking to block the state’s six-week ban on abortion and to restore and further protect Ohioans’ reproductive rights secured by the Ohio Constitution.”

Their lawsuit comes after a federal judge in Ohio granted the state’s request to allow the previously blocked six-week abortion ban – also known as the “heartbeat bill” – to take effect. The suit argues the bill “radically restricts access to abortion in Ohio by lowering the gestational age limit from 22 weeks to approximately six weeks, with very limited exceptions.”

The Complaint is here: Download Complaint, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

See also: Download Memo in Support of Writ, Preterm Cleveland v. Yost (Ohio S.Ct. 6-29-2022)

To add some additional information:

1.  There is original jurisdiction in the Ohio Supreme Court for "extraordinary writs" like mandamus when there is no adequate remedy at law.  It is an unusual option, but that is the argument the provider plaintiffs are making here. saying there is a need for a definitive, state-wide ruling on this emergency motion.

2.  Ohio may be different in interpretation of its state due process ("due course of law") clause because it also now has a "Freedom to Choose Health Care" constitutional provision.  Ohio Const. Art. I.21.  This freedom of health care provision was passed by initiative in 2011 in response to the federal Affordable Healthcare Act as an "anti-Obamacare" action.

 

 

June 29, 2022 in Abortion, Constitutional, Courts, Pregnancy, Reproductive Rights | Permalink | Comments (0)

The Theory of Constitutional Memory and its Silencing of Women's Voices and Citizenship

Reva Siegel, The Politics of Constitutional Memory, 20 Georgetown J. Law & Public Policy 19 (2022)

Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law.

 

This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law.

 

To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents.

 

But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

June 29, 2022 in Constitutional, Family, Legal History, Theory | Permalink | Comments (0)

Historians Weigh in on All That is Wrong with the Legal History of the SCT's Abortion Decision

Patricia, The Dobbs Decision Looks to History to Rescind Roe

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Reva Siegel, The Trump Court Limited Women’s Rights Using 19th-century Standards

But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.***

Justice Alito claims that tying the meaning of the Fourteenth Amendment’s liberty guarantee to America’s “history and traditions” prevents the justices from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to 'liberty,’” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Here he echoes the late Justice Antonin Scalia, who wrote, in “Originalism: The Lesser Evil,” that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But Dobbs shows why both of these claims are wrong. A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty largely with reference to laws enacted in mid-19th-century America. During that period — conveniently enough — there was a campaign to ban abortion across the nation. (Alito includes an appendix enumerating many of these state statutes.) But consider what else was part of this period’s “history and traditions”: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tether the meaning of the Fourteenth Amendment’s liberty guarantee to laws enacted by men with such a cramped view of women’s rights? The move is unprecedented.

Jill Hasday, On Roe, Alito Cites a Judge who Treated Women as Witches and Property

There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.

Alito reports that [Judge] Hale “described abortion of a quick child who died in the womb as a ‘great crime’ ” while glossing over the key part of that passage. Hale wrote that abortion was a crime “if a woman be quick or great with child.” Note the “if.”

Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.

Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.

June 29, 2022 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 24, 2022

The SCOTUS Joint Dissent in Abortion Case Calls Out Women's Loss of Citizenship

A joint dissent by Justices Breyer, Sotomayor and Kagan in Dobbs v. Jackson Women's Health Organization is expressive in its attack on the philosophical and physical harms to women from the Court's reversal of the fifty-year right of women to choose whether or not to bear a child in choosing an abortion. 

For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.***

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reason able limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.***

We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.

***

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

The dissent finds it clear that other constitutional rights of liberty interests are now threatened:

And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. ***

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” position, as JUSTICE KAVANAUGH tries to argue.

June 24, 2022 in Abortion, Constitutional, Judges, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

US Supreme Court Overrules Constitutional Right to Choose an Abortion

The US Supreme Court expressly overruled the 50-year old constitutional right for women to choose an abortion. Dobbs v. Jackson Women's Health Organization.

The vote is 5-4 to overturn Roe/Casey, with the majority opinion by J. Alito, joined by Thomas, Gorsuch, Kavanaugh and Barrett.  Roberts concurs only in the judgment of upholding the 15-week ban, but not in overruling Roe.  The dissent is Breyer, Sotomayer, and Kagan.

In my first quick look, the majority opinion is not much different from the leaked draft opinion.

Thomas in his concurrence of one calls for revisiting Griswold, Lawrence, and Obergefell, meaning to challenge the constitutional rights to marital privacy, contraception, sexual intimacy and conduct, and same-sex marriage.

Kavanaugh in concurrence says the Constitution calls for neutrality, and not taking sides between the pregnant woman's interest and the fetal life, which he says Roe did.  He footnotes a Rehnquist dissent that says exceptions to protect the life of the woman are constitutionally required.  He emphasizes that the decision doesn't prohibit abortion, but allows for legislative action.  He responds to Thomas and says nothing in the opinion calls into question the constitutional rights to contraception or LGBTQ rights because abortion is different.  And, in veiled reference to harmonize the Court's recent decision in Bruen on the Second Amendment, he says in a footnote that the relevant historical evidence for the abortion decision is at the time the 14th Amendment was enacted in 1868 when two-thirds of the states criminalized abortion.

Roberts concurs only to uphold the judgment.  He overturns the viability standard from Roe, but does not overrule the right to abortion completely.

A joint dissent by Justices Breyer, Sotomayor, and Kagan is explicit in noting the philosophical and physical harms to women from the decision:

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. 

See Gender & the Law Prof Blog, The Joint Dissent in SCOTUS Abortion Case Calls Out Women's Loss of Citizenship

June 24, 2022 in Abortion, Constitutional, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 17, 2022

Jewish Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms

Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms 

But a lawsuit filed last week by a South Florida synagogue challenges new legislation in the state banning most abortions after 15 weeks, saying it violates the State Constitution’s right to privacy and freedom of religion. In Jewish law, the suit argues, “abortion is required if necessary to protect the health, mental or physical well-being of the woman.”

 

The lawsuit, filed by Congregation L’Dor Va-Dor, a progressive synagogue in Palm Beach County not affiliated with a broader denomination, may face an uphill climb in court. But it is a reminder that abortion poses religious issues beyond those of the Christian right. And it suggests potential legal issues that could surface at a time when Roe seems likely to be overturned, and the Supreme Court has been aggressively open to a wider role for religion in public and political life.

 

Florida’s state law limiting abortions, signed by Gov. Ron DeSantis in April, goes into effect July 1. In banning abortions after 15 weeks, it does not make exceptions for cases of incest, rape or human trafficking. It does, however, allow for abortions if the mother’s life is endangered or if two doctors determine that the fetus has a fatal abnormality. The law was challenged earlier this month by the American Civil Liberties Union of Florida on behalf of a group of abortion providers and abortion rights organizations.***

See also South Florida Synagogue Sues Over Florida's New 15-Week Abortion Ban

 

Deeply-rooted Jewish teachings indicate that abortion is permissible — and even required — if a mother’s life is in danger, said Jewish leaders from across the ideological spectrum. In Jewish thought, it is also widely accepted that as long as a fetus is in the womb, it has “potential,” but not full, personhood, said Michal Raucher, an assistant professor of Jewish Studies at Rutgers University.

June 17, 2022 in Abortion, Constitutional, Religion, Reproductive Rights | Permalink | Comments (0)

Iowa SCT Rules No State Constitutional Right to Abortion

Iowa Supreme Court Says Abortion Protections Not Guaranteed Under State Constitution

The Iowa Supreme Court on Friday overruled a 2018 decision that said the right to abortion was protected under the state constitution.

 

That decision — coupled with the potential overturn by the U.S. Supreme Court of Roe v. Wade, the 1973 decision that established a nationwide right to abortion — would give Iowa lawmakers significantly more freedom to pass and enforce restrictive abortion laws.

 

The Iowa Supreme Court's reversal came in a fractured decision that reverses a lower court's decision to block a 2020 law that put in place 24-hour waiting period before an abortion. The majority opinion said the Supreme Court's previous ruling establishing a constitutional right to an abortion "insufficiently recognizes that future human lives are at stake.”

 

The ruling sends the case back to the lower court for reconsideration.

June 17, 2022 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Fourth Circuit En Banc Holds Charter School's Dress Code of Skirts for Girls is Gender Discrimination under Equal Protection and Maybe Title IX

Peltier v. Charter Day School, No. 20-1001 (4th Cir. June 14, 2022)

Charter Day School (CDS),1 a public charter school in North Carolina, requires female students to wear skirts to school based on the view that girls are “fragile vessels” deserving of “gentle” treatment by boys (the skirts requirement). The plaintiffs argue that this sex-based classification grounded on gender stereotypes violates the Equal Protection Clause of the Fourteenth Amendment, and subjects them to discrimination and denial of the full benefits of their education in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX).

 

In response, despite CDS’ status as a public school under North Carolina law, CDS and its management company disavow accountability under the Equal Protection Clause by maintaining that they are not state actors. These entities also assert that Title IX, the federal statute designed to root out gender discrimination in schools, categorially does not apply to dress codes.

 

Upon our review, we affirm the district court’s entry of summary judgment for the plaintiffs on their Equal Protection claim against CDS, and the court’s judgment in favor of the management company on that claim. We also vacate the court’s summary judgment award in favor of all defendants on the plaintiffs’ Title IX claim and remand for further proceedings on that claim.***

 

As part of this educational philosophy [traditional education as it was 50 years ago], CDS has implemented a dress code to “instill discipline and keep order” among students. Among other requirements, all students must wear a unisex polo shirt and closed-toe shoes; “[e]xcessive or radical haircuts and colors” are prohibited; and boys are forbidden from wearing jewelry. Female students are required to wear a “skirt,” “jumper,” or “skort.” In contrast, boys must wear shorts or pants. All students are required to comply with the dress code unless they have physical education class, when they wear unisex physical education uniforms, or an exception is made for a field trip or other special event. A student’s failure to comply with the dress code requirements may result in disciplinary action, including notification of the student’s parent, removal from class to comply with the dress code, or expulsion, though no student has been expelled for violating the dress code.

 

In 2015, plaintiff Bonnie Peltier, the mother of a female kindergarten student at CDS, informed Mitchell that she objected to the skirts requirement. Mitchell responded to Peltier in support of the policy, stating: "The Trustees, parents, and other community supporters were determined to preserve chivalry and respect among young women and men in this school of choice. For example, young men were to hold the door open for the young  ladies and to carry an umbrella, should it be needed. Ma’am and sir were to be the preferred forms of address." There was felt to be a need to restore, and then preserve, traditional regard for peers. Mitchell later elaborated that chivalry is “a code of conduct where women are treated, they’re regarded as a fragile vessel that men are supposed to take care of and honor.” Mitchell further explained that, in implementing the skirts requirement, CDS sought to “treat[] [girls] courteously and more gently than boys.”

 

In support of their summary judgment motion, the plaintiffs submitted evidence of the tangible and intangible harms they suffer based on the skirts requirement. One plaintiff testified that the skirts requirement conveys the school’s view that girls “simply weren’t worth as much as boys,” and that “girls are not in fact equal to boys.” Another plaintiff stated that the skirts requirement “sends the message that girls should be less active than boys and that they are more delicate than boys,” with the result that boys “feel empowered” and “in a position of power over girls.”

 

The plaintiffs also described the impact of the skirts requirement on their ability to participate in school activities. On one occasion, when a first-grade female student wore shorts to school due to a misunderstanding of the dress code, she was removed from class and was required to spend the day in the school’s office. The plaintiffs also explained that they avoid numerous physical activities, including climbing, using the swings, and playing soccer, except for days on which they are permitted to wear their unisex physical education uniforms. The plaintiffs further testified that they cannot participate comfortably in school emergency drills that require students to crawl and kneel on the floor, fearing that boys will tease them or look up their skirts. Both parties presented evidence from expert witnesses regarding the effects that the skirts requirement and gender stereotypes have on female students.

See also In "Skirts Only" Case, 4th Circuit Says Innovation Great, Inequality Ain't, Reuters

Deep in the thicket of a new en banc decision from 4th U.S. Circuit Court of Appeals on the constitutionality of a charter school’s “skirts-only” dress code for girls, there’s a nuanced legal debate about whether public charter schools can be sued under the Equal Protection Clause of the 14th Amendment.

 

In a 10-6 decision in Peltier v. Charter Day School Inc, the 4th Circuit majority determined that under North Carolina’s statutory framework for public charter schools, the schools are state actors — and therefore bound by the Equal Protection Clause — when it comes to setting and enforcing educational policies. The judges in the majority found that Charter Day School’s dress code, which requires girls to wear skirts, skorts or dresses, is unconstitutional because it serves no educational purpose but was adopted, according to statements from school officials, to telegraph the message that girls are “fragile vessels” who require boys' protection, rather than equal treatment.

 

That message “blatantly perpetuates harmful gender stereotypes ... with potentially devastating consequences for young girls,” wrote Judge Barbara Keenan for the majority. “If CDS wishes to continue engaging in this discriminatory practice, CDS must do so as a private school without the sanction of the state or this court.”

 

But six 4th Circuit judges said it's not at all clear that the Charter Day School is a state actor. In particular, wrote Judge Marvin Quattlebaum in the court's primary dissent, there's a strong argument that North Carolina did not compel Charter Day to adopt its dress code, so the policy cannot be considered a state action

 

June 17, 2022 in Constitutional, Education, Gender | Permalink | Comments (0)

Wednesday, June 15, 2022

Elizabeth Cady Stanton Trust Files Lawsuits to Activate ERA and Protect Right to Abortion

The Elizabeth Cady Stanton Trust Files Three Lawsuits to Establish the ERA and to Protect Roe v Wade from Being Overturned

Three lawsuits were filed today in New York, Michigan and Rhode Island to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment (“ERA”) in the United States Constitution.

 

The plaintiff, The Elizabeth Cady Stanton Trust, filed the lawsuits to affirm that women are fully equal citizens under the U.S. Constitution, and are entitled to full and Equal Protection of all laws. Stanton was a leading women’s rights activist in the 1800s, whose leadership led to women winning the right to vote in 1920. The Trust’s president, Coline Jenkins, is the great, great granddaughter of Elizabeth Cady Stanton. Jenkins explained that the lawsuits were filed because “only with full Equal Protection of all laws can women’s right to choose be protected."

 

The lawsuits were filed in response to the recently leaked opinion of U.S. Supreme Court Justice Samuel Alito, who proposes to overturn Roe v Wade. The lawsuits were filed in states where Attorneys General have expressed their support for Roe, and have stated publicly that the ERA is valid. These lawsuits ask the courts to declare the ERA valid and ensure that all laws are fully compliant with the ERA.

 

The lawsuits assert claims under the ERA as the Twenty-Eighth Amendment to the Constitution and state that because three-fourths of the states have ratified the ERA it is now part of the Constitution and must be enforced. Article V of the Constitution states that an amendment becomes valid the moment the last of 3/4ths of the states ratifies it, which was Virginia in January 2020. But federal officials have refused to acknowledge the ERA’s validity because a purported ratification deadline expired before Virginia ratified. The lawsuits assert that the ERA is valid because the deadline is not valid.

Last-Minute Bid to Save Right to Abortion Comes Via ERA Lawsuits

The threat of a Supreme Court ruling overturning Roe v. Wade has spurred a trio of new lawsuits seeking state court recognition of the Equal Rights Amendment—a last-minute effort to preempt that anti-Roe ruling by forcing the high court to factor new constitutional language into its decision.

 

The women’s rights group Elizabeth Cady Stanton Trust filed lawsuits in state courts in Michigan, Rhode Island, and New York, asking courts there to declare the ERA a fully ratified and enforceable part of the Constitution. The group sued each state’s attorney general, seeking to force the officials “to identify and repair all sex discriminatory laws, policies and programs” in their respective states.

 

The lawsuits open a new front in the wide-ranging battles over abortion rights and the Equal Rights Amendment. The recently leaked draft of a Supreme Court opinion in the pending case Dobbs v. Jackson Women’s Health Organization would end the court’s 50-year precedent of recognizing a constitutional right to abortion, if the court’s final majority opinion aligns with Justice Samuel Alito’s draft when it is published, likely next month.

 

“By declaring the ERA’s validity, this Court will prevent the Supreme Court from overruling Roe and protect women’s basic human right to control their own lives,” attorneys wrote in each of the three complaints, filed May 18 in Michigan and Rhode Island and May 19 in New York.

 

The Equal Rights Amendment doesn’t explicitly address abortion, but the plaintiffs said the amendment’s guarantee of equal protection under the law on the basis of sex would cover the right for women to make reproductive choices free from government interference.

June 15, 2022 in Abortion, Constitutional, Pregnancy, Reproductive Rights | Permalink | Comments (0)

False Claims Continue Claiming Elizabeth Cady Stanton and Susan B Anthony as Anti-Abortion Advocates

False claims continue to abound about pioneering 19th century feminists Elizabeth Cady Stanton and Susan B. Anthony as to their views on abortion, including this week in the Wall Street Journal.

As a scholar of Stanton's work for the last twenty years studying her focus on legal and social reform of the family and marriage, I have written extensively against these false claims and tried to set the record straight by delving into the historical details (incorrectly) asserted for these claims.  I post here to refresh the recollection of that work as relevant to ongoing debates: 

First, here's the current, incorrect report, written by anti-abortion activists:

WSJ, Yes, Susan B Anthony Was Pro-Life

Early feminist icons Elizabeth Cady Stanton and Susan B. Anthony changed forever the role of women in American society. In the 19th century they tirelessly promoted public education on behalf of women’s equality and demanded that women be given the right to vote. But contrary to recent claims by advocacy groups, they were not in favor of abortion.

 

After a leaked Supreme Court draft decision appearing to overturn Roe v. Wade circulated in May, the nonprofit National Susan B. Anthony Museum and House in Rochester, N.Y., accused the Susan B. Anthony List, a pro-life political action committee, of misappropriating the famous suffragist’s name. “To suggest that Susan B. Anthony would support government intervention in a woman’s decision about a pregnancy is abhorrent,” museum president Deborah L. Hughes wrote in a post on the organization’s website.

 

The Elizabeth Cady Stanton Trust similarly claims that its namesake would have supported abortion-rights advocacy in the 21st century. The group has filed lawsuits in Michigan, New York and Rhode Island, asking courts, according to a press release, “to protect Roe v. Wade from being overturned, and firmly establish the Equal Rights Amendment . . . in the United States Constitution.”

 

In fact, it’s the pro-choice groups that have it wrong. During their lifetimes, both women vociferously condemned abortion.

Here are links to my work challenging and disproving the historical basis on which these incorrect assumptions continue to rely:

Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012) (discussing both Stanton & Anthony)

Tracy Thomas, ECS Book Elizabeth Cady Stanton and the Feminist Foundations of Family Lawm chp. 4, The "Incidental Relation" of Mother (NYUP 2016)

Tracy Thomas, Gender & the Law Prof Blog, Elizabeth Cady Stanton was Not Against Reproductive Rights

Tracy Thomas, Gender & the Law Prof Blog, Voluntary Motherhood: What Did 19th Century Feminists Think About Abortion and Birth Control

The Atlantic, The Abortion Debate and the Legacy of Women's Suffrage (June 2019)

Tracy Thomas, National Constitution Center "We the People" Podcast, The Constitutional Legacy of Seneca Falls

Tracy Thomas, Gender & the Law Prof Blog, Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life

Tracy Thomas, Gender & the Law Prof Blog, The "Incidental Relation of Mother" and 19th Century Demands for Women's Reproductive Control

 

Elizabeth Cady Stanton and the Feminist Foundations of Family Law by [Tracy A. Thomas]

June 15, 2022 in Abortion, Books, Constitutional, Family, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Where to Find the Specifics of Each State's Abortion Bans

If the Supreme Court overturns Roe and Casey in the forthcoming Dobbs decision, as an anticipated, the question is what the law of abortion will then be in each of the states.  Several groups have been compiling the information:

 

Center for Reproductive Rights, What if Roe Fell? (2019), https://reproductiverights.org/wp-content/uploads/2021/12/USP-2019-WIRF-Report-Web_updated.pdf (current as of 2019)

In the last decade, states have enacted over 450 restrictive abortion laws and, in 2019, numerous states enacted blatantly unconstitutional abortion bans as part of this coordinated strategy. If the Court were to limit or overturn Roe, it is likely that 24 states and three U.S. territories would attempt to prohibit abortion entirely. Abortions rights are protected by state law in only 21 states and no U.S. territories. In the remaining five states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, abortion may remain accessible but vulnerable without affirmative legal protection. With several abortion cases already seeking review at the Supreme Court and others making their way toward it, we now are facing an existential threat to reproductive rights.

 

Public discussion of abortion rights has focused on determining which states would prohibit or heavily restrict abortion access if allowed to do so by the Supreme Court. What if Roe Fell? provides our legal analysis of abortion law, state-by-state and territory-by- territory. We analyzed state constitutions, statutes, regulations, and court opinions in each of the fifty states, the District of Columbia, and the five most populous U.S. territories to answer this critical question: what would happen where you live if the Supreme Court limited or overturned Roe v. Wade?

 

The Policy Surveillance Project, Abortion Bans

Restrictions on abortion are most often accomplished by prohibiting abortions at specific gestational limits, usually defined in state law by either a certain number of weeks post-fertilization, or from a pregnant person’s last menstrual period (LMP). Further limitations on abortions in state-level regulation include restrictions based on a pregnant person’s reason for seeking an abortion, and bans on certain types of procedures used in late-term abortions. Additionally, some abortion bans are either contingent on a court ruling overturning Roe v. Wade, or have been in place prior to Roe protections.This dataset explores abortion regulations in all 50 U.S. states and the District of Columbia in effect from December 1, 2018 through October 1, 2021, as well as case law and attorney general opinions that affect the enforceability of these laws.

 

This dataset is a part of a suite of 16 datasets created by the Policy Surveillance Program of the Center for Public Health Law Research in collaboration with subject matter experts from Resources for Abortion Delivery (RAD), Guttmacher Institute, American Civil Liberties Union (ACLU), Center for Reproductive Rights (CRR), National Abortion Federation (NAF), and Planned Parenthood Federation of America (PPFA), who conceptualized and developed the Abortion Law Database. 

 

See also: 

Guttmacher Institute, An Overview of Abortion Laws, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws & Guttmacher Institute, State Legislation Tracker, https://www.guttmacher.org/state-policy 

NACL Appendices on the Criminalization of Abortion, https://nacdl.org/Document/AbortioninAmericaReportAppendices 

June 15, 2022 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Friday, June 10, 2022

The Possibility of Executive Orders on Abortion Rights if Supreme Court Strikes Down Roe

Biden Says He's Looking at Executive Orders on Abortion Rights if Supreme Court Strikes Down Roe 

President Joe Biden on Wednesday said he was weighing executive actions he could take if the Supreme Court overturns Roe v. Wade's holding of a federal constitutional right to an abortion.

The President, during an appearance on "Jimmy Kimmel Live!" in Los Angeles, again pressed Congress to codify into law the right to abortion established by the landmark ruling in the wake of the publication of the leaked draft of the Supreme Court's ruling on the issue.
 
"I think if the court overrules Roe v. Wade and does what is drafted ... if that occurs, I think we have to, we have to legislate it. We have to make sure we pass legislation making it a law that is the federal government says this is how it works," Biden told Kimmel.
 
He said, "I think what we're going to have to do. There's some executive orders I could employ, we believe -- we're looking at that right now."
 
CNN has previously reported that Biden's administration has been working for months in preparation for the expected decision by the Supreme Court overturning Roe v. Wade. The White House has so far not detailed exactly what options could be taken to mitigate the effects of the ruling.
 
Among that preparation has been convening roundtables with state lawmakers to discuss the issue and solicit ideas. Options for moves Biden could take include executive action that could make it easier for women to travel to receive abortions in states where the procedure is still legal or expanding access to medication abortion through the mail. Some advocates have also suggested leasing federal land for abortion clinics, bypassing state laws that restrict them.

Bracing for the End of Roe v. Wade, the White House Weighs Executive Action, NYT

No executive order can re-establish a constitutional right. It would take an act of Congress to restore a national legal standard barring states from outlawing abortion, and proponents currently lack sufficient votes in the Senate, where Republicans can filibuster such a bill. But Mr. Biden has signaled that he wants to move on his own.***

The White House counsel, Dana Remus, the director of its gender policy council, Jennifer Klein, and the director of its domestic policy council, Susan Rice, are overseeing the legal and policy vetting of potential executive actions. Anita Dunn, a senior policy adviser to Mr. Biden, is in charge of broader planning, including communications strategy, officials said.

June 10, 2022 in Abortion, Constitutional, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, June 7, 2022

Leading Historian Explains What Alito Gets Wrong About the History of Abortion in America

One of the leading historians, Leslie Regan, who literally wrote the book on the topic, see When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973.com/When-Abortion-Was-Crime-1867-1973 (1996)  explains what Justice Alito's draft opinion in Dobbs gets very wrong.

Leslie Reagan, What Alito Gets Wrong About the History of Abortion in America

f it were possible to eavesdrop on conversations among women and some doctors in early America, you might overhear the phrase “bringing on the menses.” If a woman didn’t menstruate when expected, she was considered to be sick and action was required to bring her back to health. Women who had “a common cold” — a euphemism for “obstructed” menses — used a variety of methods, teas and concoctions to bring “their menses back.”

In other words, returning menstruation to its normal cycle was within the purview of a woman’s own self-health care and was not regulated by the state until after “quickening” — the moment during a pregnancy when a woman could feel a fetus kick and recognized a life “stirring” within her. Quickening occurred between the fourth and sixth month of pregnancy. Only after quickening was an induced miscarriage, an abortion, considered immoral and banned by law.

The truth is that abortion is deeply rooted in our nation’s history — in practice, in morality and in law. Abortion was not always a crime — although Justice Samuel Alito speciously claims otherwise in his recently disclosed draft majority opinion that would overturn Roe v. Wade.***

The logic that Alito uses in the draft opinion leans heavily on history — history that he gets egregiously wrong. Alito explicitly dismisses the distinction between ending a pregnancy before or after quickening, a distinction that my research has found was critical to the way American women and American physicians traditionally thought about pregnancy. In early America as in early modern England, abortion before “quickening” was legal under common law and widely accepted in practice.

June 7, 2022 in Abortion, Books, Constitutional, Legal History, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 3, 2022

The Radical Consequences of Uprooting Roe in Restoring Rules of Gender Difference

Jessie Hill & Mae Kuykendall, Uprooting Roe, 12 Houston L. Rev. Online 50 (2022)

It’s official—the U.S. Supreme Court is likely poised to overturn Roe v. Wade in a matter of months. Yet, the roots of Roe run both wide and deep, and to uproot Roe would be to uproot the Constitution’s promise of equality in a radical way. Uprooting reproductive liberty is radical as jurisprudence, but even more shocking is the cavalier reversal of more than a century’s work to abolish the claims of coverture and biological destiny as women’s gendered legal fate. As each step in women’s emergence from bio-destiny generated a new and robust status as full citizens, so will an uprooting of Roe and its companion principles work to restore the iron rules of gender difference. Liberty, meet equality–and say farewell.

June 3, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, June 2, 2022

The Path Almost Taken Toward Abortion Rights in the NY Abramowicz Case Rather than Roe

Emily Bazelon, America Almost Took a Different Path Toward Abortion Rights

For three days in January 1970, they filled the 13th floor of the federal courthouse in Manhattan, women of all ages crowded into a conference room, sitting on the floor, spilling into the hallway. Some brought friends or husbands. One nursed a baby. Another was a painter who also taught elementary school. A third had gone to Catholic school. They’d come to give testimony in the case of Abramowicz v. Lefkowitz, the first in the country to challenge a state’s strict abortion law on behalf of women.

 

The witnesses in the courthouse were among 314 people, primarily women, brought together by a small team of lawyers, led by Florynce Kennedy and Nancy Stearns, to set up a legal argument no one had made before: that a woman’s right to an abortion was rooted in the Constitution’s promises of liberty and equal protection. New York permitted abortion only to save a woman’s life. Kennedy and Stearns wanted the court to understand how risking an illegal procedure or carrying a forced pregnancy could constrict women’s lives in ways that men did not experience.***

 

Those objectives started with forcing the courts to confront the impact of a near ban on abortion on women’s lives. “When we couldn’t control when we had a baby, we weren’t free and we weren’t equal,” Nancy Stearns, the lead writer of the briefs in the case, explained to me recently over the phone. “That was our fundamental argument,” she said of putting gender equality at the center of the case. “It was clearly even stronger for low-income women.”

 

At the time, Stearns’s framing was unheard-of as a legal theory. It wasn’t just that the Supreme Court hadn’t decided a case about abortion. The court “had never found a single law to violate the equal-protection clause because it discriminated on the grounds of sex,” Reva B. Siegel, a Yale Law professor, explained in The Boston University Law Review in 2010.

June 2, 2022 in Abortion, Constitutional, Courts, Legal History, Legislation, Reproductive Rights | Permalink | Comments (0)

Using Constitutional Courts to Advance Abortion Rights in Latin America

Alba Ruibal,  Using Constitutional Courts to Advance Abortion Rights in Latin America,
International Feminist Journal of Politics 2021

Over the past two decades, the abortion rights controversy has become the most prominent field of dispute between feminisms and religious conservatisms across Latin America. In this context, the political powers have generally been reluctant to change the region´s restrictive abortion legal frameworks, and since the mid-2000s, Latin American feminists turned to courts in search for long pursued reforms in this field. Through the analysis of the role of constitutional courts in the liberalization of abortion laws in Colombia, Brazil, Argentina, and Mexico, this study points out the diverse ways in which courts have contributed to the advancement of abortion rights, becoming an alternative venue for feminist advocacy in Latin America. It highlights how the use of courts has been a way to liberalize abortion laws, ensure the implementation of lawful abortions, and deter backlash processes. Furthermore, it details how courts have offered a platform for public deliberation on the abortion issue. These findings show how the judiciary can be a favourable venue for feminist activism in Latin America when other institutional sites are blocked. They also pose nuances to the critique of the use of courts for social change, which stresses the pernicious consequences of the judicialization of social movement causes.

June 2, 2022 in Abortion, Constitutional, Courts, International, Reproductive Rights | Permalink | Comments (0)

Tuesday, May 31, 2022

Revenge Porn and the First Amendment: Prioritizing the Victim's Autonomy

Roni Rosenberg & Hadar Dancig-Rosenberg, Revenge Porn in the Shadow of the First Amendment, 24 U. Penn J. Con. L. (forthcoming 2022)

Millions of people around the world, most of them women, have been victims of revenge porn and have suffered intense pain and distress as a result. By 2021, almost all US states had criminalized revenge porn, defining it primarily as an infringement of privacy, as obscenity or as harassment. US courts have recently considered the constitutionality of criminalizing revenge porn in view of the potential conflict with freedom of speech. Contrary to the courts’ decisions, we argue that revenge porn is a sex offense and therefore justifies limiting the disseminator’s freedom of speech to a significant degree. Empirical evidence indicates that victims experience revenge porn as an erasure of their personal autonomy, one that radically disrupts their lives, alters their sense of self and identity, and dramatically affects their relationship with themselves and with others. Insofar as the rationale of freedom of speech relies on the protection of autonomy, the protection of the disseminator’s autonomy should not be at the expense of erasing the victim's autonomy. Thus, our argument highlights the necessity for US state legislators to redefine the boundaries of the revenge porn offense accordingly.

May 31, 2022 in Constitutional, Media | Permalink | Comments (0)

Tuesday, May 24, 2022

How the Right to Birth Control Could be Undone by the SCOTUS Abortion Decision

Melissa Murray, Op-ed, How the Right to Birth Control Could be Undone, NY Times

The leaked draft opinion of the Supreme Court’s decision overturning Roe v. Wade has prompted a flurry of debate about the fate of other so-called unenumerated rights — rights that are not explicitly outlined in the Constitution — including the right to access contraception.

According to some commentators, claims that the right to contraception could be on the chopping block are little more than hyperbolic “catastrophizing” that cannot be taken seriously. Prominent constitutional law scholars also have insisted that such claims are little more than baseless fearmongering, and The Wall Street Journal’s editorial page insisted that liberal fears about overruling rights to contraception and same-sex marriage are little more than an “implausible parade of horribles.”

Such high-level minimizing is not surprising. To understand whether the right to access contraception, like the right to abortion, could be overturned, it’s necessary to pick up on clues in Justice Samuel Alito’s draft opinion.***

But the same could be said of other unenumerated rights, including, and especially, contraception. Nowhere does the Constitution speak of a right to contraception — the Constitution does not even explicitly mention women. And as many conservatives have noted, the American legal landscape was littered with prohibitions on contraception right up until the court invalidated Connecticut’s ban on contraception in 1965’s Griswold v. Connecticut.

Justice Alito himself has already set in motion the means for challenging the right to contraception. In 2014’s Burwell v. Hobby Lobby, the family that owns the craft store company objected on religious grounds to the Affordable Care Act’s contraceptive mandate, which required employers to provide employees with insurance coverage for contraception. Specifically, Hobby Lobby balked at providing its employees with insurance plans that would cover IUDs and emergency contraceptives, like Plan B, based on the unsubstantiated claim that such contraceptives are abortifacients. The court, in an opinion written by Justice Alito, ruled for Hobby Lobby.

May 24, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

The Equal Protection Arguments in the Dobbs Abortion Case

Featured on the Legal Theory Blog is Reva Siegel, Serena Mayeri & Melissa Murray, On Equal Protection and the Dobbs Draft, on their article Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Columbia J. Gender & Law (forthcoming).

In the leaked draft of Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito dismissed the Equal Protection Clause as an alternative ground of the abortion right, citing an amicus brief in which we advanced that argument. In dicta, Justice Alito claimed that precedents foreclosed the brief’s arguments (pp. 10-11).

 

Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.

 

This Essay, written before Justice Alito’s draft leaked, explains the brief’s equal protection arguments for abortion rights, and shows how these equality-based arguments open up crucial conversations that extend far beyond abortion.***

 

Equality challenges to abortion bans preceded Roe, and will continue long after Dobbs v. Jackson Women’s Health Organization, however the Court rules in that case. In this Essay we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause.

May 24, 2022 in Abortion, Constitutional, Legal History, SCOTUS, Theory | Permalink | Comments (0)