The Connecticut state Senate gave final approval late Friday to a novel plan to turn the state into an abortion safe haven for patients who live in conservative states that are moving rapidly to restrict access to the procedure.
Friday, June 3, 2022
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.
Thursday, June 2, 2022
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.
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.
Tuesday, May 31, 2022
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.
Tuesday, May 24, 2022
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.
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.
Monday, May 23, 2022
Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, 29 U.C.L.A. Women's Law J. (2022)
The popular narrative of the relationship between religion and reproductive rights equates religious belief with opposition to abortion and the exercise of conscience with refraining from the provision of abortion care. The presumption that faith inevitably conflicts with support for reproductive rights is a chapter in a larger story—created and reinforced both legally and culturally —that links religious liberty to conservative views about sex, sexuality, and reproduction.
This Article demonstrates that this typical abortion tale, while well-worn, is one-sided. It traces the history of the claim that restrictions on abortion violate either the Free Exercise Clause or the Religious Freedom Restoration Act (RFRA). This claim asserts that laws that explicitly ban or curtail access to abortion burden pregnant people’s ability to make reproductive decisions that are guided by their sincerely held religious beliefs or burden healthcare providers’ ability to provide abortion care as dictated by their religious beliefs. This Article argues that recovering this lost history reveals a dual erasure: erasure of the fact that faith motivates or even requires people to provide or obtain abortions and erasure of the decades-long legal claim, present from the outset of the first sustained effort to challenge the constitutionality of laws criminalizing abortion in the late 1960s, that protecting the right to abortion is actually more consistent with religious-liberty principles than restricting it. There is a rich tradition of the clergy, the women’s movement, and religious organizations fusing free-exercise arguments with arguments about economic justice, dignity, and pregnant people’s ability to make choices about their lives and families.
The historic and normative groundwork laid in this Article illuminates what are now largely invisible concerns with curtailing not only abortion access but also reproductive healthcare access broadly and creates a more holistic, complete account of what it means to protect religious freedom in the reproductive-rights context.
Friday, May 20, 2022
Nancy Marcus, Yes, Alito, There is a Right to Privacy: Why the Dobbs Leaked Draft Opinion is Doctrinally Unsound, 13 ConLawNOW 101 (2022)
The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe, but had instead been criminalized in a number of states. Under the apparent premise that conduct once criminalized cannot subsequently be constitutionally protected as a fundamental right. Second, the opinion is grounded in an interpretation of substantive due process that only recognizes Fourteenth Amendment protections for unenumerated rights when the specific conduct-framed right for which protection is sought be deeply rooted in history
Thursday, May 19, 2022
The original constitutional location for the right to abortion was identified as the Ninth Amendment by the trial court in Roe v. Wade building on the lead opinions in Griswold. Worth another look.
Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).
This essay advocates locating the foundation of the constitutional right to an abortion in the Ninth Amendment. Using the Ninth Amendment to recognize the right to an abortion, this article argues, is a better path than using the Fourteenth Amendment because it takes the determination of whether an abortion is a protected right outside the moral realm. The analysis under the Fourteenth Amendment of whether a right is “deeply rooted in the tradition” of the United States inevitably stirs a debate about whether the public considers abortion morally acceptable. In recognizing the right to an abortion under the Ninth Amendment, no such analysis is necessary. The text of the Ninth Amendment allows the U.S. Supreme Court to recognize this protected right without an inquiry into historical tradition. Instead, the Court can use natural law principles, as contemplated by the Founders, to recognize that private conduct is worthy of constitutional protection and acknowledge that the Ninth Amendment affords these rights to the people.
Alito’s opinion suggests that liberty is to be feared, not celebrated as a core feature of our constitutional heritage. “Liberty,” he insists, is a “capacious term” that could have hundreds of possible meanings, and he worries that the judiciary will engage in “freewheeling judicial policymaking” in the guise of protecting liberty. He insists that the Supreme Court should be extremely loath “to recognize rights not mentioned in the Constitution” for fear that the Supreme Court will “usurp authority that the Constitution entrusts to the people’s elected representatives.” Because liberty could mean anything, in his view, it means almost nothing.***
According to Alito, only the most overwhelming, centuries-old historical evidence—essentially the sort of historical grounding that rights in the Bill of Rights can point to—could possibly justify the protection of an unenumerated fundamental right. The right to abortion recognized in Roe v. Wade, he argues, spectacularly fails this test; extending his reasoning, so might the right of people of different races, or of the same sex, to marry—protected in Loving v. Virginia and Obergefell v. Hodges—and the right to use contraceptives protected by Griswold v. Connecticut, as others have pointed out. Alito’s opinion bulldozes a century of case law protecting fundamental rights to bodily integrity and marriage, and the right to decide for one’s own self whether, when, and with whom to form a family.
What fundamental rights have the kind of historical backing Alito seems to demand? What other fundamental rights can claim a historical lineage equivalent to rights in the Bill of Rights? Few, if any, would seem to measure up to the strict standard Alito lays out. That is not a bug, but a feature, of Alito’s approach. To Alito’s way of thinking, many of the rights we cherish as part of our heritage of liberty are not rights at all.
As future Supreme Court Justice James Iredell aptly observed, “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.” The Ninth Amendment, which provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” codifies that essential idea.
Alito’s basic move defies the Constitution. He disparages the idea that we have fundamental rights that are basic to bodily integrity, human dignity, and equal citizenship, simply because they are not mentioned in the text. He flouts the rule of construction the Ninth Amendment prescribes.
Thursday, May 12, 2022
Justice Alito resurrects the ghosts of witch trials past in the draft opinion in Dobbs. He relies on the authority of Lord Hale, infamous English jurist who hanged women as witches, created the marital rape exception, and crafted the jury instruction to warn against believing women in rape allegations. He also features the Salem-esque trial of Eleanor Beare and her punishment by pummeling with eggs and turnips in the town square. More on Eleanor in part 2 of this post.
When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.
The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.
Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards. ***
Hale became Lord Chief Justice of England in 1671.***
Courts have long leaned on precedents established by old cases and the scholarship of legal authorities from centuries gone by. But what happens when you trace citations back to their ancient source? In Hale’s case, you sometimes find a man conceiving precepts out of thin air. Other times it was the opposite, as he clung to notions that were already becoming anachronistic in the last half of the 17th century.
Consider the marital rape exemption. In “Pleas of the Crown,” Hale wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” So, according to Hale, marriage, for a woman, amounts to contractual forfeit, in which she loses legal protection or recourse should her husband sexually assault her.
Hale’s pronouncement became the accepted common law and served as foundation in the United States for immunizing a husband accused of raping his wife. And where did Hale’s pronouncement come from? What did he base it upon? Who knows? “Hale appears to have been the first to articulate what later would become an accepted legal principle, that a husband cannot be charged with raping his wife,” according to a footnote in one law review article. Another law review article, titled “The Marital Rape Exemption: Evolution to Extinction,” called Hale’s pronouncement “an unsupported, extrajudicial statement” lacking in authority.
Starting in the 1970s, states began to abandon the marital rape exemption, in whole or in part.***
In “Pleas of the Crown,” Hale called rape a “most detestable crime.” Then, in words quoted many times since, he wrote, “It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”
Hale evoked the fear of the false accuser — and made for that fear a legal frame, which lasted for more than 300 years. In weighing the evidence in cases of alleged rape, jurors (all men, in Hale’s time and for long after) needed to consider a series of factors, Hale wrote. Did the woman cry out? Did she try to flee? Was she of “good fame” or “evil fame”? Was she supported by others? Did she make immediate complaint afterward?
Hale’s words and formulation became a standard feature of criminal trials in the United States, with jurors instructed by judges to be especially wary of allegations of rape.***
Then there was Hale’s role in what today is synonymous with the perversion of justice: witch trials.
In 1662, Hale presided at a jury trial in Bury St. Edmunds in which two women, Amy Denny and Rose Cullender, were accused of being witches. In a book on this case, “A Trial of Witches,” authors Ivan Bunn and Gilbert Geis wrote that by 1662, “belief in witches was in retreat in England.” Hale, however, was not part of that retreat. He believed witches were real. “Hale represented not a mainstream position but rather one rapidly becoming anachronistic,” Bunn and Geis wrote.
What’s more, Hale instructed the jurors that witches were real.
Just days after Politico published the leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, Saturday Night Live opened with its own comedic analysis of the Supreme Court decision purportedly overturning Roe v. Wade. “Justice Samuel Alito explains that no woman has a right to an abortion, and, in fact, abortion is a crime,” a narrator explains, before highlighting several excerpts from the draft citing 13th century common law on punishments for ending a pregnancy after the “quickening” of a “foetus.”
The opening sketch then takes viewers back in time to dramatize the “profound moment of moral clarity” that Alito seems to believe should be the basis of our abortion laws in 2022. British actor Benedict Cumberbatch, in a mock medieval pageboy haircut, comes to a “revelation” about the need to criminalize abortion in an age of constant plague, disastrous hygiene, witch obsession, and flat-earth maps. The sketch brilliantly demonstrates the absurdity of reading a 21st century Constitution in light of a legal and scientific history most Americans would not embrace today.
The SNL skit posed an obvious question: Why would it make sense to rely upon 13th century law to decide something so important to half the population of the United States? It’s a question best answered by constitutional law scholars like myself. We all know Alito’s interpretive move—it’s called originalism or textualism—and it is full of theoretical complexity. For the most part, this is legal inside baseball. So why this lesson on originalism on SNL? And why now?
Because Alito’s leaked opinion in Dobbs was a bombshell. It takes up some of the most extreme rhetoric of the anti-abortion movement while citing, as SNL points out, centuries-old and outdated legal ideas. And so when people sat down to read the opinion, even the comedy writers at SNL saw what ordinarily the public pays no attention to: the absurdity of a constitutional methodology called originalism at work.
Michele Goodwin, The New Jane Crow, The Atlantic
With the Supreme Court poised to overturn Roe v. Wade, abortion access for tens of millions of women and girls across the nation may soon be a matter of the past. For many women of means, who can travel and pay for child care, the loss of Roe will be disruptive. For many poor women—particularly poor women of color—the loss will be deadly. This is the coming of the new Jane Crow.
Certain aspects of the era of the new Jane Crow are already predictable. First, high rates of maternal mortality will persist, and Black and brown women will disproportionately experience the blow and brunt of these deaths. Medicaid will not be expanded in anti-abortion states, nor will welfare benefits increase to meet families’ needs.
Second, states will turn to civil and criminal punishments of women and girls who seek abortions through medication or by traveling out of state. Even now, before Roe has fallen, lawmakers are working on such legislation. Third, just as the Jim Crow era sanctioned racism and racial profiling, the Jane Crow era will be marked by greater surveillance of pregnant women and the curation of laws, practices, and policies to justify stalking, watching, and policing women’s bodies. That is our near future.
Already today, we know how dangerous pregnancy and delivery can be. An American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion—a fact the Supreme Court itself acknowledged in Whole Woman’s Health v. Hellerstedt just six years ago. In Louisiana, giving birth is roughly 57 times more dangerous for women than having an abortion. For Black women, the risk of death is especially dire—and especially in states eager to ban abortions. For example, according to the Mississippi Department of Health’s most recent investigation of maternal health and mortality, Black women accounted for “nearly 80% of pregnancy-related cardiac deaths” in that state; they also suffered from far greater rates of gestational diabetes, sepsis, and hemorrhaging. Black women in Mississippi are 118 times more likely to die from giving birth than from having an abortion. To be Black and pregnant in America is a deadly combination.
Some of this devastation is the result of the anti-abortion movement itself, and in particular its white, male champions in statehouses across the South. These legislatures have targeted abortion providers for decades, stripping them of their ability to provide essential health-care services for poor women, including pap smears, cancer screenings, and contraception. Their efforts have contributed to the United States being the deadliest country in the developed world to be pregnant.
Surely Justice Samuel Alito and the four justices who, according to Politico, voted to sign on to his draft opinion are aware of this. But do they find such data relevant? Seemingly not, as the draft opinion barely acknowledges maternal deaths—and does so only in reference to 1973, not 2022.
Friday, May 6, 2022
Glad to have my work help inform the discussion of this issue of the history of abortion law and practice at the center of the draft Dobbs opinion.
Lawrence Hurley, U.S. Supreme Court: Justice Alito's Abortion History Lesson in Dispute, Reuters
Justice Samuel Alito's draft U.S. Supreme Court ruling that would overturn the landmark 1973 Roe v. Wade decision legalizing abortion nationwide hinges on a contested historical review of restrictions on the procedure enacted during the 19th century.
Lawyers and scholars backing abortion rights have criticized Alito's reading of history as glossing over disputed facts and ignoring relevant details as the conservative justice sought to demonstrate that a woman's constitutional right to terminate a pregnancy was wrongly recognized in the Roe ruling.***
His reasoning was that a right to abortion was not "deeply rooted in this nation's history." Alito relied upon a reading of state laws on the books in 1868 when the U.S. Constitution's 14th Amendment, which among other things protects due process rights, took effect in the immediate aftermath of the U.S. Civil War and the end of slavery.
To Alito, the scope of 14th Amendment rights must be considered in the context of the times in which it was devised. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then-37 U.S. states "had enacted statutes making abortion a crime" even early in a pregnancy. This shows, Alito argued, that there was no understanding at the time of any right to abortion.
Some lawyers who support abortion rights said many states lacked criminal abortion restrictions until the mid-19th century and some banned it only when performed at a point later in a pregnancy - known as "quickening" - when the woman could feel the fetus move, usually at four to five months of gestation.
Tracy Thomas, a professor at the University of Akron School of Law in Ohio, said Alito selectively cited history as presented by anti-abortion activists.
"We do have to interpret history, but we also have to see the nuance, and he is missing the nuance," said Thomas, who favors abortion rights.
A brief filed in the case by groups representing historians supportive of abortion rights said that in 1868 "nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening."
Even in places where all abortions were banned, "ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy," the brief said.
University of California, Davis School of Law professor Aaron Tang has argued that state laws enacted in the 19th century were not understood to ban abortion before quickening.***
David Garrow, a legal historian, said lawyers on both sides of the abortion debate have disregarded the practical reality that the procedure was commonplace even in states where it was banned when the 14th Amendment was added and that criminal prosecutions were rare.
"If you wanted to argue that abortion is deeply rooted in American history you don't argue about state statutes," Garrow said. "You argue about the evidence of demographic reality."
Tang's article is here: The Originalist Case for an Abortion Middle Ground
This understanding plausibly supports a narrower abortion right. As of the founding, every state respected the right to abortion before quickening, or the first noticeable fetal movement that often occurs at 15 or 16 weeks in pregnancy. To be sure, some states took a different view by the time of the Fourteenth Amendment’s ratification, punishing pre-quickening abortion due in part to misogynistic views of women’s proper “role” in society. But contrary to both the received scholarly wisdom and Mississippi’s claim in Dobbs, this Article shows that this was only a minority position among the states. As of ratification, 21 of 37 states continued to recognize the very pre-quickening abortion right that was universally embraced at the founding. In other words, throughout America’s early history, pregnant people in most states enjoyed a right to abortion during roughly the first 15 weeks of pregnancy. This is the originalist case for an abortion middle ground.
David Garrow's book is Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade
The amicus brief by the historians and the American Historical Association is here. Alito had the information he needed to include the full history, but did not.
This brief, based on decades of study and research by professional historians, aims to provide an accurate historical perspective.***
The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.***
These central claims were accurate in Roe and remain so today. In the five decades since Roe, our ability to confirm this history has grown through the digitization of historical newspapers and records. These records show that the influence of the common law persisted even as states slowly began to create laws of their own.
Newly accessible historical evidence further refutes any claim that, from the adoption of the Constitution through 1868, our nation had a settled view on the criminality of abortion.
Instead, Alito relies on the work and amicus brief of a sole individual, law professor Joseph Dellapenna, an expert on water rights, who wrote the anti-abortion advocacy book, Dispelling Abortion Myths (2006). In the prologue to the book, "A Personal Aside," Dellapenna describes the work as an "argumentative book," based on his personal belief that abortion should be banned at 8 weeks, and coming from his experience as "a white man who has fathered at least five children," who offered a different view than "politically correct women." Dispelling, at ix, xii.
Dellapenna's brief also cites an anonymous newspaper article from the women's rights paper, The Revolution, commonly invoked by anti-abortion groups like Feminists for Life that incorrectly attributes an unsigned blurb to women's rights pioneer, Elizabeth Cady Stanton. I have literally written a book, as well as an article, disputing this attribution to Stanton and any support from her for the anti-abortion laws. See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016) ; Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).
Thursday, May 5, 2022
If the Supreme Court overturns Roe v. Wade, it would not outlaw abortion. Instead, states would be able to individually determine the procedure’s legality.
Thirteen states across the country have signaled their readiness to ban abortion by passing so-called trigger laws, which would effectively ban abortions almost immediately after a decision from the Supreme Court to overturn Roe v. Wade.
“Some states that are very strongly anti-abortion, having been frustrated that they couldn’t ban abortion because of Roe v. Wade, decided to pass laws that would be on the books and operative immediately in the future event that the court ever removed the protections of Roe,” said Donna Crane, an adjunct professor at San José State University with an expertise in women’s rights and reproductive rights.
The states are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, Wyoming. Read the full article for details on each of the state laws.
“Legislators in [antiabortion] states have made clear that their intent is not only to ban abortion within their own states borders but to ban it in states where it is expressly permitted,” said state Rep. Matt Blumenthal (D), one of the sponsors of the bill.***
But while some other states have focused largely on laws that codify the right to abortion within their own borders, legal experts say the Connecticut plan stands out for its effort to shield against new efforts in the antiabortion movement to stop abortion patients from crossing state lines to seek care in places with less restrictive laws.
Greer Donley, an assistant professor at the University of Pittsburgh School of Law who has studied antiabortion legislation, said the Democratic states that seek to protect abortion rights — but focus inward only — are adopting laws that might not withstand the challenges of a post-Roe world where antiabortion states try to legislate beyond their borders.
Those laws “are not necessarily going to provide the protections many people think [they] will,” said Donley, whose research informed some of the provisions in the Connecticut law.
California has proposed bills that offer some of the same protections as the Connecticut legislation, many of which are rapidly moving through the legislature. But no other bill wraps all the protections into one package, said David Cohen, a Drexel University law professor who worked with Donley to research antiabortion legislation.
Donley said she expects the Connecticut law will become a model for other Democrat-led states that want to protect abortion access.
“It’s definitely going to have ripple effects,” Donley said. “Once it’s enacted, people are going to take notice.”
Julie Suk, A World Without Roe: The Constitutional Future of Unwanted Pregnancy, 64 William & Mary L. Rev. (2022)
With the erosion and potential demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the moment that the law has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe.
Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the state, without properly valuing these contributions. This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings and 13th Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Such avenues for reestablishing abortion access as well as public support for pregnancy and parenting imagine a broader world of reproductive justice than the one defined by Roe.
Tuesday, May 3, 2022
There are many things to challenge in the Supreme Court’s leaked draft opinion in the abortion case of Dobbs v. Jackson Women’s Health Organization. Including its rigid application of the standard that fundamental rights recognized as “liberty” within the context of the Fourteenth Amendment’s Substantive Due Process Clause must be “deeply rooted in the nation’s history.” Yet even taking the Court’s standard and definition of that standard at face value—the Court, I think, gets the legal history wrong.
In ascertaining what it views as the relevant history, the Court looks to a few reported English opinions from 1600 and 1700 and American criminal statutes passed after 1868. This gap speaks volumes. For what existed in the gap of early America between its earliest organization around 1776 to a century later, was an accepted practice of permitting abortions until quickening. Quickening is about four or five months, or just after the end of the first trimester. This was the line of demarcation Roe recognized in recognizing a woman’s fundamental right to choose an abortion in the first trimester, unregulated. This is even the same basic idea of new conservative fifteen-week abortion bans as in Dobbs itself, recognizing something different about that early period of pregnancy.
The leading sources on this legal history are James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979) and Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stanford L. Rev. 261 (1992). I have done some historical work here as well, focusing on the women’s movement for “voluntary motherhood” in the nineteenth century recognizing women’s right to choose not to be pregnant. See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).
Many of Justice Alito’s own sources in the appendix support this point, showing that the early prohibitory statutes were for a “woman quick with child.” Other statutes applied to a “pregnant” woman, and the historians explain how prove a woman was “pregnant” required physical evidence such as a showing or knowledge such as quickening. The absence of menstruation was insufficient, as women know, because periods can be missed for physical and mental stress, hunger, physical illness, nursing, among many others.
Justice Alito addresses this significant period of time only briefly. He says: “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.” But this statement shades the point. The subcontext here is the perceived difference between a right and a liberty. They are essentially similar, although some distinction has been made between a “right” that is an affirmative guarantee versus “liberty” which is a freedom unrestrained. The words have also taken on a politicized meaning, with right used by liberals and liberty by conservatives and libertarians. So note Justice Alito’s careful choice of the word right here. He is stating that there was no affirmative guarantee of abortion in the law. That is true. Just as there was no affirmative guarantee of related family rights like marriage, parenting, and procreation. But of course the operative constitutional text is “liberty.” Pre-quickening abortion was a liberty, a freedom permitting the practice unrestrained by law. Such social rights happened in social history, even if they were not embodied in express law. The restraint on these social liberties came historically later in time and later in a pregnancy. Thus, there is a strong argument that a century-long common practice of pre-quickening abortion does establish that it was “deeply rooted in the nation’s history”
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
My initial reactions:
- In the leaked SCOTUS draft opinion overturning Roe, the Court applies rational basis to all abortion regulations and a “strong presumption” of validity with deference to the legislature. Post-Roe is Post-Lochner.
- SCOTUS also rejects the equal protection argument saying abortion is not a sex based classification. That’s right—Geduldig for the win. (In Geduldig, the Supreme Court held that pregnancy classifications are not sex-based classifications)
- The Court distinguishes other privacy and familial fundamental rights recognized as liberties in one quick sentence saying only, well those don't involve "unborn life." I'm pretty sure more is needed to show why these rights are not jeopardized under the Court's holding.
- I think the Court gets the legal history wrong here in this key part to its historical analysis. Justice Alito writes: “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.”
Thursday, April 28, 2022
4th Circuit Rules Constitution's Fifth Amendment Equal Protection Clause Protects Against Sexual Harassment
The ruling comes as leaders of the federal judiciary have overhauled the court’s process for reporting misconduct, and as Congress is considering legislation to extend protections to the judiciary’s more than 30,000 employees who lack the same legal rights as other government and private-sector workers.
In a 118-page decision, the appeals court said Tuesdaythat judiciary employees in management roles can be held liable for “their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee,” according to the opinion, written by Judge Mary Beck Briscoe of the U.S. Court of Appeals for the 10th Circuit.
The panel said the Fifth Amendment’s equal protection clause “secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The decision is: Strickland v. United States (4th Circ. Apr. 26, 2022) (procedural due process and equal protection claims)
C. Strickland’s equal protection claim
We next turn to the second claim for relief asserted in Strickland’s complaint, which alleges that defendants “violated the equal protection component of the Fifth Amendment’s Due Process Clause, which confers a right to be free from sex discrimination in federal employment.” ***
The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of 77 law.” U.S. Const. Amend. V. “In numerous decisions,” the Supreme “Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.” Davis, 442 U.S. at 234 (internal quotation marks omitted). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 234₋35 (internal quotation marks omitted). “The equal protection component of the Due Process Clause thus confers . . . a federal right to be free from gender discrimination which cannot meet these requirements.” Id. at 235.
In analyzing Strickland’s Fifth Amendment equal protection claim, the district court began by concluding that Strickland was “attempt[ing] to graft precedent interpreting Title VII onto the Fifth Amendment.” JA, Vol. IV at 1520. The district court in turn concluded that the Fourth Circuit would not recognize such a claim. Id. at 1521. In support, the district court stated that “the Fourth Circuit has not held that courts must apply Title VII standards to free-standing Fifth Amendment claims” and, “[t]o the contrary,” has “rejected a similar attempt to graft Title VII standards onto a free-standing Fourteenth Amendment equal protection claim.” Id. at 1522 (emphasis in original) (citing Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020)). The district court concluded that “Strickland’s complaint is devoid of any allegation that women are treated differently than men under the EDR Plan,” and that “Strickland does not allege that the actions taken against her were on the basis of her sex.” Id. at 1523. “Instead,” the district court concluded, Strickland “theorizes that the [defendants] discriminated against her on the basis of sex when they mishandled 78 her sexual harassment complaints, ultimately leading to retaliation and constructive discharge.” Id.
We conclude that the district court misconstrued both the Fourth Circuit’s decision in Wilcox and, more importantly, Strickland’s equal protection claim. In Wilcox, the Fourth Circuit “conclude[d] that a pure retaliation claim is not cognizable under the Equal Protection Clause” of the Fourteenth Amendment. In doing so, the Fourth Circuit noted that neither it nor the Supreme Court “has recognized an equal protection right to be free from retaliation.” 970 F.3d at 458. Instead, the court noted that it “has consistently considered retaliation claims brought under Section 1983 to be more properly characterized as claims asserting a violation of the First Amendment.” Id.
The court explained that “[r]etaliation for reporting alleged sex discrimination imposes negative consequences on an employee because of the employee’s report, not because of the employee’s sex.” Id. at 460. “The very premise of a retaliation claim,” the court noted, “is that the employer has subjected an employee to adverse consequences in response to her complaint of discrimination.” Id. Thus, the court noted, “[t]he necessary causal link is between the employee’s complaint and the adverse action, not between her sex and the adverse action.” Id. The court emphasized that “continued sexual harassment and adverse treatment of a female employee unlike the treatment accorded male employees remains actionable as a violation of the Equal Protection Clause even when the sex discrimination and harassment continue after, and partially in response to, the female employee’s report of prior discrimination and harassment.” Id. at 461 (emphasis added). But, the court noted, “[t]he employee’s claim in such a case is not a claim of pure 79 retaliation, but instead implicates the basic equal protection right to be free from sex discrimination that is not substantially related to important governmental objectives.” Id. (internal quotation marks omitted; emphasis added). Although the court’s holdings were limited to the Equal Protection Clause of the Fourteenth Amendment, we have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (noting that the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”).
***Thus, Strickland has not alleged a pure retaliation claim, but rather has alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment to be free from sex discrimination.
We also agree with Strickland that, under Fourth Circuit law, her complaint adequately alleged that defendants were deliberately indifferent to her complaints of sexual harassment. The Fourth Circuit has held in the context of a § 1983 action that a school official can be liable under the Equal Protection Clause of the Fourteenth Amendment for his or her deliberate indifference to student-on-student sexual harassment. Feminist Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir. 2018).***
Because the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment,” Weinberger, 420 U.S. at 638 n.2, we conclude that the principles outlined by the Fourth Circuit in Feminist Majority Foundation apply equally to the circumstances alleged by Strickland in this case. More specifically, federal judiciary employees who occupy supervisory roles and/or who are charged with enforcing an EDR plan can, under Feminist Majority Foundation, be held liable under the Fifth Amendment 82 for their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee. This conclusion is based on the principle that the Fifth Amendment’s Equal Protection Clause secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The elements of such a claim, we conclude, are essentially identical to those outlined by the Fourth Circuit in Feminist Majority Foundation: (1) the plaintiff was subjected to sexual harassment by another employee or supervisor; (2) the plaintiff alerted supervisory officials and/or officials responsible for overseeing the court’s EDR plan about the sexual harassment; (3) the supervisory officials and/or officials responsible for overseeing the court’s EDR plan responded to the allegations with deliberate indifference; and (4) the deliberate indifference was motivated by a discriminatory intent.***
Thus, in sum, we conclude that Strickland’s complaint adequately alleged that defendants violated her equal protection rights under the Fifth Amendment and that the district court erred in concluding otherwise.