Gender and the Law Prof Blog

More Reliance on Witch Trial-esque Precedent in the Draft Dobbs Opinion and the Case of Eleanor Beare

In the draft Dobbs opinion (p.17), Justice Alito writing for the majority to overturn Roe v. Wade and Casey, features as precedent the 1732 English case of Eleanor Beare.  He uses this case to bolster his point that abortion was a crime "dating all the way back to the 13th century."   

Alito says:

In 1732, for example, Eleanor Beare was convicted of "destroying the Foetus in the Womb" of another woman and "there-by causing her to miscarry." For that crime and another "misdemeanor" Beare was sentenced to two days in the pillory and three years' imprisonment.

The authority he cites to is 2 Gentleman's Magazine 931 (Aug. 1732).  The citation and case are in Dellapenna, Dispelling the Myths of Abortion, a book heavily relied on as the key authority for Alito's history.  Dellapenna is a retired law professor with an expertise in water rights turned anti-abortion advocate.  Alito excoriates the Roe majority for its "unsupportable" reliance on the work of Cyril Means, a pro-choice supporter who Alito says provided work "the guise of impartial scholarship while advancing the proper ideological goals."  Op. at 27.  Yet Alito does precisely that here, just selecting an advocate from the anti-abortion side.

Online sources provide a a summary of the trial and what appears to be a transcript of The Tryal of Eleanor Beare of Derby, England.  Authenticity is certainly a question as to these sources, but they match quotes used by Alito in his opinion.  The trial summary is from The Newgate Calendar, a popular literary book of the 18th and 19th century editorializing and moralizing about legal cases.  

Like the Salem witch trials, the proceedings including hearsay, finger pointing by neighbors and former friends, and lack of counsel for the defendant.  Eleanor, apparently a midwife and the wife of a "labourer," is asked by three clients to assist in an abortion, and in another case healing a wife who took poison from another.  The first charge of homicide seems to carry the case and sentence, as Beare is alleged to have helped a man she met at a bar poison the wife he hated.  No allegation of pregnancy or abortion in that charge.  Beare, cross-examining herself, says wasn't I just helping you save your wife whom you had poisoned with poison you got from a Mary Tecmans?   

Eleanor is punished for these misdemeanors by sentence of standing in the pillory in the marketplace--the stockade of arms and head in the town square--where members of the community pummeled her with eggs, turnips, stones, "and any other filth they could collect." Annals of Crime in the Midland Circuit, or Biographies  of Noted Criminals (1859).  "She knelt down, and begged mercy of the still outrageous mob."  Id.  "Stones were thrown, which wounded her to such a degree, that her blood streamed down the pillory." Id.  This "somewhat appeased the resentment" of the crowd, and she was returned to jail. Id.

Relying on the Precedent of Witch Trials in the Draft Dobbs Abortion Opinion

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.

Ken Armstrong, Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge With Long-Discredited Views on Rape

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. 

 

What SNL Got Right About Alito's Leaked Opinion

Slate, What Saturday Night Live Got Right About Alito's Leaked Draft Opinion

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. 

The New Jane Crow and the Impact of Denying Reproductive Choice on Women of Color

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.

N.J. Bill Proposes Remote School Accommodations for Students with Menstrual Disorders

The New Jersey Assembly has proposed a bill allowing students experiencing a menstrual disorder to attend school remotely.  The summary of the bill explains how the bill works and why it is important: 

This bill permits a student enrolled in a school district to attend school through virtual or remote means while experiencing symptoms of a menstrual disorder. The student's parent or guardian will submit a written request for accommodation no later than the start of the school day the accommodation is required.  Under the bill, menstrual disorders include, but are not limited to, dysmenorrhea, endometriosis, menorrhea, and polycystic ovarian syndrome.

 

     A parent or guardian will provide medical documentation, as required by the principal of the school in which the student is enrolled, to prove the student meets the requirements for virtual or remote instruction related to menstrual disorders.  Under the bill, a day of virtual or remote instruction will be considered the equivalent of a full day of school attendance for the purposes of meeting State and local graduation requirements or the awarding of course credit.

 

     Also under the bill, the Commissioner of Education, in consultation with the Commissioner of Health, will provide school districts with criteria for defining an excused absence from school related to a menstrual disorder.

 

     Menstrual disorders, and the pain and discomfort associated with them, are often cited as the reason menstruating students miss school days.  Menstrual disorders are also fairly common; one in five menstruating students experience menorrhagia, and nearly 70 percent of menstruating students experience dysmenorrhea.  Students who attend class while experiencing a menstrual disorder often report classroom performance or concentration being negatively affected.  Additionally, nearly one third of students who menstruate report missing at least one day of school while experiencing menstruation.

Disputing Justice Alito's View of History in the Dobbs Draft Abortion Opinion

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). 

 

What are Abortion Trigger Laws and Which States Have Them

What are Trigger Laws and Which States Have Them?

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. 

Connecticut Passes Safe Haven Law for Abortion Rights

Connecticut Passes Abortion Rights Legislation to Help Traveling Patients

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.

 

The bill, which Gov. Ned Lamont (D) has promised to sign, was designed to shield patients and abortion providers against some of the most controversial elements of recent state-level antiabortion laws — including provisions allowing private citizens to sue anyone who helps facilitate an abortion and measures seeking to prevent residents from receiving abortions across state lines.

 

“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.”

Looking to Global Democracies and Abortion Law Norms for the Future of US Law Post-Roe

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.

Draft Dobbs Opinion Ignores a Key Part of the History of Abortion

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”

Con Law Scholars CFP The Future of Reproductive Rights at the Center for Constitutional Law

CONSTITUTIONAL LAW SCHOLARS FORUM
THE CENTER FOR CONSTITUTIONAL LAW AT AKRON
Friday, October 28, 2022 (virtual)

The Future of Reproductive Rights

The Center for Constitutional Law at Akron seeks proposals for its annual Constitutional Law Scholars Forum. The Center is one of four national centers established by Congress in 1986 on the bicentennial of the Constitution for legal research and public education on the Constitution. Past program topics have focused on the history of race discrimination, LGBTQ rights, civil rights remedies, federal courts, and women’s suffrage. Presenters at the Center have included Justice Sandra Day O’Connor, Justice Arthur Goldberg, Judge Jeffrey Sutton, Professor Reva Siegel, Professor Lawrence Solum, Professor Katie Eyer, Professor Ernest Young, Professor Julie Suk, and Professor Paula Monopoli, among many others.

The 2022 Forum brings together scholars to explore the question of the future of reproductive rights and justice. The U.S. Supreme Court will soon issue a monumental decision in the pending case of Dobbs v. Jackson Women’s Health Organization, altering the fifty-year constitutional consensus on protection for reproductive autonomy under the federal Constitution. What will the parameters of constitution liberty look like after this decision? Anticipating this change, states have already begun legislating for and against reproductive choice. Some of these cases, like those in Texas, have added justiciability hurdles to the debate before the Supreme Court. At the same time, women in the U.S. and abroad continue to seek affirmative rights related to pregnancy, surrogacy, and other reproductive interests. This Forum invites papers and presentations on any and all aspects related broadly to this topic of reproductive rights and justice.

The Forum will be held virtually on Friday, October 28, 2022. This virtual meeting allows for expanded access to scholars by reducing costs, balancing work/life/health demands, and reaching widely across geographic bounds. Papers will then be published in a symposium edition of the Center’s open-access journal, ConLawNOW (also indexed in Westlaw, Lexis, and Hein). Papers are typically shorter, essay style and publication is expedited within four to six weeks of final paper submission. The journal is designed to put issues of constitutional import into debate in a timely manner while they have the opportunity to impact the discussion and decisions.

Those interested in participating in the Constitutional Law Scholars Forum should send an abstract and CV to Professor Tracy Thomas, Director of the Center for Constitutional Law, at thomast@uakron.edu by August 30, 2022.

 

Download Constitutional Law Scholars Forum CFP 2022

Initial Thoughts on the Leaked SCOTUS Draft of the Dobbs Abortion Decision

POLITICO, Supreme Court has Voted to Overturn Abortion Rights, Draft Opinion Shows

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.”  

Connecticut to Expand Abortion Rights

NPR reports on Connecticut's new legislation expanding abortion rights reacting to out-of-state restrictions. Joe Hernandez published this article on May 1 summarizing the bill and its implications: 

 

Under House Bill 5414, people or organizations in Connecticut who are sued for receiving, performing or providing support for abortions in other states can countersue for damages and other costs.

* * * 

Connecticut's governor would also be restricted from extraditing someone who did something in Connecticut that leads to a crime in another state if what they did is legal in Connecticut.

The bill also expands who could perform abortions. Advanced practice registered nurses, nurse-midwives and physician assistants would be able to conduct medication and aspiration abortions in Connecticut.

The article reports that the Governor is expected to sign the legislation. 

 

Including Disabled People in the Battle to Protect Abortion Rights: A Call to Action

Robyn Powell has placed her forthcoming article, Including Disabled People in the Battle to Protect Abortion Rights: A Call-to-Action, in the UCLA Law Review. A draft is available on SSRN. The abstract previews:

* * * Overturning Roe will have devastating consequences for all people, but most acutely for historically marginalized communities, including people with disabilities. Nonetheless, when disability is invoked in discourse concerning abortion, it is typically done to either support or oppose abortions based on fetal disability diagnoses. Critically, by framing disability and abortion only in the context of disability-selective abortions, activists, scholars, legal professionals, and policymakers fail to recognize that it is actual disabled people—not hypothetical fetuses with disability diagnoses—who abortion restrictions will harm. Indeed, disabled people disproportionately experience pervasive and persistent disadvantages that increase their need for abortion services. They also experience considerable structural, legal, and institutional barriers that already put access to safe and legal abortion out of reach for many.

In response, this Article proposes a vision to help activists, scholars, legal professionals, and policymakers as they imagine the next steps in the battle to protect abortion rights in a way that fully includes people with disabilities. To do so, first, the Article situates the current battle to protect abortion rights within the social context and institutions that propagate reproductive oppression of people with disabilities by examining how reproduction has been weaponized over time to subjugate disabled people as well as presenting contemporary examples of such injustices. Thereafter, it explores disabled people’s unique needs for abortion services and the myriad ways they are disproportionately and adversely affected by restrictions on abortion rights. Next, the Article presents disability reproductive justice, a jurisprudential and legislative framework, and its application to the fight for abortion rights. Finally, drawing from disability reproductive justice, it suggests normative and transformative legal and policy solutions for challenging the current assault on abortion rights and its impact on disabled people.

Insuring Contraceptive Equity

Jennifer Hickey has published her article, Insuring Contraceptive Equity, in volume 17 of the Northwestern Journal of Law & Social Policy (2022). Jennifer Hickey is a postdoctoral fellow with the Vulnerability and the Human Condition Project at Emory University. The abstract previews: 

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.

 

While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is the profit motivation of private insurance companies. This Article fills a crucial gap by providing an in-depth examination of the insurance practices that burden contraceptive access for the vast majority of reproductive-aged women on both public and private insurance. Private insurers are afforded substantial discretion in the products they choose to cover and the costs they set, and this causes significant disparities in the availability and affordability of various contraceptive methods. Arguments for equitable and enhanced contraceptive access are traditionally grounded in claims of constitutional rights to reproductive freedom. Unfortunately, this rhetoric of individual rights, rooted in privacy jurisprudence, focuses only on restraining the state from interfering with a woman’s reproductive decisions. This absolves the state of responsibility for family planning and allows women to shoulder the burden of unintended pregnancy as a matter of individual choice and responsibility.

 

This Article instead applies vulnerability theory to establish state responsibility for just and fair distribution of contraception. A vulnerability approach imposes positive obligations on the state to provide contraception as a form of resilience, rather than allowing the state to abdicate responsibility to the private insurance market and individual women under a limited “consumer protection” role. This approach requires the state to monitor and regulate the discretion afforded to insurance companies in making public decisions regarding coverage of various contraceptive methods. This includes examining inequitable insurance practices and policies and assessing power imbalances between insurers, providers, and pharmaceutical companies and patients. In this manner, the United States can move beyond its narrow consumer-oriented approach to contraception and recognize that contraception is vital to fulfillment of important social obligations, not an individual choice made by empowered consumers.

On Dobbs, Texas, and the Current State of Abortion Rights

The Center for Constitutional Law at Akron has published in its online journal, ConLawNOW, several articles on the current issues in abortion rights:

Jennifer S. Hendricks, Abortion Rights in the Supreme Court: A Tale of Three Wedges

Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization

Simona Grossi, Roe v. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights

Amicus Brief of Equal Protection Constitutional Law Scholars in Dobbs Abortion Case

Equal Protection and Abortion: Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, and Reva Siegel as Amici Curiae in Support of Respondents in Dobbs v. Jackson Women's Health Organization

  Equal Protection changes the questions we ask about abortion restrictions. In Dobbs v. Jackson Women’s Health Organization, an amicus brief filed on our behalf demonstrated that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause. The brief continues a tradition of equality arguments that preceded Roe v. Wade and will continue, in new forms, after Dobbs. Our brief shows how the canonical equal protection cases United States v. Virginia and Department of Human Resources v. Hibbs extend to the regulation of pregnancy, hence provide an independent constitutional basis for abortion rights.

Under equal protection, government must give reasons why it is better served regulating by group-based rather than facially neutral means, especially when group-based laws perpetuate historic forms of group-based harm. As we show, Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life at the same time that the state was refusing to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends. Why? Asking equal protection questions may move decision makers in federal and state venues, as well as in politics where, over time, equality claims have the potential to enable new intersectional forms of coalition and to transform the conversation about the meaning of our values and our practices, inside and outside the abortion context.

Part I of our brief shows how, in the decades after Roe, equal protection doctrine has evolved to include laws regulating pregnancy. Most recognize that Justice Ginsburg’s landmark opinion in United States v. Virginia restates the equal protection framework with attention to securing equality for the sexes across differences. Virginia is the Court’s first equal protection decision to consider laws regulating pregnancy as sex-based state action subject to “skeptical scrutiny.” We consider abortion laws under Virginia’s framework, which requires states to defend sex-based laws by showing (1) that the use of sex classifications is substantially related to achieving important government ends, for reasons not reduceable to generalizations about the sexes and (2) laws employing sex classifications may not “be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.” Following Virginia, we analyze the Mississippi abortion statute in both a historical and a policy context. Part II of the brief demonstrates that Mississippi’s claims to protect both women and the unborn by singling out women and compelling pregnancy reason from sex-role stereotypes about women (the statute terms them “maternal patients”) that were employed in the nineteenth-century campaign to ban abortion and its modern successors. This might be sufficient to establish an equal protection violation, but we go further to demonstrate how these traditional sex-role assumptions distort Mississippi’s approach to protecting unborn life.

Part III of the brief examines Mississippi reasons for employing sex-based coercive laws to protect health and life. The brief shows that Mississippi targeted women resisting motherhood for coercive abortion restrictions while refusing to enact numerous policies, many federally funded, that provided non-coercive and nondiscriminatory alternatives by which the State could have protected life and health—such as comprehensive sex education and access to contraception; Medicaid expansion; public benefits and child-care assistance. Did the state endeavor to protect health and life by helping those who seek its assistance—either in avoiding pregnancy or in raising healthy families—before singling out for coercion those who violated sex-role stereotypes? Given this historical and policy context, under Virginia Mississippi has failed to offer an “exceedingly persuasive justification” for the means it chose to protect health and life. The abortion ban it adopted enforces a sex-based and coercive classification that re-entrenches stereotypes and “perpetuate[s] the legal, social, and economic inferiority of women.”

Part IV concludes by anticipating—and rejecting—claims that abortion bans promote equality by preventing abortion from being used for eugenic purposes. We distinguish between laws that protect individual choice and laws that promote eugenics by limiting reproductive freedom in order to control the demographic character of the community. We offer historical illustrations of campaigns for eugenics, including Mississippi’s history of sterilizing women of color as punishment for nonmarital childbearing and with attention to the racial identity of the community.

Efforts to associate abortion rights with eugenics blame women for state policies—many surveyed in our brief—that perpetuate the very conditions in which growing numbers of poor women and women of color decide to end their pregnancies. Analyzing abortion restrictions in this larger policy context, our brief asks, how is this mix of policies—favored by states banning abortion—pro-life? How might the characteristics of the persons the state is regulating have shaped Mississippi’s choice of coercive rather than supportive strategies to protect health and life?

Reproductive Justice and Transformative Constitutionalism

Cynthia Soohoo, Reproductive Justice and Transformative Constitutionalism 

Since the founding of the United States, women1 have fought for control over their bodies and the ability to make reproductive and parenting choices, free from control and coercion by the government, communities, institutions, private actors, and family. Reproductive oppression violates basic human rights to make decisions about one’s body, life, and future and, if one chooses, to have, parent, and nurture children. These rights go to the heart of what it means to be a human and live a life with dignity and respect. Yet, from the founding of the United States, our constitutional structure has failed to recognize--much less protect and prevent--reproductive oppression. Indeed, for much of U.S. history, the legal system sanctioned and furthered oppression, rather than remedied it.

Though revolutionary in some respects, for the most part, the U.S. Constitution left existing political, social, and economic relationships untouched, and further entrenched rather than abolished slavery. Enslaved people were denied freedom and autonomy over their own labor, bodies, and family life. For enslaved Black women, this included control over their reproductive capacity and their ability to parent their children. For non-enslaved women, state and common law legal disabilities continued, which disqualified women from political rights and stripped married women of legal personhood, rendering their property, labor, and bodies subject to the dominion of their husbands.

Following the Reconstruction Amendments, the Nineteenth Amendment, and the dismantling of state coverture laws, the state began replacing private control over women’s bodies. In the 1860s, states started passing laws criminalizing abortion and contraception, and by the beginning of the twentieth century, states asserted even more direct control over women’s fertility through forced sterilization laws. After World War II, forced sterilization fell out of favor as eugenic ideas became associated with Nazi Germany, and in the 1960s and 1970s, legal challenges resulted in the decriminalization of contraception and abortion. However, with the rise of population control ideology and later “welfare reform,” a new form of state control emerged, which cast state interference into the reproductive lives of certain women as an acceptable exercise of government power. Overt legal restrictions and compulsions were replaced by coercive programs--often tied to public benefits--to discourage childbearing and later to discourage abortion. Today, rather than reversing this trend, we see it extended to the private sector, with employers and health facilities trying to impose religious or moral beliefs about contraception and abortion on the people they employ or serve through restrictions on the provision of services or health care coverage. Further, the state continues to coerce and often compel reproductive choices in carceral settings.

Some lessons emerge from this history. In the United States, reproductive oppression has taken the form of either discouraging/prohibiting or encouraging/requiring childbearing, depending on societal attitudes about the fitness and value of certain mothers and their children at a given point in time. While its form changes, at bottom, reproductive oppression is the instrumentalization of a person’s reproductive capacity to serve the goals of others. In the United States, these goals have been inextricably tied to slavery, capitalism, white supremacy, nativism, classism, ableism, and cisheteropatriarchy.

In 1994, a Black women’s caucus in Chicago coined the term “reproductive justice” as a framework and vision to articulate what it means to be free from reproductive oppression.2 That vision reflected and built upon a history of organizing and activism by women of color to address the reproductive oppression faced by their communities.3 Reproductive justice recognizes that all people have the human rights (1) not to have a child, (2) to have a child, and (3) to parent children in safe and healthy environments.4 It also recognizes that all people have a right to sexual autonomy and gender freedom.5

This Article begins with the premise that all people have the right to be free from reproductive oppression and that legal systems should be designed to achieve rather than thwart reproductive justice. Part I describes reproductive justice in greater depth. Part II looks at the history of reproductive oppression in the United States, with attention to the role that the law has played in sanctioning, codifying, and enforcing forms of oppression. Part III considers how transformative constitutionalism might better support the goals of reproductive justice than our current constitutional structure. Finally, Part IV considers possible legal strategies to expand constitutional protection for reproductive justice under our existing constitutional scheme.

In undertaking this endeavor, I recognize that reproductive justice activists are skeptical about the place of legal strategies in the quest for reproductive justice.6 I share this skepticism.7 Indeed, historically, the mainstream reproductive rights movement has invested disproportionate attention and resources to legal approaches, crowding out other actors and strategies.8 As discussed below, the Constitution protects a limited set of rights that have been narrowly interpreted. For the most part, U.S. constitutional rights have been limited to their “negative” dimensions, and legal victories often are meaningless without the political will and pressure to implement them. Given all these infirmities, I do not suggest that more resources and energy be expended on legal strategies at the expense of organizing or the investment in resources that families need to thrive, including health care, housing, and safe and healthy communities.

However, it is useful to consider alternative constitutional approaches to envision how the law could do more.

Spain Outlaws Harassment of Women Accessing Abortion

Spain has passed a new law banning harassment of women accessing abortion care.  An article by Maureen Breslin published by The Hill provides a translation of the key language: 

[A]nyone trying “to impede [a woman] from exercising her right to voluntarily interrupt pregnancy” through “bothersome, offensive, intimidating or threatening acts” will face jail time of between three and 12 months, or community service.

 

It will ban anti-abortion activists from protesting outside of abortion service providers and clinics and extends to ban harassment of those performing abortions or working in the abortion providers as well, reports CBS.

If/When/How Resource Guide for Providers in Texas

If/When/How has prepared a vital information guide for medical providers in Texas. The guide is titled "What You Need to Know: Mandatory Reporting Requirements, Law Enforcement, and Patient Confidentiality in Texas." It is available on the organization's website. The fact sheet "gives an overview of some of the major mandatory reporting requirements and where they may intersect with patient privacy - with a specific focus on self-managed abortion." If/When/How intends this fact sheet to "help reduce hospital-site criminalization of pregnancy outcomes by helping providers understand what type of reporting the law requires." Stay tuned to the If/When How website for future updates in a rapidly evolving legal environment.