Gender and the Law Blog

Mifepristone Litigation and Federal Action Tracker

The Center on Reproductive Health, Law, and Policy at UCLA has launched a "Mifepristone Litigation and Federal Action Tracker." The tracker provides "timely, regularly updated, information on the status of current litigation and new federal administrative actions that could shape regulation of and access to mifepristone." A PDF version is here. The tracker currently includes: 

• 7 cases filed to protect or expand current access:
  • Three FDA Decisionmaking Cases addressing whether current FDA regulations on mifepristone are overly burdensome and restrictive given mifepristone’s safety and effectiveness
  • Two Federal Preemption Cases addressing whether federal law preempts (supersedes) and invalidates additional state restrictions on mifepristone beyond FDA’s regulations 
  • One State Law Case addressing whether additional state restrictions on mifepristone are invalid under state law
  • One Due Process Case seeking to prevent any enforcement of a court decision suspending FDA approval of mifepristone without due process
• 1 case filed to restrict current access
  • One FDA Decisionmaking Case challenging FDA’s decisions removing prior restrictions on mifepristone, including the inperson dispensing requirement, and seeking to reimpose those restrictions

SCOTUS Rules South Carolina Planned Parenthood Cannot Sue for Defunding as No Individual Enforcement Right for Spending Powers

The case is Medina v. Planned Parenthood, 606 U.S. ___ (2025).

Adam Liptak, NYT, Supreme Court Rules Planned Parenthood Cannot Sue Over S. Carolina Defunding Effort

The Supreme Court ruled on Thursday that Planned Parenthood and one of its patients cannot sue South Carolina over its effort to deny funding to the group, reasoning that the relevant federal statute does not authorize such suits.

The vote was 6 to 3, with the court’s three liberal members in dissent.

In 2018, Gov. Henry McMaster of South Carolina, a Republican, ordered state officials to deny Medicaid funds to Planned Parenthood, saying that “payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life.”

But abortion was mentioned only in passing in the decision, and the patient in the case had sought access to contraception, not an abortion.

Instead, the justices focused on whether the plaintiffs were entitled to sue to enforce part of the Medicaid law, which gives federal money to states to provide medical care for poor people.

Michele Goodwin, The Supreme Court Doesn’t Really Care About Originalism. ‘Medina v. Planned Parenthood’ Just Proved It

The Supreme Court delivered a stinging blow for basic healthcare on Thursday: In a 6-3 decision, along ideological lines, the Court allowed a harmful executive order from South Carolina Gov. Henry McMaster (R), originally signed in 2018, to stand. The executive order—part of an ongoing attack on reproductive freedom—allowed denying Medicaid funding to providers that deliver abortion services. The EO took aim at the state’s two Planned Parenthood clinics.***

The case is part of the ongoing attack on reproductive freedom, which predates even Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. 

For decades, antiabortion advocates and elected officials have used targeted regulations of abortion providers—otherwise known as TRAP laws—to eliminate abortion through indirect means, creating financial ultimatums: Stop providing abortion services in order to receive funding for breast cancer screenings, prenatal care, postnatal care, ovarian cancer screenings and pregnancy testing for poor women … or lose critical funding. Both leave poor women in a lurch.

This Supreme Court decision weaponizes poor women’s poverty against them.

Ian Millhiser, Vox, The Supreme Court's Disastrous New Abortion Decision, Explained

On Thursday, however, the Republican justices ruled, in Medina v. Planned Parenthood, that Medicaid patients may not choose their health provider. And then they went much further. Thursday’s decision radically reorders all of federal Medicaid law, rendering much of it unenforceable. Medina could prove to be one of the most consequential health care decisions of the last several years, and one of the deadliest, as it raises a cloud of doubt over countless laws requiring that certain people receive health coverage, as well as laws ensuring that they will receive a certain quality of care.

 

New Book, Pushback: The 2500 Year Fight to Thwart Women by Restricting Abortion

Mary Fissell, Pushback: The 2,500-Year Fight to Thwart Women by Restricting Abortion (Hatchette 2025)

Attitudes about abortion cycle between long periods of widespread tolerance, to repression, and back again. What accounts for these pendulum swings? From ancient Greece to the modern West, historian of medicine Mary Fissell argues, abortion repression springs up in response to men’s anxieties about women’s increasing independence.

In Pushback, Fissell shows that, across centuries and continents, abortion has always been commonplace, and persecuting women for ending pregnancies has been about controlling their behavior. As Protestantism de-emphasized celibacy, new abortion restrictions policed unmarried women’s sex lives. Nineteenth-century men unsettled by first-wave feminism hoped to establish medicine as a male profession, and so advocated for abortion bans to undercut women’s new roles as physicians. Fissell presents this history through the hidden stories of women committed to reproductive self-determination: holy women of the early Catholic Church whose ability to end pregnancies was considered miraculous, midwives accused of witchcraft or criminal conspiracy, and everyday women whose pregnancies threatened their livelihoods—and their lives.

New Book, The Age of Choice: A History of Freedom in Modern Life

Sophia Rosenfeld, The Age of Choice: A History of Freedom in Modern Life (Princeton 2025)

Choice touches virtually every aspect of our lives, from what to buy and where to live to whom to love, what profession to practice, and even what to believe. But the option to choose in such matters was not something we always possessed or even aspired to. At the same time, we have been warned by everybody from marketing gurus to psychologists about the negative consequences stemming from our current obsession with choice. It turns out that not only are we not very good at realizing our personal desires, we are also overwhelmed with too many possibilities and anxious about what best to select. There are social costs too. How did all this happen? The Age of Choice tells the long history of the invention of choice as the defining feature of modern freedom.

Taking readers from the seventeenth century to today, Sophia Rosenfeld describes how the early modern world witnessed the simultaneous rise of shopping as an activity and religious freedom as a matter of being able to pick one’s convictions. Similarly, she traces the history of choice in romantic life, politics, and the ideals of human rights. Throughout, she pays particular attention to the lives of women, those often with the fewest choices, who have frequently been the drivers of this change. She concludes with an exploration of how reproductive rights have become a symbolic flashpoint in our contemporary struggles over the association of liberty with choice.

Drawing on a wealth of sources ranging from novels and restaurant menus to the latest scientific findings about choice in psychology and economics, The Age of Choice urges us to rethink the meaning of choice and its promise and limitations in modern life.

Lawsuit Challenging Constitutionality of Pregnancy Exclusion in Kansas End-of-Life Decision-Making

Several organizations have filed a lawsuit challenging Kansas's law that prohibits pregnant people from making end-of-life decisions. The lawsuit, filed by Compassion & Choices, If/When/How, and Irigonegaray & Revenaugh, was filed on behalf of Kansas women and physicians. The complaint is available here. It challenges the constitutionality of the pregnancy exclusion on Kansas's Natural Death Act. The plaintiffs have living wills with various directives of how to handle end-of-life care if pregnant. They sue to ensure that those directives are followed. They argue that: 

For people capable of becoming pregnant, the Pregnancy Exclusion infringes upon their fundamental right of liberty and personal autonomy, which includes the right of all people, including pregnant individuals, to control decisions about their own bodies and the healthcare they accept or decline; invades their fundamental right of privacy; violates their right to freedom of speech; subjects them to unequal and demeaning treatment, denying them equal protection under the law; and deprives them of liberty interests without due procedure.

They seek the following:  

The Pregnancy Exclusion violates rights guaranteed by the Kansas Constitution, and therefore, should be declared unconstitutional and Defendants enjoined from enforcing the Pregnancy Exclusion by invalidating otherwise valid healthcare directives based on pregnancy status or bringing any adverse action against a provider for following the directions in a pregnant, incapacitated individual’s validly executed health care directive.

The Legal Regulation of Medication Abortion

Two articles about the legal regulation of medication abortion.

Nathan Cortez & Joanna L. Grossman, Who Regulates Abortion Now?, 110 Iowa L. Rev. 1579 (2025)  

Contrary to both conventional wisdom and recent Supreme Court pronouncements, abortion is not simply a matter of state oversight. For a quarter century now, the federal government has been intimately involved in "regulating" abortion through the U.S. Food and Drug Administration's approval and continued oversight over mifepristone and other abortion medications. This Article considers the extent to which federal abortion law both coexists and conflicts with state law, as it does with most areas of medicine. We evaluate which body of law is better able at achieving the goals of modern medicine that is evidence-based, ethical, consistent, and individualized.

Rachel Rebouche, Facts on Trial: Alliance for Hippocratic Medicine v. FDA and the Battle Over Mailed Medication Abortion, 95 U. Colorado L. Rev. 1 (2024)  

This Essay details the arguments put forward in litigation surrounding the FDA’s approval of the first drug in a medication abortion, mifepristone. It showcases the deep-seated, longstanding contestation of facts and science in abortion law and policy. At its heart, the FDA litigation seeks to undermine evidence of the safety and efficacy of mailed abortion pills. This case not only tests the application of standing and administrative review doctrines, but also could shape the future distribution of medication abortion. The broader aim of this Essay, however, is to consider how evidence of safety, health, and efficacy has been marshaled by courts and to interrogate the methods by which facts are asserted and repeated by research collectives in support of their respective causes. To be sure, some evidence is better than other evidence; but this Essay reflects on the infrastructure that has made the present contestation possible, and what could change about how evidence is deployed in the wake of Roe v. Wade’s reversal.

Lawsuit Challenges Kansas Law that Voids Living Wills for Pregnant People

Carrie Baker, Lawsuit Challenges Kansas Law that Voids Living Wills for Pregnant Women 

Reproductive freedom advocates filed a lawsuit, Vernon v. Kobach, on May 29 challenging the constitutionality of a Kansas law that automatically invalidates a person’s end-of-life treatment decisions in their living will if they are pregnant. The case argues that this law violates pregnant patient’s constitutional rights to bodily autonomy, privacy and equal treatment under Kansas law. 

Kansas is one of 28 states that restrict advance directives during pregnancy—16 based on the potential of fetal survival and 12 regardless of fetal survival. ***

Kansas’ Natural Death Act recognizes that “adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition.” The Kansas law, however, has a pregnancy exclusion that automatically invalidates the living wills of pregnant women—stripping them of the very rights the law claims to protect.

The plaintiffs argue that the Kansas law violates their fundamental rights of personal autonomy, privacy, equal treatment and freedom of speech by categorically disregarding their clearly expressed end-of-life decisions during pregnancy. They ask the court to affirm that the equality protections of the Kansas Constitution apply equally to them, regardless of their pregnancy status.

 

 

Bildhauer and Karin on "Menstruation and Menopause as Reproductive Justice Issues"

Bettina Bildhauer and Marcy L. Karin have published Menstruation and Menopause as Reproductive Justice Issues: Feminist Reflections on Activism, Research, and Policy from the Global Movement’s Scottish Hub in volume 27 of the Journal of International Women's Studies. The introduction is excerpted below:  

Scotland is a global leader in responding to menstrual injustices, namely, the systemic oppression, stigma, and subordination experienced by individuals due to menstruation, menopause, and related conditions. The authors have facilitated spaces in Scotland for stakeholders to acknowledge, assess, research, and advance Scottish menstrual justice. For example, Professor Bildhauer was the Principal Investigator for the Ending Period Poverty Research Project run by the Menstruation Research Network of UK, which explored the historical and contemporary factors that contributed to Scotland’s leadership in developing a law to reduce period poverty. Professor Karin hosted a 2023 salon on Scottish Menstrual Justice to bring government staff, academics, and activists together to reflect on the menstrual movement’s recent successes and explore how future policy could address remaining gaps. We also have created opportunities for comparative conversations about global experiences and implications. This essay contains our joint reflections on that work, including our assessment of where the movement is heading and of the role of activism, research, and public policy in advancing reproductive justice connected to the menstrual cycle and related conditions. We offer these observations as feminists, as experts in different disciplines with a shared goal of advancing reproductive justice (including menstrual justice), and as people with lived experiences of menstruation and related conditions in Scotland and other places around the world.

Regulating Pregnant Women in the Post-Roe Era

Ederlina Co, Eclipsed: Pregnant Women in the Post-Roe Era 

In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey and authorized states to ban abortion and force pregnant women to carry a pregnancy to term. However, Dobbs is not just about abortion. By expressly recognizing the state’s interest in “respect for and preservation of prenatal life at all stages of development,” the Court has swung open the door for states to risk and regulate pregnant women’s lives, regardless of whether they want an abortion, need an abortion, or are carrying a pregnancy to term. 

Personhood and Assisted Reproduction

Myrisha S. Lewis, Personhood, Politics, Assisted Reproduction, and the Law Post-Dobbs  

With the end of the federal constitutional right to abortion, state legislatures and state courts have become far more important in the sphere of reproductive rights. Before Dobbs, anti-abortion advocates had significant (albeit increasingly porous) ceilings on what they could prohibit in relation to reproductive health care. A significant check on those actions is now gone. In the wake of Dobbs, societal debates about personhood have increased and expanded in terms of their practical implications. Before Dobbs, anti-abortion advocates admitted that Roe and subsequent cases limited the scope of their arguments, especially in relation to the legality of in vitro fertilization. That limit is gone. In the aftermath, many supporters of the right to an abortion saw the need to affirmatively express their support of the right to an abortion, leading to a sharp increase in participation in state and local elections. As indicated by the bipartisan reactions to the Alabama Supreme Court decision in LePage v. Center for Reproductive Medicine P.C., post-Dobbs, assisted reproduction is in danger of illegalization as efforts to move personhood closer to conception, in the targeting of abortion, now impact assisted reproduction, especially in vitro fertilization. As a result, legislators of both parties should continue to enact legislation that protects assisted reproduction in the United States and eventually subsidize access to it. 

New Book, Stillbirth and the Law

Jill Wieber Lens, Stillbirth and the Law (University of California Press 2025)

Each year in the United States, about 1 in 170 births is a stillbirth, a rate that has remained stagnant for most of this century even as other high-income countries have dramatically reduced their already lower rates. Jill Wieber Lens, the nation’s foremost expert on stillbirth and the law, blends personal experience and legal analysis to bring us an original, essential guide to this all-too-often unrecognized public health crisis. By exposing how the law inhibits prevention, affects the experience of stillbirth for birthing parents, and shapes broader notions of unborn life, Lens argues for a series of pragmatic, data-driven changes to the legal landscape that could enjoy broad popular support and strengthen reproductive justice and reproductive rights.

The Inevitable Vagueness of Medical Exceptions to Abortion Bans, and How to Fix Them

Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant,  The Inevitable Vagueness of Medical Exceptions to Abortion Bans, UC Irvine L. Review (forthcoming)

Since the U.S. Supreme Court issued Dobbs v. Jackson Women’s Health in June 2022, almost half of states have, by statute, significantly restricted access to abortion. All these statutes include exceptions for the life of the pregnant person; most also exempt significant impairments to the pregnant patient’s health. Despite these exceptions, repeated accounts in the press and in court cases have shown pregnant patients in significant medical need being denied abortion care, resulting in serious injuries and, in some cases, death. The reasons for this denial of care, though, are disputed. Physicians have contended that the language of medical exceptions are so unclear that they are difficult to apply. Meanwhile, legislators who favor strict restrictions have blamed attending doctors for failing to apply what they say are clear exceptions, either because of negligence or because physicians are seeking to discredit restrictive abortion regulations. This article explores the controversy over application of medical exceptions through analyzing the results of a new empirical study involving in-depth, qualitative interviews with maternal fetal medicine physicians providing patient-facing care post-Dobbs. Physicians’ responses in these interviews, we demonstrate, pinpoint recurring gaps between the ways that physicians make abortion decisions in standard medical practice and the language of medical exceptions. These create uncertainty regarding whether, among other issues, the level of risk to life or health experienced by the patient rises to the threshold required by state law, and whether and when the patient’s medical risk meets the exception’s requirements regarding timing of the abortion. The disjuncture between medical practice and the statutory language physicians are expected to apply, we show, creates indecision regarding whether medical exceptions will shield doctors from liability and severe penalties in most cases involving medical risk. We then argue that physicians’ uncertainties in applying medical exceptions implicates the constitutional “void for vagueness” doctrine. Under that doctrine, laws that do not provide sufficient guidance to those subject to them to determine when their conduct is legal cannot be enforced. We contend that physicians’ inability to determine whether and when existing medical exceptions apply in the cases presented to them requires that courts strike down abortion restrictions. And, although we believe that pregnancy is too complicated to allow abortions to be restricted in a manner that provides adequate guidance to physicians in every case, we offer an example of a “least-vague” medical exception that would provide better guidance about when abortions are lawful for medical reasons, and that could clear the void-for-vagueness bar. 

Author Discusses New Book on Personhood

Professor Mary Ziegler previews her new book.

Mary Ziegler, The Real Supreme Court Endgame for Abortion Foes, Slate

***Overturning Roe has polarized the debate partly because most Americans deeply oppose the Dobbs decision. But the end of Roe did little to demobilize the anti-abortion movement. Many abortion foes rallied to the fight for fetal personhood before the Supreme Court intervened and saw constitutional protection for the unborn, not the mere elimination of an abortion right, as the endpoint of their struggle.

To understand the past and future of the American war over reproduction, then, we must tell the story of the fetal personhood movement. It may be tempting for supporters of abortion rights to see fetal personhood as nothing more than a tactic for activists whose real ambition is simply to ban abortion or control sexuality and reproduction. There is no denying that some personhood arguments emerged and changed for strategic reasons—not least in the 1960s, when what was at the time a Catholic movement looked for a way to avoid faith-based arguments and broaden its base.

But for more than half a century, the fight for fetal personhood was a singular point of agreement in a fractious movement. Personhood arguments came and went in Congress, the Supreme Court, and the front pages of the nation’s newspapers. But within the anti-abortion movement, claims for fetal rights never went anywhere. Ideas about personhood remained a constant in the strategy sessions and private correspondence of those who define themselves as pro-life.

 

Wyoming Judge Enjoins TARP Abortion Regulations as Interfering with State Right to Healthcare

CNN, A Wyoming Judge Suspends [TARP Abortion Clinic Regulations While a Lawsuit Proceeds

Wyoming Public Radio, Natrona County Court Blocks Two Wyoming Abortion Laws

*** In his order granting the motion for preliminary injunction, Campbell wrote that “[ambulatory surgical center] compliance demands meeting a variety of arguably burdensome medical and constructional conditions and obtaining separate licensure.”

He concurred with Teton County District Judge Melissa Owens about her finding last year that two near-total abortion bans violate the state constitution's tenet on Wyomingites’ right to make their own healthcare decisions. Campbell wrote, “As Judge Owens found, the ability to make healthcare decisions is a fundamental right, as it was directly written into the State Constitution.”

Even as the law was paused, Burkhart said its effects have rippled throughout Wyoming.

“It’s hurt our patients, because they've been denied care, and even though we've referred patients out to other clinics, we don't fully know if they got there,” she said. “It has hurt us financially. We've looked at a couple of months of not operating and seeing people. It's hurt staff morale. So it's a great day that we can start seeing patients again.”

Campbell’s ruling also means Wyoming women will not be subject to a new ultrasound requirement passed in the recent legislative general session. HB 64 mandated that women seeking medication to end their pregnancies would need to have a transvaginal ultrasound two days before receiving abortion pills.

“As the judge himself said, a period of reflection, which is the 48-hour delay, serves no legitimate purpose,” said Christine Lichtenfels, the executive director of Chelsea’s Fund, a nonprofit focused on abortion in Wyoming that’s another plaintiff in the case. “He was very clear about that, and that's true. We've all known that. We all know the only purpose is to put a barrier. So we're very grateful that he was relying on common sense and the facts.”

Executive Assesses Ways to Persuade Women to Have More Children, Beginning Implementation of Project 2025

Caroline Kitchener, White House Assesses Ways to Persuade Women to Have More Children. NYT

The White House has been hearing out a chorus of ideas in recent weeks for persuading Americans to get married and have more children, an early sign that the Trump administration will embrace a new cultural agenda pushed by many of its allies on the right to reverse declining birthrates and push conservative family values.

One proposal shared with aides would reserve 30 percent of scholarships for the Fulbright program, the prestigious, government-backed international fellowship, for applicants who are married or have children.

Another would give a $5,000 cash “baby bonus” to every American mother after delivery.

A third calls on the government to fund programs that educate women on their menstrual cycles — in part so they can better understand when they are ovulating and able to conceive.

Those ideas, and others, are emerging from a movement concerned with declining birthrates that has been gaining steam for years and now finally has allies in the U.S. administration, including Vice President JD Vance and Elon Musk. Policy experts and advocates of boosting the birthrate have been meeting with White House aides, sometimes handing over written proposals on ways to help or convince women to have more babies, according to four people who have been part of the meetings who spoke on the condition of anonymity to discuss private conversations.***

Ms. Collins, along with her husband, Malcolm Collins, sent the White House several draft executive orders, including one that would bestow a “National Medal of Motherhood” to mothers with six or more children.***

The behind-the-scenes discussions about family policy suggest Mr. Trump is quietly building an ambitious plan to promote the issue, even as he focuses much of his attention on higher-profile priorities such as federal cuts, tariffs and mass deportations. Project 2025, the policy blueprint that has forecast much of Mr. Trump’s agenda so far, discusses family issues before anything else, opening its first chapter with a promise to “restore the family as the centerpiece of American life.”

See also Tracy Turner, Project 2025 and Due Process After Dobbs, 16 ConLawNOW 149 (2025).

Project 2025 supporters have been appointed to prominent federal offices in the second Trump Administration. This includes, most notably, the Office of Management and Budget, for a key strategy of implementing the Project’s goals is manipulation of federal funding. This Essay explores what this might mean for women’s rights and suggests a legal theory with which to challenge Project initiatives. Project 2025 repackages a platform that is fully anti-feminist. It is not a new platform. It is the same set of tools that has been used against feminism since the movement’s inception. It expansively seeks policy changes for abortion, contraception, the nuclear family, single motherhood, childcare, child support, no-fault divorce, sex education, and women’s employment. Women have been here before—in the late 1890s when patriarchy responded to first-wave feminism, in the post-World-War-II era when men wanted their jobs back, and in the 1970s and 1980s in response to second-wave feminism. But now opponents of women’s rights use the guise of federal funding and incrementalism to erode women’s rights and return women to the constraints of a subordinate domestic role. This Essay exposes the anti-feminist policies urged by the Project and then explores a strategic use of due process doctrine to legally challenge them.

 

The Thirteenth Amendment as a Guarantee of Personal, Sexual and Reproductive Autonomy

Zanita E. Fenton (Miami), (Re)Birth of a Nation: Reconstruction's Unfinished Business, 30 Michigan J. Race & Law (Spring 2025) 

This Article seeks to demonstrate that self-ownership emanates from Amendment Thirteen and that, by its original meaning, the proposition includes personal autonomy over sexual and reproductive choices. Beginning with the narrative and case of Harriet Robinson Scott, as background to Dred Scott v. Sanford, this Article explores the dual subordinating effects of the laws supporting traditional marriage regarding both gender equality and slavery. It then makes comparisons between these antebellum practices and modern forms of subordination and exploitation in three ways: (1) identifies sex-trafficking as an existing form of slavery, (2) identifies criminalization of prostitution as supporting the perpetuation of sex-trafficking and as a vestige of enslavement that required sexual servitude, and (3) identifies state control over reproduction as a vestige of the promotion of breeding as integral to domestic slave markets. This Article completes the comparison between the relevant eras with a discussion of the ways in which Dobbs v. Jackson Women's Health Organization replicates Dred Scott v. Sanford.  These comparisons serve as incentive to reimplement the Thirteenth Amendment to find solutions and social redress by inspiring its reinvigoration.

Megan S. Wright on "More Choosers, Fewer Choices? Supported and Medical Decision-Making Post-Dobbs"

Megan S. Wright has published "More Choosers, Fewer Choices? Supported and Medical Decision-Making Post-Dobbs" in Volume 45 of the Pace Law Review 139 as part of the Bioethics after Dobbs Symposium. The abstract is excerpted here: 

This Article focuses on two conflicting trends in the law of medical decision making. More states are adopting supported decision-making legislation, wherein an individual with a disability receives decision-making assistance from someone they elect to serve as a “supporter.” In the absence of supported decision making, adults with significant decisional impairments may be disqualified from making contemporaneous medical decisions. But with the advent of supported decision making, more patients with impaired cognition may have the legal authority to make contemporaneous medical decisions. While the number of people eligible to make decisions is potentially increasing due to widespread adoption of supported decision-making laws, states simultaneously are restricting access to some types of medical procedures including abortion, use of assisted reproductive technologies, and gender affirming medical care. This Article demonstrates that these two legal trends may result in more patients making medical decisions while having access to fewer medical procedures. That is, states are both facilitating and restricting patient autonomy. This Article discusses possible reasons for these conflicting trends and highlights directions for future research.

Exposing the Stereotypes Fueling Reproductive Wrongful Convictions

Valena Beety, "Unfit": Gender, Ableism and Reproductive Wrongful Convictions, UCLA L. Rev. (forthcoming 2026)  

This article draws a straight line from wrongful convictions of women in the past to criminal charges based on pregnancy and parenting behaviors today. Faulty forensic evidence and biased evidence based on sex-stereotypes have, in combination, been used to convict innocent women, particularly in situations where an accident or health event was misconstrued to be a criminal act. 74% of known exonerated women were wrongly convicted where no crime occurred. Similarly, in criminalizing pregnancy behaviors, police, medical personnel, or prosecutors erroneously label a non-criminal event such as a miscarriage or stillbirth as criminal. Criminal charges are being brought against new mothers who test positive for their own legally prescribed medicine, for morphine that was given to them by the hospital for pain during labor, or for a controlled substance when the child is born healthy and unharmed.

This article elucidates the concept of what I call “reproductive wrongful convictions,” and exposes how marginalized women are being labeled as “unfit” and becoming particularly vulnerable to these charges. Through interviews with diverse women wrongly convicted of harming their children, the article includes the experiential knowledge of participants in the medical and legal systems, relying on different epistemic backgrounds to conceptualize transforming the law. In addition, the Supreme Court’s recent case Andrew v. White demands a greater reckoning of the due process violation that occurs when courts admit character evidence that overwhelmingly relies on sex-based stereotypes and justifies incarceration of the defendant, whether she has committed the charged offense or not.

Medical Malpractice Law as an Unlikely Basis to Protect Women after Abortion Bans

Yvonne Lindgren (UMKC) & Michelle Oberman (Santa Clara), Recalibrating Risk Under Dobbs 

The impact of Dobbs-era abortion bans has been revealed in countless stories of pregnant patients who have sought care for pregnancy related complications, but died or been injured after their doctors refused to intervene for fear they might be prosecuted. Several years into the U.S. experiment with criminalizing abortion, there is little certainty about the scope and applicability of state abortion bans. For clinicians, this uncertainty, coupled with the high stakes of criminal liability, has triggered a broad-scaled retreat from the pre-Dobbs standard of care when treating pregnant patients. In the absence of carefully crafted guidelines from lawmakers, courts, or state medical boards, fear of criminalization has created a broad yellow-light zone, in which a clinician’s willingness to provide care no longer turns exclusively on the largely national professional standard of care. Instead, it also depends on a doctor’s personal risk tolerance. When clinicians’ fear of legal consequences causes them to delay or deny medically indicated care, they shift the risk of harm onto their patients, who are being injured. 

This Article is the first to examine how abortion bans necessarily implicate questions of medical malpractice. We begin by documenting how abortion bans have unsettled the standard of care, leading to patient injuries that, as yet, have gone uncompensated. It examines these injuries through the lens of tort law, describing the theoretical potential of medical malpractice litigation to compensate injured plaintiffs while at the same time serving the “public law” function of drawing a floor beneath competent care, thereby helping clarify the otherwise uncertain standard of care. The  analysis explains why, in practice, malpractice lawsuits are unlikely to deliver on either of these promises, and may trigger downstream harm.  The Article then identifies four strategies for recalibrating the risk calculus driving the diminished quality of care currently provided to pregnant patients in ban states. Each proposal is designed to press hospitals, health systems and professional societies into taking action to support and guide clinicians so as to maximize their ability to provide competent, ethical care within the bounds of the law. 

Jill Engle on "Access, Welfare, and Lawsuits: Restoring Reproductive and Economy Autonomy Post-Dobbs"

Jill Engle has posted her forthcoming article, Access, Welfare, and Lawsuits: Restoring Reproductive and Economic Autonomy Post-Dobbs. The article is forthcoming in the University of Richmond Law Review. The abstract is here: 

Access to abortion and increased poverty for women and children are inversely correlated: as access to abortion decreases, feminine and child poverty increase. Women who try to access abortions are more likely to already be mothers, and more likely to be living below the poverty line. In post-Dobbs America, abortion is illegal in approximately a third of the states. In states where abortion access is most restricted, women and children experience poverty at the highest rates in the nation. The Supreme Court majority that decided Dobbs chose to ignore the connection between abortion and poverty. In doing so, they also ignored their own legal precedent. Specifically, in 1992’s Planned Parenthood v. Casey, the Court premised its decision in large part on the connection between abortion access and women’s economic agency. The Casey Court recognized that reproductive autonomy is critical to women’s overall life planning, most importantly their financial stability. The Dobbs dissenters pointed out this cognitive dissonance demonstrated by the Dobbs majority, despite overwhelming empirical data on reproductive rights and economic stability for women.

This article is the first to document the law and policy strategies that collectively increase abortion access and reduce feminine and child poverty. Innovative approaches like the 2023 Texas lawsuit by women who almost died because they were denied abortions are yielding results that directly support women’s economic autonomy. State legislatures and governors are legally enshrining women’s rights to access abortion and doctors and nurses’ rights to provide abortions. And voters are going to the polls in droves to protect abortion access, with victories in seven states in one year’s time. This article chronicles those abortion access strategies and more, including the increasing importance of medication abortion, which is also under attack in the federal courts.

Grappling with the reality that Dobbs removed the constitutional right to abortion recognized by Roe and Casey, this article traces the history of the abortion rights battle from the Supreme Court’s decisions in Roe in 1973 through Casey in 1992 to Dobbs in 2022. In this recounting, the article contextualizes reproductive autonomy within women’s economic rights, which developed significantly during that same time. This article concludes with optimism. Women’s and children’s financial health may be compromised generally by Dobbs, but negative outcomes are not inevitable. Strategies abound to protect and even increase abortion access, and the article describes those in detail. It also highlights social welfare policies that mitigate feminine and child poverty. The law and policy landscape post-Dobbs for women and children economically is changing for the better as we speak, and the momentum must continue. Focusing on these solutions is the way forward to protect the financial futures of women and children.