Gender and the Law Blog

New Lawsuit by Pill Manufacturer Challenges State Bans on Abortion Pills

NYT, New Lawsuit Challenges State Bans on Abortion Pills

A company that makes an abortion pill filed a lawsuit Wednesday morning challenging the constitutionality of a state ban on the medication, one in what is expected to be a wave of cases arguing that the federal Food and Drug Administration’s approval of the pill takes precedence over such restrictive state laws.

The case was filed in federal court in West Virginia by GenBioPro, one of two American manufacturers of mifepristone, the first pill used in the two-drug medication abortion regimen. A ruling in favor of the company could compel other states that have banned abortion to allow the pills to be prescribed, dispensed and sold, according to legal experts. If the courts reject the company’s arguments, some legal scholars say the decision could open the door for states to ban or restrict other approved drugs, such as Covid vaccines or morning-after pills.

The case is one of a number of lawsuits testing legal arguments in the aftermath of the Supreme Court’s ruling last June overturning the federal right to abortion. Also on Wednesday, an obstetrician-gynecologist sued officials in North Carolina, which still allows abortion, challenging the state’s requirements for using mifepristone because they go beyond F.D.A. regulations on the drug. In November, abortion opponents filed a lawsuit challenging the F.D.A.’s approval of mifepristone nearly 23 years ago and asked that the courts order the agency to stop allowing the use of the drug and the second drug, misoprostol, for abortion.

Taken together, the cases underscore how pivotal medication abortion has become in legal and political battles. With pills now being used in more than half of abortions in America, and with recent F.D.A. decisions allowing patients to have pills prescribed by telemedicine and obtained by mail or from retail pharmacies, states that ban or restrict abortion are increasingly targeting the medication method.

New Study on "The Impact of Legal Abortion on Maternal Mortality"

A new study analyzing The Impact of Legal Abortion on Maternal Mortality was posted to SSRN by scholars Sherajum Farin, Lauren Hoehn-Velasco, and Michael Pesko. The conclusion describes the results of their study: 

In this study, we consider whether the 1960s and 1970s legalization of abortion in the United States led to improvements in maternal health. Our findings suggest that legal abortion reduced non-white abortion-related mortality by 30-60% and non-white maternal mortality by 30-40%. In the first year after the passage of legal abortion, this percentage decline translates into 41 non-white maternal deaths averted in early-legal states and 113 non-white maternal deaths averted nationally. To ground the magnitude of the deaths averted in present-day maternal deaths, a total of 299 non-white women died from maternal causes of death in 2019, despite a broader classification of maternal deaths today. * * * [T]he estimated decline in maternal mortality represents the "tip of the iceberg" in terms of the health effects of legal abortion * * *.

 

In an era where Roe v. Wade no longer determines abortion laws in the United States, we conclude with two facts worth considering for policy today. First, during the period of our study, legal abortion acts primarily through lower abortion-related deaths, rather than a change in pregnancy-related risk factors. The importance of abortion-related maternal mortality indicates that eliminating unsafe and illegal abortion was likely the main driver of mortality declines discovered in this study. Second, legal abortion appears most important for non-white women, and also has the largest impact in counties with lower levels of income, educational attainment, and healthcare resources. Put together, the impact of legal abortion shows marked heterogeneous impacts by race and socioeconomic status, where legal abortion appears most important for less advantaged groups.

 

Still, based on these observed facts, the maternal mortality impacts of a post-Roe v. Wade legal landscape are unclear. A number of factors are different today than in the 1970s. Most notably, the availability of medical abortion, which can be prescribed through telemedicine appointments, sent through the mail, and safely administered at home * * * Instead, we conclude by emphasizing the importance of legal abortion for non-white maternal health during the period of initial legalization. Today, in the U.S., non-Hispanic black women already suffer three times the maternal mortality of white women * * * , and if there is a health impact of legal abortion restrictions, it will likely be for this group.

Equality Emerges as a Ground for Abortion Rights

Cary Franklin & Reva Siegel, Equality Emerges as a Ground for Abortion Rights

This chapter locates debates over abortion in equal protection and in an evolving understanding of women’s citizenship. Sex discrimination law has grown from the time of Roe to Dobbs; and sex equality arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. As we show, evolving understandings of women’s citizenship have implications for how the state protects new life. The labor of lifegiving is no longer to be coerced or extracted by law—as states enforcing the law of gender status historically assumed it could be. Equal protection commitments give rise to an anti-carceral presumption in regulating abortion. As state laws inside and outside the abortion context attest: States that respect women as equal citizens do not turn, as a matter of first resort, to measures that rely on coercion and control when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions strips women of agency, forces them to continue pregnancies and become mothers against their will, and perpetuates the forms of inequality that are the central concern of sex-based equal protection law. To opt for the maximally coercive approach—forced pregnancy and childbirth—when there are alternative means for enabling families to flourish is neither constitutional nor plausibly characterized as promoting life.

h/t Larry Solum, Legal Theory Blog

The Equality Problems with Erasing Gestation as an Important Feature of Constitutional Parenthood

Katharine K. Baker, Equality, Gestational Erasure and the Constitutional Law of Parenthood,  
35 J of the American Academy of Matrimonial Lawyers 501 (2022)

This article calls into question the abundance of academic writing that criticizes, as inconsistent with equality principles, the constitutional law of parenthood. Some of this criticism, concerned with gender stereotypes, argues that the current doctrine’s preferential treatment of gestational mothers inexcusably discriminates against fathers. Other critics focus on how the Supreme Court’s approach to gestational investment excludes same sex partners from parental rights. Both of these critiques argue that the work of gestation has been overvalued. They both endorse a kind of gestational erasure, but they differ sharply on where they root the essence of parenthood. Those concerned about equal treatment for fathers root parenthood in genetics. Those concerned about equal treatment for same sex partners root parenthood in parental investment. This article highlights the tension between these positions and challenges those willing to erase the relevance of gestation at both a normative and practical level. It explains how discounting the relevance of gestation will have serious consequences for the law of abortion, adoption and custody, placing already vulnerable women at more risk of being controlled by men they want to escape. Further, this article argues that the current constitutional doctrine, which recognizes the salience of gestation, necessarily incorporates what LGBTQ advocates argue must be incorporated into decisions about parenthood: parental investment. What is inconsistent with LGBTQ equality in parenthood is not a regime that recognizes gestational investment, but one that reifies the genetic essentialism on which the gender-stereotype critique relies.

Conference on Health, Equity, and Law after Dobbs

American University Washington College of Law's Health Law and Policy Program has opened registration for an inter-disciplinary conference on "Health, Equity, and Law after Dobbs" scheduled for February 24th and 25th in Washington, D.C. The event will take a distinctly inter-disciplinary approach bringing together scholars with legal, medical, public health, and sociological perspectives on the aftermath of the Dobbs decision. The conference also brings together four academic programs collaboratively planning the event: American University Washington College of Law, American University Department of Sociology, The George Washington Law School, and The George Washington University Milken Institute School of Public Health. The event is also hosted in partnership with the American Society of Law, Medicine & Ethics. The conference goals are described here:  

By assembling an interdisciplinary group of researchers, practitioners, and advocates, the conference will provide a fuller picture of both the impact of the law on the books and the realities of the law on the ground. The goal of the conference is to help scholars, practitioners, advocates, and students understand current policy and practice related to abortion, as well as the reverberating effects of the Dobbs decision on the delivery of health care and society more broadly. It also aims to develop a research agenda and a broader strategic focus for advancing more equitable access to reproductive health care in the long term.

Register for the free event here. Check out the agenda for the program here. 

Conference Jan. 27, The Age of Roe: The Past, Present, and Future of Abortion in America

Harvard Radcliffe Institute, The Age of Roe: The Past, Present, and Future of Abortion in America

Harvard Radcliffe Institute will hold a major public conference January 26–27, 2023, to probe the complex and unpredictable ways that Roe v. Wade and its aftermath shaped the United States and the world beyond it for nearly half a century. The existential issue of abortion—and the galvanizing impact of Roe in particular—transformed the nation’s politics and public policy and its social movement energies, as well as the operations of the courtroom and the clinic. 

In the wake of the Supreme Court’s decision to overturn Roe in Dobbs v. Jackson Women’s Health Organization, eminent thinkers will gather as a diverse group, along many axes of difference, neither to praise Roe nor to bury it. Focusing on five major themes—voices from the front lines, international contexts, race and class, American public life, and visions of the future—a broad array of scholars, clinicians, and activists will engage in searching, interdisciplinary discussions to anatomize Roe’s impacts, including in the post-Dobbs landscape.

DOJ Legal Opinion Clarifies that Post Office May Send Abortion Pills in Mail, Even in States that Ban Abortion

Carrie Baker, Ms. The Postal Service Can Deliver Abortion Pills by Mail--Even in States Banning Abortion

Last November, conservative legal group Alliance Defending Freedom filed a federal lawsuit asking a Texas court to ban abortion pills from the U.S. mail. The suit cited an archaic 19th-century anti-obscenity law: the 1873 Comstock Law. Promoted by anti-vice crusader Anthony Comstock and described as a “chastity” law, it banned sending obscene literature, contraceptives, abortifacients or any sexual information through U.S. mail.

After the Supreme Court ruled in Roe v. Wade that women have a fundamental right to abortion, the Comstock Law remained on the books but was not enforced. Now that the Supreme Court has reversed Roe, the question was: Does that law now ban mailing abortion pills?

In response to a request for clarification from the U.S. Postal Service, the Department of Justice’s Office of Legal Counsel issued a legal opinion made public on Jan. 3 stating that the Comstock Law does not prohibit mailing abortion pills if the sender does not know that the medications will be used illegally.

The DOJ opinion, authored by Assistant Attorney General Christopher H. Schroeder, argues the law applies only to “unlawful” abortions. Those sending or delivering pills “typically will lack complete knowledge of how the recipients intend to use them and whether that use is unlawful under relevant law.”

Abortion is allowed by federal law, Schroeder wrote, and every state allows abortion in some circumstances, such as to preserve the life of a pregnant woman.

Individuals receiving abortion pills have “a constitutional right to travel to another state that has not prohibited that activity and to ingest the drugs there,” the opinion reads—so “someone sending a woman these drugs is unlikely to know where she will use them, which might be in a state in which such use is lawful.”

The opinion concludes, “therefore, even when a sender or deliverer of mifepristone or misoprostol, including USPS, knows that a package contains such drugs—or indeed that they will be used to facilitate an abortion—such knowledge alone is not a sufficient basis for concluding that [the law] has been violated.”

The decision applies to USPS and other carriers, such as United Parcel Service and FedEx.

Donley and Lens on "Abortion, Pregnancy Loss, & Subjective Fetal Personhood"

Greer Donley and Jill Wieber Lens have published their article Abortion, Pregnancy Loss, & Subjective Fetal Personhood in volume 75 of the Vanderbilt Law Review. The abstract provides as follows: 

Long-standing dogma dictates that recognizing pregnancy loss threatens abortion rights--acknowledging that miscarriage and stillbirth involve the loss of something valuable, the theory goes, creates a slippery slope to fetal personhood. For decades, antiabortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate fetal personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss and, more recently, remained silent, alienating those who suffer a miscarriage or stillbirth.

 

This Article argues that this perceived tension can be reconciled through the concept of subjective and relational fetal value. The Article derives this concept from pregnancy loss research, which demonstrates that a pregnant person’s attachment to their fetus is based on myriad individualized factors. Attachment in pregnancy is neither fixed nor biological and therefore does not support the antiabortion concept of personhood-at-conception. We suggest that tort law offers a way forward: a model of recognizing subjective, relational fetal value that does not collapse into personhood-at-conception. Thus, abortion rights advocates can recognize and support those experiencing pregnancy loss without ceding ground on abortion rights.

 

Most importantly, this Article proposes that recognition of pregnancy loss within abortion narratives will better position the abortion rights movement for a post-Roe America in which abortion and pregnancy loss are inexorably intertwined. Without legal abortion access, women will turn to self-managed abortion. But because complications from self-managed abortion are indistinguishable from miscarriage, investigation and criminalization of pregnancy loss will increase as a mechanism to enforce abortion laws. Further, restrictions on abortion will limit medical treatments for pregnancy loss. Looking forward, we argue that an abortion rights narrative that can join forces with the pregnancy loss community by acknowledging subjective fetal value will be less alienating to many Americans and reflect nuanced views on the meaning of pregnancy. Last, appreciating the blurriness between abortion and pregnancy loss will help normalize and destigmatize all pregnancy endings that do not result in a live birth--abortion, stillbirth, and miscarriage-- benefitting all pregnant people.

The Right to Build Families Act of 2022 Introduced to Congress

The Right to Building Families Act was introduced into Congress by Senators Tammy Duckworth (D-IL), Patty Murray (D-WA), and Congresswoman Susan Wild (D-PA-07) in December 2022. This bill would prohibit states from limiting the rights of individuals to access assisted reproductive technologies. It would prohibit states from regulating reproductive genetic material. It would protect providers who deliver counseling related to assisted reproductive technologies. It authorizes the Department of Justice to pursue civil actions for violations.

The background summary of the bill provides: 

According to the Centers for Disease Control and Prevention (CDC), one in four women married to men have difficulty getting pregnant or carrying a pregnancy to term. This does not include the many LGBTQ+ couples and those that choose to parent without a partner who may need assisted reproductive technologies (ART), such as in vitro fertilization (IVF), to start and grow families. Since 1981, those hoping to become parents from across the country have used ART, and to date, over one million infants have been born because of the availability of this medical procedure. About two percent of all infants born in the United States each year are conceived via ART, and the CDC has noted that the use of IVF specifically has more than doubled over the past decade.

Check out the full text of the bill here. 

FDA Says Retail Pharmacies Can Now Offer Abortion Pills

FDA Says Retail Pharmacies Can Now Offer Abortion Pills

The U.S. Food and Drug Administration finalized a regulatory change on Tuesday that allows retail pharmacies to offer abortion pills.

Before now, patients could only get this two-drug medication through clinics, doctors and a handful of mail-order pharmacies.

Two companies that make the medication, Danco Laboratories and GenBioPro, announced the news after they were notified by the FDA of the change.

"At a time when people across the country are struggling to obtain abortion care services, this modification is critically important to expanding access to medication abortion services and will provide healthcare providers with an additional method for providing their patients with a safe and effective option for ending early pregnancy," Danco said in a statement.***

Patients will still need a doctor’s prescription to access the drugs, and pharmacies must follow certain rules to dispense the medication.

Abortion pills are used in more than half of U.S. pregnancy terminations, a recent report showed. They are now in even higher demand because of abortion restrictions enacted by states after the U.S. Supreme Court overturned Roe v. Wade last June.

The American College of Obstetricians and Gynecologists applauded the move.

Members of the Military will Now Get 12 Weeks of Parental Leave

Military Members Will Now Get 12 Weeks of Parental Leave

Members of the military will now get 12 weeks of parental leave, doubling the previous amount, after a memorandum from the Department of Defense went into effect Wednesday.

The 12 weeks are for both birthing and non-birthing parents, which includes parents of recently adopted children and members who use surrogates, and applies to parents of children born or adopted after Dec. 27, 2022.

Eligible members must be in active or reserve duty for at least 12 months.

Parents giving birth will also receive a period of convalescence to recover from labor "if such leave is specifically recommended, in writing, by the health care provider of the birth parent to address a diagnosed medical condition and is approved by the unit commander," the memo states.

SC Strikes Down Six Week Abortion Ban, While Idaho Upholds Abortion Ban and Civil Enforcement Law

The State, SC's 6-Week Abortion Ban is Unconstitutional, State Supreme Court Rules

The South Carolina Supreme Court on Thursday struck down the state’s six-week abortion ban, ruling 3-2 that it violated the state’s constitutional right to privacy.

In its 147-page opinion, the state’s high court wrote, in part, “We hold that our state constitutional right to privacy extends to a woman’s decision to have an abortion.”

In the majority were state Supreme Court Chief Justice Donald Beatty, Justice John Few and Justice Kaye Hearn, the lone woman on the Supreme Court, who will retire this year. Justices John Kittredge and George James dissented. ***

Because South Carolina is one of 10 states to include a specific citizen’s right to privacy in its Constitution, the court’s decision came down to whether the six-week abortion ban constituted an “unreasonable invasion of privacy.”

The state had argued the right to privacy applied only to criminal defendants in the context of search and seizure and did not extend to an individual’s decisions about their own medical care, arguing the Constitution never mentioned abortion or a woman’s right to bodily autonomy.

The Supreme Court majority rejected the state’s argument that citizen’s privacy rights should be limited in this way and found the state’s definition actually ran contrary to prior state Supreme Court rulings.

AP, South Carolina Supreme Court Strikes Down Abortion Ban

The South Carolina Supreme Court on Thursday struck down a ban on abortion after six weeks, ruling the restriction enacted by the Deep South state violates a state constitutional right to privacy.

The decision marked a significant victory for abortion rights’ advocates suddenly forced to find safeguards at the state level after the U.S. Supreme Court overtured Roe v. Wade in June.

With federal abortion protections gone, Planned Parenthood South Atlantic sued in July under the South Carolina constitution’s right to privacy. Restrictions in other states are also facing challenges, some as a matter of religious freedom.

But since the high court’s momentous decision in Dobbs v. Jackson Women’s Health Organization, no state court until Thursday in South Carolina had ruled definitively whether a constitutional right to privacy — a right not explicitly enumerated in the U.S. Constitution — extends to abortion.

Idaho SCT Upholds Abortion Ban, Civil Enforcement Law

In a 3-2 decision, the Idaho Supreme Court upheld Idaho’s abortion ban and the civil enforcement law allowing providers to be sued for performing abortions in an opinion released Thursday. 

Planned Parenthood and one of its abortion providers, Dr. Caitlin Gustafson, filed three separate challenges with the Idaho Supreme Court, beginning with the civil enforcement bill — also known as the heartbeat bill — in April. Two other challenges were filed in June and July, after the U.S. Supreme Court announced its decision to overturn Roe v. Wade and return the ability to regulate abortion to the states.

Since August, Idaho has had a near-total abortion ban in effect that only permits defenses in court for abortions performed to save a pregnant person’s life or in documented cases of rape and incest. The civil enforcement law allows immediate and extended family members to sue medical providers who perform abortions for no less than $20,000. The law went into effect at the same time as the ban.

 

Ohio Six Week Abortion Ban Remains Block After Appellate Declines Review of Preliminary Injunction Invalidating the Law

Been getting lots of questions about this status in Ohio:

Ohio's Abortion Law Will Remain Blocked for Now After Appeals Court Decision

The First District Court of Appeals in Cincinnati has denied the state's request on taking up its appeal of a preliminary injunction blocking enforcement of a state law banning abortions after six weeks of pregnancy.

A Hamilton County Court Judge issued the preliminary injunction Oct. 7.

The court says it can only rule on the issue if the Hamilton County judge issues a final ruling on whether the state law on abortion is constitutional.

The American Civil Liberties Union, ACLU of Ohio, Planned Parenthood Federation of America, and the law firm WilmerHale will now proceed with litigation to get a permanent injunction on behalf of Ohio abortion providers.

With the preliminary injunction still in place for now, abortions that happen at up to 22 weeks of pregnancy will remain legal in Ohio

Book Review, Roe: The History of a National Obsession

Book Review, Mary Ziegler, Roe: The History of a National Obsession

UC Davis law professor Ziegler (Dollars for Life) analyzes in this expert study how the Supreme Court’s 1973 Roe v. Wade decision legalizing abortion captured the nation’s imagination as “a meta-symbol of our many political and cultural disagreements and a shorthand for their inherent contradictions.” In the 1960s, a series of legal cases carved out exceptions to abortion bans for rape, incest, and fetal defects; Ziegler notes opposition from both anti-abortion activists (who believed in fetal personhood) and the women’s liberation movement (which believed abortion should be a constitutional right). In the 1970s, the Hyde Amendment, which blocked Medicaid funding for abortion, led abortion rights activists to elevate the message that Roe was about women’s freedom of choice, while right-to-lifers increasingly sought to upend the Republican establishment. Among other themes, the decades after Roe saw the intertwining of anti-abortion groups and evangelical Christianity; the politicization of science and expertise, especially around the concept of “partial birth abortion”; and the foregrounding of racial issues, with anti-abortion activists highlighting Planned Parenthood founder Margaret Sanger’s belief in eugenics and abortion rights organizations shifting from a white-centered choice message to a reproductive justice framework. Ziegler sets a brisk pace but delivers substantial depth as she reveals just how much the terms of this debate have shifted in the 50 years between Roe and its recent overturning. It’s a must-read for those seeking to understand what comes next. (Jan.)

New State Litigation Tracker Released by Brennan Center for Justice and the Center for Reproductive Rights

The Brennan Center for Justice (NYU Law) and the Center for Reproductive Rights have built a state litigation tracker for the public to monitor ongoing litigation in states courts following the Dobbs Supreme Court decision.  This online tool "will include pending and completed state court litigation against abortion bans that were, or would have been, unconstitutional under Roe."  The site states that "[a]s of December 5, 2022, a total of 34 cases have been filed challenging abortion bans in 19 states, of which 31 remain pending at either the trial or appellate levels." These partners will update the tracker with key filings and court orders.

Check out the tracker here:  https://www.brennancenter.org/our-work/research-reports/state-court-abortion-litigation-tracker 

 

Expansions in California's Abundant Birth Project

The United States' first program giving cash to pregnant Black women in San Francisco has expanded to four additional counties. California's Abundant Birth Project is described as: 

The Abundant Birth Project is a simple, yet novel, approach to achieving better maternal health and birthing outcomes: provide pregnant Black and Pacific Islander women a monthly income supplement for the duration of their pregnancy and during the postpartum period as an economic and reproductive health intervention. Prematurity is a leading cause of infant mortality and has been linked to lifelong conditions, such as behavioral development issues, learning difficulties, and chronic disease. In San Francisco, Black infants are almost twice as likely to be born prematurely compared with White infants (13.8% versus 7.3%, from 2012-2016) and Pacific Islander infants have the second-highest preterm birth rate (10.4%). Furthermore, Black families account for half of the maternal deaths and over 15% of infant deaths, despite representing only 4% of all births. Pacific Islander families face similar disparities.

San Francisco Mayor, London N. Breed, celebrated the launch of the program stating:  

“Providing guaranteed income support to mothers during pregnancy is an innovative and equitable approach that will ease some of the financial stress that all too often keeps women from being able to put their health first. The Abundant Birth Project is rooted in racial justice and recognizes that Black and Pacific Islander mothers suffer disparate health impacts, in part because of the persistent wealth and income gap. Thanks to the work of the many partners involved, we are taking real action to end these disparities and are empowering mothers with the resources they need to have healthy pregnancies and births.”

Daisy Nguyen, reporter with KQED.org, reported on the expansion of the program.  

Since June 2021, the Abundant Birth Project has given $1,000 per month to nearly 150 Black residents during a portion of their pregnancies and the first six months of their children’s lives. With the extra funding from the California Department of Social Services and another $1.5 million in city funds, the program aims to reach another 525 people in San Francisco, Alameda, Contra Costa, Los Angeles and Riverside counties.

Learn more about the Abundant Birth Project here.  

Abortion News Roundup Week of 12/14

Judge Grants RFRA-Based Preliminary Injunction Against Abortion Ban in IN

“Many Hoosiers have sincere religious beliefs that they must be able to obtain an abortion,” the American Civil Liberties Union of Indiana, which filed the suit, said in a statement. “… Today’s preliminary injunction is a second layer of protection.”

Under Indiana’s Religious Freedom Restoration Act, government can only “substantially burden” exercise of religion if it advances a “compelling” government interest in the least restrictive way possible.

The class action lawsuit argues that the new abortion law violates RFRA. The plaintiffs include practitioners of Judaism, Islam, Unitarian Universalism, Episcopalianism and paganism — all belief systems that allow abortions under circumstances outside the ban’s narrow exceptions.

IA Judge Blocks Effort to Ban Most Abortions in the State

NPR, Judge Denies IA Governor's Request to Revive Fetal Heartbeat Act

Ms, Anti-Abortion Groups Ask Trump-Appointed Judge to Ban Mailing Abortion Pills

Campaign Launches to Put Abortion Access on Ohio Ballot in 2023

Jessica Quinter & Caroline Markowitz, Judicial Bypass and Parental Rights After Dobbs, Yale L.J. (forthcoming)

Wash Post, Antiabortion Movement Sets Sights on Putting People in Jail

Conf 12/16, NACDL National Summit on the Criminalization of Reproductive Rights

Conference and CFP, Equal Justice Under Law?

American University, Annual Symposium, Equal Justice Under Law

CFP Deadline Jan. 3, 2023

2023 Annual Symposium: Equal Justice Under Law?

On February 3, 2023, the American University Law Review's 2023 Annual Symposium—Equal Justice Under Law?—will explore what is left of the Constitution after the 2021-2022 U.S. Supreme Court term. The Law Review is thrilled to announce that Dean Erwin Chemerinsky will be this year's Keynote Speaker. Dean Chemerinsky is a distinguished scholar and has authored fourteen books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. Additionally, the Law Review will host multiple Supreme Court practitioners as panelists this year to weigh in on the Court's recent term and the questions it raises moving forward.

Call for Papers: American University Law Review’s 2023 Annual Symposium

Download PDF Here!

The American University Law Review is placing a call for submissions of original legal articles and scholarly commentaries for its forthcoming Annual Symposium issue, this year dedicated to a review and response to the 2021 through 2022 Supreme Court term and the upcoming term. Specifically, the Law Review seeks submissions analyzing the rapidly evolving response to the Supreme Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Kennedy v. Bremerton School District, Carson v. Makin, Shurtleff v. City of Boston, and pending cases before the Supreme Court in the next term on affirmative action, the Indian Child Welfare Act, and free speech. Approximately four to six submissions will be selected, with a publication date slated for the spring of 2023.

Washington Post on "Pregnant and desperate in post-Roe America"

The Washington Post reports on how three patients are navigating unexpected pregnancies in Pregnant and desperate in post-Roe America.

Over the next decade, if recent trends hold, more than a million people with unwanted pregnancies are likely to run up against an abortion ban. Some will find a way, traveling hundreds of miles or securing illegal pills through the mail. Others will resign themselves to parenthood.

The Washington Post made contact with three pregnant women who were seeking abortions while living in states with strict abortion bans. These women, reached early in their pregnancies, communicated regularly with The Post, sharing their experiences through calls, text messages and other documentation that supported their accounts. They participated on the condition that only their first names be used to protect their privacy.

It features the stories of women in Oklahoma, Georgia, and Ohio. It is a powerful narrative of how the real lives of pregnant people are impacted in the current legal landscape.

Abortion Rights Referendums are Winning, but Opponents Seek to Change the Initiative Rules

Rachel Rebouche, Abortion Rights Referendums are Winning with State Battles Over Rights Replacing National Debate.

Division over abortion did not start when the Supreme Court abandoned constitutional protection for the right to have an abortion in Dobbs v. Jackson Women’s Health Organization in June 2022 – but the decision did prompt referendums at the state level about whether abortion should be permitted or not.

Eighteen states, from Ohio to Alaska and Arizona to Wyoming and Washington, allow voters to directly amend a state constitution through ballot measures.

Ballot measures – or referendums – could show the power of people’s direct vote in determining abortion law at the state level.

During the November 2022 midterms, voters added protection for the right to get an abortion to constitutions in California, Vermont and Michigan. Kentucky voters were asked a reverse version of this question – whether the state constitution should bar abortions. They said no.

Kentucky’s vote is similar to an August 2022 referendum on abortion that was held in Kansas. Fifty-nine percent of people in Kansas – a state with a history of anti-abortion policies and activism – voted to keep state constitutional protection of abortion rights.

As a scholar of reproductive health and justice, I think the referendum results in places often considered red or purple states, such as Michigan, Kentucky and Kansas, demonstrate just how varied and complex abortion beliefs and opinions are in the United States.

Ballot measures, perhaps in the short term, may provide one way to protect or restore the ability to get an abortion in states where the politics tend to skew conservative. Simply put, not all conservatives want to ban abortion

Abigail Tracy, Republicans Lost Big on Abortion Ballot Measures: Now They Are Trying to Change the Rules., Vanity Fair.

Republicans, perhaps coming to terms with the unpopularity of their antiabortion agenda, seem to be grasping for a new playbook. Republicans in Ohio want to make it harder to amend the state constitution via ballot initiative, which abortion advocates say is a blatant attempt to block voter-driven efforts to enshrine reproductive protections in state rights.

“Ohio’s constitution has been far too susceptible to efforts by outside groups and special interests seeking to alter the people’s constitution to achieve their own ends,” Republican state representative Brian Stewart said, according to The Columbus Dispatch. With the backing of Frank LaRose, the Republican Ohio secretary of state, Stewart has introduced a resolution that would require a supermajority of Ohioans, 60%—as opposed to the current threshold of 50% plus one vote—to change the state constitution.