Gender and the Law Blog

Unintended Consequences of Fetal Personhood Statutes in Tax, Trusts, and Estates

Bridget J. Crawford, Alexis Borders & Katherine Keating, Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates, Georgetown J. Gender & the Law (forthcoming)  

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the most salient ways fetal personhood laws could upend longstanding rules concerning property ownership and taxpayers’ determination of their fiscal obligations to the government. Unless carefully circumscribed, fetal personhood laws will disrupt the orderly transmission of property at death, the ability to administer a trust, and any durational limits on trusts. Third, the Article argues, state lawmakers should explicitly limit the scope of fetal personhood laws. Somewhat counterintuitively, both those with anti-abortion views and those who wish to secure access to the procedure share an interest in doing so.

For symbolic-political reasons, however, it is unlikely that lawmakers in anti-abortion states will place voluntary boundaries on the applicability of fetal personhood statutes. Therefore, the Article proposes rules of construction that judges should adopt in jurisdictions that have adopted fetal personhood laws. These include presumptions that a zygote-embryo-fetus is not the beneficiary of an estate or trust, disregarding in vitro embryos for purposes of the rule against perpetuities, and fixing the generational assignment of a zygote-embryo-fetus for generation-skipping transfer tax purposes at one generation below that of the intended parents. The Supreme Court is not likely to reverse the Dobbs decision for many decades, if at all. Therefore, making fetal personhood statutes inapplicable to matters of taxation (other than the state income tax deduction for dependents or child tax credit), trusts, and estates represents a pragmatic approach that simultaneously permits states to signal their anti-abortion commitments while limiting disruptions to the legal system and the spread of encroachments on the bodily autonomy of those with the capacity to become pregnant.

SCOTUS Unanimously Upholds FDA Rule on Abortion Pill on Grounds of Standing

In an unanimous opinion by Justice Kavanaugh, the U.S. Supreme Court overruled the lower court's invalidation of the FDA's current rules on the permissibility of the abortion pill, mifepristone.  The opinion is based solely on standing, finding that the pro-life physicians did not have standing to seek an opinion on the pill because they did not use, prescribe, or manufacture the pill. Instead, they sought to address others' personal use -- a fatal flaw for standing.

A concurrence by Justice Thomas goes deeper into associational third-party standing. There is a brief paragraph of particular interest to Remedies scholars, where Thomas discusses redressability and cites, Grupo Mexicano, Uzuegbunam, and universal injunctions.

The case is: FDA v. Alliance for Hippocratic Oath, 602 U.S. ___ (June 13, 2024).

One favorite line:  "An Article III Court is not a legislative assembly, a town square, or a faculty lounge."

 

Abrams & Potts on "The Rhetoric of Abortion in Amicus Briefs"

I have published The Rhetoric of Abortion in Amicus Briefs with the University of Missouri Law Review. The work is in Volume 89 at page 399. Here is the abstract: 

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women's Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage with the Court. Using quantitative and qualitative methods, the study reveals how the discursive construction of the pregnant person, fetus, physician, and abortion as a right have evolved over fifty years and shows why these shifts matter. In so doing, this study offers historical perspectives into evolving arguments in abortion litigation, contemporaneous insights into the status of polarized abortion politics, and future implications for amicus activity and abortion advocacy.

Greer Donley and Caroline Kelly on "Abortion Disorientation"

Greer Donley and Caroline Kelly have posted a draft of their work-in-progress, titled Abortion Disorientation, on SSRN. This work-in-progress will be published in Volume 74 of the Duke Law Journal. Here is the draft's abstract: 

The word “abortion” pervades public discourse in the wake of Dobbs v. Jackson Women’s Health Organization. But do we know what it means? Not only do law and medicine define it differently; state legislatures have codified wildly different definitions of abortion across jurisdictions. Our analysis exposes inherent ambiguities at the boundaries of the term, particularly as abortion intersects with other categories that we often think of as distinct: pregnancy loss, ectopic pregnancy, and other forms of medically necessary care. By juxtaposing statutory text next to real people’s experiences of being denied care in states with abortion bans, we reveal how those ambiguities have led to tragic results. Our analysis tracks how legislatures have responded to the tragedies of their own making by changing the definition of abortion to exclude certain types of care. Fifteen abortion-hostile legislatures have changed the definition of abortion since Dobbs, thirteen of which have added at least one definitional exclusion, most commonly for ectopic pregnancy, miscarriage, molar pregnancy, or fertility treatment. States that have expanded abortion rights, on the other hand, have moved in the opposite direction, broadening their abortion definitions as they expand reproductive rights. Our analysis concludes that antiabortion legislatures are running a fool’s errand: that it is impossible to fully distinguish abortion from other types of reproductive healthcare. The lines drawn are inherently vague, incoherent, and impossible to rectify. The Dobbs framework, which moved the complicated experience of pregnancy from the medical to the legal domain, is functionally unworkable, strengthening calls to overturn the decision.

A full version of the draft article is available here. 

Symposium Advancing Pregnant Persons' Right to Life

Boston University School of Law, Advancing Pregnant Persons' Right to Life

On February 8, 2024, scholars of law, medicine, and religion from across the world came together at Boston University School of Law to discuss the potential of promoting and protecting reproductive justice through advancing pregnant persons’ right to life. Stemming from that event are six articles and an annotated bibliography from leading legal scholars. This historic and important symposium is captured in its entirety in the video below.

The Free Exercise Right to Life
David A. Carrillo, Allison G. Macbeth, & Daniel Bogard
104 B.U. Law Review Online 19 (2024)

Religion Clause Challenges to Early Abortion Bans 
Caroline Mala Corbin
104 B.U. Law Review Online 37 (2024)

Medical Authority and the Right to Life
Jessie Hill
104 B.U. Law Review Online 67 (2024)

The Right to Life as a Source of Abortion Rights: Lessons from Kansas
Richard E. Levy
104 B.U. Law Review Online 87 (2024)

Turning Away from Criminal Abortion Laws and Towards Support for Pregnant People and Families
Cynthia Soohoo
104 B.U. Law Review Online 109 (2024)

Reproductive Justice and the Thirteenth Amendment
Rebecca E. Zietlow
104 B.U. Law Review Online 143 (2024)

Annotated Bibliography: “Persons Born” and the Jurisprudence of “Life
Martha F. Davis
104 B.U. Law Review Online 161 (2024)

Misogyny at the Supreme Court in Debating Emergency Abortion

Dahlia Lithwick & Mark Joseph Stern, The Lawyer Defending Idaho’s Abortion Ban Irritated the One Justice He Needed on His Side, Slate

Justice Amy Coney Barrett famously provided the crucial fifth vote to overturn Roe v. Wade in 2022. So if you are arguing in favor of an abortion ban, you probably don’t want to alienate Barrett—by, say, condescendingly dismissing her concerns when she points out that your legal theory doesn’t make any sense. Yet that is what Joshua Turner did on Wednesday while defending Idaho’s draconian abortion restrictions, and much to Barrett’s evident irritation. Turner—who represented the Idaho solicitor general’s office in the second major abortion case to come before the high court after it promised us in its Dobbs opinion that the court was out of the abortion business in 2022—might just have lost his case by repeatedly mansplaining his self-contradictory position to Barrett and the other three women justices. In his toneless, dispassionate telling, his entirely incomprehensible position was just too complex for them to understand. And so he just kept repeating it, over and over. These justices, including Barrett, sounded increasingly fed up with his chin-stroking dissembling on an issue that’s literally life-or-death for pregnant women in red states. If the court’s male members noticed Turner’s dismissive attitude toward their colleagues, they didn’t care. The gender divide on the court has never been so revealing.

Perhaps because Dobbs was a threat to unknown future women, whereas real women are now being left to hemorrhage, lose the functioning of their reproductive organs, or be popped onto helicopters to receive out-of-state stabilizing care, none of the life-and-death harms being experienced in red states around the country feel very theoretical to anyone who has thought about pregnancy in a serious way. Yet, for male justices more worried about harms to the spending clause, nothing about potentially lethal pregnancies warranted even a moment’s pause.

Wednesday’s case, Moyle v. United States, revolves around a clash between Idaho law and a 1986 federal statute called the Emergency Medical Treatment and Labor Act (or EMTALA). Idaho’s abortion ban has no exception for the health of the patient; rather, it criminalizes abortion unless it’s “necessary to prevent the death of the pregnant woman.” ***

When Solicitor General Elizabeth Prelogar had her turn at the lectern, she faced a barrage of questions from Justices Clarence Thomas and Neil Gorsuch about whether Congress had run afoul of the spending clause when it passed EMTALA, an issue that was not briefed and should not be in the case. Samuel Alito, who brought all of his dictionary-wielding and woman-erasing skills from his star turn in Dobbs to bear, devoted his time to defending the “unborn child” who—in his view—was the real goal of EMTALA’s drafters, laying the groundwork for fetal personhood arguments that were too radioactive even for Turner to take on. Alito hectored Prelogar about her grasp of preemption, her reading of text, and her understanding of the term “unborn child,” casting her as some drunk lunatic who had staggered into court without any comprehension of the law.

Throughout the day doctors were referenced as “he” whereas every nurse was a “she.” Women were, as Alito conceded, “individuals,” but man, oh man, are they ever whiny and demanding. Alito also breathlessly cited Ronald Reagan as the deity who signed EMTALA and would never have wanted it to undermine the precious rights of “unborn children.” And a little “temporary” organ damage, he mused, might not be so bad if suffered for the benefit of a fetus. The task fell to Kagan to remind everyone that in the few months that Idaho has enforced its near-total ban, six women have already been airlifted to other states to receive emergency abortions that are criminal under Idaho law. Real women, flown out in great pain and at great expense, to get treatment that is objectively recognized as the standard of care

 

 

Study Finds that Effects of California's Paid Family Leave Act Did Not Help Women's Careers and Gender Pay Gap

Martha Bailey, Tanya Byker, Elena Patel, Shanthi Ramnath, The Long-Run Effects of California's Paid Family Leave Act on Women's Careers and Childbearing: New Evidence from a Regression Discontinuity Design and U.S. Tax Data" 

We use administrative tax data to analyze the cumulative, long-run effects of California's 2004 Paid Family Leave Act (CPFL) on women's employment, earnings, and childbearing.***

A growing body of evidence suggests that the gender gap in pay emerges abruptly at motherhood, as new mothers work less for pay in order to increase their caregiving at home. These differences are also evident in U.S. tax data, which show that the “child penalty” for women in annual wage earnings grows sharply after their first child is born.

Academics and policymakers have mobilized around this issue, citing the absence of paid family leave in the United States as a major obstacle to gender equity in the labor market. Paid family leave policies, they argue, could enable workers to take longer leaves to care for newborns instead of dropping out of the labor force. Remaining attached to employers could help workers retain job- and firm-specific human capital and decrease skill depreciation, minimizing wage losses due to caregiving. Because more women leave the labor force than men for caregiving reasons, formalizing paid leave policies could narrow the gender gap in pay.***

Our findings challenge the conventional wisdom that paid leave benefits improve women’s short- or long-term career outcomes. In fact, CPFL significantly decreased employment and earnings of first-time mothers in the short run. First-time mothers taking up paid leave under CPFL were 6 percent less likely to be employed and earned 13 percent less during the first three years after giving birth. Moreover, we find evidence that these earnings effects persisted, with wage earnings remaining 13 percent lower nine to 12 years later.

The Ethical and Practical Significance of Narratives in Court Cases

Sharon Bassan, Implicit Narratives About Women, Drexel University, Research Paper Series, forthcoming 

In the dynamic landscape of legal academia, narrative analysis emerges as a captivating and essential avenue of exploration. Narratives shape laws, policies, and societal norms, urging readers to recognize the profound influence of stories in the often-overlooked realms of legal discourse. Yet, the realm of storytelling, particularly within the nuanced sphere of court rulings, often goes unnoticed. The article takes the reader on an intellectual journey, delving into the intricate world where legal, ethical, and feminist perspectives converge with the power of storytelling, where narratives wield transformative power. It offers critical reading of the rhetoric and narratives in two legal cases that address the constitutionality of restricted access to reproductive practices. The first, a Supreme Court ruling from Israel, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, the ruling of Dobbs v. Jackson Women's Health Organization. At first glance, it may seem like another article on reproductive technologies. Well, it isn’t. The article contends that the narratives woven within legal proceedings are not mere rhetorical devices but wield ethical and practical significance. Focusing on the importance of the narrative in court and what they imply about women in society the article carves out the implicit image of women as implied by the narratives in the courts’ ruling and considers the rulings’ potential to affect women’s life opportunities. This analysis serves as a methodological tool to uncover the underlying values, assumptions, and narratives that courts both rely upon and, perhaps more significantly, dismiss.

Findings expose tensions between women’s rights and life opportunities and competing interests – those of single men to be parents (in the Israeli case) and those of fetuses (in the Dobbs case). The analysis shows a similar use of narratives in both contexts - systematically downplaying women’s interests, restricting their opportunities and minimizing their autonomy. The realistic analysis advocated for in the article emphasizes the imperative of adopting a women-focused narrative when discussing reproductive practices performed on women's bodies. The failure to do so, the article argues, carries far-reaching ramifications on women's experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights, and the future implications they entail.

The Ethical and Practical Significance of Using Feminist Narratives in Court Cases

Sharon Bassan, Implicit Narratives About Women, Drexel University, Research Paper Series, forthcoming 

In the dynamic landscape of legal academia, narrative analysis emerges as a captivating and essential avenue of exploration. Narratives shape laws, policies, and societal norms, urging readers to recognize the profound influence of stories in the often-overlooked realms of legal discourse. Yet, the realm of storytelling, particularly within the nuanced sphere of court rulings, often goes unnoticed. The article takes the reader on an intellectual journey, delving into the intricate world where legal, ethical, and feminist perspectives converge with the power of storytelling, where narratives wield transformative power. It offers critical reading of the rhetoric and narratives in two legal cases that address the constitutionality of restricted access to reproductive practices. The first, a Supreme Court ruling from Israel, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, the ruling of Dobbs v. Jackson Women's Health Organization. At first glance, it may seem like another article on reproductive technologies. Well, it isn’t. The article contends that the narratives woven within legal proceedings are not mere rhetorical devices but wield ethical and practical significance. Focusing on the importance of the narrative in court and what they imply about women in society the article carves out the implicit image of women as implied by the narratives in the courts’ ruling and considers the rulings’ potential to affect women’s life opportunities. This analysis serves as a methodological tool to uncover the underlying values, assumptions, and narratives that courts both rely upon and, perhaps more significantly, dismiss.

Findings expose tensions between women’s rights and life opportunities and competing interests – those of single men to be parents (in the Israeli case) and those of fetuses (in the Dobbs case). The analysis shows a similar use of narratives in both contexts - systematically downplaying women’s interests, restricting their opportunities and minimizing their autonomy. The realistic analysis advocated for in the article emphasizes the imperative of adopting a women-focused narrative when discussing reproductive practices performed on women's bodies. The failure to do so, the article argues, carries far-reaching ramifications on women's experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights, and the future implications they entail.

Law Scholars File Amicus Arguing to Overturn Dobbs in the Idaho Emergency Abortion Case

David Cohen, Greer Donley & Rachel Rebouche, Amicus Brief, Moley v. U.S.

INTRODUCTION AND SUMMARY OF ARGUMENT

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), should be overruled. This case presents the Court with an appropriate vehicle to correct its unworkable and calamitous ruling from two years ago. This case addresses whether the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd, preempts Idaho Code § 18-622’s prohibition of abortion when abortion is necessary to stabilize a pregnant patient in crisis at an EMTALA-covered hospital. Only a handful of states, including Idaho, lack a health exception in their abortion bans, prohibiting emergency care that federal law demands certain hospitals provide. This failure to assure minimal protections to pregnant women’s health has devastated reproductive health care in states with abortion bans and demonstrates a race to the bottom that is sowing enormous chaos and discord. ***

In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current case, and between and among states. These conflicts are proliferating because of the Pandora’s box of constitutional questions Dobbs opened,
implicating travel, federalism, extraterritorial jurisdiction, preemption, and federal executive power. Less than two years after it was decided, it is evident that Dobbs has proven unworkable and should be overruled.

Symposium, Securing Reproductive Justice After Dobbs, in Journal of Law, Medicine & Ethics

Aziza Ahmed, Nicole Huberfeld & Linda McClain, Introduction: Securing Reproductive Justice After Dobbs, 51 Journal of Law, Medicine & Ethics 463 (Fall 2023)

By overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and throwing the question of how to regulate abortion to the “people and their elected representatives,” Dobbs v. Jackson Women’s Health Organization radically reset the legal, ethical, medical, public health, and political landscape. This introduction to a special multidisciplinary symposium, “Seeking Reproductive Justice in the Next 50 Years,” in the Journal of Law, Medicine, & Ethics, sets the stage for the twenty-five symposium articles that map and document the post-Dobbs landscape. Dobbs has already had dire and far-reaching effects on the legal regulation of pregnancy and reproduction. In this new landscape, questions arise about how to secure reproductive justice and about what strategies and approaches hold promise. This essay introduces the several organizing parts of the symposium, Beginnings, Social and Legal Dimensions of the Post-Dobbs Health Care Environment, Legal Regulation of Pregnancy and Reproduction, and New Strategies and Approaches. We explain how each article contributes a critical aspect of the bigger picture, demonstrating the need for working across disciplines.

I was glad to be a part of this symposium. See Tracy Thomas, Protecting Abortion with State Health Care Freedom of Choice, 51 J. Law, Medicine & Ethics 601 (2023).

Laura Portuondo on "Gendered Liberty"

Laura Portuondo has posted Gendered Liberty on SSRN. This article is forthcoming in the Georgetown Law Review in 2024. The abstract previews: 

Individual liberty is ascendant in constitutional law, but only for some. First Amendment doctrine has increasingly protected liberty interests in conduct linked to conscientious identity, as exemplified by newly successful claims to religious exemptions from antidiscrimination law. This contrasts with shrinking Fourteenth Amendment protections for liberty interests in conduct linked to gender identity, as exemplified by the recently eliminated right to abortion and imperiled rights to contraception, marriage, and sexual intimacy. More muscular protections for conscientious liberty have diminished even statutory protections for gender-related conduct. The result is a liberty jurisprudence that increasingly protects conservative religious objectors, even as it increasingly dismisses marginalized gender groups. This Article argues that this disparity is neither a requirement of constitutional doctrine nor an extension of a neutral theory of liberty. Instead, it emerges from a gendered theory of liberty: one that protects the freedom to enforce traditional ideas about gender and denies the freedom to challenge them.

By describing gendered liberty, this Article shows that the fall of liberty under the Fourteenth Amendment and its rise under the First Amendment are symbiotic. These doctrines work together to launder controversial judgments about the value of gender nonconformity into seemingly neutral stories about liberty. In doing so, they permit the Supreme Court to subordinate the autonomy and self-determination of those who would defy gender stereotypes to that of those who would enforce gender stereotypes. More importantly, they permit the Supreme Court to deny that it is engaged in a project of subordination at all. This Article resists these claims of neutrality and the stories about liberty they rely on by showing that liberty includes those who do not conform to gendered expectations.

Alabama Passes Legislation to Protect IVF Treatment in Light of State Supreme Court Ruling on Embryos

Wash Post, Alabama Lawmakers Pass Legislation to Protect IVF Treatment

The Alabama legislature voted Thursday to protect providers and patients doing in vitro fertilization from criminal or civil liability if embryos they create are subsequently damaged or destroyed.

The fast action by both the House and Senate on bills to shield IVF came less than two weeks after the state’s Supreme Court ruled that frozen embryos are people and that individuals could be liable for destroying them. The unprecedented decision, which gave fertilized eggs the same protection as babies under the state’s Wrongful Death of a Minor Act, threw IVF treatment in Alabama into turmoil.

Within days, nearly every clinic in the state either suspended IVF or halted embryo disposal. Some women in the middle of treatment fled the state after securing care from out-of-state providers. Many others feared that their significant emotional, physical and financial investment in having a child would be for naught.

Kenya Court Affirmed the Right to Respectful Maternal Care

The Center for Reproductive Rights reports on a victory in Kenya's Court of Appeals. The facts of the case are excerpted from the opinion here: 

a. She was admitted to the hospital – and the hospital was overstretched to the extent that she had to share a bed with another patient;

b. She had to purchase her own drugs and cotton wool despite the government policy and Presidential directive that maternity services were free of charge;

c. She gave birth on the floor, in the corridor of the hospital, and without assistance;

d. She underwent physical and verbal abuse at the hands of the two nurses who attended to her when she fell unconscious on the floor;

e. She was forced to carry her un-expelled placenta back to the delivery room in further act of cruelty and humiliation;

f. She was not informed of the process she could use to file any grievance she had. 

The court held: 

28.The inevitable conclusion is that, upon an independent review of the evidence presented to the trial court, Josephine sufficiently proved her factual claims. The question that follows this conclusion is whether the facts, as proved, demonstrated constitutional violations to entitle her to the declarations the court made in her favour and against the appellants.

 

29.It is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution. That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of the right that must be realizable immediately and not progressively. The minimum core of a woman’s right to respectful maternal care during child birth must, as the trial court expounded, include

a. The right to be free from physical violence and verbal abuse during labour and childbirth;

b. The right to be free from discrimination during labour and childbirth;

c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.

Ziegler, Cahn, and Suter on "The Massive Legal Fallout from Alabama's IVF Ruling"

Mary Ziegler, Naomi Cahn, and Sonia Suter have published a commentary with MSNBC titled The Massive Legal Fallout from Alabama's IVF Ruling is Just the Beginning. The full published opinion from the Alabama Supreme Court can be accessed here. The Court held that "[t]he central question . . . is whether the Act contains an unwritten exception to that rule for extrauterine children -- that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location."

Ziegler, Cahn, and Suter preview the problematic breadth of this holding. Here is an excerpt: 

Increasingly, since the Dobbs ruling, states like Alabama put a high price tag on pursuing justice for reproductive harms. While the unintentional destruction of embryos that occurred in this case was well-suited to some sort of legal remedy, it seems perverse to choose between a punitive vision of fetal rights and restitution for those grieving the loss of potential parenthood. There are remedies that don’t go all the way to personhood. Even in the Alabama case, the plaintiffs had other claims unrelated to personhood. Others have claimed breach of contract, malpractice, and even loss of the right to become a parent. 

 

Instead, the state court turned a case about three couples’ grief into an opportunity to proclaim the close relationship between Christianity and state constitutional law — and to advance an idea of personhood that so-called abolitionists in the anti-abortion movement argue requires the punishment of women themselves. Strikingly absent from the court’s decision, however, is a meaningful discussion of what the decision means for those who seek to become parents – or for those who don’t. 

Challenging the Misuse of Women’s Legal History to Support Anti-Abortion Regulation

It looks like it is time again to reup this article I wrote over a decade ago disputing the use of women’s legal history to claim that nineteenth-century feminist pioneers like Elizabeth Cady Stanton advocated against abortion. Tracy Thomas, Misappropriating Women's History in the Law & Politics of Abortion, 36 Seattle L. Rev. 1 (2012). I also discuss the issue further in my book, Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Post-Dobbs, anti-choice writers have once again resurrected the erroneous claim that Stanton, and other historical feminists like Victoria Woodhull, actively opposed abortion. Erika Bachiochi & Rachel Morrison, Dobbs, Equality and the Contested Meaning of Women's Rights (Texas Review of Law & Politics, forthcoming).

My conclusion as to Stanton was to the contrary. I found that a close look at the historical record shows that Stanton supported—not opposed—women’s right to engage in voluntary, enlightened motherhood by choice. And she opposed state regulation of women’s private decisions and autonomy. Stanton actually said very little about abortion at all, a handful of comments over fifty years, in contrast to her thousands of speeches, writings, and interviews advocating many other demands for women’s rights for social, political, family, and economic citizenship. Instead, Stanton merely used the public debate swirling around abortion triggered by the new criminalization of abortion in the late 1860s as an avenue to voice her other demands for women’s equality, enfranchisement, autonomy, and opportunity.

Ohio AG Keeps Lawsuit Alive Defending 6 Week Abortion Ban Even After Voters Passed Constitutional Amendment for Reproductive Freedom

News 5 Cleveland, Ohio AG Fighting for "Other Provisions" in 6-Week Abortion Ban, Maintains Ban is Unconstitutional

Ohio Attorney General Dave Yost asked that the Hamilton County Court of Common Pleas throw out a lawsuit that would eliminate the six-week abortion ban, just months after saying that said ban would be void if voters chose to legalize and protect access to abortion.

Now, Yost’s team is explaining that although the filing has no explicit mention of this, the AG only wants to fight for "other provisions" — and not the ban itself.***

The AG’s office filed a procedural document Friday that responds to all claims that were made by six-week ban challengers, including Planned Parenthood and the ACLU of Ohio, and indicates arguments the office will make throughout the life of the lawsuit.

The response by the Attorney General’s Office is a common legal document that is required as part of the legal process, according to Case Western Reserve University constitutional law professor Jonathan Entin.

“The lawyer's job is to provide the strongest case with the strongest set of arguments available on behalf of the client's position,” Entin said. “The attorney general's client is the state.”

Tracy Thomas, University of Akron director of constitutional law, said it came as a surprise that the state attorney is continuing the lawsuit fight to try to save the law.

“Given the vote [on Issue 1], given the governor saying ‘we’re going to respect the vote,’ I think what was expected was not keeping this lawsuit going,” Thomas said.

Immediately after the abortion amendment passed, DeWine told News 5 that he did “certainly accept the results of Issue 1 in Ohio.”” 

But given the polarizing politics on the issue of abortion rights, Thomas said keeping the lawsuit going, if just to delay a ruling until more legislative decisions on reproductive rights can be made, could be one strategy at play.

“Laws and constitutions are only as good as the courts enforcing them,” she said.

Pennsylvania Supreme Court Rules that Prohibition of Medicaid Funding for Abortions Violates the State Equal Rights Amendment

The Supreme Court of Pennsylvania issued its long-awaited decision ruling that prohibiting state Medicaid funds from funding abortion discriminates on the basis of sex in violation of the state's Equal Rights Amendment. 

Allegheny Reproductive Health Center v. Pennsylvania Dep't of Human Services

Protecting Abortion With Health Care Freedom of Choice

Tracy Thomas, Protecting Abortion with Health Care Freedom of Choice, 51 Journal Law, Medicine & Ethics 601 (2023)

With the Supreme Court overturning the fifty year federal constitutional right to abortion recognized in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey, the question returns to state courts and legislatures. One potential avenue for future protection lies in state constitutional provisions. These issues are being litigated in court, and activists in several states have successfully put express constitutional amendments for abortion on the ballot. Concurrently with the previously-recognized federal right, fourteen states had recognized a right to abortion under state constitutional guarantees of equal protection, liberty, autonomy, and/or privacy. Post-Dobbs, there is renewed interest in utilizing these potential foundations for the abortion right under state-specific guarantees.

One possible avenue for recognizing a state constitutional right to choose an abortion may be found in rights to health care. Four states have express constitutional guarantees of freedom of choice in health care, and three states have recently proposed such amendments. Four other states have statutory provisions of health care freedom expressing policy that could be used to interpret constitutional rights of liberty to protect abortion. Courts in Ohio, Wyoming, and Montana have applied their health care freedom amendments to protect the liberty interest in choosing an abortion. These cases offer an example of how to protect abortion as a health care right.

SCOTUS Grants Cert in Case of Idaho Abortion Ban and Federal Requirement of Emergency Room Procedures

Wash Post, Supreme Court to Decide if U.S. law Requires Some Emergency Room Abortions

The Supreme Court said Friday it will review a case challenging Idaho’s strict abortion ban, which the Biden administration says conflicts with a federal law requiring emergency room doctors to perform the procedure in some circumstances.

Idaho’s attorney general asked the justices to intervene after a lower-court judge blocked a section of Idaho’s abortion statute targeting doctors. The judge said the provision violates a federal law that requires hospitals receiving Medicare funding to guarantee emergency care. In its brief order Friday, the justices allowed the Idaho law to take full effect for now and said they would review the matter on an expedited basis in April.

The Biden administration turned to the Medicare law as a narrow way to challenge state-level abortion bans in federal court after the Supreme Court’s conservative majority overturned the fundamental right to an abortion established decades earlier in Roe v. Wade. The effort was seen as one of the few paths the administration could pursue to preserve access to abortion, which remains a galvanizing and divisive issue across the country in the lead-up to the 2024 presidential election.