Gender and the Law Blog

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.

Ohio's Reproductive Freedom Amendment Takes Effect, but the Fight Over Access Continues

Ohio's Abortion Protections Take Effect, but the Fight Over Access Continues

One month after Ohioans voted to protect abortion access, the constitutional amendment goes into effect Thursday — and while Republican leaders have mostly backed off plans to undermine the amendment in the near term, proposed legislation and pending litigation could still determine the scope of access. 

In the November elections, about 57 percent of Ohioans voted to approve Issue 1, which enshrined the right to abortion until the point of fetal viability, as well as access to contraception, miscarriage care and fertility treatment in Ohio’s Constitution. In Ohio, as of Thursday, abortion is legal up to 22 weeks, which has been the case since the state’s six-week ban was put on hold by the courts in September 2022.***

The GOP push to block Issue 1 started when Republicans put a separate measure onto August ballots that would have raised the threshold to pass citizen-offered constitutional amendments, including Issue 1; Ohioans soundly rejected that effort. Within hours of the November vote, Republican Senate President Matt Huffman told reporters it was the “beginning of a revolving door of ballot campaigns to repeal or replace” it,  perhaps with another amendment that would implement a 15-week abortion ban. Then, far-right state Rep. Jennifer Gross, who represents an exurban district outside Cincinnati, announced an effort to strip the judiciary of its jurisdiction over the abortion amendment as an end-run around courts inclined to uphold the state constitution.

Other Republicans in the state have rejected proposals that would ignore the will of Ohio’s voters — but some still expressed their openness to other ways to restrict abortion. Gov. Mike DeWine, for example, said that once Issue 1 took effect, voter sentiment may change and open the door to a different amendment or new abortion laws.***

Ohio still has many abortion laws on the books that weren’t automatically nullified by Issue 1. Some, like the six-week abortion ban that was already put on hold by courts before the amendment passed, are currently being litigated — the Ohio Supreme Court has asked both sides of the case to submit briefs Thursday on Issue 1’s impact on the so-called heartbeat ban. A 20-week ban passed in 2016 — interpreted as allowing abortion up to 21 weeks and 6 days — is still in place, as is a 2019 prohibition on dilation and extraction, an abortion method most commonly used in the second trimester of pregnancy. Another law prohibits doctors from performing abortions requested due to a Down syndrome diagnosis for the fetus. A 2013 law that led to multiple clinic closures requires all abortion clinics to have transfer agreements with private hospitals.

Where Things Stand on Opposition to Implementation of Ohio's New Reproductive Freedom Constitutional Amendment

Julie Carr Smyth & Christine Fernando, AP, Voters Back Abortion Rights, but Opponents Won't Relent.

As voters in state after state affirm their support for abortion rights, opponents are acting with escalating defiance toward the democratic processes and institutions they perceive as aligned against their cause.

Certain Republican elected officials and anti-abortion activists around the country have responded to losses at the ballot box by challenging election results, refusing to bring state laws into line with voter-backed changes, moving to strip state courts of their power to consider abortion-related laws and challenging the citizen-led ballot initiative process itself.

“We.Are.Not.Done.,” Ohio state Rep. Jennifer Gross declared on the social media platform X two days after voters enshrined the right to abortion in the state constitution earlier this month. She and 25 other Republican lawmakers vowed to block the amendment from reversing Ohio’s existing abortion restrictions.

A strong majority of Ohio voters passed the amendment, by roughly 57% to 43%. In response, the group of lawmakers said in a joint statement: “We will do everything in our power to prevent our laws from being removed based upon perception of intent.”

Gross joined three fellow Republicans to go even further, proposing legislation to prevent Ohio courts from interpreting any cases related to the abortion-rights amendment, known as Issue 1. Similar efforts have emerged in six other states since state courts became the new abortion battleground after the Dobbs decision on June 24, 2022, that overturned Roe v. Wade.

Douglas Keith, senior counsel to the Brennan Center for Justice’s Judiciary Program, said abortion politics prompted successful efforts to limit the power of state courts in Montana and Utah and unsuccessful legislation in Alaska and Kansas. Such bills are attempts to dismantle the government’s system of checks and balances, he said.

See also The Fight for Abortion Access in Ohio Isn't Over and Analysis: OH Legislature Threatens Jurisdiction Stripping to Prevent Enforcement of New Constitutional Amendment

 

Ohio Senate Leader Says After Issue 1 Vote, Abortion Won't be Back on the Ballot Soon

The Republican leader of the Ohio Senate says he doesn’t want an abortion amendment to change parts of Issue 1 passed by voters earlier this month to go before voters soon.

On Election Night, Senate President Matt Huffman (R-Lima) issued a statement saying he thinks there would be a “revolving door of ballot campaigns to repeal or replace Issue 1.” But Huffman said that doesn’t mean he wants to see another abortion amendment on the ballot right away.

“I don’t think there, certainly, should be anything on the ballot, certainly in '24 and we will have to see about that going forward," Huffman said.

Ohio's 2024 primary is in March, and the contests for the Republican nominations for president and U.S. Senate are likely to bring out GOP voters. But Huffman said, "I didn't say anything about putting something on the ballot in March."

Abortion also played a key role in the August special election, in which voters rejected a proposal to require 60% voter approval to pass future constitutional amendments. The abortion and reproductive rights amendment passed with just under 57%.

House Speaker Jason Stephens (R-Kitts Hill) and Gov. Mike DeWine, who both strongly opposed Issue 1, have also said an abortion issue shouldn’t be on the ballot next year.

 

Ohio's Top Court to Consider How Issue 1 Affects Six-Week Abortion Ban                                                                                   

The Ohio Supreme Court, which has been considering a technical question about the state's ban on abortion after six weeks, asked the parties involved in the lawsuit to file written arguments on the impact of a constitutional amendment approved by voters last week.

    

Analysis: Ohio Legislature Threatens Jurisdiction Stripping to Prevent Enforcement of New Constitutional Right to Reproductive Freedom

In November, people in Ohio passed an initiative for Reproductive Freedom of abortion, contraception, and reproductive rights by 57%. The initiative was proposed by a public petition process, where pro-choice supporters from the medical profession led the petition signing campaign to get the amendment on the ballot.

Maneuvers to Defeat Reproductive Freedom Amendment

The Ohio legislature and executive, Republican controlled, tried many maneuvers to defeat this amendment. The legislature added an August special election to change the standard for passing a constitutional amendment by initiative from 50% to 60%. After prohibiting special August elections the year before. The voters rejected that change in the one-hundred year standard by 57%. Then the Secretary of State “summarized” the actual language of the amendment in ways that suggested abortion would be freely allowed any time (while the amendment expressly says prohibitions are allowed after fetal viability) and changed fetus to “unborn child.” One poll showed this impacted 5% of the voters, particularly men and conservative women in the middle, who would have withdrawn their support based on the language. Then the Attorney General issued an “explanation” of the amendment that called it an extreme law that established a new level of “exclusive scrutiny” under the constitution never before seen. Even though the amendment is a reasonable restoration of the prior balance of Roe and state law drawn at viability and applying strict scrutiny. The Governor advocated strongly against the amendment, calling it extreme and jeopardizing parents’ rights over minors’ abortions. See Jessica Bulman-Pozen & Miriam Seifter The Right to Amend State Constitutions, Yale L.J. Forum (Nov. 10, 2023) (discussing larger trend of  maneuvers to block the right to amend). 

After the passage of amendment, the Governor announced he accepted the results of the election and recognized the amendment. “He said along with the rest of Ohioans, the state will wait to see how the constitutional amendment is applied.” “I always said that all of at least can be up to the courts," DeWine said. "So these things will have to play out in the court of law. So we will we'll see how they how they play out and what the courts decide."

Repeal or Replace

There have been some hints of new amendments to be quickly proposed to “repeal or replace” the 2023 Amendment. Reproductive Freedom Wins in Ohio. But That's Not the End of the Story.  Ohio has no regulatory limits on new amendments, unlike some states that have laws prohibiting these types of immediate proposals. Seven states have limits on repeat measures, typically temporal restrictions that prevent similar measures within 2 to 3 years.

Ohio has some precedent on this type of repeal. Ohio’s constitution originally banned gambling. But in 1973, voters approved a state lottery. Between 1973-2009, four initiatives failed to approve casinos, with one barely passing in 2009.

A similar back and forth happened with women’s presidential suffrage in 1917. Presidential suffrage was a partial suffrage measure granting women the right to vote in presidential elections. The legislature passed a bill authorizing presidential suffrage. But opponents, most from the liquor industry fearing women voters would vote for prohibition, quickly put together an initiative to repeal the law. Women suffragists led by attorney and later Judge Florence Allen challenged the petition signatures as fraudulent. But the amendment was placed on the ballot and strongly passed, thus overturning women’s limited suffrage. See Tracy Thomas, The Jurisprudence of the First Woman Judge, 27 William & Mary J. Race, Gender & Social Justice J. 293, 316-17 (2001).

Threats of Jurisdiction Stripping

However, the legislature has not. A significant minority of legislators issued a statement saying they intend to strip courts of jurisdiction to hear cases about the amendment. See Ohio GOP Lost on Issue 1. Now Some Want to Strip Power Over Abortion Laws from the Courts. “Jurisdiction” is a court’s power or authority to consider a case. What this proposal does is prevent courts from enforcing the amendment by injunction and by declaring laws in contravention of the Reproductive Freedom Amendment unconstitutional. Because these legislators have indicated they will not recognize or enforce this right.

The Ohio legislative group issued a statement saying it would pass a bill saying that the state courts and/or Supreme Court could not hear cases about reproductive rights and/or would limit enforcement remedies like injunctions and contempt it could award. “The draft proposal from Rep. Jennifer Gross (R-West Chester) said state lawmakers would have exclusive authority over implementing Issue 1, with all jurisdiction withdrawn from local and state courts. It also would order the immediate dismissal of lawsuits, and violations by judges would be impeachable offenses.” Id.

 "It's even more extreme than I expected. A better title would be the Issue 1 Non-Implementation Act," said Steven Steinglass, dean emeritus at the Cleveland State College of Law and wrote the best known book on Ohio’s constitution.

Steinglass said the draft proposal violates the state's constitution in several ways. He said it goes against the new reproductive rights amendment, it violates the constitutional role given to the judiciary to interpret constitutional issues and goes against principles of separation of powers. He said it violates due process at the state and federal level, and he also said it arguably violates equal protection laws.

"So it seems to me that legally it really is and should be a non-starter," Steinglass said. Id.

 The Unconstitutionality of Jurisdiction Stripping

Jurisdiction stripping is a political tool from conservative playbooks to limit judicial action on social issues. In the 1980s, federal Congress members proposed bills to remove or limit the power of the U.S. Supreme Court to adjudicate issues of abortion, desegregation busing, and school prayer. Four bills were introduced in 1981 specifically to limit jurisdiction over abortion in opposition to Roe v. Wade. Chief Justice Roberts, then working as a lawyer in the Senate, did the research endorsing this approach. (And recently, liberals have grabbed on to jurisdiction stripping as a court-reform strategy to limit the impact of the current Supreme Court).

Jurisdiction stripping assumes that the legislature has power to dictate the jurisdiction of the courts, and thus has the power to limit that jurisdiction. At the federal level, this is Congress’ power under Article III of the Constitution to create the appellate jurisdiction of the U.S. Supreme Court with exceptions and its power over the lower courts.

However, jurisdiction stripping is blatantly unconstitutional conduct. It violates separation of powers, one of the key principles of the U.S. Constitution establishing three branches of government with checks and balances on each. Eliminating jurisdiction from courts over targeted controversial issues encroaches on the legislature’s power to interpret the law and check the excesses of the legislature. It threatens the rule of law itself if the dialogue with the judicial branch is strangled and legislatures are unaccountable to constitutional rights.

The potential power of jurisdiction stripping is also different whether a statutory or constitutional right is at issue. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 U.C. Davis L. Rev. 673 (2001). There is some support for the argument that legislatures can remove or limit jurisdiction or remedies for statutory rights, because they created those very statutory rights and could eliminate those rights completely. Id. at 696. However, constitutional rights are superior paramount rights that are not created by the legislature. The legislature cannot eliminate or change that constitutional right short of subsequent constitutional amendment. Without the power to change the right, there is no power to change the procedure, remedy, or jurisdiction over that right.

How the Supreme Court's History and Tradition Test Threatens Women's Rights and Safety

Melissa Murray & Kate Shaw, The Conservative Supreme Court Vision That Means Inequality for Women

But even if the court upholds the challenged law, it seems unlikely that it will address the broader issue at the heart of this case: whether and how a long-distant past constrains present-day policymakers, and particularly the impact of such an interpretive approach on women.

The court made clear its commitment to a history-and-tradition-bound method of constitutional interpretation in June 2022 when it announced its decisions in the gun-regulation case New York State Rifle and Pistol Association v. Bruen as well as in the case that overruled Roe v. Wade, Dobbs v. Jackson Women’s Health Organization.***

The requirement that present-day gun laws resemble gun laws of the distant past prioritizes history and tradition in much the same way the Dobbs court looked to the historic regulation of abortion, pregnancy and birth to support the view that the Constitution did not protect a right to abortion.

In this regard, Rahimi is not only a sequel to Bruen, but also a sequel to Dobbs. Rahimi has little to do with abortion rights, but as Solicitor General Elizabeth Prelogar noted in her stirring defense of the gun law on Tuesday, the court’s decision will have real consequences for women’s safety, as well as the safety of police officers who respond to domestic violence calls and the broader public. The court may seem poised to uphold the law, but the conservative justices did not appear interested in revisiting the history-and-tradition test announced in Bruen.

Only Justices Elena Kagan and Ketanji Brown Jackson appeared openly skeptical of the test. In one remarkable back-and-forth with attorneys for both sides, Justice Jackson, who was not a member of the court when Bruen and Dobbs were decided, said that she was “trying to understand if there’s a flaw in the history-and-traditions kind of framework to the extent that when we’re looking at history and tradition, we’re not considering the history and tradition of all of the people but only some of the people.”

Prabha Kotiswaran on "Laws of Social Reproduction"

Prabha Kotiswaran has published Laws of Social Reproduction in volume 19 of the Annual Review of Law and Social Sciences. The abstract states: 

Feminists have long demonstrated the invisibility of women’s reproductive labor, performed in bearing and raising children, maintaining households, and socially sustaining male labor. Every wave of feminist struggle from the late nineteenth century onward has actively queried the inequalities that characterize women’s performance of such work, variously referred to as unpaid domestic and care work, domestic labor, or care work. Robust traditions of scholarship on women’s unpaid work animate various disciplines, often spilling into political struggles for adequate recognition of this work. As the pandemic has rendered visible once again the reproductive labor of women the world over, this article offers an overview of social reproduction theory, feminist legal theorizations of reproductive labor, and how we might recuperate a rich tradition of theorizing on social reproduction to develop a materialist approach to law’s regulation of reproductive labor across the marriage-market spectrum with a view to social and economic justice.

Reproductive Freedom Wins in Ohio, but That's Not the End of the Story

Ohio's Reproductive Freedom Amendment enshrining in the state constitution the protection of an individual's choice of abortion and contraception won at the polls yesterday 56% to 43%. See Ohio Votes Continues a Winning Streak for Abortion Rights, NY Times.

However, that is not the end of the story.

Repeal and Replace

State legislators State legislators have already claimed they will be moving to "repeal and replace" the amendment. This is a legal reality of the state constitutional amendment process. The legislature or public initiatives can continue to put amendments on the ballot.  These could be replacements, for example proposing a narrower law of 15 weeks with certain exceptions-- the approach advocated by the Virginia Republican Governor. Or these could be outright appeals seeking a redo on the amendment that just passed. Whether this is an effective political strategy is another question. 

There is some Ohio precedent for this repeal and replace, though not exactly on point. Women's suffrage fell at the vicissitudes of repeat amendments.  A constitutional amendment proposed by the legislature failed in 1912. A constitutional amendment proposed by popular initiative failed worse in 1914. Then the legislature passed limited suffrage of presidential suffrage, to vote in presidential elections, in 1916. But a public initiative put the repeal of that law on the ballot and it passed, thus ending limited women's suffrage. Another example of repeal and replace was Prohibition, which failed at the state level many times, then passed, then was repealed from the state constitution many years later.

Still, the state constitutional amendment for reproductive right is the best approach that can be used at the state level after Dobbs. It is more stable than a court opinion, which can be appealed or changed based on the distinctions of specific cases. The amendment is also more stable than a statutory law, which can be changed by a subsequent legislature. But it is not as guaranteed as a federal constitutional right, which theoretically is not up for reconsideration each term -- but which proved that it too was not impossible to change. 

Federal Oversight

The Ohio reproductive freedom amendment could also be threatened by a federal law restricting abortion. This might be Congress' proposed 15 week ban. Federal law preempts state law in the same field, as we saw with the federal health insurance mandate and state constitutional amendments rejecting that mandate. Opponents did try to "repeal and replace" the health insurance law. A preemption abortion federal rule might also come from a fetal personhood decision by the Supreme Court, a move advocated by pro-life groups that would likely ban most abortions. Of course, a federal law from Congress could also be protective of reproductive freedom, which would control over any restriction passed by a state. 

Ongoing Litigation

Given the movement to repeal and replace, the ongoing litigation in the challenge to Ohio's 6 week abortion ban might continue to be relevant. In Preterm Cleveland v. Yost, a trial court held that Ohio's Constitution already protects abortion. The court cited the Ohio Constitution's liberty guarantees, due process, equality, and its unique Health Care Freedom Amendment (passed by voters challenging Federal Health Insurance in 2011) as synergistically protective of this choice. The case is pending in the Ohio Supreme Court on procedural challenges to the government's ability to file an interlocutory appeal and on standing of whether the providers are the proper parties to litigate. So maybe the case is not moot and will, or should, not be dismissed.

French President Moves to Enshrine Right to Abortion in Constitution

Macron Moves to Add Abortion to France's Constitution, Reacting to US, Wash. Post

President Emmanuel Macron on Friday submitted language for an amendment that would make France the first country to enshrine a right to abortion in its constitution.

Macron has declared on social media that by next year “the right of women to choose abortion will become irreversible.”

The push comes in direct response to the restriction of abortion rights in the United States.

Abortion in France has not been similarly under threat. The French public overwhelmingly supports abortion rights. Abortion is legal for any reason through the 14th week of pregnancy and fully covered by the country’s health insurance system.

But after the U.S. Supreme Court’s Dobbs ruling that overturned Roe v. Wade last year and allowed states to outlaw abortion, French women clamored to further protect their right.

In many countries, abortion is protected by law, not court decision

“The Dobbs case was very shocking in France,” said Mathilde Philip-Gay, a law professor at Jean Moulin Lyon 3 University. “A movement was born just after the case, and women asked Parliament to act and especially to change the constitution.” She noted that polls in the summer of 2022 showed that about 80 percent of the population supported abortion rights and a similar percentage was in favor of adding a right to abortion to the constitution.

Infant Mortality Rate Rises by 3%

The National Center for Health Statistics released data on infant mortality for 2022. The infant mortality rate in the United States rose from 2021 to 2022. Roni Caryn Rabin of the New York Times reports on these findings (November 1, 2023): 

The infant mortality rate — defined as the number of babies who die before they are a year old for every 1,000 live births — [] increased by a statistically significant 3 percent last year, to 5.6 infant deaths per 1,000 live births, up from 5.44 deaths per 1,000 live births in 2021 . . .

The mortality rate of babies who were between 4 weeks and a year old increased by 4 percent, while neonatal mortality rates — that of babies less than a month old — increased by 3 percent.

Rates increased significantly among both premature babies born before 37 weeks of gestation and those born extremely early, at less than 34 weeks of gestation.

Overall, the statistically significant increases in mortality rates were seen only among male infants, whose survival rates have always been slightly lower than those among females.

Black infants have the highest mortality rate in the United States, rising slightly last year to 10.86 deaths per 1,000 live births, from 10.55 deaths per 1,000 live births in 2021, an increase that was not statistically significant.

By contrast, the infant mortality rates of both white and Native American and Alaska Native babies increased by statistically significant amounts last year.

Clarifying What Is and Isn't Part of the Proposed Ohio Constitutional Amendment for Reproductive Freedom on the Ballot Next Week

In this interview with NBC News, I try to clarify what is--and isn't--part of the proposed Ohio Constitutional Amendment for Reproductive Freedom on the ballot next week.

Adam Edelman, NBC News Ohio GOP Candidate and Issue 1

 [As to claims the amendment is about parents' rights"]

 For one, they say, there is nothing in the text or in the intent of the proposed amendment that could affect the legal rights of minors or parents in Ohio. That’s because federal and state courts, going back decades, have upheld an existing Ohio law requiring parental consent for minors seeking abortion care.

A U.S. Supreme Court decision even upheld that law, which requires any unemancipated minor to receive consent from one parent or guardian or custodian, unless a judge has ruled that an abortion is “in the best interests of the minor.”

Tracy Thomas, director of the Center for Constitutional Law at the University of Akron Law School in Ohio, said there was "no conflict" between Issue 1 and existing minors' rights — "even when the amendment language is read broadly."

"We have 50 years of case law about minors' rights and parents’ rights," Thomas said.

Those rulings, she said, have determined that “even though individuals, including minors” have constitutional reproductive rights, “they can be more regulated than adults because minors are more vulnerable, more immature.” 

“There’s no reason that would change,” she said.

In a legal analysis of the measure published last month, even Dave Yost, a Republican and the state’s attorney general, acknowledged that the measure “does not specifically address parental consent.”

Thomas explained that the claim that a woman's rapist could somehow manipulate that law to force his victim to have an abortion is also false.

"They are saying that a rapist would be an accomplice who would be immune" — under a provision in the amendment language that protects a person who "assists" someone with receiving an abortion — "and that’s just not textually accurate."

“The amendment is not doing that in any way, shape or form," Thomas said.

That's because the amendment language also makes clear that an individual's right to reproductive care is protected only if it's "voluntary."

"Someone who is assisting in an abortion that’s not voluntary is not going to be protected by this at all," Thomas explained.***

“A parent who wants to support a minor’s decision to have an abortion cannot do so,” under the law, Thomas explained. “So, defeating it actually cuts into parents’ rights.***

But there is no mention of transgender rights or parental rights in the amendment. Legal experts say it would be wrong to interpret the language to apply to most topics not specifically mentioned in the measure’s language — even when the “not limited to” phrase is considered.

“Opponents have latched on to the ‘but not limited to’ language to say that this could provide a constitutional right to, among other things, gender-affirming care rights. That’s not a legally persuasive argument,” Jonathan Entin, a constitutional law expert and professor emeritus at the Case Western Reserve School of Law in Cleveland, told NBC News earlier this year.

That’s because courts have for decades developed rules about interpreting legal documents that include lists — including ones that have “but not limited to” language — dictating that such language covers things considered only “plausibly related” to the specific items mentioned.

See also Change in Ohio Ballot Language May Have a Big Effect on Support for Issue 1 Reproductive Freedom Constitutional Amendment

Tracy Thomas, Language post

Dan Kobil, Op ed, What Ohio's Proposed Abortion Amendment Really Does

The proposed Ohio amendment reinstates the freedoms that women -- and men -- had before Dobbs. It guarantees “individuals” the right to make their own reproductive decisions, and lists contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion, before viability. Viability means that the fetus has a “significant likelihood” of surviving outside the womb. The amendment will not automatically invalidate any existing Ohio laws apart from the current six-week ban.

Rather than engage the merits of the proposal, opponents have attempted to distract voters about what the amendment actually does. They contend that the amendment is aimed at depriving parents of their ability to help children decide whether to seek an abortion or “sex changes.”

This contention is highly misleading. Ohio’s current law already limits the ability of parents to choose reproductive options for their child, such as ending a pregnancy resulting from a rape. Moreover, the amendment does not include gender reassignment in its examples of protected “reproductive decisions.” The contention that “sex changes” will suddenly have constitutional status is thus a significant stretch.

And contrary to what is claimed by opponents, the amendment will not repeal Ohio’s existing law requiring parental consent for minors seeking abortions. This statute provides that an unemancipated minor must obtain the consent of one parent to obtain an abortion, unless a minor has obtained a court order that an abortion is in her best interests.

The amendment says nothing about this law, and it is unlikely that courts would invalidate parental consent if the amendment passes. In 1990, when Roe was in effect, the U.S. Supreme Court upheld Ohio’s parental consent rule. The amendment aims to reinstate the rights that Roe guaranteed