Thursday, September 8, 2022

A RESOURCE LIST of the NEW LEGAL, POLITICAL, and PRACTICAL ISSUES of ABORTION POST-ROE

Updated 9/28/22

Most recent news posted at top of each category.

 

It’s an all-out effort--legally, politically, and practically--as the country grapples with the legal and social effect of the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization holding there is no fundamental federal constitutional right to an abortion or reproductive choice.

This post identifies and summarizes the key areas of action now happening in the post-Roe world.

Many of these options present a ping-ponging potential—substantive changes back and forth as legislatures and executives change red and blue with each election

Legally

            New State Laws:

WV Lawmakers Pass Bill That Restricts Abortion With Narrow Exceptions (9/13/22)  

The First Abortion Ban Passed After Roe Takes Effect This Thursday in Indiana (9/20/22)

Joanna Grossman, The Trigger Has Been Pulled. Texas Law Takes Effect (8/25/22)

1 in 3 American Women Have Already Lost Abortion Access. More Restrictive Laws are Coming (8/23/22)

IN Becomes First State to Pass an Abortion Ban (8/10/22)

                        NYT, Tracking the States Where Abortion is Now Banned (9 states as of 6/27/22)

           Mary Ziegler, Why Exceptions for the Life of the Mother have Disappeared (8/2/22)    

           Guttmacher Inst., An Overview of Abortion Laws

Texas District & County Attorneys: TX Statutory Laws on Abortion After Dobbs

OH Statutory Framework of Abortion Laws After Dobbs

                        ABCNews, Abortions Now Banned in Ohio After "Fetal Heartbeat" is Detected

            Challenges to State Abortion Bans:

IN Judge Blocks Enforcement of Abortion Ban (9/23/22)

OH Judge Blocks Six-Week Abortion Ban for 14 Days (9/20/22)

A MI Law Criminalizing Abortion is Struck Down (9/8/22)

Judge Blocks Part of ID Abortion Law from Taking Effect (9/8/22)

Judge: Prosecutors Cannot Enforce MI's Abortion Ban (8/23/22)

ID Lawmakers Walk Back Abortion Crackdown to Assuage Judge (8/23/22)

Justice Dept Sues ID Over Abortion Ban (8/10/22)

MT Abortion Laws Remain Blocked During Legal Challenge (8/10/22)

Courts Deliver Mixed Rulings on Pro-Life Laws After Roe (8/2/22)

Sistersong Women of Color Reproductive Justice Collective v. Georgia (11th Cir. July 20, 2022)

State Judge Strikes Down Many of MN's Abortion Restrictions (7/11/22) 

LA Judge Allows Abortion Ban to Take Effect (7/8/22)

TX, OH Top Courts Allow Abortion Bans to Take Effect (7/6/22)

FLA Judge will Temporarily Block 15 Week Abortion Ban (7/3/22)

TX SCt Lifts Freeze on Abortion Ban (7/2/22)

OH SCt Rejects Request to Suspend State's 6 Week Abortion Ban (7/1/22)

Judge Grants Restraining Order to Restore Abortion Access in Kentucky (6/30/22)

Ohio Lawsuit Filed to Enjoin 6 Week Ban on State Constitutional Grounds of Due Process, Equal Protection, & Freedom to Choose Health Care (6-29-22)

WI AG Files Lawsuit Challenging Near Complete Abortion Ban Passed in 1849 (6/29/22)

                        WP, Judge Temporarily Blocks Trigger Law on Abortion in Louisiana (6/27/22)

                        WP, Planned Parenthood Sues to Halt Utah's Trigger Law Abortion Ban (6/27/22)

Abortions Can Resume in Texas Per TRO Issued by Harris County Judge (6/28/22)

                        Equality arguments: Ms, The Importance of Talking About Women in the Fight Against Abortion Bans

                        Ninth Amendment arguments:22

                              Allison Kruschke, ConLawNOW, Finding a Home for the Abortion Right in the Ninth Amendment

                        First Amendment Religion arguments:

                                    Clergy Sue to Halt Fla Abortion Law, Cite Religious Freedom (9/7/22)

Clergy Members Contend FLA Abortion Law Violates Their Religious Freedom (8/10/22)

KY Court Holds that Abortion Ban May Violate State Establishment Clause (7/25/22)

                                    Jewish Synagogue Sues Florida Saying Abortion Restrictions Violate Religious Freedom

            Federal Legislation

A Federal Abortion Ban May Violate 5th A Due Process (9/23/22)

Graham Proposes 15 Week Abortion Ban, Seeking to Unite Republicans (9/13/22)

House Passes Bill to Codify Abortion Rights and Ensure Access (7/15/22)

                        Women's Health Protection Act

Pence Calls for National Abortion Ban

            Executive Action- presidents and governors

The VA Says it Will Provide Abortions in Some States Even in States Where Banned (9/7/22)

TX Fed District Court Invalidates Federal Guidance on Emergency Treatment of Abortion (8/24/22)

Biden Issues [Second] Executive Order on Abortion (8/10/22)

Biden Signs Executive Order to Support Abortion Rights (7/11/22)

Under Pressure, Biden Signs Executive Order on Abortion

NM Governor to Sign Executive Order on Abortion Access (6/30/22) 

WI Governor Vows to Grant Clemency to Drs Charged Under State Abortion Ban (6/28/22)

                        WP, The Nominal Ways Biden Could Expand Abortion Rights

                        The Possibility of Executive Orders

           Prosecutors:

Warren: DeSantis [FLA] Sacked me for Doing my Job as a Prosecutor (8/23/22)

Local Prosecutors Who Refuse to Prosecute Ohio's Abortion May be in the Clear (7/11/22)

Cuyahoga Cty Prosecutor Says He Won't Enforce 6 Week Abortion Ban (6/30/22) 

Liability for Pregnant Women:

NB Teen and Mother Facing Charges in Abortion Related Case (8/10/22)

Abortion Abolitionists Want to Punish Women (7/1/22)

FDA Preemption of Abortion Pills:

                        Time, Merrick Garland's Mention of FDA Hints at Possible Way to Fight Restrictions on Abortion Pills

                        Supremacy Clause May Preempt State Restrictions on Abortion Pills

Drug & Device Law, Federal Preemption of State Attempts to Ban FDA Approved Abortion Drugs After Dobbs

            First Amendment Rights of Speech and Advising

First Amendment Confrontation May Loom in Post-Roe Rights (6/30/22)

            Out of State Travel: 

Dobbs and the Civil Dimension of Extraterritorial Abortion Regulation (9/23/22)

The Risk of Mandatory Reporting Laws to Out-of-State Abortion (8/2/22)

The Right to Travel in a Post-Roe World (7/15/22)

MT Clinics Preemptively Restrict Out of State Patients Access to Abortion Pills (7/11/22)

WP, Anti-Abortion Lawmakers Want to Block Patients From Crossing State Lines (6/30/22)

                        Anthony Michael Kreis, Prison Gates at the State Line, Harvard L.R. Online

                        Caroline Kitchener, WP, Roe's Gone. Now Antiabortion Lawmakers Want More

            Federal Enclaves/Tribal Jurisdiction:

Tribal Nations and Abortion Access: A Path Forward (8/23/22)

The Indian Country Abortion Safe Haven Fallacy

            Municipal Regulation    

Abortion Localism and Preemption in a Post-Roe Era (9/23/22)

            Other Constitutional Liberties: contraception, marriage, LGBTQ

Marc Spindelman, Dobbs' Other Dangers: Dobbs & Women's Constitutional Sex Equality Rights (8/2/22)

Thirteenth Amendment:

The Amendment Ending Slavery Could be the Key to Securing Abortion Rights (7/7/22)

State Legislation:

Most Voters Want a Chance to Support Abortion on a Ballot (8/10/22)

Where Abortion is on the Ballot (8/2/22)

Voters in as Many as Eight States Will Vote on Abortion This Year (7/7/22)

What Prohibition History Tells Us About Returning Abortion to the States (it won't stay there)

            State Constitutional Amendments: pro-choice and anti-abortion

Michiganders Will Vote on Abortion Rights in November (9/13/22)

Reproductive Freedom for All v. Board of Canvassers (Mich. Ballot Case) 

Richardson, The Originalist Case for Why the FLA Constitution's Right to Privacy Protects the Right to Abortion 

Kansans Resoundingly Reject Amendment Aimed at Restricting Abortion Rights (8/10/22)

Want to Protect Abortion? Look to KS (8/2/22)

NY Moves to Enshrine Abortion Rights in State Constitution (7/6/22)

                        NYT, California Seeks to Enshrine Abortion Rights in State Constitution

CAL puts Constitutional Amendment Protecting Abortion Rights on Fall Ballot (6/28/22)

                        Iowa Rules no State Constitutional Right to Abortion

See Paul Lipford, Abortion Under States Constitutions (3d ed. 2020) (Carolina Press)

Cities

How One Progressive City is Fighting to Decriminalize Abortion (8/23/22)

  See generally Legal Scholarship:

New Legal Frontiers on the Constitutional Right to Abortion (8/25/22) (Cohen, Murray, Gostin)

Strict Scrutiny Podcast, Roe is Dead; Now What?

David Cohen, Greer Donley, Rachel Rebouche, The New Abortion Battleground

Politically

           Voters and Elections:

The Erroneous Claim that SCOTUS has Returned the Question of Abortion Access to the People (9/8/22)

After Roe's End, Women Surged in Signing Up to Vote in Some States (9/28/22)

Op ed, Women are So Fired Up to Vote! I've Never Seen Anything Like It (9/7/22)

Ohio Sees Surge in Women Registering to Vote After Abortion Access Denied (9/7/22)

Rethinking Strategy Post-Roe (7/25/22)

            Referendum: 62-69% of polls pro-choice; “reasonable” right that does not overreach

Abortion Defenders in MI and OH Get It: Take it to the Voters (6/30/22)

            Fetal Personhood:

GA Abortion Restrictions Spark New Debate Over Claims to Fetal Personhood (9/8/22)

GA Abortion Law Says a Fetus is Tax Deductible (8/10/22)

New OH Personhood Bill Would Declare All Individuals are Human from Moment of Conception (7/15/22)

We are Not Going Back to the Time Before Roe. We are Going Somewhere Worse.

            Protests and Activism:

The Green Wave in Latin America

How Green Bandanas Became the International Color of Abortion Rights

The 1960s Provide a Path for Securing Legal Abortion in 2022

Akron Abortion Rights Activists Makes Plans to Help Women After Roe

            Pack and Unpack the Court: expand number of Justices (13 for 13 circuits per 1869), impeach, term limits

            Foreign Effect:

WP, US Decision Horrific and Appalling, World Leaders Say       

French Lawmakers Want Abortion Rights in Constitution

Practically

            Focus on Abortion Medications: self-managed, FDA preemption, legal delivery

Abortion Pill Providers Experiment with Ways to Broaden Access (9/7/22)

                        NYT, Abortion Pills Take the Spotlight as States Impose Bans

                        Bloomberg, Supreme Court's Roe Ruling Tees Up Fight Over Abortion Pills

            Contraception: double layer contraception, increase in vasectomies

Is Male Birth Control Finally Here?

Missouri AG Says State Abortion Ban Does not Prohibit Plan B or Contraception (6/30/22)

KC Area Health System Stops Providing Plan B in Missouri Because of Abortion Ban (6/29/22)

Stock up on Plan B emergency contraception 

           Minors

FLA Court Rules 16-Year-Old not Sufficiently Mature for Abortion (8/23/22)

Digital Privacy & Period Tracking Apps:

Facebook Gave NB Cops a Teen's DMs. They Used Them to Prosecute an Abortion. (8/10.22)

SC Bill Would Ban Internet Information on Abortion; Tech Companies May Face Competing Laws (8/2/22)

HHS Issued Guidance to Protect Private Medical Info (inc Period Tracking Apps) (7/6/22)

Scholars Explain How Femtech Products Poised to Fill Gap as States Try & Limit Birth Control and Abortion 

Google Will Delete User Location History for Abortion Clinic Visits (7/6/22)

Period Tracker App Flo Develops Anonymous Mode (6/30/22)

Why Deleting Your Period Tracking App Won't Protect You (6/30/22) 

Newsweek, Why Delete Period Tracking Apps Roe v. Wade Ruling Sparks Panic Over Data

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Danielle Citron, The End of Roe Means we need a New Right to Privacy

Doctors and Women's Medical Care:

Republican Abortion Bans Restrict Access to Other Essential Medications

Telemedicine Just Got More Complicated (9/28/22)

What Will Happen if Doctors Defy the Law to Provide Medical Care? (9/12/22) 

Dr Proposes Floating Abortion Clinic in Gulf of Mexico to Avoid Bans (7/15/22)

Can Pharmacists Refuse to Fill Prescriptions for Drugs Used in Abortion? (7/15/22)

Physicians Face Confusion and Fear in Post-Roe World

After Dobbs, What Happens to IVF and other ART Technology?

            Disparate Effect Race and Poor Women:

Overturning Roe will Exacerbate the Black Maternal Mortality Crisis (8/25/22)

                        Michele Goodwin, No, Justice Alito, Reproductive Justice is in the Constitution

            Companies and cities paying travel expenses:

St Louis Will Help Women Get Out of State Abortions; Cleveland, Cincinnati Also Take Measures (7/25/22)

How St Louis Tapped Federal Funds to Help People Travel Who Need Abortion (7/25/22)

TX Lawmakers Target Law Firms Aiding Abortion Access (7/11/22)

                        NYT, Here Are the Companies Who Will Pay Travel Expenses for Employee Abortions

ABJ, Akron Employers Provide Employee Abortion Related Travel Costs

            Information & Assistance:  

Google Maps Will Now Label Clinics that Provide Abortions

ID University Says It Can Give Birth Control, "Promote" Abortion (9/28/22)

Abortion Finder Org Site ("The pink book" of where to access providers)

ABJ, Experts Say Helping OH Patients Get Abortions Isn't Illegal (6/30/22)

            Rebecca Traister, The Necessity of Hope: "It means doing the thing that people have always done on the arduous                             path to greater justice: Find the way to hope, not as feel-good anesthetic but as tactical necessity."

September 8, 2022 in Abortion, Constitutional, Courts, Healthcare, Legislation, LGBT, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, July 25, 2022

The Precarity of SCOTUS's LGBTQ Jurisprudence

Kyle Velte, The Precarity of Justice Kennedy's Queer Canon, 13 ConLawNOW 75 (2022)

This essay gives a brief overview of the legal and normative of impact of Justice Kennedy’s Queer Canon, a series of four LGBTQ cases written by Justice Kennedy over nearly two decades. The pro-LGBTQ outcomes in the Queer Canon cases made Justice Kennedy a hero to many LGBTQ people. It then explores Justice Kennedy’s fifth, and final, LGBTQ opinion, Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, which held that a traditional Christian baker would prevail on his First Amendment Free Exercise challenge to a state public accommodations law, was not the finale hoped for by the LGBTQ community. The essay next asks and answers the question: What will a post-Justice Kennedy Court mean for LGBTQ people and the 25 years of constitutional progress reflected in his Queer Canon? Through a comparative analysis of the Court’s two post-Justice Kennedy decisions, Bostock v. Clayton County and Fulton v. City of Philadelphia, Justice Kennedy’s Queer Canon, and his opinion in Masterpiece Cakeshop, this essay contends that the progress made during the Justice Kennedy era is a fragile progress, one that is under threat by the current Court.

July 25, 2022 in Constitutional, Family, Judges, LGBT, SCOTUS | Permalink | Comments (0)

Wednesday, June 29, 2022

Historians Weigh in on All That is Wrong with the Legal History of the SCT's Abortion Decision

Patricia, The Dobbs Decision Looks to History to Rescind Roe

Friday’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct.

Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. argues that Roe disrupted “an unbroken tradition of prohibiting abortion on pain of criminal punishment” that had “persisted from the earliest days of the common law until 1973.” But the real picture is far blurrier — and even once states began passing stricter abortion laws between the 1820s and 1880s, public sentiment did not follow. Few abortion providers were convicted under the new laws, indicating that most Americans didn’t see abortion as a crime.

Anglo-American common law initially guided the U.S. on abortion. Under common law, abortion was only punishable after “quickening,” defined as the moment the mother first felt fetal movement — typically between 16 to 22 weeks of gestation.

Reva Siegel, The Trump Court Limited Women’s Rights Using 19th-century Standards

But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.***

Justice Alito claims that tying the meaning of the Fourteenth Amendment’s liberty guarantee to America’s “history and traditions” prevents the justices from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to 'liberty,’” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Here he echoes the late Justice Antonin Scalia, who wrote, in “Originalism: The Lesser Evil,” that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But Dobbs shows why both of these claims are wrong. A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty largely with reference to laws enacted in mid-19th-century America. During that period — conveniently enough — there was a campaign to ban abortion across the nation. (Alito includes an appendix enumerating many of these state statutes.) But consider what else was part of this period’s “history and traditions”: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tether the meaning of the Fourteenth Amendment’s liberty guarantee to laws enacted by men with such a cramped view of women’s rights? The move is unprecedented.

Jill Hasday, On Roe, Alito Cites a Judge who Treated Women as Witches and Property

There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.

Alito reports that [Judge] Hale “described abortion of a quick child who died in the womb as a ‘great crime’ ” while glossing over the key part of that passage. Hale wrote that abortion was a crime “if a woman be quick or great with child.” Note the “if.”

Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.

Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.

June 29, 2022 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 24, 2022

The SCOTUS Joint Dissent in Abortion Case Calls Out Women's Loss of Citizenship

A joint dissent by Justices Breyer, Sotomayor and Kagan in Dobbs v. Jackson Women's Health Organization is expressive in its attack on the philosophical and physical harms to women from the Court's reversal of the fifty-year right of women to choose whether or not to bear a child in choosing an abortion. 

For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.***

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reason able limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.***

We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.

***

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

The dissent finds it clear that other constitutional rights of liberty interests are now threatened:

And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” Ante, at 66; cf. ante, at 3 (THOMAS, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante, at 15. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. ***

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” position, as JUSTICE KAVANAUGH tries to argue.

June 24, 2022 in Abortion, Constitutional, Judges, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

US Supreme Court Overrules Constitutional Right to Choose an Abortion

The US Supreme Court expressly overruled the 50-year old constitutional right for women to choose an abortion. Dobbs v. Jackson Women's Health Organization.

The vote is 5-4 to overturn Roe/Casey, with the majority opinion by J. Alito, joined by Thomas, Gorsuch, Kavanaugh and Barrett.  Roberts concurs only in the judgment of upholding the 15-week ban, but not in overruling Roe.  The dissent is Breyer, Sotomayer, and Kagan.

In my first quick look, the majority opinion is not much different from the leaked draft opinion.

Thomas in his concurrence of one calls for revisiting Griswold, Lawrence, and Obergefell, meaning to challenge the constitutional rights to marital privacy, contraception, sexual intimacy and conduct, and same-sex marriage.

Kavanaugh in concurrence says the Constitution calls for neutrality, and not taking sides between the pregnant woman's interest and the fetal life, which he says Roe did.  He footnotes a Rehnquist dissent that says exceptions to protect the life of the woman are constitutionally required.  He emphasizes that the decision doesn't prohibit abortion, but allows for legislative action.  He responds to Thomas and says nothing in the opinion calls into question the constitutional rights to contraception or LGBTQ rights because abortion is different.  And, in veiled reference to harmonize the Court's recent decision in Bruen on the Second Amendment, he says in a footnote that the relevant historical evidence for the abortion decision is at the time the 14th Amendment was enacted in 1868 when two-thirds of the states criminalized abortion.

Roberts concurs only to uphold the judgment.  He overturns the viability standard from Roe, but does not overrule the right to abortion completely.

A joint dissent by Justices Breyer, Sotomayor, and Kagan is explicit in noting the philosophical and physical harms to women from the decision:

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. 

See Gender & the Law Prof Blog, The Joint Dissent in SCOTUS Abortion Case Calls Out Women's Loss of Citizenship

June 24, 2022 in Abortion, Constitutional, LGBT, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 10, 2022

The Possibility of Executive Orders on Abortion Rights if Supreme Court Strikes Down Roe

Biden Says He's Looking at Executive Orders on Abortion Rights if Supreme Court Strikes Down Roe 

President Joe Biden on Wednesday said he was weighing executive actions he could take if the Supreme Court overturns Roe v. Wade's holding of a federal constitutional right to an abortion.

The President, during an appearance on "Jimmy Kimmel Live!" in Los Angeles, again pressed Congress to codify into law the right to abortion established by the landmark ruling in the wake of the publication of the leaked draft of the Supreme Court's ruling on the issue.
 
"I think if the court overrules Roe v. Wade and does what is drafted ... if that occurs, I think we have to, we have to legislate it. We have to make sure we pass legislation making it a law that is the federal government says this is how it works," Biden told Kimmel.
 
He said, "I think what we're going to have to do. There's some executive orders I could employ, we believe -- we're looking at that right now."
 
CNN has previously reported that Biden's administration has been working for months in preparation for the expected decision by the Supreme Court overturning Roe v. Wade. The White House has so far not detailed exactly what options could be taken to mitigate the effects of the ruling.
 
Among that preparation has been convening roundtables with state lawmakers to discuss the issue and solicit ideas. Options for moves Biden could take include executive action that could make it easier for women to travel to receive abortions in states where the procedure is still legal or expanding access to medication abortion through the mail. Some advocates have also suggested leasing federal land for abortion clinics, bypassing state laws that restrict them.

Bracing for the End of Roe v. Wade, the White House Weighs Executive Action, NYT

No executive order can re-establish a constitutional right. It would take an act of Congress to restore a national legal standard barring states from outlawing abortion, and proponents currently lack sufficient votes in the Senate, where Republicans can filibuster such a bill. But Mr. Biden has signaled that he wants to move on his own.***

The White House counsel, Dana Remus, the director of its gender policy council, Jennifer Klein, and the director of its domestic policy council, Susan Rice, are overseeing the legal and policy vetting of potential executive actions. Anita Dunn, a senior policy adviser to Mr. Biden, is in charge of broader planning, including communications strategy, officials said.

June 10, 2022 in Abortion, Constitutional, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, June 7, 2022

Leading Historian Explains What Alito Gets Wrong About the History of Abortion in America

One of the leading historians, Leslie Regan, who literally wrote the book on the topic, see When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973.com/When-Abortion-Was-Crime-1867-1973 (1996)  explains what Justice Alito's draft opinion in Dobbs gets very wrong.

Leslie Reagan, What Alito Gets Wrong About the History of Abortion in America

f it were possible to eavesdrop on conversations among women and some doctors in early America, you might overhear the phrase “bringing on the menses.” If a woman didn’t menstruate when expected, she was considered to be sick and action was required to bring her back to health. Women who had “a common cold” — a euphemism for “obstructed” menses — used a variety of methods, teas and concoctions to bring “their menses back.”

In other words, returning menstruation to its normal cycle was within the purview of a woman’s own self-health care and was not regulated by the state until after “quickening” — the moment during a pregnancy when a woman could feel a fetus kick and recognized a life “stirring” within her. Quickening occurred between the fourth and sixth month of pregnancy. Only after quickening was an induced miscarriage, an abortion, considered immoral and banned by law.

The truth is that abortion is deeply rooted in our nation’s history — in practice, in morality and in law. Abortion was not always a crime — although Justice Samuel Alito speciously claims otherwise in his recently disclosed draft majority opinion that would overturn Roe v. Wade.***

The logic that Alito uses in the draft opinion leans heavily on history — history that he gets egregiously wrong. Alito explicitly dismisses the distinction between ending a pregnancy before or after quickening, a distinction that my research has found was critical to the way American women and American physicians traditionally thought about pregnancy. In early America as in early modern England, abortion before “quickening” was legal under common law and widely accepted in practice.

June 7, 2022 in Abortion, Books, Constitutional, Legal History, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 3, 2022

The Radical Consequences of Uprooting Roe in Restoring Rules of Gender Difference

Jessie Hill & Mae Kuykendall, Uprooting Roe, 12 Houston L. Rev. Online 50 (2022)

It’s official—the U.S. Supreme Court is likely poised to overturn Roe v. Wade in a matter of months. Yet, the roots of Roe run both wide and deep, and to uproot Roe would be to uproot the Constitution’s promise of equality in a radical way. Uprooting reproductive liberty is radical as jurisprudence, but even more shocking is the cavalier reversal of more than a century’s work to abolish the claims of coverture and biological destiny as women’s gendered legal fate. As each step in women’s emergence from bio-destiny generated a new and robust status as full citizens, so will an uprooting of Roe and its companion principles work to restore the iron rules of gender difference. Liberty, meet equality–and say farewell.

June 3, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, May 24, 2022

How the Right to Birth Control Could be Undone by the SCOTUS Abortion Decision

Melissa Murray, Op-ed, How the Right to Birth Control Could be Undone, NY Times

The leaked draft opinion of the Supreme Court’s decision overturning Roe v. Wade has prompted a flurry of debate about the fate of other so-called unenumerated rights — rights that are not explicitly outlined in the Constitution — including the right to access contraception.

According to some commentators, claims that the right to contraception could be on the chopping block are little more than hyperbolic “catastrophizing” that cannot be taken seriously. Prominent constitutional law scholars also have insisted that such claims are little more than baseless fearmongering, and The Wall Street Journal’s editorial page insisted that liberal fears about overruling rights to contraception and same-sex marriage are little more than an “implausible parade of horribles.”

Such high-level minimizing is not surprising. To understand whether the right to access contraception, like the right to abortion, could be overturned, it’s necessary to pick up on clues in Justice Samuel Alito’s draft opinion.***

But the same could be said of other unenumerated rights, including, and especially, contraception. Nowhere does the Constitution speak of a right to contraception — the Constitution does not even explicitly mention women. And as many conservatives have noted, the American legal landscape was littered with prohibitions on contraception right up until the court invalidated Connecticut’s ban on contraception in 1965’s Griswold v. Connecticut.

Justice Alito himself has already set in motion the means for challenging the right to contraception. In 2014’s Burwell v. Hobby Lobby, the family that owns the craft store company objected on religious grounds to the Affordable Care Act’s contraceptive mandate, which required employers to provide employees with insurance coverage for contraception. Specifically, Hobby Lobby balked at providing its employees with insurance plans that would cover IUDs and emergency contraceptives, like Plan B, based on the unsubstantiated claim that such contraceptives are abortifacients. The court, in an opinion written by Justice Alito, ruled for Hobby Lobby.

May 24, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

The Equal Protection Arguments in the Dobbs Abortion Case

Featured on the Legal Theory Blog is Reva Siegel, Serena Mayeri & Melissa Murray, On Equal Protection and the Dobbs Draft, on their article Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Columbia J. Gender & Law (forthcoming).

In the leaked draft of Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito dismissed the Equal Protection Clause as an alternative ground of the abortion right, citing an amicus brief in which we advanced that argument. In dicta, Justice Alito claimed that precedents foreclosed the brief’s arguments (pp. 10-11).

 

Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.

 

This Essay, written before Justice Alito’s draft leaked, explains the brief’s equal protection arguments for abortion rights, and shows how these equality-based arguments open up crucial conversations that extend far beyond abortion.***

 

Equality challenges to abortion bans preceded Roe, and will continue long after Dobbs v. Jackson Women’s Health Organization, however the Court rules in that case. In this Essay we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause.

May 24, 2022 in Abortion, Constitutional, Legal History, SCOTUS, Theory | Permalink | Comments (0)

Friday, May 20, 2022

Why the Dobbs Leaked Draft Opinion is Doctrinally Unsound

Nancy Marcus, Yes, Alito, There is a Right to Privacy: Why the Dobbs Leaked Draft Opinion is Doctrinally Unsound, 13 ConLawNOW 101 (2022)

The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe, but had instead been criminalized in a number of states. Under the apparent premise that conduct once criminalized cannot subsequently be constitutionally protected as a fundamental right. Second, the opinion is grounded in an interpretation of substantive due process that only recognizes Fourteenth Amendment protections for unenumerated rights when the specific conduct-framed right for which protection is sought be deeply rooted in history

May 20, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, May 19, 2022

Finding a New Home for the Abortion Right Under the Ninth Amendment

The original constitutional location for the right to abortion was identified as the Ninth Amendment by the trial court in Roe v. Wade building on the lead opinions in Griswold.   Worth another look.

Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).

This essay advocates locating the foundation of the constitutional right to an abortion in the Ninth Amendment. Using the Ninth Amendment to recognize the right to an abortion, this article argues, is a better path than using the Fourteenth Amendment because it takes the determination of whether an abortion is a protected right outside the moral realm. The analysis under the Fourteenth Amendment of whether a right is “deeply rooted in the tradition” of the United States inevitably stirs a debate about whether the public considers abortion morally acceptable. In recognizing the right to an abortion under the Ninth Amendment, no such analysis is necessary. The text of the Ninth Amendment allows the U.S. Supreme Court to recognize this protected right without an inquiry into historical tradition. Instead, the Court can use natural law principles, as contemplated by the Founders, to recognize that private conduct is worthy of constitutional protection and acknowledge that the Ninth Amendment affords these rights to the people.

May 19, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

The Cramped Parameters of "Liberty" in the Leaked Draft Dobbs Opinion

David Gans, The Framers Were Big Fans of Liberty, Unlike Samuel Alito

Alito’s opinion suggests that liberty is to be feared, not celebrated as a core feature of our constitutional heritage. “Liberty,” he insists, is a “capacious term” that could have hundreds of possible meanings, and he worries that the judiciary will engage in “freewheeling judicial policymaking” in the guise of protecting liberty. He insists that the Supreme Court should be extremely loath “to recognize rights not mentioned in the Constitution” for fear that the Supreme Court will “usurp authority that the Constitution entrusts to the people’s elected representatives.” Because liberty could mean anything, in his view, it means almost nothing.***

 

According to Alito, only the most overwhelming, centuries-old historical evidence—essentially the sort of historical grounding that rights in the Bill of Rights can point to—could possibly justify the protection of an unenumerated fundamental right. The right to abortion recognized in Roe v. Wade, he argues, spectacularly fails this test; extending his reasoning, so might the right of people of different races, or of the same sex, to marry—protected in Loving v. Virginia and Obergefell v. Hodges—and the right to use contraceptives protected by Griswold v. Connecticut, as others have pointed out. Alito’s opinion bulldozes a century of case law protecting fundamental rights to bodily integrity and marriage, and the right to decide for one’s own self whether, when, and with whom to form a family.

 

What fundamental rights have the kind of historical backing Alito seems to demand? What other fundamental rights can claim a historical lineage equivalent to rights in the Bill of Rights? Few, if any, would seem to measure up to the strict standard Alito lays out. That is not a bug, but a feature, of Alito’s approach. To Alito’s way of thinking, many of the rights we cherish as part of our heritage of liberty are not rights at all.

 

As future Supreme Court Justice James Iredell aptly observed, “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.” The Ninth Amendment, which provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” codifies that essential idea.

 

Alito’s basic move defies the Constitution. He disparages the idea that we have fundamental rights that are basic to bodily integrity, human dignity, and equal citizenship, simply because they are not mentioned in the text. He flouts the rule of construction the Ninth Amendment prescribes.

May 19, 2022 in Abortion, Constitutional, SCOTUS, Theory | Permalink | Comments (0)

Thursday, May 12, 2022

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

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

Alito says:

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

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

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

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

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

May 12, 2022 in Abortion, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

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

Justice Alito resurrects the ghosts of witch trials past in the draft opinion in Dobbs.  He relies on the authority of Lord Hale, infamous English jurist who hanged women as witches, created the marital rape exception, and crafted the jury instruction to warn against believing women in rape allegations.  He also features the Salem-esque trial of Eleanor Beare and her punishment by pummeling with eggs and turnips in the town square.  More on Eleanor in part 2 of this post.

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

When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.

 

The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.

 

Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards. *** 

 

Hale became Lord Chief Justice of England in 1671.***

 

Courts have long leaned on precedents established by old cases and the scholarship of legal authorities from centuries gone by. But what happens when you trace citations back to their ancient source? In Hale’s case, you sometimes find a man conceiving precepts out of thin air. Other times it was the opposite, as he clung to notions that were already becoming anachronistic in the last half of the 17th century.

 

Consider the marital rape exemption. In “Pleas of the Crown,” Hale wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” So, according to Hale, marriage, for a woman, amounts to contractual forfeit, in which she loses legal protection or recourse should her husband sexually assault her.

 

Hale’s pronouncement became the accepted common law and served as foundation in the United States for immunizing a husband accused of raping his wife. And where did Hale’s pronouncement come from? What did he base it upon? Who knows? “Hale appears to have been the first to articulate what later would become an accepted legal principle, that a husband cannot be charged with raping his wife,” according to a footnote in one law review article. Another law review article, titled “The Marital Rape Exemption: Evolution to Extinction,” called Hale’s pronouncement “an unsupported, extrajudicial statement” lacking in authority.

 

Starting in the 1970s, states began to abandon the marital rape exemption, in whole or in part.***

 

In “Pleas of the Crown,” Hale called rape a “most detestable crime.” Then, in words quoted many times since, he wrote, “It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

 

Hale evoked the fear of the false accuser — and made for that fear a legal frame, which lasted for more than 300 years. In weighing the evidence in cases of alleged rape, jurors (all men, in Hale’s time and for long after) needed to consider a series of factors, Hale wrote. Did the woman cry out? Did she try to flee? Was she of “good fame” or “evil fame”? Was she supported by others? Did she make immediate complaint afterward?

 

Hale’s words and formulation became a standard feature of criminal trials in the United States, with jurors instructed by judges to be especially wary of allegations of rape.***

 

Then there was Hale’s role in what today is synonymous with the perversion of justice: witch trials.

 

In 1662, Hale presided at a jury trial in Bury St. Edmunds in which two women, Amy Denny and Rose Cullender, were accused of being witches. In a book on this case, “A Trial of Witches,” authors Ivan Bunn and Gilbert Geis wrote that by 1662, “belief in witches was in retreat in England.” Hale, however, was not part of that retreat. He believed witches were real. “Hale represented not a mainstream position but rather one rapidly becoming anachronistic,” Bunn and Geis wrote.

 

What’s more, Hale instructed the jurors that witches were real. 

 

May 12, 2022 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

What SNL Got Right About Alito's Leaked Opinion

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

Just days after Politico published the leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health OrganizationSaturday Night Live opened with its own comedic analysis of the Supreme Court decision purportedly overturning Roe v. Wade. “Justice Samuel Alito explains that no woman has a right to an abortion, and, in fact, abortion is a crime,” a narrator explains, before highlighting several excerpts from the draft citing 13th century common law on punishments for ending a pregnancy after the “quickening” of a “foetus.”

 

The opening sketch then takes viewers back in time to dramatize the “profound moment of moral clarity” that Alito seems to believe should be the basis of our abortion laws in 2022. British actor Benedict Cumberbatch, in a mock medieval pageboy haircut, comes to a “revelation” about the need to criminalize abortion in an age of constant plague, disastrous hygiene, witch obsession, and flat-earth maps. The sketch brilliantly demonstrates the absurdity of reading a 21st century Constitution in light of a legal and scientific history most Americans would not embrace today.

 

The SNL skit posed an obvious question: Why would it make sense to rely upon 13th century law to decide something so important to half the population of the United States? It’s a question best answered by constitutional law scholars like myself. We all know Alito’s interpretive move—it’s called originalism or textualism—and it is full of theoretical complexity. For the most part, this is legal inside baseball. So why this lesson on originalism on SNL? And why now?

 

Because Alito’s leaked opinion in Dobbs was a bombshell. It takes up some of the most extreme rhetoric of the anti-abortion movement while citing, as SNL points out, centuries-old and outdated legal ideas. And so when people sat down to read the opinion, even the comedy writers at SNL saw what ordinarily the public pays no attention to: the absurdity of a constitutional methodology called originalism at work. 

May 12, 2022 in Abortion, Constitutional, Pop Culture, Reproductive Rights, SCOTUS, Theory | Permalink | Comments (0)

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

Michele Goodwin, The New Jane Crow, The Atlantic

With the Supreme Court poised to overturn Roe v. Wade, abortion access for tens of millions of women and girls across the nation may soon be a matter of the past. For many women of means, who can travel and pay for child care, the loss of Roe will be disruptive. For many poor women—particularly poor women of color—the loss will be deadly. This is the coming of the new Jane Crow.

 

Certain aspects of the era of the new Jane Crow are already predictable. First, high rates of maternal mortality will persist, and Black and brown women will disproportionately experience the blow and brunt of these deaths. Medicaid will not be expanded in anti-abortion states, nor will welfare benefits increase to meet families’ needs.

 

Second, states will turn to civil and criminal punishments of women and girls who seek abortions through medication or by traveling out of state. Even now, before Roe has fallen, lawmakers are working on such legislation. Third, just as the Jim Crow era sanctioned racism and racial profiling, the Jane Crow era will be marked by greater surveillance of pregnant women and the curation of laws, practices, and policies to justify stalking, watching, and policing women’s bodies. That is our near future.

 

Already today, we know how dangerous pregnancy and delivery can be. An American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion—a fact the Supreme Court itself acknowledged in Whole Woman’s Health v. Hellerstedt just six years ago. In Louisiana, giving birth is roughly 57 times more dangerous for women than having an abortion. For Black women, the risk of death is especially dire—and especially in states eager to ban abortions. For example, according to the Mississippi Department of Health’s most recent investigation of maternal health and mortality, Black women accounted for “nearly 80% of pregnancy-related cardiac deaths” in that state; they also suffered from far greater rates of gestational diabetes, sepsis, and hemorrhaging. Black women in Mississippi are 118 times more likely to die from giving birth than from having an abortion. To be Black and pregnant in America is a deadly combination.

 

Some of this devastation is the result of the anti-abortion movement itself, and in particular its white, male champions in statehouses across the South. These legislatures have targeted abortion providers for decades, stripping them of their ability to provide essential health-care services for poor women, including pap smears, cancer screenings, and contraception. Their efforts have contributed to the United States being the deadliest country in the developed world to be pregnant.

 

Surely Justice Samuel Alito and the four justices who, according to Politico, voted to sign on to his draft opinion are aware of this. But do they find such data relevant? Seemingly not, as the draft opinion barely acknowledges maternal deaths—and does so only in reference to 1973, not 2022.

May 12, 2022 in Abortion, Constitutional, Pregnancy, Race, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, April 28, 2022

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

Wednesday, April 27, 2022

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

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

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

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

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

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

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

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

April 27, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, April 20, 2022

The Duality and Durability of Reproductive Rights Law

Stephanie Toti, Foreword, The Never-Ending Struggle for Reproductive Rights, Michigan L. Rev. (April 2022)

My career has largely focused on reproductive rights. It is an area of the law that is perpetually at a crossroads and therefore always ripe for reflection. These rights, long recognized and deeply valued by a majority of Americans, are continually under attack and always—it would seem—on the brink of elimination. Almost from the day Roe v. Wade was decided, critics began calling for it to be overruled, and commentators began predicting its downfall. Although it has weathered the storm for nearly fifty years, those critics and commentators remain undeterred, still forecasting Roe’s imminent demise.  And who knows? Perhaps this charged moment in our nation’s history, which seems increasingly like the dystopian future that prescient novelists warned of long ago, will see a disruption in constitutional protection for reproductive rights. Or perhaps the rights that have been central to the liberty and equality of women and gender-expansive people for half a century will continue to endure.

 

In this Foreword, I would like to reflect on two aspects of reproductive rights law in particular. First, there is a seeming duality in the Supreme Court’s abortion jurisprudence. On the surface, it embodies a longstanding commitment to safeguarding the right to abortion. But just below the surface, the caselaw reflects a deep tension between this commitment and the Court’s recognition that certain members of our society—some motivated by “unprincipled emotional reactions” and others motivated by “principles worthy of profound respect”—will never accept that the Constitution grants the authority to make decisions about the outcome of a pregnancy to the individual who is pregnant rather than to the government. Second, the abortion right has proven surprisingly durable despite powerful efforts to subvert it. It seems that the vital relationship of this right to core constitutional values like liberty, equality, and freedom of belief, and the critical role that it plays in the ability of women and all people with the capacity for pregnancy to participate fully and equally in society, make it extremely difficult to cast aside, rhetorical denunciations notwithstanding.

April 20, 2022 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)