Gender and the Law Prof Blog

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

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.

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.

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.

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. 

 

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 Organization, Saturday 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. 

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.

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

The Center for Constitutional Law at Akron has published in its online journal, ConLawNOW, several articles on the current issues in abortion rights:

Jennifer S. Hendricks, Abortion Rights in the Supreme Court: A Tale of Three Wedges

Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization

Simona Grossi, Roe v. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights

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?

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.

Legal History of 1983 SCOTUS Decision in Akron Abortion Case May Provide Playbook for Post-Roe Legislation

My research and legal history of the US Supreme Court's decision in Akron v. Akron Center for Reproductive Health, 461 U.S. 416 (1983), on abortion regulations is featured in this deep dive feature in the Akron Beacon Journal.  Doug Livingston & Seyma Bayram, How Catholic Democrats in Akron Helped Write the Conservative Playbook to Overturn Roe, ABJ, Mar. 23, 2022. [Download article here (without photos)]

In 1978, hundreds of protesters marched in downtown Akron or outside the city's four abortion clinics in their first year of operation. The civil unrest, from threats of violence to documented arson, burned even as the Storm of the Century buried Akron in more than 3 feet of snow. 

Akron City Council moved public hearings on 16 proposed abortion restrictions to the Morley Health Center to accommodate a standing-room only crowd of 300 people, evenly split in support or opposition. A national audience followed along as the three major news channels of the day covered sweeping restrictions crafted by national anti-abortion lawyers and sponsored by Catholic Democrats on Akron City Council. 

The debate was intense. Council members shouted long after some hearings ended.

In a 7-6 vote on the last day in February, national leaders in the anti-abortion movement had found in Akron willing participants in the creation of "the playbook” to incrementally unravel Roe v. Wade.***

By 1976, a few states tried and none succeeded in chipping away at the landmark 1973 ruling that legalized abortion in the United States. A Missouri law requiring a husband’s consent was the latest to fail that year. 

By the late 1980s, though, a more conservative bench would revisit Roe, giving increased deference to state and local restrictions.

“It’s the nibble theory,” said Tracy Thomas, Seiberling chair of constitutional law at the University of Akron.

Going further and earlier than others in the effort to restrict abortion, Democrats on Akron City Council would not nibble. They chomped.

Thomas has chronicled the legal history of abortion in Akron in multiple judicial reviews. In 2013, she examined the legacy of the 1978 restrictions passed by City Council and a later case out of Akron, which resulted in one of the first of several national rulings pulling at the loose threads of a woman’s right to access an abortion. Thomas’ research drew on “archives and long-forgotten files in dusty basements” and “interviews with key players in the cases,” including a couple now in their 80s or 90s and unwilling to return a call from the Beacon Journal.

As the first stand-alone clinics opened in the city, Akron passed an ordinance requiring all abortions after three months to be done in a hospital. In 1978, they approved 16 more restrictions — waiting periods requiring multiple patient visits, parental consent for minors and the inclusion of religious and non-medical language designed to discourage people from seeking abortions.

In 1983, the justices who decided Roe a decade earlier ultimately overturned the new laws in Akron. The ruling gave abortion-rights advocates their earliest and strongest reaffirmation of a woman’s reproductive rights and the Reagan administration, which joined the case alongside legal counsel for the city of Akron, its first national “embarrassment." 

But the lasting legacy is that Akron lawmakers, at the bidding of anti-abortion groups, “created that conservative playbook” for the eventual fall of Roe, which Thomas said “is definitely not going to survive … in any way, shape or form.”

The high court rejected nibbles that went too deep, Thomas explained. Within a decade, though, several restrictions got through, gradually battering Roe to the point of teetering on collapse.***

 “What was immediately drafted in opposition to Roe becomes the playbook because eventually all of those (Akron restrictions) are upheld” in separate court cases that followed, Thomas said. “As a case, Akron becomes a much more important example of how it can be done. I think it will come back to life with restrictions passed by the states. And cities are obviously easier to get things through.” 

The research is here:

Tracy Thomas, Back to the Future of Regulating Abortion in the First Term, 29 Wisconsin J. Gender & Law 47 (2014)

Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie: A History of the US District Court for the Northern District of Ohio (Paul Finkelman & Roberta Alexander, eds. 2012).

 

The Exclusion of Women from the Judicial Process

Susan Tolchin, The Exclusion of Women from the Judicial Process, Signs J. (1977)

Amid the areas from which women are excluded one stands out, neglected by scholars, public officials, representatives of women's groups and the national media: the representation of women in the judicial system. Only when Supreme Court vacancies open is there public dialogue on the feasibility of appointing women. Then the tone of debate is too often one of frivolity or outrage. ***

 

The key to judicial selection lies in the political system. The exclusion of women from the bench is therefore a reflection of women's lack of political power, which has enabled both major political parties to ignore them. The power to select judges rests with selected elites. Whom they choose as judges depends on a variety of factors, not the least of which are their political and personal obligations.3 Bar association elites, for example, often predominate in merit-selection plans (such as the Missouri Plan) since they overwhelm the laymen on the selection panels, while party leaders tend to dominate the election process. Since judgeships are still regarded as relatively unimportant by the public at large, party leaders who slate nominees for judicial office wield greater control over judgeships than over offices which attract more public attention.

 

On the federal level, the American Bar Association exercises an extraordinary amount of influence over judicial appointments. The composition of the officers and board of governors of the ABA may best reveal why women occupy less than 2 percent of all federal judgeships. Of the seven officers and twenty-two members of the board of governors, not one is a woman.

My own work on Florence Allen, the first woman appointed to a federal appellate court (Sixth Circuit, 1934 by FDR), bears out this idea and history.  See Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen, 27 W&M J. Race, Gender & Soc. Justice 293 (2021). 

Explaining Justice Ginsburg's Divergence from Strict Scrutiny in her Decision in US v. Virginia

Earl Maltz, The Road to United States v. Virginia: Ruth Bader Ginsburg and the Battle Over Strict Scrutiny, Rutgers Women's Rights L. Reporter (forthcoming)  

Throughout her long career as both a litigator and a member of the Supreme Court, Ruth Bader Ginsburg was a champion of women’s rights who insisted that the Constitution outlawed legal distinctions that were based on sexist stereotypes. However, in one important respect, the arguments that Ginsburg made as a litigator in the 1970s differed significantly from those that were embodied in her signature opinion in United States v. Virginia. During the 1970s, Ginsburg often contended that laws that treated women differently than men should be subject to strict scrutiny because sex discrimination was analogous to race discrimination. By contrast, in Virginia, although she spoke for the Court in holding that women could not be excluded from Virginia Military Institute, her opinion emphasized the differences between distinctions based on race and distinctions based on sex for constitutional purposes. This article is the first to focus on this aspect of Ginsburg’s opinion in Virginia and to provide an explanation for her change in course.

Why Biden's Commitment to a Black Woman Supreme Court Justice Was Necessary

Why President Biden's Commitment to a Black Woman Supreme Court Justice Was Necessary

Supreme Court Justice Stephen Breyer’s retirement announcement is not even one week old, yet Republican senators and prominent conservatives are already attacking Biden’s unnamed nominee. Instead of celebrating the president’s historic commitment to picking the nation’s first Black woman justice, conservatives have already made up their minds that Biden’s choice of a Black woman makes her automatically unqualified.***

The answer has little to do with Black women’s qualifications to serve on the highest court in the land. For the first 100 years of our country’s history, women and people of color couldn’t even attend law school. The first female federal judge was only appointed in 1928. The first Black federal judge was only appointed in 1949. The first Black woman federal judge was only appointed in 1966. And by 2020, there had still only ever been eight Black women to serve on the courts of appeals—a traditional prerequisite for a seat on the Supreme Court.

That systematic exclusion of Black women lawyers from the judiciary has clearly conditioned many conservatives to believe that there are no Black women good enough to be a Supreme Court justice. The nation is about to learn just how wrong they are.

 

The Strict Scrutiny Team and "A Podcast of One's Own"

 

Leah Litman, Melissa Murray, and Katherine Shaw, A Podcast of One's Own, 28 Mich. J. Gender & L. 51 (2021).

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are often white men; and the commentators who translate the Court’s work for the public are also largely white men. We suggest this lack of diversity has consequences both for the Court’s work and for the public’s understanding of the Court. We also identify some of the factors that contribute to the lack of diversity in the Court’s ecosystem, including unduly narrow conceptions of expertise and a rigid insistence on particular notions of neutrality. We also note and discuss our own modest efforts to disrupt these dynamics with Strict Scrutiny, our podcast about the Supreme Court and the legal culture that surrounds it. To be sure, a podcast, by itself, will not dismantle the institutional factors that we have identified in this Essay. Nevertheless, we maintain that our efforts to use the podcast as a platform for surfacing these institutional dynamics, while simultaneously cultivating a more diverse cadre of Supreme Court experts and commentators, is a step in the right direction.

With the title derived from British feminist writer Virginia Woolf's famous essay, A Room of One's Own (1929).

All I could do was to offer you an opinion upon one minor point--a woman must have money and a room of her own if she is to write fiction; and that, as you will see, leaves the great problem of the true nature of woman and the true nature of fiction unsolved.

Do Reason-Based Abortion Bans Prevent Eugenics?

Do Reason-Based Abortion Bans Prevent Eugenics?

By: Sital Kalantry

Published in: Cornell Law Review, Vol. 107, No. 1, 2021

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.

Overturning Roe Threatens the Loss of More Fundamental Rights

My thoughts on "The End of Roe and More," JURIST.

The Supreme Court will overturn the law recognizing a woman’s fundamental right to choose an abortion. The only question is whether it will go even further and jeopardize women’s equality, reproductive rights, and family privacy rights for all. 

 

Pending in the Court is Dobbs v. Jackson Women’s Health Organization and the question of the constitutionality of Mississippi’s ban on abortion after 15 weeks. The Court’s most recent abortion decision, June Medical Services v. Russo (2020), regarding physician admitting privileges for providers, held on to abortion rights by a thread, tied together by Justice Ruth Bader Ginsburg’s vote and Chief Justice John Roberts’ adherence to precedent. But we now have the next generation of the Supreme Court, reconstituted after the passing of Justice Ginsburg and the additions of Justices Brett Kavanaugh and Amy Coney Barrett. There are now six conservatives who have all indicated disapproval of Roe v. Wade and its ruling on reproductive choice–and these Justices were nominated for this very purpose. The math is simple: there is a solid majority to overturn Roe.***

 

The only remaining question then is how far the Court will go in overturning abortion rights. One possible outcome is that the Court will also recognize a fundamental right of personhood protecting potential fetal life—a holding that would block state or federal legislation to guarantee reproductive choice.***

 

A second possible result is that the Court’s abortion ruling might also encroach on other reproductive rights such as contraception or pregnancy. The Court has shown its willingness to dilute this reproductive right of women by balancing it against the religious viewpoint interests of others, as it did in Burwell v. Hobby Lobby Stores (2014). Such a holding would have negative implications for procreation rights, pregnancy discrimination, and assisted reproduction rights including the frozen embryo cases which have supported the right not to procreate.***

 

A third possibility is that the Court might go so far as to disembowel all constitutional privacy rights of the family. Justice Thomas argued for this, dissenting in June Medical. The right to abortion and reproductive autonomy recognized in Roe was derived from the text of the Fourteenth Amendment’s protection of “liberty.”  In Griswold v. Connecticut (1965), the Court overruled a law banning contraception for married couples, finding that the Constitution protected privacy rights of the home including marriage, sex, and contraception. It located these rights in the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Subsequently, the Fourteenth Amendment became the consensus foundation for privacy in its protection of “liberty” against arbitrary government interference. Decades before Griswold, the Court recognized fundamental privacy rights of parenting and procreation. Years after, privacy supported extended family, medical autonomy, marriage equality, and sexual conduct. 

 

Justice Thomas attacked this longstanding recognition of privacy in June Medical. He argued that the broader constitutional right to privacy was baseless. The Griswold Court had been “grasping at straws” and “turning somersaults in history,” he said, to find such a right, thus demonstrating its illegitimacy.

 

Yet, to the contrary, the many constitutional bases for family privacy establish its ubiquity, not its aberration. Griswold’s “penumbra” casting a broad shadow around the Constitution.***

 

Finally, it is possible that the Court will foreclose future arguments for abortion rights under equality theory. In Dobbs, attorneys advocating for women’s right argued the availability of abortion was critical to women’s full and equal participation in society. . . . Justice Amy Coney Barrett seems focused on eliminating this legal avenue of equality.

Recap of SCOTUS Oral Argument in Dobbs Abortion Case

For interpretation of yesterday's oral argument in the Dobbs abortion case, see:

Strict Scrutiny Podcast, Fourth Dimension Feminism

Mary Ziegler, The Atlantic, The End of Roe v. Wade

National Constitution Center, We the People Podcast, Dobbs Part 1 & 2

Mark Joseph Stern, During Arguments Over the Fate of Roe, Kavanaugh and Barrett Finally Show Their Cards

SCOTUS Audio, Audio, U.S. Supreme Court, Dobbs v. Jackson Women's Health

Transcript of Supreme Court Oral Arguments in Dobbs v. Jackson Women's Health

Gender and the Law Prof Blog Coverage of Dobbs and the Right of Reproductive Autonomy

For all of the past coverage of the abortion issue on Gender & the Law Prof Blog, go to Blog / Categories / Abortion.

Some of the recent posts specifically on Dobbs include:

Gender & the Law Prof Blog (8/21), featuring Marc Spindelman's Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).

Gender & the Law Prof Blog (9/15/21), featuring Aaron Tang, The Originalist Case for an Abortion Middle Ground.

Gender & the Law Prof Blog (11/17/21) featuring David Gans, No, Really, the Right to an Abortion is Supported by the Text and History of the Constitution, The Atlantic

Dobbs v. Jackson Women’s Health Organization, regarding Mississippi abortion law, to be heard by SCOTUS on December 1

Explainer: Abortion At the Supreme Court

On Wednesday, the U.S. Supreme Court will hear a case out of Mississippi that could eliminate a pregnant person’s constitutional right to an abortion. The law in question bans abortion at 15 weeks gestation, significantly before viability. With this case as a vehicle, the Mississippi attorney general has explicitly called on the high court to strike down Roe v. Wade. 

The case, Dobbs v. Jackson Women’s Health Organization, turns on the issue of viability. Supreme Court precedent protects the right to abortion before a fetus can survive outside of the womb, usually around 24 weeks; states can’t pass laws that present an “undue burden” for someone seeking an abortion before that point. While a total ban before viability would undermine Roe, many experts think the Supreme Court might allow it anyway. Because the one clinic in Mississippi only performs abortions up to 16 weeks, lawyers may argue, a 15-week ban does not constitute an undue burden.

. . .

Between the Texas and Mississippi cases, this is an unprecedented term for abortion on the Supreme Court.