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Abortion

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Full-Text Articles in Law and Gender

The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill Oct 2019

The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill

Kevin F. O'Neill

Lawyers seeking constitutional protection for reproductive rights have relied almost exclusively on a liberty/privacy theory under the Federal Constitution. In the wake of Planned Parenthood of Southeastern Pennsylvania v. Casey, this theory may be seen as providing a floor of minimum protection-preventing states from banning abortion outright. But it is not strong enough to prevent states from enacting restrictions on the availability of abortion. Thus, the battle over reproductive rights may be seen as shifting from one phase ("Can abortion be banned?") to another ("How far can states go in restricting access to abortion'?"). If proponents of reproductive freedom ...


The Countermajoritarian Paradox, Neal Devins Sep 2019

The Countermajoritarian Paradox, Neal Devins

Neal E. Devins

No abstract provided.


How Planned Parenthood V. Casey (Pretty Much) Settled The Abortion Wars, Neal Devins Sep 2019

How Planned Parenthood V. Casey (Pretty Much) Settled The Abortion Wars, Neal Devins

Neal E. Devins

More than twenty-one years after Robert Bork's failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this Essay, I will debunk those claims. First, I will explain how Casey's approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey- either by restoring the ...


Abortion-Related Disclosures And How The Maryland General Assembly Can Institute A Novel And Innovative Pregnancy Disclosure, Mary L. Scott Jul 2019

Abortion-Related Disclosures And How The Maryland General Assembly Can Institute A Novel And Innovative Pregnancy Disclosure, Mary L. Scott

Maryland Law Review Online

No abstract provided.


If A Fetus Is A Person, It Should Get Child Support, Due Process And Citizenship, Carliss Chatman May 2019

If A Fetus Is A Person, It Should Get Child Support, Due Process And Citizenship, Carliss Chatman

Carliss Chatman

Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act, as the new statute is called, subjects a doctor who performs an abortion to as many as 99 years in prison. The law, enacted Wednesday, has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “a human being, specifically including an unborn child in utero at any stage of development, regardless of viability.” We ought to take our laws seriously. Under the laws, people have all sorts of ...


The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, Lucie Arvallo Apr 2019

The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, Lucie Arvallo

St. Mary's Law Journal

Texas House Bill 214 (H.B. 214) is subject to challenge under the Supreme Court precedent protecting a woman’s right to choose. Passed in 2017, H.B. 214 regulates Texas insurance markets by prohibiting coverage for an elective abortion unless a woman affirmatively opts into such coverage through a separate contract and pays a separate premium. Similar restrictions on insurance coverage for elective abortion in other states have been met with mixed results in the courts. What sets H.B. 214 apart from other regulations of insurance coverage for abortion is that it does not include any exceptions for ...


The Impact Of Artificial Womb Technology On Abortion Jurisprudence, Julia Dalzell Apr 2019

The Impact Of Artificial Womb Technology On Abortion Jurisprudence, Julia Dalzell

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Abortion Talk, Clare Huntington Apr 2019

Abortion Talk, Clare Huntington

Michigan Law Review

Review of Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First-Century America.


Challenging The Rhetorical Gag And Trap: Reproductive Capacities, Rights, And The Helms Amendment, Michele Goodwin Jun 2018

Challenging The Rhetorical Gag And Trap: Reproductive Capacities, Rights, And The Helms Amendment, Michele Goodwin

Northwestern University Law Review

This Essay argues that the battle over women’s autonomy, especially their reproductive healthcare and decision-making, has always been about much more than simply women’s health and safety. Rather, upholding patriarchy and dominion over women’s reproduction historically served political purposes and entrenched social and cultural norms that framed women’s capacities almost exclusively as service to a husband, mothering, reproducing, and sexual chattel. In turn, such social norms—often enforced by statutes and legal opinions—took root in rhetoric rather than the realities of women’s humanity, experiences, capacities, autonomy, and lived lives. As such, law created legal ...


Personhood Seeking New Life With Republican Control, Jonathan F. Will, I. Glenn Cohen, Eli Y. Adashi Apr 2018

Personhood Seeking New Life With Republican Control, Jonathan F. Will, I. Glenn Cohen, Eli Y. Adashi

Indiana Law Journal

Just three days prior to the inauguration of Donald J. Trump as President of the United States, Representative Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H.R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. Then, in October 2017, the Department of Health and Human Services released its draft strategic plan, which identifies a core policy of protecting Americans at every stage of life, beginning at conception. While often touted as a means to outlaw abortion, protecting the “lives” of single-celled zygotes may also have implications for the ...


Some Form Of Punishment: Penalizing Women For Abortion, Mary Ziegler Mar 2018

Some Form Of Punishment: Penalizing Women For Abortion, Mary Ziegler

William & Mary Bill of Rights Journal

In 2016, Donald Trump ignited a political firestorm when he suggested that women should be punished for having abortions. Although he backtracked, Trump’s misstep launched a debate about whether women have been or should be punished for having abortions. At the same time, Trump’s comments revealed that punishing women has become far more than an abstraction. In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.

But in spite of the furor created by Trump’s comment and Patel ...


A Patient's Right Not To Hear: The Public Health Case For Challenging Pre-Abortion Ultrasound Description Mandates By Refocusing On The Listener, Juliana Shulman-Laniel May 2017

A Patient's Right Not To Hear: The Public Health Case For Challenging Pre-Abortion Ultrasound Description Mandates By Refocusing On The Listener, Juliana Shulman-Laniel

DePaul Journal of Women, Gender and the Law

This Article argues for a reframing of the discourse surrounding abortion-specific informed consent laws, calling for scholars and practitioners to focus not solely on the physician’s right against compelled speech, but also a patient’s right not to listen. Although this right has not been firmly recognized by the courts, a growing body of case law and scholarly papers has begun to acknowledge the potential for this right. This Article begins by examining how bridging the First Amendment rights of doctors-as-speakers and patients-as-listeners within the context of the unique doctor-patient relationship may help to establish a patient’s right ...


My Body, Not My Say: How Roe V. Wade Endangers Women's Autonomy, Kisha K. Patel Apr 2017

My Body, Not My Say: How Roe V. Wade Endangers Women's Autonomy, Kisha K. Patel

Politics Honors Papers

When defining women’s rights to reproductive decisions in Roe v. Wade, Justice Blackmun fails to ensure protection for women by defining this right in the privacy doctrine. Justice Blackmun’s opinion allows the government to interpret and apply the doctrine to deny women access and availability to reproductive health. This can be shown by the subsequent Supreme Court decisions on privacy that allow the government to overrule the right of the individual woman. This allows for the government to effectively deny women the right to abortion and ultimately prevents women from making independent autonomous decisions. The laws and regulations ...


Colb And Dorf On Abortion And Animal Rights, Mylan Engel Jr. Mar 2017

Colb And Dorf On Abortion And Animal Rights, Mylan Engel Jr.

Between the Species

In their recent book, Sherry Colb and Michael Dorf defend the following ethical theses: (1) sentience is sufficient for possessing the right not to be harmed and the right not to be killed; (2) killing sentient animals for food is almost always seriously wrong; (3) aborting pre-sentient fetuses raises no moral concerns at all; and (4) aborting sentient fetuses is wrong absent a reason weighty enough to justify killing the fetus. They also discuss strategies and tactics for activists: They oppose the use of graphic images by activists on tactical grounds, and they categorically oppose the use of violence by ...


Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Litman M. Leah Jan 2017

Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Litman M. Leah

Michigan Law Review Online

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy.

The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking the Court ...


Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards Jan 2017

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of ...


The Abortion Closet (With A Note On Rules And Standards), David Pozen Jan 2017

The Abortion Closet (With A Note On Rules And Standards), David Pozen

Faculty Scholarship

This brief essay responds to Carol Sanger's book "About Abortion: Terminating Pregnancy in Twenty-First Century America." It draws out some implications of Sanger's arguments concerning abortion secrecy, abortion discourse, and the use of standards in constitutional abortion law.


The Abortion Closet (With A Note On Rules And Standards), David E. Pozen Jan 2017

The Abortion Closet (With A Note On Rules And Standards), David E. Pozen

Faculty Scholarship

An enormous amount of information and insight is packed into Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First Century America. The book is anchored in post-1973 American case law. Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.


Grasping Fatherhood In Abortion And Adoption.Pdf, Malinda L. Seymore Dec 2016

Grasping Fatherhood In Abortion And Adoption.Pdf, Malinda L. Seymore

Malinda L. Seymore

Biology makes a mother, but it does not make a father.  While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood.  Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy – it is ...


My Body, Not My Say: Justice Blackmun's Influential Decision In Roe V. Wade, Kisha K. Patel Jul 2016

My Body, Not My Say: Justice Blackmun's Influential Decision In Roe V. Wade, Kisha K. Patel

Gender and Women's Studies Summer Fellows

Abortion laws have regulated women’s bodies since the beginning of the country. Many people associate regulation with the case of Roe V. Wade in 1973, in which the Supreme Court ruled that states could not outlaw abortion during the first trimester. Roe v. Wade remains controversial to this day as it failed to establish consensus that women’s decision whether or not to terminate a pregnancy falls within their constitutional right to privacy. Understanding the implications of this decision is fundamental to analyze the debate over the constitutionality of abortion today. This paper examines the opinion written by Justice ...


Ministering (In)Justice: The Supreme Court's Misreliance On Abortion Regret In Gonzales V. Carhart, J. Shoshanna Ehrlich Jun 2016

Ministering (In)Justice: The Supreme Court's Misreliance On Abortion Regret In Gonzales V. Carhart, J. Shoshanna Ehrlich

Nevada Law Journal

No abstract provided.


Conscience Collisions: The Search For Public Policy Solutions To The Problem Of Doctrine In Medicine, Christina M. Claxton Apr 2016

Conscience Collisions: The Search For Public Policy Solutions To The Problem Of Doctrine In Medicine, Christina M. Claxton

Senior Theses and Projects

No abstract provided.


Expectant Fathers, Abortion, And Embryos, Dara Purvis Feb 2016

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Dara Purvis

One thread of abortion criticism, arguing that gender equality requires that men be allowed to terminate legal parental status and obligations, has reinforced the stereotype of men as uninterested in fatherhood. As courts facing disputes over stored pre-embryos weigh the equities of allowing implantation of the pre-embryos, this same gender stereotype has been increasingly incorporated into a legal balancing test, leading to troubling implications for ART and family law.


Abortion, Informed Consent, And Regulatory Spillover, Katherine A. Shaw, Alex Stein Jan 2016

Abortion, Informed Consent, And Regulatory Spillover, Katherine A. Shaw, Alex Stein

Indiana Law Journal

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v ...


Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey Jan 2016

Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey

Michigan Journal of Gender & Law

This Note focuses on two cases, Maher v. Roe and Harris v. McRae, and argues that they represent watershed moments in the reproductive rights movement because they positioned abortion as a fundamental right in name only. In both cases, the Supreme Court sanctioned severe funding restrictions and refused to grant poor women the right to state and federal assistance for elective and “nontherapeutic” abortions. “Non-therapeutic abortion” refers to those abortions performed or induced when the life of the mother is not endangered if the fetus is carried to term or when the pregnancy of the mother is not the result ...


Marriage, Abortion, And Coming Out, Scott Skinner-Thompson, Sylvia A. Law, Hugh Baran Jan 2016

Marriage, Abortion, And Coming Out, Scott Skinner-Thompson, Sylvia A. Law, Hugh Baran

Articles

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?

This Piece argues that one explanation—or at least partial explanation—for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Piece, popular media portrayals of lesbian and gay individuals have proliferated ...


Minors, Parents, And Minor Parents, Maya Manian Dec 2015

Minors, Parents, And Minor Parents, Maya Manian

Maya Manian

As numerous scholars have noted, the law takes a strikingly incoherent approach to adolescent reproduction.  States overwhelmingly allow a teenage girl to independently consent to pregnancy care and medical treatment for her child, and even to give up her child for adoption, all without notice to her parents, but require parental notice or consent for abortion.  This Article argues that this oft-noted contradiction in the law on teenage reproductive decision-making is in fact not as contradictory as it first appears.  A closer look at the law’s apparently conflicting approaches to teenage abortion and teenage childbirth exposes common ground that ...


Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras Dec 2015

Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras

Michigan Journal of Gender & Law

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach ...


Replacing Myths With Facts: Sex-Selective Abortion Laws In The United States, Brian Citro, Jeff Gilson, Sital Kalantry, Kelsey Stricker Sep 2015

Replacing Myths With Facts: Sex-Selective Abortion Laws In The United States, Brian Citro, Jeff Gilson, Sital Kalantry, Kelsey Stricker

Sital Kalantry

Several countries in the world have sex ratios at birth that are as high or higher than China and India, including countries with predominantly white populations. Nonetheless, immigrant communities in the United States from China and India are consistently accused of harboring a preference for sons. It is supposedly this preference for sons that leads Asian Americans to abort female fetuses. In response, eight states have enacted bans on sex-selective abortion and 21 states and the United States Congress have considered such bans.

Proponents of sex-selective abortion bans claim that the United States is one of the few countries in ...


Sex-Selective Abortion Bans: Anti-Immigration Or Anti-Abortion?, Sital Kalantry Sep 2015

Sex-Selective Abortion Bans: Anti-Immigration Or Anti-Abortion?, Sital Kalantry

Sital Kalantry

In the last five years, over half of the state legislatures in the United States have considered banning sex-selective abortion because of the (false) belief that Asian Americans are disproportionately giving birth to more boys than are European Americans. Supported by the data that applies to a very small subset of Asian Americans, proponents of the law stereotype Asian Americans by assuming that their birthing patterns are the same as those of people in India and China.

Because of the undue focus on Asian immigrants in the discussions of sex selection bans, the real conversation that should occur in the ...