Reproductive Rights
Intersex, Trans, and the Irrationality of Gender-Affirming-Care Bans
This Article provides a comprehensive legal analysis of gender-affirming-care bans, concluding that their internally inconsistent treatment of trans-affirming care and coercive intersex-normalizing interventions renders them irrational and thus unconstitutional under even rational-basis review. We further provide a normative vision for bodily self-determination to support both trans and intersex interests.
Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It
This Article offers the first legal history of the Comstock Act from its enactment to its post-Dobbs reinvention. From conflicts over Comstock’s enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free-speech law and the law of sexual and reproductive liberty.
History and Tradition’s Equality Problem
This Essay identifies a key feature of the Court’s new history-and-tradition doctrine that has not yet attracted significant attention: outcomes in history-and-tradition cases (involving guns, abortion, etc.) are often driven by hidden, contemporary judgments about equality—judgments whose implications may extend far beyond these cases.
Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical errors dwarf those in Bowers.
The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism, history and tradition, and “levels of generality.”
The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition
By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.
Judicial Bypass and Parental Rights After Dobbs
This Note explores the status of judicial bypass of parental-involvement laws for abortion, historically mandated to balance minors’ right to abortion and their parent’s right to direct their upbringing. We argue that, even after Dobbs, judicial bypass is legally supported and consistent with a proper understanding of parental rights.
The Abortion Interoperability Trap
There’s a hole in efforts to create abortion “safe havens”: they fail to recognize that medical care increasingly leaves a digital trail that will easily make its way back to abortion-seekers’ home states. Lawmakers and providers must act now to shield politicized medical records by addressing this “interoperability trap.”
Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity
Scientific evidence overwhelmingly shows that the categorization of Plan B and other emergency contraceptives as “abortifacient,” or abortion-inducing, is incorrect. This Note argues that policy-makers and judges entrench this misunderstanding, incorrectly and unnecessarily blurring the lines between contraception and abortion, and fact and belief.
The New Class Blindness
An increasing number of judges argue that courts are flatly prohibited from taking class into account when interpreting the Fourteenth Amendment. Contesting that claim, this Article traces the persistence of class-related concerns in Fourteenth Amendment doctrine from the Warren Court to the present day.
Pregnancy, Poverty, and the State
In this Review of Khiara Bridges’s book, The Poverty of Privacy Rights, Michele Goodwin and Erwin Chemerinsky argue that state legislatures, as well as the federal government and courts, express moral disregard and even outright contempt for poor women in multitudinous ways that include, but extend beyond, Bridges’s analysis.
The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman’s Health
As the case that became Whole Woman’s Health worked its way to the Supreme Court, few were confident about how the Court would respond to a law, enacted in the name of protecting women’s health, that would predictably shut most of a state’s abortion clinics. All agreed that the governing standard was the undue burden framework the Court had adopted a quarter century earlier in Planned Parenthood v. Casey. But the meaning of “undue burden” was in doubt. Opponents of the abortion right asserted that after the Court decided Gonzales v. Carhart, upholding the Partial Birth Abortion Ban Act, the Casey framework meant little more than rational basis deference to legislative decision making. Supporters were confident that the undue burden framework provided women more constitutional protection than that—but many still worried that the standard was too indeterminate to constrain state legislatures.
Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone
"TRAP"ing Roe in Indiana and a Common-Ground Alternative
118 Yale L.J. 1356 (2009). Public discourse over abortion overwhelmingly focuses on whether the Supreme Court will overrule Roe v. Wade and states will again ban abortion. But at least since 1992, when the Court in Planned Parenthood v. Casey reaffirmed Roe’s “central holding,” certain moderate-sounding abortion restrictions—sometimes framed as reasonable compromise regulations—have posed a greater threat to women’s reproductive health and liberty. This Essay examines one increasingly popular form of restriction: laws that regulate providers of abortion services in the name of advancing women’s health, without actual health justification. Little-noted efforts to enact such restrictions in Indiana, during the same period South Dakota made headlines enacting criminal abortion bans in 2006 and 2008, illustrate the potential impact of what opponents have called “TRAP laws,” for targeted regulation of abortion providers. The burdens that result from regulatory interference with the availability of services fall disproportionately on the most vulnerable women: those unable to bear increased costs, travel longer distances, or otherwise overcome government-created barriers to legal health services. The Indiana experience also points to the importance and effectiveness of “common‑ground” alternative approaches to reducing the number of abortions. Through programs that prevent unintended pregnancy and promote healthy childbearing, the government can more effectively reduce abortions while respecting our nation’s fundamental liberties and values.
From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights
118 Yale L.J. 1394 (2009). The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The Essay then explores the possibility of creating a right to legal abortion through ordinary political means, rather than through constitutional adjudication, in such a way as not to carry these costs.
How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars
118 Yale L.J. 1318 (2009). 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 trimester test or by overruling Roe altogether. Third (and most important), I will explain how it is that Casey stabilized state abortion politics. The national consensus favoring limited abortion rights remains intact. Correspondingly, the template of laws approved by the Supreme Court in Casey were politically popular at the time of Casey and remain politically popular today. Indeed, since Pennsylvania has always been one of the most restrictive states when it comes to abortion regulation, very few states are interested in pushing the boundaries of what Casey allows. And while a handful of outlier states have pushed the boundaries of what Casey allows, these states (which account for a quite small percentage of abortions) have largely worked within parameters set by the Court in Casey. Perhaps most telling, neither the confirmation of Chief Justice Roberts and Justice Alito nor the Supreme Court’s approval of federal partial-birth abortion legislation has significantly impacted state antiabortion efforts. For all these reasons, pro-choice and pro-life interests would be better served shifting their energies away from legalistic fights over abortion regulation and toward shaping the hearts and minds of the women who may seek abortions and the doctors and clinics that may provide abortion services.
Introduction: The Constitutional Law and Politics of Reproductive Rights
118 Yale L.J. 1312 (2009).