Articles Tagged with Abortion

Texas Judges Give Unconstitutional Fetal Remains Law a Proper Burial

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a Republican-appointed federal judge striking down (yet another) unconstitutional Texas law that would have required embryonic and fetal remains to be given a “proper” burial. Grossman explains that the judge correctly found the Texas law would have placed an undue burden on women while its purported benefits were “de minimis” at best, in violation of the US Supreme Court’s decision in Planned Parenthood v. Casey.

Would a Feminist Oppose the Right to Choose?

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Cornell law professor Sherry F. Colb considers some of the self-described pro-life feminists’ arguments against abortion rights and argues that an anti-choice position on abortion is not only not feminist, but contrary to feminism. Colb argues that a zygote—a mere collection of cells—is not a child and would have no claim to the inside of a woman’s body even if it were; thus, a full feminist would recognize these simple truths and would be pro-choice.

A Strong Anti-Choice Signal From the Court

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UNLV Boyd School of Law professor Leslie C. Griffin discusses the US Supreme Court’s recent decision in NIFLA v. Becerra, in which a 5–4 majority of the Court struck down a California law requiring crisis pregnancy centers to inform their pregnant patients about abortion options. Griffin explains why the majority’s decision can only be read as a strong anti-choice signal that will only grow stronger with Justice Kennedy being replaced.

Questioning Justice Kennedy’s Replacement: Pay Attention Not Just to Roe v. Wade but Also the Right to Privacy and Contraception

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Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, explains why the impact of Justice Anthony Kennedy’s retirement from the US Supreme Court touches far more than just the issue of abortion—but the very notion of a constitutional right to privacy. Hamilton argues that if the Federalist Society has its way, the core reasoning of Roe v. Wade will be eviscerated and the constitutional right to privacy—from which the right to access to contraception and the right to engage in consensual sexual relations in private—will be eroded.

The Irish Pro-Choice Vote and Empathy

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Cornell University law professor Sherry F. Colb comments on the outcome of a recent vote in Ireland repealing that country’s ban on nearly all abortions and explains why empathy for opposing perspectives is important on abortion and other issues, such as animal rights. An ethical vegan, Colb shares her own experience of learning to be empathic when people make untenable arguments in favor of violence toward nonhuman animals.

Judicial Nominee Refuses to Say Whether Brown v. Board Was Rightly Decided

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Cornell University law professor Michael C. Dorf comments on an exchange during the confirmation hearing of Wendy Vitter, whom President Trump has nominated for a federal district court judgeship, in which Vitter declined to answer whether she thought Brown v. Board of Education was rightly decided. Dorf points out that Vitter’s refusal to answer that question may have been an attempt to avoid further scrutiny about her views about abortion but also served to inadvertently acknowledge what conservatives routinely deny—that a judge’s “personal, religious, and political” views necessarily interact with the legal materials.

The War Over Women’s Health: The Supreme Court Considers Validity of California Law Mandating that Anti-Abortion Pregnancy Centers Disclose if They Are Not Licensed

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SMU Dedman School of Law professor Joanna L. Grossman comments on the recent oral argument in NIFLA v. Becerra, in which so-called Crisis Pregnancy Centers challenge California’s Reproductive FACT Act as violating their First Amendment right to free speech by requiring posted information about medical licensure and abortion. Grossman points out that Justices Stephen Breyer and Sonia Sotomayor seemed to believe that if California’s FACT Act violates the First Amendment, then so too would laws in other states requiring that doctors engage in anti-abortion (or abortion-deterrent) speech.

Texas Strikes Out Again: Federal Court Halts Enforcement of Yet Another Unconstitutional Anti-Abortion Law

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal court in Texas permanently enjoining the State of Texas from enforcing an unconstitutional anti-abortion law. Grossman provides a brief background of both Texas and the law at issue and explains why the federal court struck it down. Grossman points out that the clear weight of Supreme Court jurisprudence supports the district court’s reasoning and decision.

A Tax Deduction for Unborn Children: Should Pro-Choice Advocates Have Worried?

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Cornell University law professor Sherry F. Colb considers a provision of the proposed statute in the House version of the latest tax reform bill that would have allowed expectant parents to take a tax deduction on college fund investments for their offspring. Colb notes the negative response to this provision among pro-choice advocates as a result of how the provision’s language equates a fetus with a child. While acknowledging the worry among abortion rights proponents that such wording might provide a legal foundation for future attempts to restrict women’s rights to terminate their pregnancies, Colb counters this concern by explaining why it is unlikely that the language in the tax bill would have any effect on the legal status of abortion.

The Lessons of Sex-Selection Abortion

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Cornell University law professor Sherry F. Colb reviews Sital Kalantry’s book Women's Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India. Colb explains how the book taught her a new way to think about an area in which Colb herself already has extensive knowledge. Colb praises Kalantry for taking an empirically supported look at the practice of sex-selection abortions in the United States and elsewhere and for drawing sophisticated conclusions about the proper place for regulation on the basis of that scrutiny.

The Handmaid’s Tale—Junior Version

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SMU Dedman School of Law professor Joanna L. Grossman analogizes a situation in the present United States to the dystopic circumstances of The Handmaid’s Tale. In each, Grossman points out that men have taken upon themselves the right and responsibility to mandate what women may (and must) do during pregnancy, despite what are indisputably their constitutional rights.

Can Texas Require Separate Insurance Coverage For Abortion?

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Cornell University law professor Sherry F. Colb considers a recently passed Texas law that will require people who want insurance coverage for non-emergency abortions to buy an additional, separate policy from their regular health insurance policy. Colb explains that proponents of the law argue that individuals should not have to fund practices with which they fundamentally disagree, but she points out that many taxpayers provide funding for government activities with which they fundamentally disagree and this situation is arguably no different from those.

The Meaning of an Alabama Abortion Law Governing Minors

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Cornell University law professor Sherry F. Colb explains the meaning behind an Alabama law governing minors who wish to have an abortion but are unable or unwilling to get their parents’ consent. Colb argues that the law was correctly struck down in federal court, but that the message the law’s passage sends is clearly hostile to women’s right to abortion.

California Considers Bill to Regulate (But Not Prohibit) Child Marriage

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Cornell University law professor Sherry F. Colb comments critically on a California bill that would regulate (but not prohibit) child marriage. Colb argues that the law, which in its current proposed form would allow parents and courts to give consent for a minor child to marry, disregards important norms about children’s rights and the importance of real consent to a sexual relationship.

Texas House Approves a Doomed Abortion Law: Why?

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Cornell University law professor Sherry F. Colb discusses legislation recently approved by the Texas House that will almost certainly be struck down as unconstitutionally restricting women's right to seek an abortion prior to fetal viability. Colb explains that the legislation is more speech than it is law and discusses some possible reasons the state would want to “speak” in this manner.

Texas Moves Toward Abolishing Wrongful Birth Suits

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Cornell University law professor Sherry F. Colb comments on a Texas bill currently under consideration that would eliminate the “wrongful birth” cause of action. Colb defines wrongful birth and points out that while its opponents argue that it encourages abortion, it actually encourages forthrightness and honesty among physicians, which should already be the standard of conduct. In fact, Colb argues, it is not the availability of a lawsuit that “encourages” abortion so much as the fact of the severe disability and the toll that this could take on their lives as well as on the life of the child whose birth is under consideration.

An Oklahoma Bill Would Require a Father’s Consent for Abortion

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Cornell University law professor Sherry F. Colb comments on a bill currently under consideration by the Oklahoma legislature that would require a woman who wants to have an abortion to first obtain the written consent of the father of the pregnancy. Colb argues that not only is the bill plainly unconstitutional, but it is also outright misogynistic.

What Women Are Not Getting for Valentine’s Day This Year: Access to Reproductive Health Care Under the Trump Administration

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SMU Dedman School of Law professor Joanna L. Grossman discusses the grave risks to women’s health under the Trump Administration, both within the United States and worldwide. Grossman explains the unprecedented breadth of President Trump’s executive order reinstating what is known as the “global gag rule” and vastly expanding its scope.

Federal Judge Buries Unconstitutional Texas Law on the Treatment of Fetal Remains

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SMU Dedman School of Law professor Joanna Grossman explains how taxpayers end up paying for legislators to pass clearly unconstitutional laws and for the state to defend those laws in court. Specifically, Grossman discusses Texas laws attempting to restrict access to abortion and attempting to mandate the burial or cremation of fetal remains, both of which have been struck down as unconstitutional.

Defending a Texas Rule Requiring Fetal Burial or Cremation

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Writing from the perspective of a pro-life activist, Cornell University law professor Sherry F. Colb considers the merits of a Texas rule that would require hospitals and clinics to bury or cremate the remains of embryos and fetuses resulting from terminations or miscarriages that take place in their facilities. From this perspective, Colb acknowledges that the rule might reasonably be interpreted to be consistent with Supreme Court precedent; she writes from her true (pro-choice) perspective in an accompanying blog post.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variet... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvani... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more