Analysis and Commentary on Reproductive Law
Lindsay Graham’s Gambit Is the Next Step Toward a Nationwide Abortion Ban

Amherst professor Austin Sarat comments on Senator Lindsay Graham’s proposed national 15-week abortion ban. Professor Sarat points out that the proposed bill contradicts his—and other anti-abortion Republicans, including Supreme Court Justices who voted to overturn Roe v. Wade—claim that the question of abortion should be decided by each state legislature.

The Trigger Has Been Pulled: Texas’s Criminal Ban on Abortion Takes Effect

SMU Dedman School of Law professor Joanna L. Grossman describes the current status of abortion rights and access in Texas in light of the “Roe trigger ban” taking effect today, August 25, 2022. Professor Grossman explains the history of abortion in Texas and highlights the inhumanity of a law that prefers to let a pregnant woman die when a safe medical procedure would have saved her life, rather than permit her to terminate a pregnancy, even a non-viable one, unless she is on the brink of death or substantial bodily impairment.

SCOTUS Animal Welfare Case Could Implicate State Power to Ban Abortion Pills

Cornell Law professor Michael C. Dorf comments on a case currently before the U.S. Supreme Court involving a challenge by the pork industry to a California law—Proposition 12—that was adopted by referendum in 2018. Professor Dorf explains why Supreme Court should uphold Prop 12 against the plaintiffs’ “dormant” Commerce Clause claims, and he considers the implications of that holding on state power to ban abortion pills from other states.

What Does it Mean for Other Institutions to “Defy” or “Check” the Supreme Court? Not What the Court Invites Those Institutions to Do

Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to a recent column by New York Times columnist David Leonhardt, arguing that neither of the recent high-profile developments after the Dobbs v. Jackson Women’s Health Organization decision is an example of “defying” the Court or “checking” judicial power. Dean Amar and Professor Mazzone point out that while neither the abortion vote in Kansas nor the pending federal marriage-equality proposal may fairly be characterized as “defying” or “checking,” some political reactions to Supreme Court rulings in the past arguably have involved defiance or disobedience of the Court.

“Pro-Life”: Delta Variant

Cornell Law professor Sherry F. Colb considers what it means for many of today’s anti-abortion advocates to criminalize not only abortion providers but the person seeking to obtain an abortion as well. Professor Colb argues that this latest iteration of the anti-abortion movement is about turning women into public property subject to rape and then to reproductive servitude for the community.

Impregnable

Cornell Law professor Sherry F. Colb explores the history and understanding of the word “impregnable,” particularly the gendered nature of the word and what it says about our perception of pregnancy. Professor Colb suggests ways in which our society could make women “impregnable” and thus more equal to men, who are quite literally impregnable.

To Be or Not to Be a Mother: A Timeless Question with New Urgency

In this second of a series of columns on the Supreme Court’s decision that eliminated the constitutional right to abortion, SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law professor Lawrence M. Friedman describe how abortion law arose alongside the eugenics movement. As Professor Grossman and Friedman explain, early abortion restrictions were, in part, an effort to encourage the “right” people to have babies (positive eugenics), used in conjunction with negative eugenics, which involved forced sterilization of people deemed “unfit.”

Dobbs Double-Cross: How Justice Alito Misused Pro-Choice Scholars’ Work

Cornell Law professor Michael C. Dorf argues that Justice Samuel Alito's majority opinion in Dobbs v. Jackson Women’s Health Organization eliminating the constitutional right to abortion misused pro-choice scholars’ work in an attempt to justify overturning Roe Casey. Professor Dorf observes that by pointing readers to the body of work by Justice Ruth Bader Ginsburg, Professor John Hart Ely, and other pro-choice scholars, Justice Alito effectively calls attention to their robust defense of abortion rights as essential to sex equality and an account of how the current hyper-conservative Court’s rulings are profoundly illegitimate.

Roe and Dobbs as Defining Cases for the Supreme Court and the Justices Who Wrote the Majority Opinions

Touro Law professor Rodger D. Citron argues that just as Roe v. Wade is the representative case of Justice Harry Blackmun’s tenure on the Supreme Court, so too will Dobbs v. Jackson Women’s Health Organization become the emblematic decision of its author, Justice Samuel Alito, Jr. Professor Citron analyzes the differences between the two decisions and the Justices who authored them, and what those differences mean about the Court that decided each of those cases.

The Roadmap for Pregnant Girls and Women to Assert Their Religious Liberty to Invalidate Abortion Bans

University of Pennsylvania professor Marci A. Hamilton calls upon the majority of Americans to insist that their worldviews and beliefs—not just those of the extreme Christian right—be recognized in the courts. Professor Hamilton explains how many individuals seeking an abortion in states that prohibit them can use a Religious Freedom Restoration Act (RFRA) to obtain an exemption to the abortion ban.

The End of Roe v. Wade

In this first of a series of columns on the Supreme Court’s elimination of the constitutional right to abortion, SMU Dedman School of Law professor Joanna L. Grossman describes the history of the right to abortion and explains how the decision in Dobbs v. Jackson Women’s Health Organization changes both the legal landscape and also our constitutional conception of what it means to be full members of society. Professor Grossman argues that with this ruling, the Supreme Court has returned women to the service of society, rather than allowing them the dignity of an autonomous life, and that is only the beginning.

With Dobbs, We’re All in Bork’s America Now

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut argue that Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization, together with the language in Justice Clarence Thomas’s concurring opinion, put the country on a path toward the totalitarian state that one-time Supreme Court nominee Robert Bork had envisioned. Professor Sarat and Mr. Aftergut point out that Bork’s America would have a constitution that does not evolve or change to meet new circumstances and that affords no protection of citizens’ privacy from government intrusion

The Religious Freedom Restoration Act Formula Comes Full Circle in Florida

University of Pennsylvania professor Marci A. Hamilton comments on the recent news that the Congregation L’Dor Va-Dor, a Jewish synagogue in Florida, has sued the state under the Florida Religious Freedom Restoration Act (RFRA) over its new restrictive abortion laws that it argues violate their religious faith. Professor Hamilton praises the synagogue for leading the charge against an oppressive minority but condemns the tool it must use to do so—RFRA— which Hamilton argues is a tried-and-true path to religious division and mutual intolerance.

Justice Alito’s Opinion on Abortion: Not Just a Threat to Reproductive Rights, but to All Constitutional Liberties Not Expressly Set Out in the Constitution

Attorney Jon May argues that the reasoning of Justice Samuel Alito’s leaked majority draft of Dobbs v. Jackson Women’s Health Org. poses a threat not only to reproductive rights, but to all constitutional liberties not expressly enumerated in the Constitution. Mr. May points out that the radical departure of Justice Alito’s opinion could pave the way for the Court to overturn numerous rights recognized over the past seventy years deriving from the First, Fourth, Fifth, Sixth, and Fourteenth Amendments.

Some Questions for the Alito Five

In light of Justice Samuel Alito’s leaked draft in Dobbs v. Jackson Women’s Health Org., which would overrule Roe v. Wade and its progeny, UChicago Law professor emeritus Albert W. Alschuler and Harvard Law professor emeritus Laurence H. Tribe ask six questions of the apparent five-Justice majority. Professors Alschuler and Tribe point out some of the inconsistencies and illogic of the opinion and call on the Justices to account for these issues.

Are Religious Abortions Protected?

Cornell Law professor Sherry F. Colb explores a suggestion by some pro-choice advocates that a “religious abortion” might serve as a workaround to the apparently imminent demise of the constitutional right to abortion. Professor Colb explains why that workaround is unlikely to prevail: the current Court discounts the Establishment Clause, and its ostensible embrace of the Free Exercise Clause is actually friendliness only to conservative Christianity (and to Judaism and Islam where the traditions happen to be the same).

Middle-Ground Possibilities in Dobbs? A Few Arguments From “Political Reliance”

Illinois Law dean Vikram David Amar describes a few (albeit unlikely) ways in which the Supreme Court could more moderately rule in Dobbs v. Jackson Women’s Health Org., rather than outright striking down Roe v. Wade and Planned Parenthood v. Casey (which a majority seems poised to do), or upholding them (which three Justices almost certainly support). Dean Amar explains the doctrine of “political reliance” and how it could lead the Court either to “return” the abortion question to the states to legislate (rather than having unenforced pre-Roe statutes to spring back to life), or to “sunset” the abortion right, giving the public time to account for the change in law.

Alito, Rape, and Incest

In light of the recently leaked draft of a majority opinion by Justice Samuel Alito that would overrule Roe v. Wade, Cornell Law professor Sherry F. Colb comments on the Mississippi law at issue, which lacks an exception for instances of rape incest. Professor Colb suggests that Justice Alito has been waiting to overrule Roe at least since the Supreme Court reversed his decision as an appeals court judge in Planned Parenthood v. Casey, thereby giving voice to his Catholic belief that a zygote could reasonably be characterized as an “unborn child.”

With Women’s Lives on the Line, a Senate Vote Today Will Expose Collins and Murkowski on Choice

Former federal prosecutor Dennis Aftergut comments on today’s Senate vote over whether to codify Roe v. Wade—particularly the positions of Senators Susan Collins and Lisa Murkowski, who claim to be pro-choice but seem poised not to support the bill. Mr. Aftergut describes the two competing Senate bills and explains that the key difference is whether the bill will be exempt from the filibuster.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more