Analysis and Commentary on Reproductive Law

The Circle Starts to Close: The Religious Freedom Restoration Act, Abortion, the Catholic Bishops, and the Satanic Temple

Cardozo Law professor Marci Hamilton comments on a recent move by the Satanic Temple seeking exemption from coercive informed consent laws citing the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores Inc. Hamilton describes the Catholic bishops’ apprehension toward the Religious Freedom Restoration Act (RFRA) when it was being considered over twenty years ago and how quickly they got behind it after it passed. Finally, Hamilton describes how clear it is now that RFRA cuts both ways.

What Counts as an Abortion, and Does It Matter?

Cornell University law professor Sherry Colb discusses the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc., and the nature of the respondents’ claim that IUDs and morning-after pills are abortifacients. Colb analogizes to the distinction between the culpability of direct violence and failure to rescue in order to illustrate that the respondents’ claims are moral rather than factual in basis.

Excluding Pregnant Women from the Right to Terminate Life Support

Justia columnist and Cornell law professor Sherry Colb comments on the situation of a pregnant 33-year-old woman in Texas whose family has been unable to have her removed from life support, notwithstanding her wishes and those of her family. The obstacle is a Texas law that prohibits the withdrawal or withholding of life-sustaining treatment from a pregnant patient. Colb contends that while political groups have weighed in—in predictable ways, corresponding to their views regarding abortion—in fact we should analyze the dilemma as in some respects, legally and morally distinct from the situation that confronts us in the abortion context, as she explains.

The Bishops Versus Women’s Health: The Gloves Are Off

Justia columnist and Cardozo law professor Marci Hamilton contends that we are in the midst of a war over whether the U.S. Catholic Bishops and those who agree with them, or individual women, will control women’s bodies and health. Hamilton comments on the influence of Pope Francis. She also argues that there are two major battlefields in this war right now: one in the workplace, and the other in Catholic hospitals. Hamilton ends, too, with an account of the terrible labor of a woman who suffered unnecessarily due to these conflicts.

Sperm Donors on the Large and Small Screen

Justia columnist and Hofstra law professor Joanna Grossman comments on instances of real-life and fictional complications regarding sperm donation. The fictional story is told through the Vince Vaughan film Deliveryman. The real-life stories are told on a new MTV show, Generation Cryo, which depicts the quest of a teenage girl to meet her fifteen half-siblings and the anonymous sperm donor responsible for all of their conceptions.

The Republican War Against Women

Justia columnist and Cardozo law professor Marci Hamilton contends that Catholic and evangelical leaders are waging a new war against the use of contraception, enlisting public relations experts, lobbyists, and lawyers, despite the fact that very large majorities of Americans support contraception. One strategy, Hamilton notes, involves “conscience clauses” that would, for instance, allow pharmacists not to hand over contraceptives if it violates the pharmacist’s own anti-contraception beliefs.

What To Expect From the Supreme Court’s Abortion Case This Term

Justia columnist and Cornell law professor Sherry Colb comments on the United States Supreme Court’s June grant of certiorari in Cline v. Oklahoma Coalition for Reproductive Justice. The new case confronts the regulation of medically induced abortion and, Colb predicts, may prove to be important and surprising. Colb provides a particular focus here on Justice Kennedy’s possible views on abortion issues.

The Significance of the New “Pain Capable Abortion” Laws

Justia columnist and Cornell law professor Sherry Colb comments on recent laws enacted by several states banning abortion procedures at 20 weeks post-fertilization (or 22 weeks after a pregnant woman’s last menstrual period or “LMP”), and a similar federal measure passed by the House of Representatives, the “Pain-Capable Unborn Child Protection Act (PCUCPA), which would—in the unlikely event that it passed—yield a national prohibition against abortion at 20 weeks post-fertilization (with various exceptions). Some see such laws as a way to subtly advance a pro-life agenda, but Colb notes that an emphasis on the importance of pain, sentience, and suffering in morality surely should, especially, make us ask why we ignore the terrible suffering of the animals we use for food, when we should, instead, Colb contends—focusing on pain—choose to become vegan.

Seneca Falls Redux: New York’s Governor Cuomo Pushes A New Law to Protect Women’s Rights

Justia columnist and Hofstra law professor Joanna Grossman explains the specific provisions of, and the keen need for, the bill that Governor Cuomo of New York has recently proposed, which is entitled the Women's Equality Act (WEA). Pointing to two hypothetical babies, a boy and a girl, Cuomo notes that the girl's life will be marked with risks and forms of discrimination that the boy will never have to suffer. The bill, Cuomo contends, will help level the playing field for girls and women, via changes in the law in ten different areas, each of which Grossman comments upon.

What’s the Matter with North Dakota and Arkansas? Two State Legislatures Pass Highly Restrictive and Unconstitutional Abortion Laws

Justia columnist and Hofstra law professor Joanna Grossman comments on two states’ decisions to pass abortion laws despite the fact that under U.S. Supreme Court precedent, it is very clear that these new laws are unconstitutional. Grossman explains the relevant tenets of constitutional law regarding abortion, and details exactly why both North Dakota’s and Arkansas’s laws flout the U.S. Supreme Court’s precedents. Grossman also covers other abortion laws that have been passed by state legislatures despite their very clear unconstitutionality, and notes that the new laws do not gibe with public opinion regarding abortion rights.

The American Bishops, Contraception, and Gender Discrimination

Justia columnist and Cardozo law professor Marci Hamilton comments on last week's issuance by, the Obama Administration, of revised HHS regulations that accommodate religious organizations that object to providing contraception and abortion services as part of their requirement to provide health insurance under the Affordable Care Act (ACA). Hamilton explains the exemption, its four criteria, and how the rules work. She also notes that the religious exemption does not apply to for-profit entities, and likely will be held not to apply to nonprofit entities, either. The reason the exemption likely does not apply, Hamilton explains, is that employers are completely out of the loop, with the health insurance issue (including issues regarding contraception and abortion) now solely an issue, under the regulations, between a woman and her doctor.

Marking the Fortieth Anniversary of Roe v. Wade Part Two: Why the Court Did Not Go Too Far Too Fast

Justia columnist and Cornell law professor Michael Dorf continues his two-part series of columns on Roe v. Wade on its 40th anniversary. Here, in Part Two of Dorf’s two-part series, he addresses a common criticism that has been voiced by Justice Ruth Bader Ginsburg, prior to her joining the Court, and by others as well: the criticism that Roe went too far, too fast and that having more of a dialogue beforehand might have led to less controversy surrounding the decision. Dorf disagrees with this criticism of Roe and its timing, contending (1) that the criticism may well have been mistaken from the very beginning, and (2) that the passage of forty years since Roe was handed down has surely and clearly refuted the too far, too fast critique of Roe. (Part One of Dorf's series on Roe appeared on January 17 here on Justia’s Verdict.)

Marking the Fortieth Anniversary of Roe v. Wade Part One: Where Three Common Criticisms Go Wrong

In the first in a two-part series on Roe v. Wade on its 40th anniversary, Justia columnist and Cornell law professor Michael Dorf explains where three common criticisms of the controversial Supreme Court precedent each go wrong. The criticisms run as follows: (1) that the constitutional text nowhere mentions abortion; (2) that the original meaning of the Fourteenth Amendment did not encompass a right to abortion; and (3) that the courts ought to stay out of socially divisive issues. If these objections are carefully considered, Dorf concludes, none of them holds water. Still, Dorf notes, Roe was nonetheless a hard case. (Dorf will continue his commentary on Roe’s 40th in his Wednesday, January 23 column.)

The U.S Court of Appeals for the Sixth Circuit Upholds Restrictions on Medical Abortion: Why Should Anyone Care?

Justia columnist and Cornell law professor Sherry Colb discusses the ramifications of the U.S. Court of Appeals for the Sixth Circuit’s decision to uphold a series of restrictions on medical abortions (such as abortions effected by taking the drug RU-486) against various constitutional challenges by Planned Parenthood and others. Colb explains why making medical (as opposed to surgical) abortions more difficult can also have other ramifications, as well. For instance, she suggests that the restrictions at issue may be motivated by politics, and not by concern for women’s health. In particular, Colb points out that medical abortions do not require clinic visits where women seeking abortions must face down pro-life protesters; and that such abortions, with no health care provider involved, may defeat a pro-life strategy of vilifying abortion providers and painting women who seek abortions as victims of society’s decision not to fully support motherhood.

How Todd Akin’s Statements About Rape and Pregnancy Undercut the Pro-Life Movement’s Efforts to Sell Itself as Pro-Woman

Congressman and Senate candidate Todd Akin’s comments about “legitimate rape,” in which he claimed that a woman who is raped is especially unlikely to get pregnant, are now notorious for being both offensive and factually wrong. In this column, Justia columnist and Cornell law professor Michael Dorf contends that—in addition to being highly inaccurate and offending many—Akin’s comments have also harmed the pro-life movement’s ability to present itself as pro-woman. Dorf notes that Akin’s “legitimate rape” phrase harkens back to old stereotypes claiming that women often made false rape claims, when we now know that is untrue. Ultimately, Dorf suggests, Akin’s comments may well have the greatest significance for the abortion debate, and Dorf explains why—examining the pro-life claim that women experience “abortion regret syndrome,” and considering whether the pro-life movement can, or should, be deemed pro-women, given certain facts about the movement.

Can the Government Require Doctors to Provide Misleading Information to Patients Seeking Abortions? A Federal Appeals Court Says No, but Means Yes

Justia columnist and Cornell law professor Michael Dorf comments on a recent decision from the U.S. Court of Appeals for the Eighth Circuit. As Dorf explains, the decision upheld a provision of a South Dakota law mandating that women seeking an abortion be informed that, with the abortion procedure, comes “an increased risk of suicidal ideation and suicide.” Although the medical literature shows only a correlation, and not a causal relationship, between abortion and suicide, and although that correlation likely stems entirely from some of the underlying factors that lead women to seek abortions in the first place, the Eighth Circuit still upheld the law at issue. Although the Eighth Circuit’s decision was quite plainly the wrong one, Dorf notes, he also predicts that it’s very unlikely that the U.S. Supreme Court will take the case. He then explains why the Court is likely to decline review and why, if it does grant review, it might uphold the law, even though it ought to be struck down.

Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part Two in a Two-Part Series of Columns

In the second in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of the constitutionality of the Texas law, enacted about a year ago, requiring abortion providers to (1) perform an ultrasound on a patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. Here, in Part Two, Colb continues to address the important question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved in the context of abortion, which express a pro-childbirth value judgment. Colb also analyzes the abortion-related laws that the Court has struck down, and explains why. Moreover, she considers the relevance, here, of cases regarding unwanted speech and targeted picketing. Finally, Colb parallels the law with another context in which disturbing images may be shown, and if they are, the showing can be controversial: Animal Rights classes.

Notre Dame Sues the Federal Government in Order to Avoid Providing Reproductive Services to Its Female Students and Employees

Justia columnist and Cardozo law professor Marci Hamilton comments on Notre Dame University’s and other Roman Catholic organizations’ recent suit against the federal government over federal executive regulations, promulgated through the Department of Health and Human Services (“HHS”), that require the University and the other organizations to include contraception, abortion, and sterilization in their healthcare plans. Hamilton focuses, in particular, on the federal court complaint filed by Notre Dame and the other plaintiffs, and the arguments they have made. Hamilton also describes a series of Supreme Court precedents in which various religious groups have failed to get exemptions from generally applicable laws, and argues that these precedents do not bode well for the plaintiffs’ success in this court challenge. Hamilton also discusses the role the Religious Freedom Restoration Act (RFRA) plays in the lawsuit.

Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part One in a Two-Part Series of Columns

In the first in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb considers the constitutionality of the Texas law, enacted about a year ago, requiring abortion providers to (1) perform an ultrasound on a patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. Colb focuses especially on the question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved in the context of abortion, which express a pro-childbirth value judgment.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more