Analysis and Commentary on Reproductive Law
Texas Plays Chess with Pro-Choice Pawns

Cornell Law professor Sherry F. Colb comments on a blatantly unconstitutional Texas anti-abortion law that the U.S. Supreme Court recently declined to enjoin, pointing out the unusual structure of the legislation and the hypocrisy of “conservatives” who support it. Noting from the outset that the so-called heartbeat to which the legislation refers is not from an actual heart, but pulsing, undifferentiated cells, Professor Colb highlights the hypocrisy of so-called conservatives who favor insulating most civil defendants from suit while inviting nearly anyone to sue for “aiding and abetting” performance of an abortion.

New Texas Abortion Statute Raises Cutting-Edge Questions Not Just About Abortion but About the Relationship Between State and Federal Courts

Illinois Law dean Vikram David Amar and professor Jason Mazzone analyze some of the issues presented by a new Texas anti-abortion statute that is to be enforced entirely by private plaintiffs. Dean Amar and Professor Mazzone explore the unusual characteristics of the law and describe some approaches opponents might take—and indeed Whole Woman’s Health (WWH) has already filed a lawsuit in federal court that seems to follow an approach the authors describe.

Could the Supreme Court Erode But Not Overrule Roe v. Wade in the Mississippi Case?

Cornell Law professor Michael C. Dorf considers whether and how the U.S. Supreme Court next term might eliminate or substantially curtail the constitutional right to abortion recognized in Roe v. Wade. Professor Dorf describes the jurisprudence after that decision and argues that a decision that upholds the Mississippi law while purporting to forestall deciding the ultimate fate of Roe would be brazenly dishonest—albeit somewhat more likely than a clear overruling of Roe.

Justice Thomas Calls Out Liberals for Distinguishing Incarceration from Pregnancy

Cornell Law professor Sherry F. Colb responds to an observation made by U.S. Supreme Court Justice Clarence in his concurring opinion in Jones v. Mississippi, noting an ostensible inconsistency in the language liberals use in discussing incarceration, as compared to pregnancy. Professor Colb acknowledges the face value of Justice Thomas’s point—that liberals refer to minors seeking an abortion as “women” and minors facing life imprisonment without the possibility of parole (“LWOP”) as “children”—but she points out that the difference in terminology reflects a consistent view that minors are not fully developed and should not be forced to do irreversible “adult” things like carry a pregnancy to term or serve a mandatory LWOP sentence.

Let’s Talk About Sex, Baby: State Representative Ana-Maria Ramos Introduces Bill to Repeal Parental Consent Requirement for Birth Control

SMU Dedman School of Law professor Joanna L. Grossman comments on a Texas bill that would allow teens to access birth control without parental involvement. Professor Grossman describes the current state of reproductive health laws and policies in Texas and explains why the proposed bill is so important.

Does Father Know Best When It Comes to Abortion?

Cornell law professor Sherry F. Colb comments on a “father knows best” bill that the Tennessee state legislature is currently considering, which would allow the father of a pregnancy to obtain an injunction against the mother’s having an abortion. Professor Colb notes that while requiring consent of the pregnancy’s father might make intuitive sense and most abortion decisions do include the father, she points out that “father knows best” (and father notification) laws disregard the interests of the embryo/fetus (by giving a father a say in whether to proceed with an abortion) and redistribute control of reproduction from women to men. Professor Colb argues that for these reasons, the Tennessee bill is even more objectionable than an outright ban on the procedure would have been.

First, Undo the Harm: Biden Administration Takes Steps to Protect Reproductive Rights

SMU Dedman School of Law professor Joanna L. Grossman comments on an executive order the Biden administration issued last week revoking the so-called Mexico City policy, which provided that foreign non-governmental organizations (NGOs) who received U.S. international family planning assistance could not offer abortion services, even if the services were funded with non-U.S. money. Grossman hails the decision as a good start but argues that more is needed to meaningfully undo the harmful policies of the Trump administration because of its implementation of a “domestic gag rule” in addition to the global one.

Election Day 2020: A Good Day to End the GOP’s War on Women

SMU Dedman School of Law professor Joanna L. Grossman describes the myriad ways the Trump administration has harmed the interests of women and expresses hope that the outcome of the 2020 Presidential Election will mark the end of the GOP’s war on women. Grossman notes that if Biden and the Democrats win the White House and Congress, they will have not only the opportunity but the obligation to restore what the modern GOP has destroyed.

Reflections on Our First Two Female Supreme Court Justices

In honor of the late Justice Ruth Bader Ginsburg, University of Pennsylvania professor Marci A. Hamilton and former clerk to Justice Sandra Day O’Connor, reflects on our country’s first two female Supreme Court Justices and their similarities and differences. Hamilton points out that a majority of Americans support a woman’s right to choose abortion in at least some circumstances and the right to contraception and warns the President and the Senate to think long and hard before they replace Ginsburg on the fly with a someone who is a threat to abortion and contraception.

Lies, Damned Lies, and Statistics U.S. Senator Ted Cruz Takes to the Internet with False Claims about Childbirth and Abortion

SMU Dedman School of Law professor Joanna L. Grossman debunks a tweet by Texas Senator Ted Cruz about childbirth and abortion. Grossman describes how, contrary to Cruz’s claims, pregnancy is dangerous, Mifeprex has only minor potential side effects, and the risk of dying from childbirth is many times greater than the risk of dying from an abortion.

Impoverishing Women: Supreme Court Upholds Trump Administration’s Religious and Moral Exemptions to Contraceptive Mandate

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent decision upholding the Trump administration’s religious and moral exemptions to the contraceptive mandate of the Affordable Care Act (ACA). Grossman provides a brief history of the conflict over the growing politicization of contraception in the United States and argues that the exemptions at issue in this case should never have been promulgated in the first place because they have no support in science or public policy.

A Modest Proposal: A Heartbeat Bill for Those Who Don’t Wear Masks

University of Pennsylvania professor Marci A. Hamilton draws upon a strategy used by anti-abortion advocates in suggesting a way to encourage (or coerce) more people into wearing masks to avoid the spread of COVID-19. Hamilton proposes requiring persons who opt not to wear a mask in public (1) to watch, on a large screen, an adult's beating heart for 30 seconds, and (2) to be read a statement about how their decision unreasonably endangers others.

Stay the Course: The Supreme Court Respects Abortion Rights Precedent

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s decision in June Medical Services v. Russo, in which a 5-4 majority of the Court struck down a Louisiana law regulating abortion providers. Grossman describes the history of abortion decisions that got us to this place today and explains why the core right to seek a previability abortion without undue burden from the government remains intact.

What Chief Justice Roberts’s June Medical Concurrence Tells Us About the Future of Abortion

Jareb Gleckel assesses what Chief Justice John Roberts’s concurrence in the June Medical decision might tell us about the future of abortion in the United States. Gleckel suggests that the concurrence suggests that the Chief Justice will not vote to overrule Roe and Planned Parenthood v. Casey but cautions that the test the Chief Justice embraces could provide a roadmap for anti-abortion states going forward.

Before She Died, “Jane Roe” Said She Was Never Really Pro-Life: Does It Matter?

Cornell law professor Michael C. Dorf comments on the revelation that before she died, Norma McCorvey—the woman who was the plaintiff in Roe v. Wade and who had subsequently become a prominent spokesperson for overturning the decision—said she was never really pro-life after all. Using this example, Dorf explains why, in some ways, the individual plaintiff’s identity does not matter for the purpose of deciding an important legal issue, yet in other ways, the plaintiff’s underlying story can be very important for other reasons.

Unconstitutional Chaos: Abortion in the Time of COVID-19

SMU Dedman School of Law professor Joanna L. Grossman and Florida State University law professor Mary Ziegler discuss the abortion bans implemented in several states in response to the COVID-19 pandemic. Grossman and Ziegler explain why the bans are unconstitutional and comment on the connection between the legal challenges to those bans and the broader fight over abortion rights.

Junk Science, Junk Law: Eugenics and the Struggle Over Abortion Rights

Joanna L. Grossman, SMU Dedman School of Law professor, and Lawrence M. Friedman, a Stanford Law professor, comment on a decision by the U.S. Supreme Court last month upholding a provision of Illinois law that prescribed the disposition of fetal remains. Grossman and Friedman focus their discussion on Justice Clarence Thomas’s concurring opinion and his discussion of eugenics, which they argue is inapt and a distorted telling of history.

Dismantling the Falsest Comparison: Why a Woman’s Right to Choose Has Nothing to Do With Nazism and Jim Crow

Cornell law professor Joseph Margulies addresses comments made in an op-ed by Atlanta District Attorney John Melvin that opponents of restrictive abortion laws are similar to Nazis or supporters of Jim Crow laws. Margulies explains why the comparison is not only intellectually and morally bankrupt, but also shameful, deserving of the most direct condemnation.

What’s Missing in the Alabama Human Life Protection Act?

Cornell law professor Sherry F. Colb describes some ideological inconsistencies with the abortion law recently passed in Alabama, which prohibits all abortions except those necessary to protect against a serious health risk to the pregnant woman. Colb points out if an embryo or fetus and the woman carrying it are equally entitled to exist, then the exception for the serious health risk to the woman is inconsistent with that perceived equality. Colb also argues that the decision of Alabama lawmakers to penalize the abortion provider but not the abortion seeker similarly requires accepting on some level that a woman and her embryo or fetus are not co-equal occupants, which is inconsistent with the pro-life vision behind Alabama’s law.

Somewhere Over the Rainbow: The Kansas Supreme Court Protects Abortion Rights

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent decision by the Kansas Supreme Court recognizing a state constitutional right to abortion. Grossman explains the historical backdrop of the dispute and describes the reasoning behind the decision of the Kansas Supreme Court.

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