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.
In light of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Org. and the resulting protests in front of the homes of some of the Justices, Cornell Law professor Michael C. Dorf considers where, if anywhere, protests against judicial decisions are appropriate. Professor Dorf notes that under current law, the First Amendment as currently construed by the Supreme Court seems to protect a right to peaceable protest near the home of a judge or Justice so long as: (a) the protesters merely pass by but do not linger at the home; and (b) they do so without the intent to intimidate. However, Professor Dorf also points out that such protest might not always be tactically prudent.
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.”
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.
In response to the leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Org., Cornell Law professor Michael C. Dorf comments on the likely ramifications of the Supreme Court’s overruling Roe v. Wade, the seminal case recognizing the constitutional right to seek an abortion. Professor Dorf argues that the language and reasoning of the draft suggest that this emboldened Court with a super-majority of Republican appointees is also preparing to overrule Lawrence v. Texas (recognizing the right of consenting adults to engage in same-sex sexual conduct) and Obergefell v. Hodges (recognizing the right of same-sex couples to marry).
Cornell Law professor Sherry F. Colb comments on the recent arrest by Texas law enforcement officers of a woman who allegedly self-induced an abortion. Although the local district attorney’s office announced that there would be no murder prosecution, Professor Colb points out that the arrest itself exposes the impact of religious fanaticism on the law.
Cornell Law professor Sherry F. Colb explores the relationship between the abortion right and the right to physician assistance in dying, neither of which she predicts will enjoy constitutional protection under the religious extremist majority that now rules the Supreme Court. Professor Colb points out that religious extremists oppose both rights based on a view that God alone decides when we live and die.
SMU Dedman School of Law professor Joanna L. Grossman describes the devastating short-term impact of eliminating federal constitutional protection for abortion which the U.S. Supreme Court seems likely to do imminently. Professor Grossman observes that even now, while constitutional protection for abortion exists, many pregnant women already face significant barriers to abortion care, reminding us that we need to work towards a future that is more protective and more equal rather than just trying to claw our way back to the bare minimum provided by Roe v. Wade.
Cornell law professor Sherry F. Colb describes how religion gives an air of respectability to many cruel and reprehensible practices, such as forcing people to carry pregnancies to term, homophobia, and child marriage. Professor Colb argues that Americans’ commitment to “respecting everyone’s religion,” however coercive, violent, or misogynistic, precludes an actual respect for the bodily integrity, liberty, and privacy of women, LGBTQI+ people, and girls.
In response to the December 16 announcement that, Cornell law professor Sherry F. Colb explains the significance of the U.S. Food and Drug Administration (FDA)’s December 16 announcement that it is permanently allowing doctors to administer medical abortions by telemedicine and through the mail. Professor Colb describes why the change is likely to make terminating a pregnancy more accessible and affordable and less dangerous, and she argues that medical abortion also challenges one ethical argument some anti-abortion advocates have raised.
Cornell law professor Michael C. Dorf explains why the concern expressed by Justice Sonia Sotomayor in her dissent in the Texas abortion case (Whole Woman’s Health v. Jackson) that other states will follow Texas’s example and employ “private bounty hunters” is well founded and legitimate.
SMU Dedman School of Law professor Joanna L. Grossman comments on the abortion cases currently before the U.S. Supreme Court—one challenge a restrictive Texas abortion law and another challenge to a plainly unconstitutional Mississippi law. Professor Grossman argues that safe-haven laws—which Justice Amy Coney Barrett in particular asked about during her line of questioning in oral argument—play no role in the law or policy of abortion.
Cornell Law professor Michael C. Dorf comments on last week’s oral argument in Dobbs v. Jackson Women’s Health Organization, in which the Court will consider whether to overturn the right to abortion recognized in Roe v. Wade and subsequent cases. Specifically, Professor Dorf analyzes statements and questions by Justice Brett Kavanaugh, particularly in light of statements he made during his confirmation hearing.
Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on a case in which the U.S. Supreme Court recently heard oral arguments that gives the Court an opportunity to overturn Roe v. Wade and related cases recognizing a constitutional right to abortion. Sarat and Aftergut point out that if the Court abandons Roe, that will ultimately spell the end of abortion rights in all states.
Cornell Law professor Sherry F. Colb explains why “abortion pride”—in the sense of coming out about having had an abortion—can help eliminate the shame and stigma associated with the procedure. Professor Colb points out that just as gay pride is more than simply pride in one’s sexual attractions but the creation of a community of people with like experiences, abortion pride can potentially reduce the need for specially designated support groups and help them chat unselfconsciously with other people with similar experiences.
In light of next week’s oral argument in a high-profile case involving the federal government’s challenge to a restrictive Texas abortion law, Cornell Law professor Sherry F. Colb explains what we can learn from the law’s failure to grant an exception to its near-absolute prohibition against abortion for pregnancies that result from rape or incest. Professor Colb argues that by refusing to permit the women of Texas to terminate pregnancies resulting from rape and by simultaneously allowing lawsuits against those assisting such terminations, the state of Texas deputizes a rapist to forcibly impose an entire pregnancy upon the victim of his choice.
Cornell Law professor Michael C. Dorf argues that even the procedural issues presented in the federal government’s challenge to Texas’s restrictive abortion law are high stakes. Professor Dorf argues that the procedural question fundamentally asks whether the U.S. Supreme Court will permit state-sanctioned lawlessness.
Cornell Law professor Sherry F. Colb responds to some of the consensus views among pro-life advocates that reflect how they understand pregnancy. Professor Colb debunks the illogical argument that a zygote is a person and explains why the view of pregnancy as merely the placement of a zygote “somewhere” (i.e., inside a woman) to grow into a person is simplistic and misogynistic.
SMU Dedman School of Law professor Joanna L. Grossman describes the unique burdens that Texas has imposed on people seeking to exercise their constitutionally protected right to an abortion, as well as those who provide abortions in that state. Professor Grossman focuses on the harmful and widespread effects of the legal limbo created by the enactment of a blatantly unconstitutional law such as Texas SB 8.
Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on the U.S. Supreme Court’s increasing tendency to decide high-profile and far-reaching cases via its “shadow docket”—without oral argument or full briefing. Professor Sarat and Mr. Aftergut point out that recent remarks by Justice Samuel Alito reinforce the view that the Court has a partisan agenda that is increasingly out of step with the beliefs and values of the American people.