Tag Archives: Abortion
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.

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).

Is the SCOTUS Leak Investigation Legal? Maybe, But It Is Also Hypocritical and Potentially Counterproductive

Cornell Law professor Michael C. Dorf argues that while the Supreme Court’s investigation into who leaked Justice Samuel Alito’s draft opinion overruling Roe v. Wade may be legal, it is also highly hypocritical in at least two respects. Professor Dorf argues that the investigation violates the spirit (and perhaps even the letter) of the Court’s Fourth Amendment cases, and it amounts to self-dealing because it focuses on the clerks, but not the Justices or their spouses.

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.

Where, If Anywhere, Should People Protest Judicial Decisions?

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.

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.

Overruling Roe is Just the Beginning

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).

Abortion and Physician Assistance in Dying

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.

The Last Anniversary of Roe v. Wade: A Time to Reimagine Abortion Rights for All

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.

Forced Pregnancy, Homophobia, and Child Marriage: How Religion Enables Abuse

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.

How Medical Abortion Challenges the Practice and the Moral Condemnation of Ending a Pregnancy

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.

Who’s a Bounty Hunter? How the Supreme Court’s Own Standing Precedents Answer the Effort to Normalize Enforcement Outsourcing in the Texas Abortion Case

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.

Dobbs v. Jackson Women’s Health Organization: The Supreme Court Is No Safe Haven for Abortion Rights

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.

Justice Kavanaugh’s Misdirection Plays in the Mississippi Abortion Case

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.

After Roe, The Coming Fight to End All Abortions Everywhere

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.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... 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 Dwight D. Opperman Professor of Law and Director of the Center of Labor and... 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 Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

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

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

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