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.
Cornell Law professor Sherry F. Colb describes how Texas’s abortion statute SB8 is similar to middle-school bullying in the way that it scares everyone into persecuting or shunning anyone who associates with a woman seeking an abortion. Professor Colb explains that by creating “untouchables,” the law compels everyone—even those who are not opposed to abortion—to avoid having anything to do with a woman who has had or is seeking to have an abortion.
University of Pennsylvania professor Marci A. Hamilton describes how Texas’s extreme anti-abortion law threatens the lives of female children in that state. Professor Hamilton argues that the law is effectively encouraging citizens to engage in economic trafficking of vulnerable girls, particularly girls who have been subject to sexual predators.
Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan Brownstein propose several difficult questions for both sides of the abortion debate in an effort to open dialogue and stimulate productive conversation about the contentious subject. Dean Amar and Professor Brownstein underscore the value of thinking about and discussing some of the core issues about abortion rights as part of a civil dialogue about abortion.
SMU Dedman School of Law professor Joanna L. Grossman answers some of the most frequently asked questions about Texas’s “SB 8” law, which bans most abortions, including those protected by the federal Constitution. Professor Grossman dispels some of the myths about the law and describes some of the ways it is both different and more extreme than other anti-abortion laws.
Cornell Law professor Sherry F. Colb responds to the anti-abortion argument that anyone who does not want to keep a baby can and should give them up for adoption. Professor Colb points out that the pain and discomfort associated with carrying a child to term are tolerable only if one wants to keep the resulting baby; if one does not want or cannot keep a child, then pregnancy is intimate and intense suffering in a way that may be intolerable for the woman.
Cornell Law professor Michael C. Dorf discusses an often overlooked procedural aspect related to Texas’s extreme anti-abortion law that could result in “zombie” laws taking effect in every other red state. Professor Dorf argues that there are several reasons to hope that a state scheme to retroactively enforce zombie abortion laws would fail, even if the Supreme Court curtails or eliminates the abortion right itself, not the least of which is that retroactive application of zombie laws is fundamentally unfair.
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.
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.
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.
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.
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.
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.
