Sanger on The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women's Health Organization @carolsangernyc @ColumbiaLaw

Carol Sanger, Columbia Law School, has published The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women’s Health Organization at 56 Fam. L. Q. 117 (2023). Here is the abstract.

Although the phrase “Post-Roe Era” is still used by those who want to mark the tremendous loss wrought last June by Dobbs v. Jackson Women’s Health Organization, it is only a matter of time before the present state of reproductive constitutionalism solidifies into the more authoritarian “Dobbs Era.” In these early days of transition, states are still figuring out what they want the legal status of abortion to be, ever since Dobbs overruled both Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey, returning, in Justice Alito’s words, “the issue of abortion to the people’s elected representatives.” So, should what was formerly regarded as a medical procedure remain so and be legal? Should it be legal and funded? Or should it migrate from a state’s health regulations to the criminal code and be illegal? Or illegal with exceptions? Or illegal with extraterritorial reach? And who should bear the burden of the illegality? Pregnant women, their physicians, anyone who aids or assists them? Resolving these questions is the pressing task of citizens and lawmakers, as answers are now owed to women of child-bearing age—all sixty-four-and-a-half million of them—so that they can know just where they stand under state law should they confront an unwanted pregnancy. As well as provoking questions of “What next?” the Dobbs case also raises the backwards-looking question of “How did this happen?” How could one live (blithely, it now seems) into one’s adulthood secure in the highest level of legal protection around reproduction, only to have it felled with a few determined strokes from Justice Alito’s pen in the Dobbs case? In this regard, it is worth rewinding the reproductive script to look back over the course of the 20th century, to see how American law developed the concept of constitutionally protected reproductive rights. The legislative trajectory began in the 1920s and progressed in roughly twenty-year increments, ending (certainly for the present) almost 100 years later in 2022 with Dobbs, which shredded the right to abortion by denouncing the underlying doctrine of privacy. In this essay I trace the ways in which a series of constitutional cases reflect both social attitudes and legal constraints on reproductive behavior, whether pro-natal or anti-natal, during the twentieth century. The idea here it to follow their trajectory, beginning with the brutal decision in Buck v. Bell (upholding mandatory sterilization of “imbeciles” in 1927), to Skinner v. Oklahoma (reversing compulsory vasectomy of a prisoner in 1942), and then to Griswold v. Connecticut (striking down a ban on contraceptive access for married couples). These cases contributed to the development of reproductive rights, which by the end of the twentieth century culminated in the right to abortion. Roe v Wade established the abortion right as against state criminal prohibitions (1973), followed by Planned Parenthood v. Casey (1992), which upheld abortion’s status as a fundamental right, while seriously expanding the grounds for restricting it. We see Casey at work in two opposing cases, Gonzales v. Carhart (2007), where the Supreme Court upheld a federal ban on a particular abortion procedure and Whole Woman’s Health v Hellerstedt (2016) which struck down burdensome Texas restrictions on abortion. These cases take us to the present, where the rise of reproductive rights has been overtaken by Dobbs, marking an abrupt and decided plunge southward. This plunge leads to a second insight of this Essay. In contrast to nearly all the earlier cases, the analysis in Dobbs does not hold up. The decision lacks the integrity one would expect from a pre-leaked blockbuster that overturned both the law and the vested expectations of citizens for the last fifty years. What truly stings here is how the Court, with its overconfident tone and daring selection of facts, disregards how women and girls have relied upon the holdings in Roe and Casey. There are many ways to critique Dobbs—its theocratic underpinnings, its peculiar historical choices, its doctrinal disregard of precedent, and so on. I focus here on these: first, its disquieting location as the endpoint in the trajectory of its reproductive law cases from the 20th century forward; second, Dobbs’ disregard of women as reproductive agents in the constitutional scheme; and third, its rejection of the developed doctrines of privacy and liberty regarding reproductive practices, an aspect of life that at one time or another envelops most of us. Note: Copyright 2023 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Download the essay from SSRN at the link.