Dobbs v. Jackson: HLS faculty react to the Court’s historic reversal of Roe v. Wade

Demonstrators with signs gather outside the U.S. Supreme Court building.

Credit: Getty Images/Yasin Ozturk/Anadolu Agency

On June 24, the Supreme Court of the United States issued its decision in Dobbs v. Jackson Women’s Health Organization, a case that weighed the constitutionality of a Mississippi law restricting abortion access after 15 weeks’ gestational age. In a 6 to 3 decision, the majority sided with the state, effectively overturning Roe v. Wade, the landmark 1973 case that, along with Planned Parenthood v. Casey (1992), had established the right to abortion under the Due Process Clause of the Fourteenth Amendment up to the point of fetal viability. The case has garnered widespread attention, which was amplified in May after a draft of the opinion was leaked to the public.

Here, Harvard Law School faculty react to the decision and offer their thoughts on what comes next.


 

Abortion Privacy Push Pits Biden Against Criminal Laws in States

August 3, 2022

The Biden administration’s efforts to protect reproductive health information from law enforcement post-Dobbs hangs on how much authority its health agency has to preempt state criminal laws—a thorny issue for health-care lawyers. A recent executive order shows the administration is considering how to beef up privacy protections for abortion-related health information. It’s part of a broader Biden administration scramble to make substantive policy changes to protect reproductive health access as it lacks the votes to pass new legislation. … The HIPAA law enforcement provision, as it currently stands, will likely have a “chilling effect” on patients seeking reproductive health care, said Carmel Shachar, executive director of the Harvard Law School Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.

Continue Reading at Bloomberg Law »

Reading Between the Laws: What States Can Do When Banning Abortion

July 29, 2022

Whether someone can get an abortion or related medical procedure mostly hinges on which state they live in after the Supreme Court overturned Roe v. Wade last month and ended the constitutional right to abortion. But the switch from federal protection to state law isn’t straightforward and has led to confusion and misinformation on what pregnant patients and physicians can do. In this still developing landscape, how confident can people be that their treatment is still legal? … Much of what’s legal for states to ban in terms of abortion-related services will be determined in many court cases to come, said I. Glenn Cohen, a professor and bioethicist at Harvard Law School. The lawsuit between Texas and the US Department of Health and Human Services will hopefully clarify the scope or “preemption” of state law, as opposed to the federal rule, Cohen said.

Continue Reading at CNET »

Know Your Rights: What States Can (and Can’t) Do If Banning Abortion

July 26, 2022

Whether or not someone can get an abortion or related medical procedure mostly hinges on which state they live in after the Supreme Court overturned Roe v. Wade last month and ended the constitutional right to abortion. But the switch from federal protection to state law isn’t straightforward and has led to confusion and misinformation on what pregnant patients and physicians can do. In this still developing landscape, how confident can people be that their treatment is still legal? … Much of what’s legal for states to ban in terms of abortion-related services will be determined in many court cases to come, said I. Glenn Cohen, a professor and bioethicist at Harvard Law School. The lawsuit between Texas and the US Department of Health and Human Services will hopefully clarify the scope or “preemption” of state law, as opposed to the federal rule, Cohen said.

Continue Reading at CNET »

After Roe, pregnant women with cancer diagnoses may face wrenching choices

July 25, 2022

In April of last year, Rachel Brown’s oncologist called with bad news — at age 36, she had an aggressive form of breast cancer. The very next day, she found out she was pregnant after nearly a year of trying with her fiance to have a baby. She had always said she would never have an abortion. But the choices she faced were wrenching. If she had the chemotherapy that she needed to prevent the spread of her cancer, she could harm her baby. If she didn’t have it, the cancer could spread and kill her. She had two children, ages 2 and 11, who could lose their mother. … I. Glenn Cohen, a law professor and bioethicist at Harvard University, is gravely concerned. “We are putting physicians in a terrible position,” Cohen said. “I don’t think signing up to be a physician should mean signing up to do jail time,” he added. Oncologists usually are part of a hospital system, Cohen said, which adds a further complication for doctors who treat cancers in states that ban abortions. “Whatever their personal feelings,” he asked, “what are the risks the hospital system is going to face?” “I don’t think oncologists ever thought this day was coming for them,” Cohen said.

Continue Reading at The Boston Globe »

Data privacy, abortion limits set to collide post-Roe

July 21, 2022

The US Supreme Court’s decision to overturn the federal right to abortion is likely to create a clash between state-by-state abortion restrictions and the patchwork of data privacy laws that are being legislated in the absence of a federal privacy law. Even before the June 24 ruling in Dobbs v. Jackson Women’s Health Organization, privacy advocates, concerned that data on women seeking abortions could be used to target them, sounded alarms that women should be vigilant in the types of data and content they share with fertility and health apps and through social media. They also warned against bringing a phone or other device with location-tracking services to an abortion provider. … “I think it’s going to be an interesting conflict between various state interests, because it’s going to be such a patchwork,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “I am very worried about how data is going to be packaged and used.”

Continue Reading at The Star »

Embryonic Research Could Be the Next Target After Roe

July 20, 2022

Two weeks after the US Supreme Court overturned the federal right to an abortion, Ye Yuan heard from a woman who wanted to reverse her decision to donate her embryos to scientific research. The woman—who contacted Yuan anonymously through a fertility counselor—was fearful that if the law in Colorado changed to make it illegal to discard or experiment on human embryos, then she would be forced to have hers frozen indefinitely. In a year, or five years, might a law change to stop her from having the final say over what happened to them? … The majority opinion written by Justice Samuel Alito doesn’t single out IVF or human embryonic research, but his choice of words to describe abortion could be seen as also being applicable to embryos outside the body, says Glenn Cohen, a bioethicist and professor of law at Harvard Law School. The right to an abortion is distinct from other rights, Alito notes in the opinion, because it destroys “potential life” and the life of an “unborn human being.” “The same thing that he uses to distinguish abortion seems to me completely applicable to distinguishing embryos,” says Cohen. “To me it makes it very, very clear after Dobbs that any state that wants to prohibit the destruction of embryos as part of research is free to do so.”

Continue Reading at Wired »

Flouting public opinion by overturning Roe, the Supreme Court could be risking its legitimacy

July 15, 2022

As his conservative colleagues overturned Roe v. Wade last month, Chief Justice John Roberts warned that their dramatic decision would be “a serious jolt to the legal system.” But he wasn’t talking about the loss of rights for Americans — he meant a threat to the future of the Supreme Court itself. The court’s final weeks of opinions last month marked a pivotal moment in the institution’s history, as a new conservative majority of justices illustrated their willingness to shake the public with decisions overturning long-established precedent and flouting public opinion. … While the Supreme Court has always been political given that its appointments were determined by politicians, its power has increased in recent decades in part because Congress has become increasingly dysfunctional, said Michael Klarman, a Harvard law school professor. “Why in the world would you give . . . five or six unelected, relatively older, relatively affluent, very well-educated people with extremist political views . . . control over national abortion policy, national gun control policy, national affirmative action policy, national campaign finance reform?” Klarman said. “That’s a crazy way to run the system; we would never design it that way.”

Continue Reading at The Boston Globe »

Pregnant woman’s HOV ticket protest highlights legal challenges post-Roe

July 14, 2022

A pregnant woman’s protest of a ticket she said she received for driving in the high-occupancy vehicle lane of a Texas highway is raising new questions about the rights of fetuses in the wake of the Supreme Court’s decision to overturn Roe v. Wade. Brandy Bottone, 32, of Plano, Texas, said she was driving by herself on a highway near Dallas on June 29 when she decided to get into the HOV lane due to heavy congestion on the road. … Mary Ziegler, a visiting professor of constitutional law at Harvard Law School and author of “Abortion and the Law in America: Roe v. Wade to the Present,” said she sees the HOV case in Texas as the first of many such debates. “This HOV lane case is really like the first example I’ve seen, but it’s the tip of the iceberg. We’re going to see a lot more of this,” she said. “These laws are just beginning to go into effect.”

Continue Reading at Good Morning America »

Retired federal judge says she ‘will go anywhere in the country’ to represent abortion patients and doctors

July 13, 2022

In the aftermath of the United States Supreme Court’s recent ruling that overturned Roe v. Wade, President Joe Biden signed an executive order that takes incremental steps to preserve abortion access. As part of the executive order, U.S. Attorney General Merrick Garland and the White House Counsel “will convene private pro bono attorneys, bar associations, and public interest organizations” to provide legal support for those seeking or offering reproductive health care services — including representation for patients who travel out of state for abortion care. Judge Nancy Gertner, a retired judge for the U.S. District Court in Massachusetts, told Boston Public Radio on Friday that she is organizing a group of lawyers to represent “anybody who is charged with an illegal abortion, aiding and abetting abortion, or interstate travel to get an abortion,” along with providing her own legal services to those in need. “I, for one, will go anywhere in the country to represent anyone charged with any of that,” Gertner said. “I think that there are a number of us who are doing that as well, and [there are a] number of organizations coming up with a list of lawyers who, frankly, will say, ‘We will represent you, and we will clot their courts with representation if they go after these women.’”

Continue Reading at WGBH »

New York Times won’t correct its errant essay on ectopic pregnancy

July 13, 2022

Memo to the New York Times: It’s a bad time to publish inaccurate information about pregnancies. In a July 4 guest essay on ectopic pregnancy for the Times, Leah Libresco Sargeant used language that doesn’t meet medical standards for discussion and treatment of such conditions, as a social media furor promptly pointed out. In an apparent effort to host an array of opinions, the Times privileged the author’s linguistic preferences over the greater imperative to convey precise, factual information to readers. … “Misinformation about ectopic pregnancies is absolutely out there and I think it’s influencing how a lot of people approach ectopic pregnancies,” says Carmel Shachar, executive director at the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School.

Continue Reading at The Washington Post »

What Precedents Would Clarence Thomas Overturn Next?

July 11, 2022

Justice Clarence Thomas voted in the majority in last month’s abortion decision, but he issued a separate, concurring opinion articulating an extreme view that other rights derived from privacy—such as contraception and same-sex intimacy—are not constitutional rights at all. The constitutional-law professor and New Yorker contributor Jeannie Suk Gersen talks with David Remnick about Thomas’s concurrence and how the Justice’s once fringe views are now at the center of the Court’s legal philosophy. Plus, Emily Nussbaum talks with the comedian Hannah Gadsby, and Patricia Marx tries out flotation therapy—formerly known as a sensory-deprivation tank. Her microphone was the only thing that found peace.

Continue Reading at The New Yorker »

Is the word ‘women’ being erased from the abortion rights movement?

July 11, 2022

The toppling of Roe v. Wade has catalyzed a heated debate among some abortion rights supporters over whether gender-neutral language — like “pregnant people” instead of “pregnant women” and “chestfeeding” instead of “breastfeeding” — should be used in advocating for abortion rights. A number of leading abortion rights and civil rights groups, including Planned Parenthood and the American Civil Liberties Union, and some Democratic lawmakers, like Sen. Elizabeth Warren of Massachusetts and Rep. Alexandria Ocasio-Cortez of New York, have shifted their messaging in this way to be more LGBTQ-inclusive as an increasing number of Americans identify as transgender and nonbinary. Even the National Education Association, the country’s largest public teachers union, recently proposed changing the word “mother” to “birthing parent” in contracts. … Alejandra Caraballo, a clinical instructor at  Harvard Law’s Cyberlaw Clinic and a transgender-rights advocate, said she worries that this most recent debate will erode public support for trans people at a time when their rights are being debated at historic rates.  More than 340 anti-LGBTQ bills were introduced in states across the country this year, according to the Human Rights Campaign, the nation’s largest LGBTQ advocacy group.  “This is just giving a further greenlight to transphobic people to push transphobic policies and create this false sense of scarcity that somehow trans rights are in opposition to women’s rights when oftentimes they go hand in hand,” Carabello said.

Continue Reading at NBC News »

Self-Managed Abortion May Be The Future — But It’s Complicated

July 11, 2022

There’s no good time to find out you’re pregnant if you don’t want to be. But the timing for KT Volkova was particularly troubling. They took a pregnancy test the weekend before Senate Bill 8 went into effect in their home state, Texas, in September 2021. The law made it almost impossible to get an abortion after six weeks, and went into effect nearly 10 months before Roe v. Wade was overturned and the Texas Supreme Court allowed an abortion ban from 1925 to be enforced. At the time, Volkova estimated they were about five or six weeks along. They knew they likely wouldn’t meet the cutoff by the time they found an appointment. “I was in a really shitty predicament,” remembers Volkova, who’s in their early 20s. … The legality of self-managed abortion can be a bit murky, particularly since the Food and Drug Administration has said that abortion medication is safe and effective, which raises questions about whether states can ban it without their laws being preempted, says Mary Ziegler, a visiting professor at Harvard Law School and author of Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.

Continue Reading at Refinery29 »

‘No Magic Bullet’: Biden Team Weighed Public Health Emergency After Roe Reversal

July 8, 2022

The Biden administration considered declaring a public health emergency to preserve broad access to abortion services following the US Supreme Court’s decision last month to overturn Roe v. Wade, but officials ultimately decided against the move, according to people familiar with the matter. The possible declaration was discussed between top officials at the Health and Human Services Department and the White House ahead of a June 28 news conference by Health and Human Services Secretary Xavier Becerra, the people said. But officials set aside the idea due to concerns the impact wouldn’t justify an inevitable legal battle. … A public health emergency “would have incremental benefits at best” and “may be a little bit of a legal stretch and may not be worth political capital to do so,” said Carmel Shachar, executive director of the Harvard Law School Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.

Continue Reading at Bloomberg »

Will the Supreme Court uphold a nationwide ban on abortion?

July 8, 2022

With the overturning of Roe v. Wade, both sides of the abortion issue have been galvanized. Democrats, aghast at the removal of a heretofore fundamental right, are contemplating a federal law protecting the right to an abortion nationwide — no matter how red a woman’s state is. On the other side, many Republicans, having succeeded beyond their wildest dreams at the highest court, have their eye on the ultimate prize: a nationwide abortion ban, codified by Congress. … Speaking to Unprecedented, Harvard Professor Emeritus Laurence Tribe — one of the most renowned constitutional scholars in modern American history — painted a grim picture. Let us consider first a hypothetical codification of abortion rights. Congress could make a strong argument that they have the power to do this, pinning their authority on the Commerce Clause, which lets Congress pass laws regulating interstate commerce.1 “Abortion is treated as an economic procedure, despite the fact that it obviously involves serious issues of bodily integrity,” Tribe said.

Continue Reading at Unprecedented »

After Dobbs, Advocates Fear School Surveillance Tools Could Put Teens at Risk

July 8, 2022

As states rush to enact laws criminalizing abortion-related care in the wake of the Supreme Court’s recent decision overturning Roe v. Wade, health advocates and civil rights groups are warning that school surveillance software can be weaponized against teens who seek reproductive care. In tens of thousands of schools, every message students send or term they search on their computer is algorithmically monitored by software from companies like Bark, Gaggle, GoGuardian, and Securly. These tools monitor many students even outside of school hours and can send automatic alerts to school administrators, parents, or police when they detect dangerous behavior, which may range from imminent suicide threats to “sexual content.” … Kendra Albert, a clinical instructor at Harvard Law School’s Cyberlaw Clinic, said those fears are not baseless but that the greater legal threat is likely to come from surveillance systems that are already in place and can easily be adapted to the new laws—like student monitoring software. “I’m always more worried about times when you just add more keywords to the system compared to times when you have to build the whole system from scratch,” Albert said. “We have seen, especially in red states, school districts that consider it their mission to police and out students, and there can be school-to-prison-pipeline consequences to that.”

Continue Reading at The Markup »

Fmr. Reagan official: Ending Roe v. Wade was ‘constitutional vandalism’

July 7, 2022

MSNBC’s Lawrence O’Donnell is joined by Charles Fried, Harvard Law Professor and fmr. U.S. Solicitor General for Pres. Reagan, to discuss both his fierce criticism of the current Supreme Court which he calls “reactionary” rather than “conservative,” and the court’s rulings which he says are upending American life.

Continue Reading at MSNBC »

Does Justice Clarence Thomas want to overturn a landmark freedom of the press ruling?

July 5, 2022

An op-ed co-written by Laurence Tribe: On Monday, tucked away in a busy news cycle, was a quiet, subtle but no less terrifying judicial development. US supreme court justice Clarence Thomas laid out the formula for destroying the free press. Thomas dissented to denial of certiorari in Coal Ridge Ministries Media v Southern Poverty Law Center with an opinion giving us more than a hint of precisely what he has in store. Freedom of the press has a rightwing target on its back. Thomas wrote that the court should “revisit” the landmark free press case of the 20th century, New York Times v Sullivan. “Revisit” is judicial talk for “overrule”.

Continue Reading at The Guardian »

Harvard Constitutional Law Expert Says Justice ‘Misleadingly’ Quoted Him In Roe Ruling

July 5, 2022

Outspoken Harvard University Law professor Laurence Tribe on Saturday accused conservative Supreme Court justices of “misleadingly quoting” him to justify their decision to throw out Roe v. Wade. “Don’t be fooled,” warned Tribe, an expert on the Constitution. “The writings from which the Court cherry-picked my quotes were totally supportive of the result in Roe,” he added. Tribe didn’t detail how his words were twisted or taken out of context by the conservatives on the Court. But he did call for the decision that affects “tens of millions of women” to be “undone.”

Continue Reading at Huff Post »

Doctors weren’t considered in Dobbs, but now they’re on abortion’s legal front lines

July 5, 2022

Historically, doctors have played a big role in abortion’s legality. Back in the 1860s, physicians with the newly-formed American Medical Association worked to outlaw abortion in the U.S. A century later, they were doing the opposite. In the 1950s and 1960s, when states were liberalizing abortion laws, “the charge for that actually came from doctors who said, ‘This is insane, we can’t practice medicine, we can’t exercise our medical judgment if you’re telling us that this is off the table,’ ” explains Melissa Murray, law professor at New York University. … Roe and the abortion decisions that came after it like Planned Parenthood v. Casey, “had the framework that abortion is some sort of individual right, but it’s also health care,” explains Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

Continue Reading at NPR »

Did the Supreme Court Open the Door to Reviving One of Its Worst Decisions?

July 5, 2022

In the annals of the Supreme Court, few opinions have been more reviled than the 1905 decision in Lochner v. New York. In striking down a law that prevented bakery employees from working more than 10 hours a day and 60 hours a week, the court, under the 14th Amendment, enshrined a constitutional right to “freedom of contract” — that is, the freedom of people to form contracts without the government’s involvement. The decision set the stage for what became known as the “Lochner era” of laissez-faire capitalism. … Laurence Tribe, a Harvard Law School professor and a liberal constitutional scholar, said that, based on the logic of Dobbs, “there’s no principled way to hold back the tide that would return us to the law of the late 1800s on matters of privacy, reproduction, sexual intimacy and L.G.B.T.Q. equality.” Although Lochner itself is probably “too radioactive” for this court to embrace outright, the court’s overall hostility to government regulation of business and its celebration of individual freedom are clearly in the ascendant. Professor Tribe warned that the effect could be to “return our jurisprudence to a preindustrial, agrarian world. It’s all but unthinkable.” The consequences, he added, could be “horrendous.”

Continue Reading at The New York Times »

Laurence Tribe on Roe V. Wade

July 5, 2022

Laurence Tribe, Harvard University Professor of Constitutional talks with Janet Wu about the U.S. Supreme Court decision overturning Roe vs. Wade.

Continue Reading at Bloomberg »

A pregnancy turns deadly in an anti-abortion state. What happens next?

July 5, 2022

Even before the Supreme Court overturned Roe v. Wade on June 24, stripping Americans of their right to an abortion, the United States had an abysmally high maternal mortality rate, ranking last in a survey of 10 similarly wealthy countries. For doctors in states implementing restrictive abortion bans, the ruling is a crisis of care: In many cases, the only way to treat life-threatening conditions such as ectopic pregnancies is with medical or surgical termination. The fear among many physicians is that the ruling in Dobbs v. Jackson Women’s Health Organization will make mortality rates creep even higher. … “At what point do we say that danger has been triggered?” asked Carmel Shachar, executive director of the Petrie-Flom Center for Health Policy Law, Biotechnology, and Bioethics at Harvard Law School. “That’s really unclear, and it’s very hard for providers because they want to provide timely medical care.”

Continue Reading at Vox »

Did the Supreme Court Open the Door to Reviving One of Its Worst Decisions?

July 5, 2022

In the annals of the Supreme Court, few opinions have been more reviled than the 1905 decision in Lochner v. New York. In striking down a law that prevented bakery employees from working more than 10 hours a day and 60 hours a week, the court, under the 14th Amendment, enshrined a constitutional right to “freedom of contract” — that is, the freedom of people to form contracts without the government’s involvement. The decision set the stage for what became known as the “Lochner era” of laissez-faire capitalism. … Laurence Tribe, a Harvard Law School professor and a liberal constitutional scholar, said that, based on the logic of Dobbs, “there’s no principled way to hold back the tide that would return us to the law of the late 1800s on matters of privacy, reproduction, sexual intimacy and L.G.B.T.Q. equality.” Although Lochner itself is probably “too radioactive” for this court to embrace outright, the court’s overall hostility to government regulation of business and its celebration of individual freedom are clearly in the ascendant. Professor Tribe warned that the effect could be to “return our jurisprudence to a preindustrial, agrarian world. It’s all but unthinkable.” The consequences, he added, could be “horrendous.”

Continue Reading at The New York Times »

After Roe Dismantled, Harvard Experts Condemn, Defend Landmark Decision

July 5, 2022

The Supreme Court overturned the constitutional right to abortion in a landmark ruling, abandoning the nearly 50-year-old precedent established in Roe v. Wade Friday. Many Harvard-affiliated law and public health experts condemned the Court’s decision in Dobbs v. Jackson to vacate abortion protections, which they said will likely further damage the institution’s legitimacy in the eyes of Americans and endanger other constitutional rights upheld by the nation’s highest court. … Laurence H. Tribe ’62, one of the nation’s most prominent constitutional scholars and a professor at Harvard Law School, said the Court’s Friday decision is “reactionary” and “unprincipled,” and damages the very concept of implicit constitutional rights. “It is a devastating blow to the implied right to privacy,” he said. “And it’s a devastating blow to the idea that the Constitution was not frozen in the early 19th century.”

Continue Reading at The Harvard Crimson »

Federal abortion rights end, but not legal challenges

July 5, 2022

The US Supreme Court’s decision to overturn Roe v Wade is due to spark further court cases. Susan Jaffe reports from Washington, DC. The Supreme Court’s momentous decision to abolish the half-century-old federal right to abortion not only rapidly reconfigures the political and legal landscape in the USA, threatening a host of other long-held personal freedoms. The seismic shift also ignites new legal battles within states that ban or severely restrict abortions, only 4 months before the mid-term elections that will establish which party controls Congress for the next 2 years. … His argument has a major flaw called the Ninth Amendment, said Laurence Tribe, university professor emeritus of constitutional law at Harvard Law School (Cambridge, MA). That provision says that the omission of any rights in the document should not be interpreted to mean that they do not exist. “The Constitution was never intended to name all of the rights that we have”, he said. “In America, if something isn’t outlawed, it’s protected.”

Continue Reading at The Lancet »

Clarence Thomas Signals Same-Sex Marriage and Contraception Rights at Risk After Overturning Roe v. Wade

July 5, 2022

In his opinion concurring with the Supreme Court’s decision to overturn the constitutional right to abortion established in Roe v. Wade, Justice Clarence Thomas wrote that the high court should revisit all cases built on similar legal footing—including cases that guarantee the right to contraception, same-sex consensual sexual relations, and same-sex marriage. All three cases—and numerous other landmark decisions—are built upon the right to substantive due process found in the Fifth and Fourteenth Amendments of the Constitution, which prohibit the government from depriving “any person of life, liberty, or property, without due process of law.” … “The court is on a devastating path,” argues Laurence Tribe, Professor of Constitutional Law emeritus at Harvard, “that is likely to jeopardize literally all of the basic bodily integrity rights that people have come to rely on.”

Continue Reading at Time »

Harvard’s Laurence Tribe Objects to Being Cited in Justice Alito’s Opinion

July 5, 2022

Scholars typically are pleased when the Supreme Court cites them in a landmark opinion. Not Laurence Tribe, professor emeritus at Harvard Law School, whose 1973 critique of Roe v. Wade features prominently in Justice Samuel Alito’s Friday opinion overruling precedents that recognized women’s constitutional right to an abortion. Justice Alito quotes Mr. Tribe as writing that “even if there is a need to divide pregnancy into several segments with lines that clearly identify the limits of governmental power, ‘interest-balancing’ of the form the Court pursues fails to justify any of the lines actually drawn.” …“Perhaps it gives him a kick to say something that might embarrass me,” Mr. Tribe said, or at least that helps discredit Justice Blackmun’s highly disputed Roe opinion.

Continue Reading at The Wall Street Journal »

Harvard Law’s I. Glenn Cohen: To provide good care, doctors will run afoul of criminal law in some states as Roe v. Wade ends

July 5, 2022

Now that the constitutional right to abortion has been eliminated, U.S. healthcare providers have to choose one of three options: give up abortion services, relocate, or wrangle with enforcement and unfriendly state legislatures. I. Glenn Cohen, deputy dean and James A. Attwood and Leslie Williams Professor of Law at Harvard Law School, has these words of guidance for the perplexed: “Hire a good lawyer. I think one of the biggest issues for people in the medical community—beyond what the rules actually are—will be the uncertainty around the rules.”

Continue Reading at The Cancer Letter »

Will Roe decision lead to interstate travel bans?

July 5, 2022

Now that the Supreme Court has voted to overturn Roe v. Wade, more than a dozen states over the next month are expected to begin enforcing partial or near-total bans on abortion within their borders. But some abortion opponents have proposed going even further — stopping women from their states from traveling to another where abortion is legal for the procedure. The topic, little noticed in the immediate wake of the ruling, has surged to the forefront in recent days. On Friday, President Biden reiterated in a meeting with Democratic governors that the federal government will protect women who leave their home states for an abortion. … “I think [Kavanaugh] is leaving his options open, but it’s clear that he does not feel at ease about extensions [of abortion bans beyond states lines] of that sort,” said Charles Fried, a Harvard Law School professor who as solicitor general during the George H.W. Bush administration argued for the overturn of Roe before the Supreme Court in 1989.

Continue Reading at The Boston Globe »

Legal scholar Larry Tribe is trying to convince Joe Biden to expand the court

June 30, 2022

Many advocates, legal experts and politicians have suggested expanding the Supreme Court — increasing the number of justices — and eliminating the Senate filibuster as a way to balance out the rulings and move laws that have been stuck in place. However, President Joe Biden doesn’t seem to be budging, despite attempts to persuade him from people like Laurence Tribe, renowned legal expert and professor emeritus at Harvard Law School. … Retired Federal Judge Nancy Gertner said the recent Supreme Court decisions were a “power grab.” Watch: Nancy Gertner & Laurence Tribe on bombshell Jan. 6 hearing testimony and future of the Supreme Court

Continue Reading at Greater Boston »

Delete your period app. Get a burner phone. How your digital data can be used against you in a post-Roe world.

June 30, 2022

Delete your period app. Get your daughter a burner phone. These are a couple of the chilling recommendations tech security experts have for women in the new post-Roe United States, where anything you say can be used against you in a court of law. And now, in states with early-abortion bans, that includes your digital data. “The privacy issues are going to be a really big thing,” says Carmel Shachar, who directs the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

Continue Reading at Boston Globe »

Roe’s Gone. What’s Next?

June 30, 2022

In the wake of the Supreme Court’s decision overturning Roe v. Wade, Preet speaks with Jeannie Suk Gersen, a constitutional law professor at Harvard Law School and a contributing writer to the New Yorker. Gersen dissects the legal intricacies in the Dobbs decision, and discusses whether the Court would uphold a federal law banning abortion outright.

Continue Reading at Stay Tuned with Preet »

When the Supreme Court Takes Away a Long-held Constitutional Right

June 30, 2022

An article by Jeannie Suk Gersen: We have known for some time that this Supreme Court’s manifest destiny was to overrule Roe v. Wade. Now it has fulfilled it. In the ruling in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito, writing for a five-Justice majority, eliminated the constitutional right to abortion and handed the states the power to restrict the procedure as they wish. There was little suspense, owing to a leak of the draft opinion last month, from which the Court’s final opinion is not substantially different, but the decision still came down as a surreal shock. The three liberal Justices dissented “with sorrow—for this Court, but more importantly, for the many millions of American women who have today lost a fundamental constitutional protection.”

Continue Reading at New Yorker »

What the Supreme Court’s abortion reversal means for in vitro fertilization

June 30, 2022

An op-ed by I. Glenn Cohen, Judith Daar, and Eli Y. Adashi: The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will upend the lives of pregnant persons across the United States seeking abortions who live in states that will now restrict or eliminate their access. As the three dissenting justices argued, and one of the majority justices advocated in a concurring opinion, the court’s decision could also pave the way for the reversal of key precedents constitutionally protecting important rights including same-sex intimacy, same-sex marriage, and even contraception. In between its immediate effects on abortion and possible future effects on other rights is a question on the minds of families across America: What will the ruling mean for families trying to have children through in vitro fertilization and other reproductive technologies?

Continue Reading at Boston Globe »

Clarence Thomas isn’t kidding

June 28, 2022

The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Center, released Friday, overturned two landmark legal precedents protecting a woman’s right to abortion. … Legal historian Mary Ziegler ’04, J.D. ’07, a visiting professor at the Law School and the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment,” responded to the historic ruling in an interview with the Gazette.

Continue Reading at Gazette »

Boston Public Radio full show: June 27, 2022

June 27, 2022

Judge Nancy Gertner talked about the future of the Supreme Court of the United States post–Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade, and the direction Justice Clarence Thomas wants to take the court. Gertner is a retired federal judge and a senior lecturer at Harvard Law School.

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Roe v. Wade’s fall sets a ‘frightening precedent,’ retired Canadian Supreme Court justice says

June 27, 2022

Two retired judges of Canada’s Supreme Court criticized the U.S. Supreme Court decision on Friday to end the nationwide right to an abortion, saying it freezes rights in much older times and shows why that court has lost its influence on this country’s judges. … “I think this is a perfect decision for the 18th century,” Rosalie Abella, who is now the Samuel and Judith Pisar Visiting Professor at Harvard Law School, said in an interview. Ms. Abella retired last summer after 17 years on the Supreme Court of Canada.

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Live updates: Biden again attacks Supreme Court for overturning Roe v. Wade

June 25, 2022

The Supreme Court’s watershed decision to overturn Roe v. Wade drew outrage and celebration across the country Friday, culminating in a series of nationwide protests Friday night that were largely without incident. … On Friday, the chief justice didn’t join the majority to overturn Roe. Instead, he articulated what some saw as the centrist’s position: He wanted to uphold the Mississippi ban on most abortions after 15 weeks of pregnancy at issue in the case but not overrule one of the Supreme Court’s best recognized precedents. … “To write alone is truly kind of interesting as the chief,” said Glenn Cohen, a professor and deputy dean at Harvard Law School. “One feels a little bit that this is his moment of shouting into the desert as a judicial minimalist.”

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Clarence Thomas Signals Same-Sex Marriage and Contraception Rights at Risk After Overturning Roe v. Wade

June 24, 2022

In his opinion concurring with the Supreme Court’s decision to overturn the constitutional right to abortion established in Roe v. Wade, Justice Clarence Thomas wrote that the high court should revisit all cases built on similar legal footing—including cases that guarantee the right to contraception, same-sex consensual sexual relations, and same-sex marriage. All three cases—and numerous other landmark decisions—are built upon the right to substantive due process found in the Fifth and Fourteenth Amendments of the Constitution, which prohibit the government from depriving “any person of life, liberty, or property, without due process of law.” … “The court is on a devastating path,” argues Laurence Tribe, Professor of Constitutional Law emeritus at Harvard, “that is likely to jeopardize literally all of the basic bodily integrity rights that people have come to rely on.”

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Ending Roe Is Institutional Suicide for Supreme Court

June 24, 2022

An op-ed by Noah Feldman: Modern constitutional law as we have known it ended today. When the Supreme Court overturned Roe v. Wade and Casey v. Planned Parenthood, it repudiated the very idea that America’s highest court exists to protect people’s fundamental liberties from legislative majorities that would infringe on them. What the dissent aptly called a “catastrophic” decision is not only a catastrophe for women, who now can be forced to carry unwanted pregnancies to term. It is a catastrophe for all Americans — and for people all over the world who have built their own modern constitutional courts on the US model. The tyranny of the majority won the day.

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Fertility Doctors Move Embryos, Expecting Abortion Law Changes

June 24, 2022

Fertility companies and patients have been moving embryos and making contingency plans, anticipating that if Roe v. Wade were overturned, abortion laws in some states could extend to protect eggs fertilized in laboratories. More than 2% of 3.7 million babies born in the U.S. in 2019 were conceived through in vitro fertilization, the latest federal data show. Many embryos created through IVF aren’t viable, fertility specialists said, and those that aren’t ultimately transferred into a uterus may be discarded. … I. Glenn Cohen, a deputy dean at Harvard Law School, said that the bill likely wouldn’t affect IVF but that the language was vague enough to raise questions. “If lawmakers don’t want to touch IVF, they should be clearer in their language,” he said.

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Draft Opinion Overturning Roe Raises a Question: Are More Precedents Next?

June 24, 2022

As an appeals court judge, Samuel A. Alito Jr. repeatedly drew criticism from his colleagues for disrespecting precedents and established understandings of the law. Fellow judges said, for example, that one of his dissents ignored “our precedent” and another deviated from the axiom that laws must be interpreted “by well-recognized rules.” Two decades later, a leaked draft opinion shows that the Supreme Court may soon overturn precedents like Roe v. Wade and eliminate women’s constitutional right to have an abortion. Justice Alito wrote the draft, devoting 30 pages to arguing that it was unnecessary for the court to follow decisions that had affirmed abortion rights for nearly 50 years. … Laurence Tribe, a liberal-leaning Harvard Law School professor whom Justice Alito repeatedly cited for a 1973 law review article in which Mr. Tribe criticized the reasoning of Roe v. Wade, denounced Justice Alito’s assertion that the draft opinion raised no doubts about precedents that do not concern abortion. “That’s not how principled adjudication works,” Mr. Tribe wrote on Twitter. “Either you’re being a political hack or your ‘only abortion’ bit is BS.”

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What’s next for Texas abortion law after the U.S. Supreme Court overturned Roe v. Wade?

June 24, 2022

Now that the Supreme Court has effectively overturned Roe vs. Wade, a “trigger law” signed by Gov. Greg Abbott will outlaw abortion within 30 days of Friday’s ruling. The court reversal of Roe essentially leaves it to individual states to establish abortion laws. Texas and 12 other states have trigger laws that would outlaw or almost completely ban abortions. The 1973 Roe 1973 decision came in the case that originated in Dallas County. The new history making ruling is from Dobbs vs. Jackson Women’s Health case from Mississippi, which had a leaked preliminary opinion indicated justices are ready to overturn Roe. … After the U.S. Supreme Court decided in favor of Jane Roe, who was later identified as Norma McCorvey, Texas never repealed pre-Roe statutes, so the criminal abortion laws have become sort of “zombie laws” says Mary Ziegler, a law professor at Florida State and a visiting professor at Harvard Law School.

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Biden braces for Supreme Court to overturn Roe after months of planning for next steps

June 23, 2022

President Joe Biden is bracing for a Supreme Court ruling that would strip away nationwide abortion rights in the US, potentially setting off mass protests and heaping pressure on the White House to act, according to officials, even as there remains little he can do through executive action to fully mitigate the anticipated decision. The nearing announcement — which is expected to come within the next two weeks as the Supreme Court concludes its term — will punctuate months of contingency planning at the White House and lobbying efforts by abortion rights advocates, who want Biden to take immediate action. … “I told the vice president I’m more worried about what I would call a sideswipe,” Harvard law professor Glenn Cohen said. “The idea that we’ll introduce language that’s really aimed at abortion but will end up implicating in vitro fertilization and create uncertainty.”

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