On March 6-7, UCLA Law’s Center on Reproductive Health, Law, and Policy, in partnership with Yale Law School and Temple Law School, convened legal scholars and experts for a series of discussions on rebuilding constitutional foundations for equality and reproductive rights and justice post-Dobbs.

Participants explored and debated theories and strategies to advance reproductive and sex equality rights grounded in constitutional and doctrinal principles, fresh historical analysis, and novel legal arguments.

In connection with the convening, eleven scholars contributed thought-provoking essays for a Balkinization Symposium on Legal Pathways Beyond Dobbs (April 10, 2025).

Professors Cary Franklin and Mary Ziegler, make powerful cases for further interrogating and resisting the Court’s history-and-tradition approach in Dobbs and other recent cases. As Ziegler argues, relying on history and tradition allows conservative movement leaders and their allies in the judiciary “to speak through past actors to whom they claim to defer . . . to conceal the policy choices they face in critical areas” where they lack support, including criminal abortion bans, interpretation of the Comstock Act and fabrication of “fetal rights.”  And, as Franklin proposes, because “too many regulatory traditions violate contemporary understandings of equality for courts to adhere consistently to the results of the history-and-tradition test,” there may be “contexts in which the Court is less willing to disregard concerns about sex equality and basic rights to life and health.”  Offering a different tack, Professor Michael C. Dorf encourages progressives to pursue “ideological jujitsu” and “evade the history-and-tradition test” altogether by building out claims to reproductive and sexual freedom grounded in enumerated rights. And with vivid analogy to the fictional monster Cthulhu (imagined by notoriously xenophobic novelist H.P. Lovecraft), Professor Evan D. Bernick argues that modern attacks on reproductive rights and birthright citizenship, like prior incarnations of similar “[m]onstrous institutions and ideas,” such as the Fugitive Slave Act, Chinese Exclusion Act and Comstock Act, can be, and have been, thwarted through a combination of legal and community-based resistance strategies.

Several scholars offer compelling arguments, and cautionary notes, for theorizing ways that equality doctrine or values can vindicate rights related to reproduction, bodily autonomy, gender identity, and family formation. Professor Jessie Hill argues grounding abortion rights in a “right to equality in health care, or a right to health care nondiscrimination,” while recognizing this “equality lens” also “requires dismantling the elective-therapeutic distinction regarding abortion” as itself a product of sexism. Professor Laura Portuondo, observing that the “Supreme Court has extended a broad new vision of equality to religious conservatives,” through recent free exercise decisions, proposes a strategy of extending this First Amendment “anti-devaluation theory of equality” to achieve reproductive justice ends. Meanwhile, Professor Cahill exposes how Dobbs’s revisionist use of “footnote twenty from Geduldig, which held that pregnancy discrimination wasn’t sex discrimination” is an example of “precedent manufactured in real time – and therefore, by definition, not a precedent at all – that lacks grounding in text, history, and actual precedent.” And Professor Douglas NeJaime calls out the need to more “clearly name” how legal appeals to biological or “natural” parenthood hide animus and “smuggle in arguments that rely on sex-based stereotypes” to harm LGBTQ families and women alike. More skeptically, tracing the Court’s methodological inconsistency in case after case, Professor Neil S. Siegel cautions that in the current political moment, it is unlikely the Court will adhere to its interpretive commitments when it comes to equality rights for disfavored groups, particularly transgender people.

Finally, responding to the rise of “fetal personhood” arguments in law and public narratives, Professors Kimberly Mutcherson and Meghan Boone urge autonomy and equality responses to these efforts to erase the personhood of pregnant people. Mutcherson argues that those who would legally “subordinate pregnant women to the nascent lives they carry” cannot offer a secular account for this deprivation of bodily integrity and Boone urges advocates to call this out for what it is – “arguments against women’s equality.”

Collectively, these essays offer multiple pathways for advancing reproductive and sex equality rights under law, with special attention to the Court’s history-and-tradition approach, the realities and challenges of our modern judiciary, and the need for liberty, autonomy, equality, and health rights that redress the related threats to reproductive, racial, and economic justice.

• History & Tradition’s Equality Problem, Cary Franklin
• The History & Tradition of Criminalization, Mary Ziegler
• Enumerating a Post-Dobbs Pathway, Michael C. Dorf
• Cthulhu and the Constitution, Evan D. Bernick
• Abortion Rights as Health Care Rights as Equality Rights, B. Jessie Hill
• Anti-Devaluation as Reproductive Justice, Laura Portuondo
• The Other Footnote, Courtney Cahill
• Biological Parenthood and Inequality, Douglas NeJaime
• The Fate of Bostock’s Formalism After $215 Million Spent on Anti-Trans Ads, Neil Siegel
• The Shared DNA of Roe and Dobbs: Potential Life as a Tool of Subordination, Kimberly Mutcherson
• The Question of Female Personhood, Meghan Boone

Shield Laws for Reproductive and Gender-Affirming Health Care: A State Law Guide

After the Supreme Court overturned Roe v.

• Arizona
• California
• Colorado
• Connecticut
• Delaware
• Hawaii
• Illinois
• Maine
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Nevada
• New Jersey
• New Mexico
• New York
• North Carolina
• Oregon
• Pennsylvania
• Rhode Island
• Vermont
• Virginia
• Washington
• Washington, DC

The protections offered by each state’s shield laws vary.  Shield laws may include: (1) Protections Against Out-of-State Investigations and Prosecutions (including specific protections against extradition, arrests, search warrants, subpoenas, witness summons, and state agency assistance in out-of-state investigations or prosecutions), (2) Protections Against Professional Discipline (including specific protections against adverse actions related to providers’ licenses, board discipline, and denial or restriction of facility privileges), (3) Protections Against Civil Liability (including specific protections against application or enforcement of another state’s laws or judgments in the shielding state’s courts, and availability of a “clawback” action to recover damages from litigation in another state as a result of providing, receiving, or assisting in the provision of certain health care), (4) Protections Related to Professional Liability Insurance and Health Plans (including specific protections against an insurer’s refusal to issue insurance, increase in premiums, or denial of coverage based solely on providing protected care and protections for contracts with health plans and insurers), and (5) Protection of Medical Information and Other Data Related to Reproductive or Gender-Affirming Care (including specific protections against disclosure of medical information, location data, providers’ personal information, and data held by businesses providing electronic communications or reproductive health apps). 4 states only offer certain protections by executive order rather than by legislation.  The legislatively-enacted shield laws in 8 states explicitly protect provision of care regardless of patient location, which includes telehealth provision.  

The chart and maps below show the types of protections offered in each shield law state.

This State Law Guide is designed to provide a foundation on each state’s shield laws related to reproductive and gender-affirming health care. To receive pro bono legal assistance on questions related to the shield laws or other reproductive rights or justice issues, email larj@law.ucla.edu.

For general questions regarding the Center on Reproductive Health, Law, and Policy, email crhlp@law.ucla.edu.