Center on Reproductive Health, Law, and Policy

Below are summaries and links to legal scholarship published after the Dobbs decision that address the role of history and tradition in analyzing and advancing reproductive rights.

Articles and Chapters

Bernick, Evan D. and Jill Wieber Lens, Original Public Meaning and Pregnancy’s Ambiguities, Michigan Law Review (2024)

This article critically examines and refutes originalist claims that the Fourteenth Amendment includes prenatal personhood. Responding to arguments advanced in Dobbs v. Jackson Women’s Health Organization and related efforts to constitutionalize fetal rights, the authors argue that such claims misrepresent the historical, social, and legal context of pregnancy in 1868. They posit that any serious inquiry into the public meaning of the Fourteenth Amendment requires inquiry into the public understanding of pregnancy and abortion when the Amendment was ratified in 1868. Drawing on medical and legal history, and importantly lived experience, the article demonstrates that pregnancy at the time was medically ambiguous, socially fluid, and legally inconsistent—particularly before quickening, when pregnancy could not be reliably diagnosed and miscarriage was common and indistinguishable from abortion. Further, the authors refute the possibility that historical legal usage of the word “person” encompassed prenatal personhood. They show how criminal, tort, and property law of the time recognized prenatal existence for narrow purposes and does not support the constitutional claims of prenatal personhood proponents. The article concludes by warning that ignoring the social context and ambiguities of pregnancy as understood in 1868 –and that persist today-- risks legitimizing increased surveillance and criminalization of pregnancy loss in the post-Dobbs legal landscape.

Davis, Martha F., Slavery, “Inalienable Rights,” and Abortion in State Constitutions, Syracuse Law Review (2025)

This article examines how state constitutional history and framers’ intentions regarding expansive inalienable rights provisions, and their relationship to the anti-slavery movement, can inform state constitutional interpretation in abortion cases. Using Indiana as a case study, Davis demonstrates the importance of a thorough exploration of the specific history and meaning of state constitutional provisions, addresses the interconnections between the provisions that protect inalienable rights and those that bar slavery more directly, and proposes these provisions should be viewed together and understood to protect personal autonomy, including decisions regarding procreation. Davis cautions, however, that historical evidence is just one part of a constitutional analysis and courts are not bound to repeat history that embodies deep and offensive prejudices.

Davis, Martha F., Annotated Bibliography: “Persons Born” and the Jurisprudence of “Life”, Boston University Law Review Online (2024)

This annotated bibliography reviews U.S. legal sources, including scholarship and cases, that interpret and apply the meaning of the word “life” as it appears in the context of the substantive aspects of due process in federal and state constitutions and in inalienable rights clauses appearing in many state constitutions

The bibliography sets out legal scholarship and caselaw relevant to the right to life, focusing on the rights of pregnant persons in the context of abortion. Consideration of fetal life is outside the scope of this bibliography. Part III provides the historical background of references to “life” relevant to both the federal and state constitutions’ due process and inalienable rights clauses. This Part also includes discussion of dictionary definitions of “life” pertinent to both federal and state constitutional provisions. Part IV turns to scholarly analyses and selected case law illuminating the federal due process protections for “life.” Following that, Part V embarks on a similar review of interpretations of “life” in scholarly commentaries and case law implicating state constitutions, including both state due process and inalienable rights clauses.

Franklin, Cary, History and Tradition’s Equality Problem, The Yale Law Journal Forum (2024)

The Court overturned Roe v. Wade after finding that the right to abortion is not “deeply rooted in the Nation’s history and traditions.” This Essay builds on the critical literature by identifying a key feature of the Court’s new history-and-tradition test for substantive due process cases that has not yet attracted significant attention: outcomes in these cases delivered by this test are often actually, or additionally, driven by hidden, contemporary judgements about equality.

Franklin, Cary and Reva B. Siegel, Equality Emerges as a Ground for Abortion Rights in and after Dobbs, in Roe v. Dobbs: the Past, Present, and Future of a Constitutional Right to Abortion (Oxford University Press 2024)

In this chapter, Franklin and Siegel posit the Dobbs decision and repudiation of Roe and Casey is a time of transition for the form of abortion rights, rather than a time of their abolition. The authors propose equal protection as an alternative ground for protecting abortion rights and as a powerful tool for critically probing the ways that anti-abortion jurisdictions claim to protect life. In making this argument, Franklin and Siegel show how Dobbs misinterprets the past and present logic of abortion bans. Specifically, they examine the historical foundations of abortion regulation to argue that laws banning abortion have long served dual purposes: protecting fetal life and enforcing gendered norms about women’s roles in family and society. Drawing on the historical record of nineteenth-century campaigns to criminalize abortion, they show that early abortion laws were deeply intertwined with efforts to reinforce women’s maternal and marital obligations, often justified through appeals to “natural” sex roles.

The authors argue that this history should inform a modern equal protection analytic to better respond to the dual purpose of abortion laws, and address how states seek to restrict women’s civic status and instrumentalize their lives in the service of family care. Franklin and Siegel contend that laws regulating pregnancy, including abortion, should be scrutinized for impermissible reliance on sex-role stereotyping and failure to pursue less restrictive means of protecting potential life. And they conclude that a faithful application of equal protection doctrine would give rise to an anticarceral presumption, by which states must protect life in ways that do not coerce those who resist maternity or traditional sex roles and that are compatible with women’s equal citizenship.

Goodwin, Michele, Medina v. Planned Parenthood: The Supreme Court’s Making of the New Jane Crow, Harvard Law Review (2025)

This Comment argues that the Supreme Court in Medina v. Planned Parenthood South Atlantic should have held that Medicaid beneficiaries may sue to enforce the “any-qualified-provider” provision of Medicaid—permitting individuals to choose their provider so long as they are qualified under the Act—under the clear meaning and historic origins of the law, dating to the Medical Civil Rights Movement (“MCRM”) and passed in response to segregationist laws that denied Black patients access to quality medial care.

The Comment unearths the history of overt and covert discrimination in healthcare that inspired the MCRM, and argues that the Medicare and Medicaid Act was part of a trio of legislation, along with the Civil Rights Act and Voting Rights Act, to combat racial discrimination and strike down Jim Crow-era practices. The Comment urges that, given this history, provider choice was crucial to making Medicaid meaningful. The Comment argues that Medina, which ignored the text and history of Medicaid, exposed the selective originalism of the Supreme Court. Instead, the Comment observes, Medina showcased the Court majority’s antipathy towards women’s rights and reproductive rights, and its weak discernment of contemporary civil rights harms and violations.

Goodwin, Michele, Distorting the Reconstruction: A Reflection on Dobbs, Yale Journal of Law and Feminism (2023)

The Dobbs decision offers an opportunity to revisit the damaged path to reproductive freedom, dating back to American slavery and bridge pathways forward with better understanding. This Essay offers a reflection on Dobbs, speaking to the origins of reproductive autonomy and justice concerns that preexisted Reconstruction. This Essay argues that by examining the antebellum archive, a different type of slavery and involuntary servitude come into view, namely the involuntary reproductive servitude imposed on Black girls and women.

Goodwin, Michele, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, Supreme Court Review (2022)

In its Dobbs decision, the Court undermined the rule of law in three critical aspects. First, it eliminated an established right that for nearly fifty years served as a crucial element of women’s civil liberties, one no less vital than a man’s constitutional right to be free from the state dictating his reproductive destiny. Second, in overturning Roe, it erased “a right that has safeguarded women’s ability to participate fully and equally in society.” Third, as discussed in this Essay, the Court “renounced this fundamental right, which it had repeatedly recognized and reaffirmed.” This Article argues that Dobbs is rooted in opportunistic originalism, whereby the Court implies its commitment to text, original meaning, and long, unbroken ties to tradition, but seriously veers from that methodology or performs its adjudication in such a neglectful and unsystematic manner that it belies fidelity to the methodology.

Greer, Anna, Women Seldom Make History and Tradition: Patriarchal Originalism in Dobbs, DePaul Journal for Social Justice (2023)

This Note juxtaposes New York Rifle & Pistol Association v. Bruen with Dobbs to examine the originalist methodology used in both cases and expose how superficially Dobbs treated the history and tradition of abortion.

Hutchinson, Darren Lenard, Thinly Rooted: Dobbs, Tradition, and Reproductive Justice, Arizona Law Review (2023)

This Article examines the influence of precedent, politics, and ideology on the content of constitutional law and argues that pro-choice advocates must utilize the political process to restore abortion as a fundamental right. As an alternative to the analysis in Dobbs, this Article recommends a more democratic approach to substantive due process that incorporates perspectives of historically marginalized voices. A new democratic approach could justify expanding rights to protect the most vulnerable members of society and move beyond the narrow conception of reproductive freedom as a negative liberty interest.

Mayeri, Serena, History and Tradition in Constitutional Interpretation: Resistance in the States, Wisconsin Law Review (2025)

This Essay argues that despite the U.S. Supreme Court’s narrow historical methodology in Dobbs, the past need not be a constraint on Americans’ constitutional rights: critical histories can provide valuable resources for debates about reproductive rights and justice. This Essay builds on Mayeri’s prior work—including The Critical Role of History After Dobbs—which canvasses state litigation about reproductive rights to identify various approaches to historical methodology and argumentation in state constitutional interpretation. The Essay provides a preliminary assessment of how the methods and arguments have fared since Dobbs, surveying state court decisions that have diverged sharply from Dobbs’s treatment of history and tradition and state court decisions that have followed Dobbs or otherwise retrenched. The Essay identifies patterns in how state courts considering these cases reason about the role of history in constitutional interpretation and suggests how historical memory can inflect the work of state courts more generally.

Mayeri, Serena, The Critical Role of History After Dobbs, Penn Journal of American Constitutional History (2024)

This essay explores critical roles for history in legal, constitutional, and political arguments about reproductive freedom and democracy after Dobbs. These critical approaches define diﬀerently the historical voices and sources that matter; the constitutional principles and lessons to be drawn from the past; and the roles that history and tradition should play in shaping our present and future. Critical histories read the Reconstruction Amendments as a mandate for emancipation and for the eradication of all forms of bodily and reproductive coercion. They elevate the voices of those who long were excluded from political participation and place abortion restrictions in a longer history of reproductive control and anti-democratic political traditions. Critical histories can and do inform the interpretation of state as well as federal constitutional provisions in and outside of court. From courtrooms, legislatures, and campuses to workplaces, street protests, and dinner tables, these histories play a more crucial role than ever in informing legal and political discourse about reproductive justice and the future of democracy.

McGowan, Miranda, The Democratic Deficit of Dobbs, Loyola University Chicago Law Journal (2023)

McGowan argues that Dobbs’s originalist history and tradition approach is fundamentally undemocratic and at war with the ideal of popular sovereignty. This Article demonstrates that the history surrounding women and abortion in the nineteenth century makes any popular sovereignty justification for Dobbs’s originalism impossible—as well as anachronistic and incoherent. The positive law protections for abortion or contraception that Dobbs demands never would have existed in the nineteenth century for reasons having nothing to do with “the people’s” views on abortion. Dobbs’s originalist error cannot remain confined to abortion if its methods are applied consistently. The Court claimed that Dobbs does not portend a reversal of other fundamental rights cases. If true, that fact condemns Dobbs as a selective application of its supposed premise—which is to say as a political act of judicial hypocrisy.

Miligan, Joy and Bertrall L. Ross II, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, Texas Law Review (2023)

In this Article, the authors argues that the undemocratic nature of the Constitution must be addressed in interpreting the document. Interpreters can exacerbate or ameliorate the Constitution’s democratic flaws; the methods they select may entrench old forms of political exclusion or help equalize rights and status across the citizenry. To illustrate, the authors offer a case study of the perils and possibilities of interpretation, focusing on unenumerated rights. Such rights may have been unwritten because they were liberties commonly exercised by white men as full citizens, and hence could be assumed. Or they may have been unwritten because they mattered primarily for politically excluded populations and therefore could be ignored. The authors show that the Supreme Court’s recent adoption of an approach to unenumerated rights resting on “history and tradition” unjustifiably reinforces prior undemocratic conditions. As a corrective, the Article advocates a set of interpretive steps designed to ameliorate the Constitution’s democratic flaws and advance equal citizenship.

Murray, Melissa, Making History, The Yale Journal Forum (2024)

The October Term 2021 was a momentous one for the United States Supreme Court. In a series of decisions, the Court overturned two long-standing precedents, guaranteeing the right to abortion, expanded the scope of the Second Amendment, and appeared to cosign the Establishment Clause to the dustbin of history. This Collection focuses on the methods by which the Court produced that first overhaul: specifically, on the state-counting methodology employed in Dobbs. Perhaps to soften the blow of this jurisprudential shift, the Court invoked some of its most lauded landmark decisions – decisions that are well-known for conferring rights and incorporating once-excluded constituencies into the polity. The Court’s nod to these earlier decisions was no coincidence. Indeed, it was likely an effort to cast its rights – stripping decision in Dobbs as a descendant of the earlier decisions’ rights-conferring moves. In blunter terms, the Court invoked history while undoing it, raising a key question: what does it mean for the Court to “do history”? That is the core premise and question at the heart of the four essays comprising this Collection.

Siegel, Reva B., and Mary Ziegler, Abortion’s New Criminalization – A History-and-Tradition Right to Healthcare Access After Dobbs, Virginia Law Review (2025)

Since Dobbs reversed Roe as contrary to the nation’s history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before. The authors show that the nation has long had a tradition of exempting critical forms of health care from criminalization, that this tradition extended to abortion law, and that it was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. This Article shows that this tradition extended across jurisdictions and over time. The authors demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically termed a right. The Article shows that courts in states with abortion bans view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Siegel, Reva B. & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It , The Yale Law Journal (2025)

This Article offers the first legal history of the Comstock Act, a postal obscenity statute enacted in 1873, that reaches from its enactment to its post-Dobbs reinvention. Revivalists read the Comstock statute as a plain-meaning, no-exceptions, nationwide abortion ban. In countering revivalist claims, this Article recovers a lost constitutional history of the statute that explains why its understanding of obscenity and of items prohibited as nonmailable has evolved so dramatically in the 150 years since the law was enacted. Siegel and Ziegler show that the Comstock law was the first federal obscenity law to include writings and articles enabling contraception and abortion, condemning them along with erotica and sex toys as stimulants to illicit sex. At no point was this ban absolute. The law, by its terms and as enforced, policed obscenity rather than criminalizing health care. Even the judges who developed the most expansive Victorian interpretation of obscenity protected the doctor-patient relationship. The public’s repudiation of this expansive approach to obscenity as “Comstockery”—as encroaching on democracy, liberty, and equality—led to the statute’s declining enforcement and to cases narrowing obscenity and expanding access to sexual education, contraception, and abortion.

These developments were not only statutory; they were constitutional. Recovering this lost history changes our understanding of the nation’s history and traditions of sexual and reproductive freedom.

Siegel, Reva B., How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, Houston Law Review (2023)

In this Commentary, Siegel shows how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition-entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own.

Siegel, Reva B., Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism – and Some Pathways for Resistance, Texas Law Review (2023)

This Article examines originalism’s role in overruling Roe in Dobbs. Through this case study Siegel explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism’s authority, this Article shows that the conservative legal movement has practiced originalism as a form of living constitutionalism that makes our constitutional order less democratic in several important ways.

Siegel, Reva B., The Politics of Constitutional Memory, The Georgetown Journal of Law & Public Policy (2023)

This Article introduces the concept of constitutional memory to explain the silence in our law as it relates to the Nineteenth Amendment. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law. To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family.

Siegel, Reva B., The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, The Yale Law Journal Forum (2023)

In Dobbs, the Roberts Court claimed authority to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs—history that ties Dobbs’s history-and-tradition method to the defense of segregation. This Essay traces the rise and spread of an interpretive method—counting state laws in 1868—that finds the Constitution’s meaning fixed in the deep past, tied to the expectations, intentions, and practices of the Constitution’s ratifiers. It shows how this method—and forms of originalism and traditionalism that limit the Fourteenth Amendment’s meaning to its ratifiers’ expectations, intentions, and practices—arose in opposition to methods of interpreting the Amendment that recognize that application of its guarantees evolves in history.

Singer, Joseph William, Conflict of Abortion Laws, Northeastern University Law Review (2024)

When a resident of an anti-abortion state goes to a prochoice state to get an abortion, which law applies to that person? To the abortion provider? To anyone who helps them obtain the abortion? Since Dobbs overruled Roe, states have passed conflicting laws regarding abortion, and courts will need to determine whether anti-abortion states can apply their laws to persons or events outside their territory either through civil lawsuits or criminal prosecution. This article canvasses the major disputes likely to arise over conflicts of abortion law and the arguments on both sides in those cases. It addresses both common law analysis and the constitutional constraints on application of state law under the Full Faith and Credit Clause and the Due Process Clause, and it comes to some conclusions both about what laws should apply in different fact settings and how the choice of law analysis should proceed.

Tang, Aaron, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, Stanford Law Review (2023)

In this Article, Tang examines the legal future of both pathways in light of the Dobbs majority’s historical analysis. With respect to a federal statutory ban, many commentators have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. The author thus considers a different possibility: Even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. As Dobbs admits, every state at the Founding permitted abortion before quickening, at roughly sixteen to eighteen weeks of pregnancy. Dobbs’s own history-and- tradition test thus plausibly suggests a surprising result: A federal abortion ban—whether in the form of a new statute or a resurrected Comstock Act—may violate the Fifth Amendment Due Process Clause.

Tang, Aaron, Lessons from Lawrence: How “History” Gave Us Dobbs – and How History Can Help Overrule It, The Yale Law Journal Forum (2023)

Dobbs is not the first time the Supreme Court has relied on dubious history to deny a constitutional right of profound importance. When the Court rejected what it described as the right of “homosexuals to engage in acts of consensual sodomy” in Bowers v. Hardwick, it did so based on disputed historical claims about criminal sodomy laws in early America. Indeed, when the Court later overruled Bowers in Lawrence v. Texas, it openly confessed that Bowers’s “historical premises are not without doubt and, at the very least, are overstated.” This Essay explores three important lessons that reproductive-justice advocates can learn from Lawrence’s use of history to discredit Bowers. First, Lawrence shows that Dobbs is vulnerable to overruling because it, like Bowers, rests on faulty historical premises, including (but hardly limited to) Dobbs’s self-proclaimed “most important historical fact” that twenty-eight out of thirty-seven states banned abortion throughout pregnancy as of the Fourteenth Amendment’s enactment. Second, Lawrence suggests that these historical errors should undermine any claim Dobbs might make to stare decisis treatment. Finally, Lawrence reveals history’s limited utility in modern constitutional disputes. The problem with Dobbs’s dubious history, Lawrence teaches, is not that it represents the misapplication of a tractable test. The problem is that the history-and-tradition test Dobbs purports to apply is often deeply underdeterminate.

Townsend, Halley, Second Middle Passage: How Anti-Abortion Laws Perpetuate Structures of Slavery and The Case for Reproductive Justice, University of Pennsylvania Journal of Constitutional Law (2023)

This Article argues that anti-abortion laws in the former slaveholding states perpetuate structures of state control over the Black female body, exposes the connection between forced birth and slavery, and makes the case for constitutional pathways to resist anti-abortion laws and support reproductive justice. In making this set of arguments, Halley explores the history of the pro-life legal movement, including the racists history of abortion bans and medical experimentation. The article also traces the historical regulation of the Black female body back to the days of slavery and shows how modern-day abortion-bans replicate the very same historical laws and practices that supported slavery and gendered lynching, forced sterilization and eugenics of the post-slavery Jim Crow era.

Wilkson, Parker J., The Danger of Dobbs: Substantive Due Process, Fundamental Rights, and a Critique of the Theory of Historical Tradition, University of Florida Journal of Law & Public Policy (2025)

Central to the Supreme Court’s holding in Dobbs that the right to obtain an abortion would no longer be recognized as a fundamental right is the theory of historical tradition: the view that the only liberty interests recognized as fundamental rights under the Due Process Clause are those that are “deeply rooted in this Nation’s history and tradition.” This Note argues that the theory of historical tradition should not set the outer boundaries of fundamental rights. In demanding that a fundamental right find support in the Nation’s history and tradition, the Supreme Court imports a concept of liberty from a span of time in which many groups among our political community today were pathologized, denied basic political rights, or subject to state-sponsored discrimination.

Ziegler, Mary, The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition, The Yale Law Journal Forum (2023)

By excavating the history around the history-and-tradition test used in Dobbs and the alternative pluralist approach it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition. Recovering past battles about the history-and-tradition test allows us to appreciate better how, over the decades, the idea of judicial neutrality has in fact been deployed non-neutrally, in the service of a shifting, and at times divisive, set of social values. Dobbs pays lip service to neutrality without achieving it.

Key amicus briefs and expert reports considering history and tradition in support of reproductive rights. Summaries and links to each filing are organized below as follows: State court amicus, federal court amicus, state court expert reports.

In the wake of the Dobbs decision, some courts have considered historical evidence in opinions that embraced more expansive interpretations of constitutional rights to protect abortion and related rights to varying degrees. Here are key cases – primarily high court or final decisions – directly addressing history and tradition to reach rights-supportive decisions. Click on the case name below for a summary of the decision and its historical reasoning, and a link to the full opinion:

Jul 03, 2025

Melissa Goodman talks to the San Francisco Chronicle about how the budget bill could impact access to reproductive healthcare

The Mifepristone Litigation Tracker and

Apr 18, 2025

Melissa Goodman speaks with Stacker Media on the prevalence and future of IVF across the country

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.

Scholarly Essays on Legal Pathways

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.

Read the essays in full:

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

Mar 19, 2025

The Center on Reproductive Health, Law, and Policy's research about abortion shield laws is cited by NPR

March 6, 2025 4:00 PM - 5:00 PM

The Center on Reproductive Health, Law, and Policy (CRHLP), in partnership with Yale Law School’s Program for the Study of Reproductive Justice and Temple University Beasley School of Law, invites you to Resistance and Reimagining: Perspectives on Reproductive and Gender Justice from the Academy, Advocacy, and Public Service.

This event will feature a panel moderated by CRHLP's Legal and Policy Director, Diana Kasdan. The panel will include Professor Khiara M. Bridges from UC Berkeley School of Law, Leila Abolfazli, Senior Director of National Abortion Strategy at National Women's Law Center, Mary Bonauto, Senior Director of Civil Rights and Legal Strategies at GLBTQ Legal Advocates and Defenders, and Karli Eisenberg, Supervising Deputy Attorney General, CA AG's Office for Healthcare Rights and Access. This event is in person and will be streamed over Zoom, refreshments will be served.

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April 4, 2026

New resource: Monthly Research Roundup on sexual and reproductive health research
Policy News: Senate Republicans investigate mifepristone manufacturers and push for telehealth restrictions
Legal News: Kansas enacts law expanding protections for crisis pregnancy centers; Montana Supreme Court blocks abortion provider restrictions; Georgia midwives challenge restrictive regulations