The Yale Law Journal

Reproductive Rights


Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It

Aaron Tang

Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical e…


The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation

Reva B. Siegel

In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism,…


The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition

Mary Ziegler

By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative 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.



History and Tradition’s Equality Problem

Cary Franklin

This Essay identifies a key feature of the Court’s new history-and-tradition doctrine that has not yet attracted significant attention: outcomes in history-and-tradition cases (involving guns, abortion, etc.) are often driven by hidden, contemporary judgments about equality—judgments whose implicati…


Making History

Melissa Murray

foreword What is history but a fable agreed upon? —Napoleon Bonaparte. Introduction 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,1 …


Judicial Bypass and Parental Rights After Dobbs

Jessica Quinter & Caroline Markowitz

This Note explores the status of judicial bypass of parental-involvement laws for abortion, historically mandated to balance minors’ right to abortion and their parent’s right to direct their upbringing. We argue that, even after Dobbs, judicial bypass is legally supported and consistent with a prop…


The Abortion Interoperability Trap

Carleen M. Zubrzycki

There’s a hole in efforts to create abortion “safe havens”: they fail to recognize that medical care increasingly leaves a digital trail that will easily make its way back to abortion-seekers’ home states.  Lawmakers and providers must act now to shield politicized medical records by addressing this…


Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity

Rachel Frank

Scientific evidence overwhelmingly shows that the categorization of Plan B and other emergency contraceptives as “abortifacient,” or abortion-inducing, is incorrect. This Note argues that policy-makers and judges entrench this misunderstanding, incorrectly and unnecessarily blurring the lines betwee…


The New Class Blindness

Cary Franklin

An increasing number of judges argue that courts are flatly prohibited from taking class into account when interpreting the Fourteenth Amendment. Contesting that claim, this Article traces the persistence of class-related concerns in Fourteenth Amendment doctrine from the Warren Court to the present…


Pregnancy, Poverty, and the State

Michele Goodwin & Erwin Chemerinsky

In this Review of Khiara Bridges’s book, The Poverty of Privacy Rights, Michele Goodwin and Erwin Chemerinsky argue that state legislatures, as well as the federal government and courts, express moral disregard and even outright contempt for poor women in multitudinous ways that include, but extend …


The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman’s Health

Linda Greenhouse & Reva B. Siegel

As the case that became Whole Woman’s Health worked its way to the Supreme Court, few were confident about how the Court would respond to a law, enacted in the name of protecting women’s health, that would predictably shut most of a state’s abortion clinics. All agreed that the governing standard wa…


Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone

Kate Huddleston

This Note assesses the constitutionality of Texas House Bill 2 (H.B. 2), which regulates abortion providers, as applied to clinics located in the area between the state’s border with Mexico and internal federal immigration checkpoints. Should these statutory provisions go into …


Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice

Linda Greenhouse & Reva B. Siegel

We offer a fresh understanding of how the Supreme Court’s abortion jurisprudence addresses laws that invoke not potential life, but women’s health as a reason to single out abortion for burdensome regulation that has the effect of closing clinics. The current wave of hea…


Against Immutability

Jessica A. Clarke

Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but…


Racial Classification in Assisted Reproduction

Dov Fox

118 Yale L.J. 1844 (2009). 

This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the exp…


Introduction: The Constitutional Law and Politics of Reproductive Rights

Reva B. Siegel

118 Yale L.J. 1312 (2009).


How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars

Neal Devins

118 Yale L.J. 1318 (2009). 

More than twenty-one years after Robert Bork’s failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states ar…


"TRAP"ing Roe in Indiana and a Common-Ground Alternative

Dawn Johnsen

118 Yale L.J. 1356 (2009).


 Public discourse over abortion overwhelmingly focuses on whether the Supreme Court will overrule Roe v. Wade and states will again ban abortion. But at least since 1992, when the Court in Planned Parenthood v. Casey reaffirmed Roe’s “central holding,” certain moderate…


From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights

Robin West

118 Yale L.J. 1394 (2009).


The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative rig…


Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart

Reva B. Siegel

117 Yale L.J. 1694 (2008).

This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court’s recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes de…


The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right

Dale A. Oesterle

Earlier this year, the South Dakota legislature passed a stiff anti-abortion bill, H.B. 1215, designed to test the durability of Roe v. Wade. Soon thereafter, the bill’s opponents collected enough signatures to put the Act on the South Dakota ballot. South Dakota voters will reject or affirm the A…


Ending Court Protection of Voters from the Initiative Process

Richard L. Hasen

When journalists write their stories about state ballot propositions in the 2006 election, they likely will focus on South Dakota’s abortion rights referendum, Michigan’s affirmative action measure, or the variety of eminent domain measures reacting to the Supreme Court’s Kelo decision. But th…


Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury"

Joshua Kleinfeld

115 Yale L.J. 237 (2005)

Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits. In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. A New York …


Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts To Protect Abortion Patients and Staff

Alice Clapman

112 Yale L.J. 1545 (2003)

When Lori Driver, an anti-abortion activist, learned that Lisa Smith was scheduled to have an abortion the following day, Driver looked up Smith's telephone number and left her two telephone messages. Smith did not return Driver's calls, so Driver stepped up her efforts, go…


Baby Contracts

Chi Steve Kwok

110 Yale L.J. 1287 (2001)