Sexual harassment has become a fact of the modern workplace—something that society laments and regrets, but that rarely shocks the conscience when it comes to light. In fact, both the least and most surprising aspect of workplace sexual harassment is the number of individuals who are aware of it occurring. For every Harvey Weinstein, Matt Lauer, and Louis C.K., there have been countless observers who knew about their depravity and who did nothing to stop their behavior. In this way, one obvious approach for reducing harassment at work seems clearly to involve mobilizing these bystanders—encouraging those who witness this misconduct to come forward and report the wrongdoing. Yet for a variety of reasons, bystanders often (quite rationally) choose to remain silent. This Article suggests a novel approach to overcome the forces that inhibit bystanders from speaking out. In the context of financial crimes, the law has successfully encouraged bystander reporting by applying a bounty system that provides significant financial rewards to those who report the wrongdoing that they observe. Indeed, those who have observed financial wrongdoing have reaped millions of dollars in rewards, presumably overcoming whatever reluctance they once may have felt about disclosing the misdeeds of colleagues and associates. This Article suggests applying a similar bounty system to workplace sexual harassment; it proposes awarding bystanders a piece of the recovery when their reports of observed workplace sexual harassment culminate into successful lawsuits against the perpetrators of this misconduct. Blowing the whistle on wrongdoing—harassment or otherwise—comes rife with countless concerns for those who consider speaking out. Giving such bystanders a financial incentive to come forward has worked in other contexts to override this reluctance. Perhaps the same can be true for those who observe sexual harassment at work, providing a much-needed step towards reducing this scourge in the workplace.
{"title":"Using a “Bystander Bounty” to Encourage the Reporting of Workplace Sexual Harassment","authors":"Jessica Fink","doi":"10.25172/smulr.76.2.2","DOIUrl":"https://doi.org/10.25172/smulr.76.2.2","url":null,"abstract":"Sexual harassment has become a fact of the modern workplace—something that society laments and regrets, but that rarely shocks the conscience when it comes to light. In fact, both the least and most surprising aspect of workplace sexual harassment is the number of individuals who are aware of it occurring. For every Harvey Weinstein, Matt Lauer, and Louis C.K., there have been countless observers who knew about their depravity and who did nothing to stop their behavior. In this way, one obvious approach for reducing harassment at work seems clearly to involve mobilizing these bystanders—encouraging those who witness this misconduct to come forward and report the wrongdoing. Yet for a variety of reasons, bystanders often (quite rationally) choose to remain silent. This Article suggests a novel approach to overcome the forces that inhibit bystanders from speaking out. In the context of financial crimes, the law has successfully encouraged bystander reporting by applying a bounty system that provides significant financial rewards to those who report the wrongdoing that they observe. Indeed, those who have observed financial wrongdoing have reaped millions of dollars in rewards, presumably overcoming whatever reluctance they once may have felt about disclosing the misdeeds of colleagues and associates. This Article suggests applying a similar bounty system to workplace sexual harassment; it proposes awarding bystanders a piece of the recovery when their reports of observed workplace sexual harassment culminate into successful lawsuits against the perpetrators of this misconduct. Blowing the whistle on wrongdoing—harassment or otherwise—comes rife with countless concerns for those who consider speaking out. Giving such bystanders a financial incentive to come forward has worked in other contexts to override this reluctance. Perhaps the same can be true for those who observe sexual harassment at work, providing a much-needed step towards reducing this scourge in the workplace.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"14 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74232590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Tribute for Professor Lowe","authors":"J. Coleman","doi":"10.25172/smulr.76.1.4","DOIUrl":"https://doi.org/10.25172/smulr.76.1.4","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"108 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74321335","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ode to John Lowe","authors":"Norman J Nadorff","doi":"10.25172/smulr.76.1.6","DOIUrl":"https://doi.org/10.25172/smulr.76.1.6","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77574058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Appraisal discrimination not only persists, but its influence has actually increased in some housing markets. New studies document how contemporary appraisal methods operate as systemic racism, such as how appraisers select from a narrower set of comparable properties when appraising homes in predominantly Black neighborhoods. Recent events have renewed public attention to appraisal discrimination, from shocking news stories to a new multiagency federal task force. In tandem, a new wave of litigation has emerged. This Article examines litigation as one element of a multifaceted approach to combatting appraisal discrimination. After examining the weaknesses of the regulatory framework governing appraisals, this Article turns to the role of the litigator, offering a primer on effective appraisal discrimination litigation. Drawing on interviews with fair housing litigators, it explores the landscape of these cases and their empirical outcomes, identifies the greatest impediments to successful litigation, and offers concrete strategies for overcoming those challenges.
{"title":"Appraisal Discrimination: Five Lessons for Litigators","authors":"Heather R. Abraham","doi":"10.25172/smulr.76.2.3","DOIUrl":"https://doi.org/10.25172/smulr.76.2.3","url":null,"abstract":"Appraisal discrimination not only persists, but its influence has actually increased in some housing markets. New studies document how contemporary appraisal methods operate as systemic racism, such as how appraisers select from a narrower set of comparable properties when appraising homes in predominantly Black neighborhoods. Recent events have renewed public attention to appraisal discrimination, from shocking news stories to a new multiagency federal task force. In tandem, a new wave of litigation has emerged. This Article examines litigation as one element of a multifaceted approach to combatting appraisal discrimination. After examining the weaknesses of the regulatory framework governing appraisals, this Article turns to the role of the litigator, offering a primer on effective appraisal discrimination litigation. Drawing on interviews with fair housing litigators, it explores the landscape of these cases and their empirical outcomes, identifies the greatest impediments to successful litigation, and offers concrete strategies for overcoming those challenges.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"45 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91033103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Across the United States, and especially in communities that are highly policed and in places hostile to abortion, pregnant people are dying, suffering, being separated from their children and families, and going to jail and prison in purported service of the state interest in fetal life recognized in Roe v. Wade and expanded in Planned Parenthood of Pennsylvania v. Casey. This Article focuses on two common practices that cause these harms: criminalizing pregnant people and denying them medical decision-making authority. While these practices are not new, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is accelerating them. With abortion returned to the states without a U.S. constitutional floor, the state interest in fetal life can go largely unchecked with respect to all pregnant people, not just those who need abortions. In this Article, we look back at several cases from the 1990s and early 2000s involving denials of medical decision-making authority and criminalization of pregnant people for substance use during pregnancy. We also discuss contemporary instances of these phenomenon, focusing on Alabama’s Child Chemical Endangerment Act and 1997 Wisconsin Act 292, both of which are currently and fervently used to punish pregnant people for actual or suspected substance use and which fail entirely to advance fetal or parental well-being. Based on our survey of these past and present cases, we reflect on several legal arguments and strategies to demand and restore full personhood for pregnant people. We link pregnancy criminalization to legally cognizable animus, observing that hallmark features of such animus abound when substance use during pregnancy is criminalized. We link environmental injustice to pregnancy criminalization, observing that it is irrational to punish and jail people for “polluting” the micro-environment of the womb in service of an interest in fetal life when all people—particularly the most policed—are perniciously, macro-environmentally exposed to toxins that impact reproduction and pregnancy. We reiterate that informed consent to medical treatment is the bedrock guarantee of healthcare and bodily autonomy—and pregnancy demands rather than diminishes this guarantee—and that drug tests without consent that lead to law enforcement consequences violate both this and the Fourth Amendment. We also very briefly emphasize that mandatory reporting of suspected child abuse or neglect based on a positive drug test fails to protect anyone and that mandatory reporters can challenge this obligation where it frustrates core professional duties. Together, all of these threads intersect to show that criminalizing pregnancy and denying pregnant people medical decision-making authority is about the social control and exclusion that punishment accomplishes. The impulse to control and exclude surely varies intersectionally, corresponding to the expectations and stereotypes about parenting applicable to the pu
{"title":"A Review and Look Ahead at Criminalizing Pregnancy in the Name of State Interest in Fetal Life","authors":"Sarah E. Burns, S. Wheeler","doi":"10.25172/smulr.76.2.6","DOIUrl":"https://doi.org/10.25172/smulr.76.2.6","url":null,"abstract":"Across the United States, and especially in communities that are highly policed and in places hostile to abortion, pregnant people are dying, suffering, being separated from their children and families, and going to jail and prison in purported service of the state interest in fetal life recognized in Roe v. Wade and expanded in Planned Parenthood of Pennsylvania v. Casey. This Article focuses on two common practices that cause these harms: criminalizing pregnant people and denying them medical decision-making authority. While these practices are not new, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is accelerating them. With abortion returned to the states without a U.S. constitutional floor, the state interest in fetal life can go largely unchecked with respect to all pregnant people, not just those who need abortions. In this Article, we look back at several cases from the 1990s and early 2000s involving denials of medical decision-making authority and criminalization of pregnant people for substance use during pregnancy. We also discuss contemporary instances of these phenomenon, focusing on Alabama’s Child Chemical Endangerment Act and 1997 Wisconsin Act 292, both of which are currently and fervently used to punish pregnant people for actual or suspected substance use and which fail entirely to advance fetal or parental well-being. Based on our survey of these past and present cases, we reflect on several legal arguments and strategies to demand and restore full personhood for pregnant people. We link pregnancy criminalization to legally cognizable animus, observing that hallmark features of such animus abound when substance use during pregnancy is criminalized. We link environmental injustice to pregnancy criminalization, observing that it is irrational to punish and jail people for “polluting” the micro-environment of the womb in service of an interest in fetal life when all people—particularly the most policed—are perniciously, macro-environmentally exposed to toxins that impact reproduction and pregnancy. We reiterate that informed consent to medical treatment is the bedrock guarantee of healthcare and bodily autonomy—and pregnancy demands rather than diminishes this guarantee—and that drug tests without consent that lead to law enforcement consequences violate both this and the Fourth Amendment. We also very briefly emphasize that mandatory reporting of suspected child abuse or neglect based on a positive drug test fails to protect anyone and that mandatory reporters can challenge this obligation where it frustrates core professional duties. Together, all of these threads intersect to show that criminalizing pregnancy and denying pregnant people medical decision-making authority is about the social control and exclusion that punishment accomplishes. The impulse to control and exclude surely varies intersectionally, corresponding to the expectations and stereotypes about parenting applicable to the pu","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"8 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86326796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Innovation is a public good. As with other public goods, it is expected to be underproduced if only private incentives are present. Therefore, the law strives to encourage innovation via an array of stimulus mechanisms. The law offers three main mechanisms: intellectual property (IP), cash transfers—mainly prizes and grants—and tax incentives. Vast literature analyzes and compares these innovation stimuli in search of the optimal mix to boost innovation. Yet a key problem is largely overlooked: together, the existing stimuli do not cover the lion’s share of the innovation lifecycle. At the beginning of the innovation process, companies can win grants or prizes to cover research & development (R&D) expenses. When the company is already selling, it can enjoy IP payoffs and tax credits. In between, no targeted stimuli exist. This is an incongruity because most innovative endeavors struggle neither in the R&D phase nor at the sales stage. In particular, for startups in the high-tech sector, it is precisely the phases between R&D and sales that prove fatal. This phenomenon is so well-known that the market has created a nickname for it: “the valley of death.” The gap in funding yields high costs. First, underfunding yields an exorbitant startup failure rate, which represents innovation loss and harms the incentive to engage in innovation. Second, the dearth of funding produces inferior innovation and imposes competitive harm against well-funded incumbents. Third, distributive concerns arise because the current regime disproportionately affects entrepreneurs with less access to capital on the free market. This Article considers three main ways to alleviate these concerns. The first way is to “stretch” the existing stimuli to cover the post-R&D-pre-market stage of companies. The second possibility is to improve the private market for startup funding. Finally, a third solution consists of discrete policies to address the costs that the stimulus gap imposes without directly addressing this gap. For example, it is possible to conceive of ways to tackle distributive concerns of startup funding. This Article makes at least three novel contributions to the literature: first, it analyzes the gap in inducement tools in the innovation lifecycle, which is largely overlooked. Second, it explores the inefficiencies of stimuli shortages in terms of innovation policy. Finally, this Article takes the first step in exploring potential solutions.
{"title":"Innovation Funding and the Valley of Death","authors":"Lital Helman","doi":"10.25172/smulr.76.2.4","DOIUrl":"https://doi.org/10.25172/smulr.76.2.4","url":null,"abstract":"Innovation is a public good. As with other public goods, it is expected to be underproduced if only private incentives are present. Therefore, the law strives to encourage innovation via an array of stimulus mechanisms. The law offers three main mechanisms: intellectual property (IP), cash transfers—mainly prizes and grants—and tax incentives. Vast literature analyzes and compares these innovation stimuli in search of the optimal mix to boost innovation. Yet a key problem is largely overlooked: together, the existing stimuli do not cover the lion’s share of the innovation lifecycle. At the beginning of the innovation process, companies can win grants or prizes to cover research & development (R&D) expenses. When the company is already selling, it can enjoy IP payoffs and tax credits. In between, no targeted stimuli exist. This is an incongruity because most innovative endeavors struggle neither in the R&D phase nor at the sales stage. In particular, for startups in the high-tech sector, it is precisely the phases between R&D and sales that prove fatal. This phenomenon is so well-known that the market has created a nickname for it: “the valley of death.” The gap in funding yields high costs. First, underfunding yields an exorbitant startup failure rate, which represents innovation loss and harms the incentive to engage in innovation. Second, the dearth of funding produces inferior innovation and imposes competitive harm against well-funded incumbents. Third, distributive concerns arise because the current regime disproportionately affects entrepreneurs with less access to capital on the free market. This Article considers three main ways to alleviate these concerns. The first way is to “stretch” the existing stimuli to cover the post-R&D-pre-market stage of companies. The second possibility is to improve the private market for startup funding. Finally, a third solution consists of discrete policies to address the costs that the stimulus gap imposes without directly addressing this gap. For example, it is possible to conceive of ways to tackle distributive concerns of startup funding. This Article makes at least three novel contributions to the literature: first, it analyzes the gap in inducement tools in the innovation lifecycle, which is largely overlooked. Second, it explores the inefficiencies of stimuli shortages in terms of innovation policy. Finally, this Article takes the first step in exploring potential solutions.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"284 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136298445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the Dobbs v. Jackson Whole Women’s Health Organization ruling, medication abortion pills have received an enormous amount of attention. The two medication abortion pill regimens, mifepristone used with misoprostol, or misoprostol used by itself, have been the subject of extensive public health research. Less discussed in the legal scholarship are the differences between the two regimens and their uses for self-managed medication abortion. In the United States, when people refer to medication abortion pills, they are often referencing mifepristone used with misoprostol. But in other parts of the world, when people refer to medication abortion pills, they often mean misoprostol alone. Public health researchers have examined the safety, effectiveness, and acceptability of self-managed abortion using both medication abortion regimens. This Article draws on this evidence base and provides opportunities for expanding access to medication abortion pills. This is especially important now that some states have legal climates similar to countries where abortion has long been restricted and researchers anticipate that people will increasingly seek access to medication abortion pills and turn to self-managed medication abortion.
{"title":"The Promise of Abortion Pills: Evidence on the Safety and Effectiveness of Self-Managed Medication Abortion and Opportunities to Expand Access","authors":"Dana M. Johnson","doi":"10.25172/smulr.76.1.11","DOIUrl":"https://doi.org/10.25172/smulr.76.1.11","url":null,"abstract":"Since the Dobbs v. Jackson Whole Women’s Health Organization ruling, medication abortion pills have received an enormous amount of attention. The two medication abortion pill regimens, mifepristone used with misoprostol, or misoprostol used by itself, have been the subject of extensive public health research. Less discussed in the legal scholarship are the differences between the two regimens and their uses for self-managed medication abortion. In the United States, when people refer to medication abortion pills, they are often referencing mifepristone used with misoprostol. But in other parts of the world, when people refer to medication abortion pills, they often mean misoprostol alone. Public health researchers have examined the safety, effectiveness, and acceptability of self-managed abortion using both medication abortion regimens. This Article draws on this evidence base and provides opportunities for expanding access to medication abortion pills. This is especially important now that some states have legal climates similar to countries where abortion has long been restricted and researchers anticipate that people will increasingly seek access to medication abortion pills and turn to self-managed medication abortion.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"7 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74773636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Professor John S. Lowe: A Master Teacher Who Never Doubted the Confidence of His Convictions Even When He Was Wrong!","authors":"Owen L. Anderson","doi":"10.25172/smulr.76.1.2","DOIUrl":"https://doi.org/10.25172/smulr.76.1.2","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"35 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78083754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Giant in the Field: Tribute to John S. Lowe","authors":"M. Ehrman","doi":"10.25172/smulr.76.1.5","DOIUrl":"https://doi.org/10.25172/smulr.76.1.5","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"10 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88832586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Before Dobbs v. Jackson Women’s Health Organization—the case that overturned Roe v. Wade—almost everyone assumed that polarization would continue to define the abortion debate: once states could ban abortion before viability, half the country would criminalize it and half the country would not. The assumption has been that states would prohibit or permit abortion in ways that correspond to political beliefs. This Article demonstrates the limitations of that narrative both as a matter of history and in the current political moment. The future of abortion law and politics is one of fracture. Particularly for the anti-abortion movement, once-foundational priorities will come under pressure, shifting legislative and litigation strategies at the state and federal levels. We map fracture along three critical fault lines: the legal recognition of fetal personhood, the definition of abortion, and the movement for reproductive justice. First, the majority opinion in Dobbs wields the rhetoric of neutrality to advance a singular understanding of history and tradition, defined by efforts to overturn Roe. We show how Dobbs charts a course for recognizing fetal personhood but with the costs of contestation and undermining the majority opinion’s purported neutrality. Significantly, Dobbs has exposed divisions in the anti-abortion movement, which has refashioned its support for fetal personhood in new state laws, raising questions about enforcement inside and outside state borders. Second, Dobbs incited a new struggle over what abortion entails, and both abortion supporters and opponents will contend with whether recent bans include fertility services or specific contraceptives as well as how bans apply when patients face medical emergencies. At the same time, because the nature of early abortion care has changed—available through mailed pills taken at home—abortion will be harder to police and stop. Third and finally, fracture within the abortion-rights movement will become more pronounced as the call for reproductive justice takes on different importance. The end of Roe will realign priorities in litigation, policymaking, and resource allocation around broader issues of social justice. The coming era will be defined by divergent views about who may speak on behalf of those neglected by the law and what it means to recognize the basic humanity of the most marginalized in the country. But as those views are tested for their political and practical feasibility, we should expect abortion antipathy as well as abortion support to be less tethered to party affiliation and more reflective of abortion care on the ground.
{"title":"Fracture: Abortion Law and Politics After Dobbs","authors":"R. Rebouchė, M. Ziegler","doi":"10.25172/smulr.76.1.8","DOIUrl":"https://doi.org/10.25172/smulr.76.1.8","url":null,"abstract":"Before Dobbs v. Jackson Women’s Health Organization—the case that overturned Roe v. Wade—almost everyone assumed that polarization would continue to define the abortion debate: once states could ban abortion before viability, half the country would criminalize it and half the country would not. The assumption has been that states would prohibit or permit abortion in ways that correspond to political beliefs. This Article demonstrates the limitations of that narrative both as a matter of history and in the current political moment. The future of abortion law and politics is one of fracture. Particularly for the anti-abortion movement, once-foundational priorities will come under pressure, shifting legislative and litigation strategies at the state and federal levels. We map fracture along three critical fault lines: the legal recognition of fetal personhood, the definition of abortion, and the movement for reproductive justice. First, the majority opinion in Dobbs wields the rhetoric of neutrality to advance a singular understanding of history and tradition, defined by efforts to overturn Roe. We show how Dobbs charts a course for recognizing fetal personhood but with the costs of contestation and undermining the majority opinion’s purported neutrality. Significantly, Dobbs has exposed divisions in the anti-abortion movement, which has refashioned its support for fetal personhood in new state laws, raising questions about enforcement inside and outside state borders. Second, Dobbs incited a new struggle over what abortion entails, and both abortion supporters and opponents will contend with whether recent bans include fertility services or specific contraceptives as well as how bans apply when patients face medical emergencies. At the same time, because the nature of early abortion care has changed—available through mailed pills taken at home—abortion will be harder to police and stop. Third and finally, fracture within the abortion-rights movement will become more pronounced as the call for reproductive justice takes on different importance. The end of Roe will realign priorities in litigation, policymaking, and resource allocation around broader issues of social justice. The coming era will be defined by divergent views about who may speak on behalf of those neglected by the law and what it means to recognize the basic humanity of the most marginalized in the country. But as those views are tested for their political and practical feasibility, we should expect abortion antipathy as well as abortion support to be less tethered to party affiliation and more reflective of abortion care on the ground.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"21 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75157683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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