Yale Law School panel discusses the future of abortion rights


Legal experts are intervening in the upcoming Supreme Court case Dobbs v Jackson Women’s Health Organization.

Megan Vaz

01:27 am, October 26, 2021


Yale Daily News

On Monday, Yale Law School hosted a hybrid panel discussion on the upcoming Supreme Court Dobbs case against Jackson Women’s Health Organization, a case that will determine the future of abortion rights in America.

Speakers explained that the Dobbs case called into question the court’s landmark case of Roe v. Wade, who banned states from banning abortion outright in 1973. In the decades since Roe, many states passed laws restricting access to abortion. According to speakers, the Mississippi Gestational Age Act of 2018 aimed to block almost all abortions after the 15th week of pregnancy. Jackson Women’s Health Organization, the only remaining abortion clinic in Mississippi, has succeeded in preventing law enforcement through legal battles in federal courts. However, panelists explained that the Supreme Court’s decision to hear the Dobbs case gave Mississippi another chance to uphold the law.

The panel included Hillary Schneller, senior counsel at the Center for Reproductive Rights and co-lead counsel in the case, Kimberly Mutcherson, dean and professor of law at Rutgers Law School and Yale Law School professor Reva Siegel ’78 GRD ‘ 81 LAW ’86. Linda Greenhouse LAW ’78, Law School Lecturer and Senior Researcher, moderated the discussion. While Schneller and Mutcherson connected via Zoom, members of the Yale community could reach Siegel and Greenhouse in person at the Sterling Law Building. The event was co-sponsored by the Solomon Center for Health Law and Policy, the Program for the Study of Reproductive Justice and the Yale Health Law and Policy Society.

Panelists first discussed another abortion case, US v. Texas, for which oral argument will begin next week – following the court ruling to expedite the case. The case centers on the Biden administration’s challenge to Texas Senate Bill 8, which blocks abortion after six weeks.

Schnell called the court’s refusal to suspend the Texas Senate bill, despite the case being rushed, “horrible.”

“[The bill] is at the root of human rights abuses in Texas every day this is in effect, ”Schnell said. “The impact in Texas right now is an unfortunate picture – and really should be unnecessary – of what would happen if the court overturned Roe and upheld the 15-week ban in Mississippi.”

Greenhouse raised the issue of precedent, asking panelists if it would be possible for the court to uphold Mississippi law without overthrowing Roe.

Mutcherson said that while she previously believed abortion rights would simply continue to be restricted under state laws, the Texas case brought about a change.

“After everything that’s going on for SB 8, you’re starting to feel like the court might actually overthrow Roe,” Mutcherson said.

The panel then turned to the discussion of legal equality in abortion law. Siegel said claims of equal protection were common in arguments for decriminalizing abortion before Roe, with advocates raising issues of race and class inequality in reproductive rights. Issues of gender discrimination and legal equality became more prominent in law after Roe, creating the issue of discrimination based on pregnancy status. According to Siegel, the concept of pregnancy-related discrimination informed the amicus brief she filed for the Dobbs case with her academic colleagues Melissa Murray LAW ’02 and Serena Mayeri LAW ’01 GRD ’06.

Explaining the amicus, Siegel cited the opinion of the late Judge Ruth Bader Ginsburg in the United States v. Virginia case, which included pregnancy-related discrimination as a form of sex discrimination.

“Mississippi law, in fact, is designed expressly to” protect women’s health, “and it prohibits doctors from performing” an abortion “on” a maternal patient “after 15 weeks,” Siegel said. “We understand that you have to allocate health on the basis of pregnancy and gender … and we have observed that once you apply Virginia’s framework to this law … every way it justifies its purposes is based on assumptions. discriminatory in terms of sex. “

Mutcherson added that intersectionality must remain at the forefront of abortion rights and encouraged members of the public to read Judge Sonia Sotomayor LAW’s ’79 previous opinions on the subject for more information.

As the conversation on legal equality continued, panelists discussed the concepts of fetal viability. According to Mutcherson, it was inevitable that attempts to apply medical science to abortion laws through trimester and viability markers “collapsed,” as time-sensitive abortion restrictions changed in the near future. the country. Schneller agreed that fetal viability lines are only a compromise for reproductive rights activists, as lower courts have traditionally respected them in post-Roe abortion rights disputes.

At the end of the discussion, the panelists answered questions from the participants. A participant asked about the next steps abortion rights advocates could take if the Supreme Court upholds Texas law in the United States vs. Texas case and Mississippi law in Dobbs vs. Jackson Women’s Health Organization.

“One of the things we see… are organizations that are really focusing, one on state constitutions and two on state law, to get these rights registered in states even though the federal government is failing us. “, replied Mutcherson.

The Supreme Court will begin hearing arguments from Dobbs on December 1.


Nancy I. Romero

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