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Shifting Landscape of Reproductive Rights

March 27, 2024

Prof. Kate Shaw writes, “Woven throughout [two cases before the Supreme Court] are arguments that gesture toward the view that a fetus is a person.”

At The New York Times, Professor of Law Kate Shaw argues, “The Supreme Court Got It Wrong: Abortion Is Not Settled Law.” 

Kate Shaw, Professor of Law Kate Shaw, Professor of LawShaw co-authored the piece with Melissa Murray, a professor of law at New York University.

“In the post-Dobbs landscape, all bets are off,” write Shaw and Murray. “We no longer live in a world in which a shared conception of constitutional liberty makes a ban on I.V.F. or certain forms of contraception beyond the pale.”

Shaw, Murray, and Leah Litman, a professor of law at the University of Michigan. co-host the Supreme Court podcast, “Strict Scrutiny.”

Shaw is a constitutional law scholar who has also taught courses in administrative law and legislation and a seminar on the Supreme Court. Her academic work focuses on executive power, the law of democracy, the Supreme Court, and reproductive rights and justice.

From The New York Times:

In his majority opinion in the case overturning Roe v. Wade, Justice Samuel Alito insisted that the high court was finally settling the vexed abortion debate by returning the “authority to regulate abortion” to the “people and their elected representatives.”

Despite these assurances, less than two years after Dobbs v. Jackson Women’s Health Organization, abortion is back at the Supreme Court. In the next month, the justices will hear arguments in two high-stakes cases that may shape the future of access to medication abortion and to lifesaving care for pregnancy emergencies. These cases make clear that Dobbs did not settle the question of abortion in America — instead, it generated a new slate of questions. One of those questions involves the interaction of existing legal rules with the concept of fetal personhood — the view, held by many in the anti-abortion movement, that a fetus is a person entitled to the same rights and protections as any other person… . 

These cases may be framed in the technical jargon of administrative law and federal pre-emption doctrine, but both cases involve incredibly high-stakes issues for the lives and health of pregnant persons—and offer the court an opportunity to shape the landscape of abortion access in the post-Roe era.

These two cases may also give the court a chance to seed new ground for fetal personhood. Woven throughout both cases are arguments that gesture toward the view that a fetus is a person.

If that is the case, the legal rules that would typically hold sway in these cases might not apply. If these questions must account for the rights and entitlements of the fetus, the entire calculus is upended.

Read the full piece at The New York Times.