Penn Carey Law Reacts to Leaked Opinion [Dobbs and Roe] | published May 3, 2022 at upenn.edu | excerpt
Profs. Roosevelt and Wolff as well as student leaders of a pro bono reproductive justice project share their insights.
According to a leaked draft published by Politico, the Supreme Court has voted to overturn abortion rights. Notably two University of Pennsylvania Carey Law School professor have submitted amici curiae briefs to the Court in Dobbs v. Jackson.
Dorothy E. Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, co-authored a brief that argues that abortion access is a key element of racial justice and that the denial of such access is a form of racial subordination.
Professor of Law and History Serena Mayeri co-authored a brief that identifies and explains the equal protection principles underlying the case.
Members of the Law School community have shared the following reactions to the leaked opinion.
According to a leaked draft published by Politico, the Supreme Court has voted to overturn abortion rights. Notably two University of Pennsylvania Carey Law School professor have submitted amici curiae briefs to the Court in Dobbs v. Jackson.
Dorothy E. Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, co-authored a brief that argues that abortion access is a key element of racial justice and that the denial of such access is a form of racial subordination.
Professor of Law and History Serena Mayeri co-authored a brief that identifies and explains the equal protection principles underlying the case.
Members of the Law School community have shared the following reactions to the leaked opinion.
Kermit Roosevelt, David Berger Professor for the Administration of Justice:
“First, in terms of who leaked it and why, it seems much more likely to me that it comes from the right in response to an actual or threatened defection by one of the five who voted to overturn Roe. Leaking this early draft makes that more costly for a defector because now people will think that they changed their vote after the leak in response to public outrage. So it makes sense as an attempt to lock in the result. It’s hard to see what a defender of Roe would get from the leak.
Second, in terms of consequences, it adopts a methodology that suggests recent gay rights decisions, from same sex marriage to the invalidation of sodomy bans, are not secure. If there are five justices who endorse this draft, it’s unlikely that they will stop with Roe.
I think it’s unlikely that anyone can do anything to influence the Justices. They don’t like to appear to be influenced, which is why the leak makes more sense as a method of locking in the result.”
“First, in terms of who leaked it and why, it seems much more likely to me that it comes from the right in response to an actual or threatened defection by one of the five who voted to overturn Roe. Leaking this early draft makes that more costly for a defector because now people will think that they changed their vote after the leak in response to public outrage. So it makes sense as an attempt to lock in the result. It’s hard to see what a defender of Roe would get from the leak.
Second, in terms of consequences, it adopts a methodology that suggests recent gay rights decisions, from same sex marriage to the invalidation of sodomy bans, are not secure. If there are five justices who endorse this draft, it’s unlikely that they will stop with Roe.
I think it’s unlikely that anyone can do anything to influence the Justices. They don’t like to appear to be influenced, which is why the leak makes more sense as a method of locking in the result.”
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Annie Blackman L’22, Co-Chair of If/When/How, a student pro bono project dedicated to lawyering for reproductive justice:
“The Guttmacher Institutes estimates that once Roe falls, 26 states in the country are likely to ban abortion services. If Justice Alito’s majority opinion becomes final, the rights of marginalized people in at least over half of states in the country will be shattered.
Despite Justice Alito’s bad faith argument that Roe represented an attack on Black people in the United States, Black people who give birth are most likely to suffer because of this decision. The criminalization of self-managed abortion, of miscarriage, and of pregnancy is steadily increasing in our country — and this decision, if released, is likely to cause a dramatic increase in the number of people who are arrested because of their pregnancy outcomes. Black people are the most likely to be arrested and subjugated to the criminal justice system because of their pregnancies. Furthermore, studies indicate that abortion bans will exacerbate the already excessively high rates of Black maternal mortality and morbidity in the country, where Black people who give birth are three times as likely to die as their white counterparts.
Pro-life advocates who push these baseless arguments do not care about ensuring the health and safety of pregnant people or Black people. Just like they do not care about the queer people whose rights will be threatened if this decision is released, those whose access to birth control will be limited or eliminated, people who will face imprisonment for suffering miscarriage and stillbirth, or any other marginalized group who now faces a frightening future in which their rights are no longer guaranteed. They care about control.
The leak of the Supreme Court’s majority opinion in the Dobbs case is devastating but not shocking. Reproductive Justice advocates have warned for years that the day would come where Roe was no longer the law of the country — but they have also been planning. Abortion is still legal in the United States and organizations who do the work to protect the rights of people who need access to abortion and defense from criminalization need our help now more than ever. I hope that my fellow law students and future colleagues commit themselves to learning more about reproductive justice, to supporting abortion funds in need, and to assisting organizations like the Repro Legal Defense Fund, which provides support for those who have been arrested in connection to self-managed abortion.
Abortion access is necessary, for everyone, everywhere, always.”
“The Guttmacher Institutes estimates that once Roe falls, 26 states in the country are likely to ban abortion services. If Justice Alito’s majority opinion becomes final, the rights of marginalized people in at least over half of states in the country will be shattered.
Despite Justice Alito’s bad faith argument that Roe represented an attack on Black people in the United States, Black people who give birth are most likely to suffer because of this decision. The criminalization of self-managed abortion, of miscarriage, and of pregnancy is steadily increasing in our country — and this decision, if released, is likely to cause a dramatic increase in the number of people who are arrested because of their pregnancy outcomes. Black people are the most likely to be arrested and subjugated to the criminal justice system because of their pregnancies. Furthermore, studies indicate that abortion bans will exacerbate the already excessively high rates of Black maternal mortality and morbidity in the country, where Black people who give birth are three times as likely to die as their white counterparts.
Pro-life advocates who push these baseless arguments do not care about ensuring the health and safety of pregnant people or Black people. Just like they do not care about the queer people whose rights will be threatened if this decision is released, those whose access to birth control will be limited or eliminated, people who will face imprisonment for suffering miscarriage and stillbirth, or any other marginalized group who now faces a frightening future in which their rights are no longer guaranteed. They care about control.
The leak of the Supreme Court’s majority opinion in the Dobbs case is devastating but not shocking. Reproductive Justice advocates have warned for years that the day would come where Roe was no longer the law of the country — but they have also been planning. Abortion is still legal in the United States and organizations who do the work to protect the rights of people who need access to abortion and defense from criminalization need our help now more than ever. I hope that my fellow law students and future colleagues commit themselves to learning more about reproductive justice, to supporting abortion funds in need, and to assisting organizations like the Repro Legal Defense Fund, which provides support for those who have been arrested in connection to self-managed abortion.
Abortion access is necessary, for everyone, everywhere, always.”
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