The latest round of abortion restrictions often relies on a reconceptualization of rights: the idea that constitutional protections apply only when they are deserved or earned. State and federal courts have expanded rights for those they deem to be deserving, including unwed fathers, intended and functional parents, and same-sex couples seeking marriage. This Article develops a theory of “equal earned rights,” tracing their development over the course of these decisions. By chronicling the recent history of earned-rights claims, this Article offers a more complete view of how earned rights can function as a tool in constitutional interpretation. This history shows that the concept of “deserving” right-holders can be applied either to constrict or expand liberty, with repercussions that are particularly significant for those who do not conform to popular norms. To approach earned-rights logic in a more principled way, this Article recommends that courts shift their focus from interrogating behaviors and motives to questioning whether a claimant differs in salient ways from those whose rights have already been recognized.
Is the Right to Health a Necessary Precondition for Gender Equality
Defining pregnancy and abortion as medical issues does not concede one shred of the privacy or decision-making arguments supporting a right to abortion; it simply helps to explain, more accurately, exactly what is at stake in a woman's decision to
Losing the Negative Right of Privacy: Building Sexual and Reproductive Freedom
Sexual and reproductive freedoms are negative privacy rights that the law should protect from encroachment.
Sex Discrimination and State Constitutions: State Pathways through Federal Roadblocks
State constitutions and courts can help plaintiffs overcome obstacles for pursuing sex discrimination suits in federal court
Burying the Dead: The Case against Revival of Pre-Roe and Pre-Casey Abortion Statutes in a Post-Casey World
Discusses the problem of Casey and the confusion and ambiguity it has caused and argues against the revival of pre-Casey criminal abortion statutes.
The Production and Reproduction of Constitutional Norms
Carhart offers a myriad of lessons about the role of courts in democracy, the evocative power of constitutional claims, the relevance of texts and precedents to constitutional judgments, the effects of national and transnational movements, and the autonomy of women,
Breaking the Law by Giving Birth: The War on Drugs, the War on Reproductive Rights, and the War on Women
Prosecuting women who carry pregnancies to term despite their drug addictions fails to further the states' goal of protecting fetal health, violates the Equal Protection rights of pregnant women, and is bad public policy.