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This speaker series considers the criminalization of reproduction—historical and contemporary, local and global—largely through the lens of reproductive justice.

Abstract: In 2022, in Dobbs, the Court held that the Due Process Clause does not protect a right to abortion. Dobbs unleashed a tidal wave of old and new laws criminalizing abortion, including the Comstock Act of 1873, reviving a criminalization regime Roe had held in abeyance. But questions have arisen about the constitutionality of reviving regulations that were created at a time when women and people of color were not viewed as equal members of the polity. Reproductive justice advocates have argued that the revival of this regime violates equal protection law, and that even if due process no longer protects reproductive rights, equal protection often does.

This paper examines growing efforts to enable the revival of old regulatory regimes by extending the Court’s new “history and tradition” doctrine (which replaced traditional due process doctrine in Dobbs) to equal protection as well. “History and tradition” doctrine gauges a law’s constitutionality by asking whether the law would have been considered constitutional in 1791 or 1868. This approach sidelines concerns about equality, public health, and social wellbeing—and courts are adopting it not only in the context of reproductive rights, but in the context of guns as well. This new approach subverts 50 years of equality law, aggrandizes judicial power, and buries the value judgments that continue to influence major constitutional battles over guns and abortion.

Cary Franklin is a Professor of Law at UCLA School of Law. She is also the McDonald/Wright Chair of Law, Faculty Director of the Center on Reproductive Health, Law, and Policy, and Faculty Director of the Williams Institute. Her research focuses on the historical development of conceptions of equality in American law and how this history influences the shape of contemporary legal protections in the contexts of sex, sexual orientation, gender identity, and race. She has published extensively in major law reviews. Her article “The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law” (New York University Law Review, 2010), was awarded the Kathryn T. Preyer Prize by the American Society for Legal History. Prior to joining the faculty at UCLA, she was the W.H. Francis, Jr. Professor of Law at the University of Texas. She received a J.D. from Yale Law School, a Ph.D. in English from the University of Oxford, and a B.A. in English and History from Yale University.

Full event information: https://law.utexas.edu/calendar/2024/11/18/78352/