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The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.
Supreme Court of the United States.

Where Exactly Is the New Constitutional Line Between Abortion and Contraception?

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By Einer Elhauge

The new Supreme Court decision in Dobbs overrules the right to abortion but repeatedly reaffirms the right to contraception.  Whether that distinction can be justified under the Court opinion’s constitutional methodology has been the subject of much critique.  Here, however, I wish to focus on a different question: just where is the new constitutional line between abortion and contraception after Dobbs?

The dissent takes the Court opinion to eliminate any constitutional right “from the very moment of fertilization.”  But the Court opinion never says so, and for good reason.  The Court’s analysis rests heavily on the fact that the lion’s share of states banned abortion “at all stages of pregnancy” at the time the Fourteenth Amendment was ratified in 1868.  The state statutes on which the Court relied for this conclusion were all limited to terminations of “pregnancy” or efforts to procure the “miscarriage” of a pregnant woman.

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Vaccines.

COVID-19, Patents, and Trade Secrets

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By David Gindler & Jasper L. Tran

Has the worldwide distribution of COVID-19 vaccines been impacted by patent rights? David Gindler, head of IP at Milbank LA, and Jasper L. Tran, senior associate at Milbank LA, argue that the story is much more complicated — making vaccines involves much more than waiving patents, they explain.

The following article, which is adapted from the authors’ conversation with Vanderbilt Law Review podcast editor Jacob Goodman on Hot Topics in Intellectual Property Law, provides an overview of the complicated intellectual property landscape associated with COVID-19 vaccines and therapeutics.

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Washington, DC, USA, May 5, 2022: people protest the leaked draft Supreme Court opinion overturning Roe v. Wade and the right to abortion

Stemming Supreme Court Rights Reversals

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By James G. Hodge, Jr.

Based on the May 2022 leak of an initial draft, most believe the Supreme Court will carry through some rescission of abortion rights later this month through its final opinion in Dobbs v. Jackson Women’s Health Organization.

Already, concerns have arisen over other freedoms the Court may seriously reconsider down the road, including rights to gay marriage, intimacy, contraception, and informational privacy.

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Magazines on wooden table on bright background.

Citational Racism: How Leading Medical Journals Reproduce Segregation in American Medical Knowledge

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By Gwendolynne Reid, Cherice Escobar Jones, and Mya Poe

Biases in scholarly citations against scholars of color promote racial inequality, stifle intellectual analysis, and can harm patients and communities.

While the lack of citations to scholars of color in medical journals may be due to carelessness, ignorance, or structural impediments, in some cases it is due to reckless neglect.

Our study demonstrates that the American Medical Association (AMA) has failed to promote greater racial inclusion in its flagship publication, the Journal of the American Medical Association (JAMA), despite an explicit pledge to do so.

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People wearing masks on bus.

Flaws in the Textualist Argument Against the CDC Mask Mandate

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By Stefan Th. Gries, Michael Kranzlein, Nathan Schneider, Brian Slocum, and Kevin Tobia

In Health Freedom Defense Fund, Inc. v. Biden, the United States District Court for the Middle District of Florida ruled that the U.S. Centers for Disease Control and Prevention’s transit mask order, which was issued to stem the spread of SARS-CoV-2, exceeds the agency’s statutory authority, and struck down the mandate through a nation-wide injunction.

The district court’s reasoning exemplifies modern textualism. It focuses on the text of the 1944 Public Health Services Act (PHSA), which the Biden Administration claims authorizes the CDC’s transit mask order. The court relied heavily on the statute’s “ordinary meaning” and especially one word: “sanitation.”

Does the evidence support the court’s linguistic conclusions? Our team — of linguists, social scientists, philosophers of language, and lawyers — took a second look. We conclude that the district court’s approach fails on its own textualist terms. It gives the impression of selective reading of the linguistic record, rather than the careful investigation of meaning that textualism claims to champion.

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Brooklyn, New York, United States - JUNE 13 2021: Protest in Brooklyn, NY for trans youth rights.

Misleading, Coercive Language in Bills Barring Trans Youth Access to Gender Affirming Care

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By Arisa R. Marshall

On Friday, a federal judge temporarily enjoined part of a new Alabama law that would make it a felony for physicians to provide gender-affirming care to trans youth. The law had been in effect for less than a week.

This is only the most recent development relating to a raft of anti-trans legislation sweeping the country. More than twenty bills that would impose life-changing healthcare restrictions on transgender children have been introduced in statehouses nationwide over the past two years, threatening the wellbeing of transgender youth and communities. Most of these bills aim to entirely ban gender-affirming medical care for minors, including surgeries, prescription puberty blockers, and hormone replacement therapies.

These laws are detrimental to the mental, physical, and social health of children. They are dismissive of the experiences of transgender children and teenagers, misleading, and manipulative.

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Hand holding glass ball with inverted image of surroundings reflected in ball.

Flipping the Script: Adoption and Reproductive Justice

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By Kimberly McKee

Adoption is a reproductive justice issue. Pretending otherwise ignores how adoption is used as a red herring in anti-abortion arguments. A recent invocation of this faulty logic occurred in Justice Amy Coney Barrett’s questions during the November 2021 oral arguments in Dobbs v. Jackson Women’s Health Organization. Coney Barrett’s statements implied that the option to relinquish infants vis-à-vis adoption rendered abortion availability unnecessary. This line of thinking is one with which I am familiar, as both a Korean international, transracial adoptee, and a critical adoption studies scholar. 

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gavel.

Adoptee Rights and Adoption Annulment

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By Gregory Luce

Annulling or legally ending an adoption is not a new concept, but it has rarely applied to the benefit of adopted people. Instead, informal practices, as well as specific legal frameworks dating back more than 100 years, have long-supported a “right of return” policy for adoptive parents who no longer feel an adoption is beneficial or even desired.

Activists within today’s adoptee rights movement, however, are working to establish a right to end a person’s own adoption by building on what has long existed in the law for adoptive parents, but refocusing it on the specific demands for autonomy of adopted people, particularly those who do not view adoption to be in their best interests.

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Austin, TX, USA - Oct. 2, 2021: Two women participants at the Women's March rally at the Capitol protest SB 8, Texas' abortion law that effectively bans abortions after six weeks of pregnancy.

Organizing and Activism of Adopted and Displaced People

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By Lina Vanegas

I am a transracial and transnational displaced person. I was separated from my country, language, and culture and taken to Michigan, which has no connection to me or my ancestors. I was taken there to create a family for strangers who had the privilege and resources to buy me. I had family in Colombia and I was far from being a true orphan. I was bought in Bogota, Colombia and sold to a white couple living in the Midwest in 1976. 

I use the word “displaced” intentionally, because the word “adopted” does not define my lived experience in an accurate way. The word “adopted” is language that was created by the child welfare-industrial complex, also known as the adoption industry. I do not subscribe to any of the constraints or barriers that they attempt to put onto my life with their language choices. Using the word “displaced” defines the intentional separation from my family by the child welfare-industrial complex. 

My lived experience has informed who I am and has inspired and motivated the work that I do online and in the world. It is very rare that adopted and displaced people’s lived experiences are seen, heard, validated, centered, and believed, so my mission is to do that online, on my podcast, Rescripting The Narrative, and in the work that I do as a social worker and with the organization Adoptees for Choice.

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Empty hospital bed.

Native Reproductive Justice: Practices and Policies from Relinquishment to Family Preservation

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By Lauren van Schilfgaarde

Adoption can be, and frequently is, a celebrated extension of kinship ties within Native communities. But we cannot ignore the historical context of adoption as a tool to empty tribal communities and delete tribal cultures. Nor can we ignore the historical context of the simultaneous deprivation and weaponization of reproductive health care, both of which deny Native women reproductive self-determination. 

It is these contexts in which anti-abortion proponents seek to ameliorate the further denial of health care through increased adoption. The proposal is eerily familiar. 

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