Annual Survey of Periodical Literature

• Author: Kendra Huard Fershee
• Pages: 447-500

447

Annual Survey of Periodical Literature

KENDRA HUARD FERSHEE*

Abortion

Charles Adside III, Undue Schizophrenia: Split Decisions, Confused Scholars,

and Reversing Unworkable Abortion Precedent, 54 WILAMETTE L. REV. 219

(2018). Explained that Roe’s central holding should not be reversed. Argued,

however, that the undue burden standard in Planned Parenthood v. Casey should

be reversed. Examined how the undue burden standard caused schizophrenia

in decision-making and an unworkable precedent. Argued that returning to the

Fourteenth Amendment’s tiers of review would produce more consistent abortion

precedent.

Shulamit Almog & Sharon Bassan, The Politics of Pro and Non-Reproduction

Policies in Israel, 14 J. HEALTH & BIOMED. L. 27 (2018). Reviewed Israeli

background and the political reality behind reproductive technologies and

abortion. Focused on pro-natal and non-natal practices. Argued for a rights-based

discourse.

Lucie Arvallo, The Impact of H.B. 214: A Critical Analysis of the Texas Rape

Insurance Bill, 50 ST. MARY’S L.J. 453 (2019). Examined Texas House Bill

214, which requires women to purchase an additional insurance policy to cover

“elective abortion,” even in cases of rape or incest. Argued that the bill is subject

to constitutional challenge under the undue burden standard.

Brendan T. Beery, Tiered Balancing and the Fate of Roe v. Wade: How the

New Supreme Court Majority Could Turn the Undue-Burden Standard into a

Deferential Pike Test, 28 KAN. J.L. & PUB. POL’Y 395 (2019). Discussed how

the new Supreme Court could hollow out the core holdings of Roe v. Wade,

Planned Parenthood v. Casey, and Whole Woman’s Health v. Hellerstedt without

expressly overruling existing precedent. Further examined how the Hellerstedt

* Kendra Huard Fershee is a professor at Creighton University School of Law and Family

Law Quarterly Editor in Chief.

Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

448 Family Law Quarterly, Volume 53, Number 4, Winter 2020

court allowed for a new conservative court to do just that and how the Court can

remake the undue burden standard as something like the dormant-commerce Pike

test because the government usually wins under such a test.

Teneille R. Brown, Crisis at the Pregnancy Center: Regulating Pseudo-clinics

and Reclaiming Informed Consent, 30 YALE J.L. & FEMINISM 221 (2018).

Suggested tort law as an avenue of regulating crisis pregnancy centers that

engage in deceptive practices, such as adopting the look of medical facilities to

deceive pregnant women into thinking they are being treated by licensed medical

professionals.

Simone M. Caron, “We Won’t Go Back”: Abortion Before Roe v. Wade, 9 WAKE

FOREST J.L. & POL’Y 167 (2019). Discussed the implications of women not having

access to abortions in history, dating back to World War II, and how this is fatal to

women. Analyzed the procedures women would use for illegal abortions and what

made women make the decision.

Clare Chambers, Reasonable Disagreement and the Neutralist Dilemma:

Abortion and Circumcision in Matthew Kramer’s Liberalism with Excellence, 63

AM. J. JURIS. 9 (2018). Explained how Mathew Kramer’s argument that there is no

neutral solution to the disagreement about abortion should be expanded into the

argument against infant circumcision. Suggested that a neutralist dilemma occurs

when of two policy options, one is unreasonable.

Erwin Chemerinsky & Michele Goodwin, Constitutional Gerrymandering

Against Abortion Rights: NIFLA v. Becerra, 94 N.Y.U. L. REV. 61 (2019). Argued

that the Supreme Court erred in NIFLA v. Becerra when it ruled California law

requiring certain reproductive health care disclosures was unconstitutional.

Asserted that the Court is utilizing the law to further the Court’s hostility to

abortion and discussed the implications of the Court’s conduct.

Thomas B. Colby, The Other Half of the Abortion Right, 20 U. PA. J. CONST.

L. 1043 (2018). Provided a theoretical and doctrinal framework for applying

the purpose prong of the undue burden test and sought to answer a series of

fundamental questions about the purpose prong that are raised, but not resolved,

by Casey.

Julia Dalzell, ,

25 WM. & MARY J. RACE, GENDER & SOC. JUST. 327 (2019). Focused on the





right to an abortion extends beyond termination of pregnancy and incorporates the

right to not be a mother and the right not to create a child.

Haley Hawkins, Clearly Unconvincing: How Heightened Evidentiary Standards in

Judicial Bypass Hearings Create an Undue Burden under Whole Woman’s Health,

Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Annual Survey of Periodical Literature 449

67 AM. U. L. REV. 1911 (2018). Explored the evolution of the abortion rights

of minors and the judicial bypass process. Argued that the clear and convincing

evidence standard governing judicial bypass proceedings is unconstitutional because

it creates an undue burden for minors seeking abortions. Suggested elements of a

model judicial bypass statute.

Katherine Jones, Student article, On Account of Sex: How Massachusetts’s

Equal Rights Amendment Can Protect Choice, 28 B.U. PUB. INT. L.J. 53 (2019).

Addressed how Massachusetts’s Equal Rights Amendment can protect a woman’s

right to choose if the federal Constitution does not.

Cecile Laborde, Abortion, Marriage and Cognate Problems, 63 AM. J. JURIS.

33 (2018). Explained how controversies surrounding marriage, abortion, and

religion raise challenges to liberal neutrality. Suggested that controversial topics,

like abortion and marriage, depend on social ontologies.

Hayley E. Malcolm, Pregnancy Centers and the Limits of Mandated Disclosure,

119 COLUM. L. REV. 1133 (2019). Argued that disclosure requirements for pro-

life pregnancy centers are not what pro-choice advocates would like them to be.

Suggested that disclosure-type regulations, which business-like pro-life pregnancy

centers must usually follow, may be ineffective.

Anna K. Martin, Making Pro-Abortion Laws Pro-Choice for Female Rape

Victims, 33 WIS. J.L. GENDER & SOC’Y 63 (2018). Analyzed the inadequacy of

laws in forty-nine states when it comes to rape victims’ rights. Explained changes

that need to take place under current legislation using an Illinois statute as a model.

Barry P. McDonald, A Hellerstedt Tale: There and Back Again?, 85 U. CIN.

L. REV. 979 (2018). Explained how the dynamics of the Supreme Court have

affected the Court’s decisions in abortion cases since Roe v. Wade

how Hellerstedt 

it means for how states should interpret it.

Thomas J. Molony, Can the State Proclaim Life After Death? Hellerstedt and

Regulating the Disposition of Fetal Remains, 70 FLA. L. REV. 1047 (2018).

Discussed how Texas Department of Health and Human Services proposed

regulations requiring the cremation of aborted and miscarried fetuses. Reviewed

whether fetal remains are considered human or have constitutional rights and how



Alisha Patton, Harris and Whole Woman’s Health Collide: No Funding

Provisions Unduly Burden Reproductive Freedom, 70 HASTINGS L.J. 297 (2018).

Analyzed the pro-life campaigns to defund Planned Parenthood and exclude

private insurance plans that cover abortions. Explored how pro-lifers state that

the government has a legitimate interest in favoring live birth over abortion.

Asserted that the No Taxpayer Funding for Abortion provisions should be

Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.