Excerpted From: Robin Maril, From Liberation to (Re)criminalization: Dobbs V. Jackson Women's Health Organization, Bodily Autonomy, and the Expansion of State Rights, 76 SMU Law Review 551 (Summer, 2023) (170 Footnotes) (Full Document)

RobinMaril.jpegFOR more than a generation, the U.S. Supreme Court recognized the constitutionally protected right to an abortion and, in turn, the dignity-affirming power of reproductive autonomy and its role in designing one's own destiny The Court's endorsement of the liberatory value of bodily autonomy in Roe v. Wade, as later affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, rejected attempts to justify restrictive prohibitions on abortion as valid exercises of state police powers. However, the Court's 2022 decision in Dobbs v. Jackson Women's Health Organization threatens to fundamentally redefine the boundaries between the rights of individuals and those of the state. Concluding that the decisions in Roe and Casey were “egregiously wrong,” Justice Alito's majority opinion in Dobbs asserts that the Court's recognition of an individual right to reproductive autonomy damaged our democratic infrastructure because the decision to grant or withhold such a right should be left to the states.

This Article explores the Court's broad abdication of abortion regulation to state legislatures within the context of the expansion of state regulation of bodily autonomy, specifically in the areas of transgender rights, gender expression, and access to gender-affirming healthcare. Reproductive rights jurisprudence, including cases like Griswold, Casey, and Roe, undoubtedly provided a recognizable constitutional frame for the evolution of modern transgender rights challenges. Despite the inherent differences in the nature of the lived and legal realities of cisgender women and transgender people, both communities share common demands for dignity and self-determination informed by access to life-defining healthcare services and individual expression. The Court's dismissal of a fundamental right to abortion in Dobbs sanctioned--if not invited--more restrictive state-level regulation of reproductive care and narrowed respect for individual autonomy in the abortion context. Given the legal and societal commonalities between access to gender-affirming care and reproductive care, it should be no surprise that state legislatures are waging similar lines of attack on the rights of transgender people.

This Article proceeds in three parts. Part I explores the evolving judicial treatment of constitutional challenges to state regulation of transgender status and identity. This part positions the right to free gender expression and access to necessary gender-affirming care within the broader conversation regarding the right to bodily autonomy. Part II addresses the state legislative landscape regarding the regulation and attempted erasure of transgender lives immediately before and after the Dobbs decision. Finally, Part III examines the impact of Dobbs on the future viability of autonomy-based claims involving transgender rights under the Fourteenth Amendment. Recognizing the importance of the “second founding,” this Part III argues that any reliance on the original design of structural federalism to realize dignity or individual autonomy would be misplaced today. Instead, this Article urges the use of a liberatory lens that is faithful to the intent of the drafters of the Fourteenth Amendment--a lens that is essential to understand the liberatory nature of the early transgender and reproductive rights cases, as well as the human cost of the impending retrenchment.

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The Supreme Court's decision in Dobbs struck a damaging blow to individual rights jurisprudence, particularly cases involving bodily autonomy and liberty. State legislatures, no longer restrained by constitutionalized standards, made swift work of criminalizing abortion and threatening other expressions of bodily autonomy and reproductive care. The immediate adoption of these draconian restrictions exposes the Court's assurances of neutrality as a laughable mischaracterization of the abdication of its duty to interpret and enforce the Constitution as a safeguard of individual liberty and dignity interests. This reclamation of state control over women's reproductive autonomy is a disheartening bellwether not only for transgender people, but for every community whose conformity--or lack thereof--has been historically policed.

Assistant Professor of Law, Willamette University College of Law.