“Down Where the Grass Grows”: Municipal Abortion Policies After Dobbs

When the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization referred future decisions about abortion policies to “elected representatives and the people,” there is no doubt that local governments were included in the designation. In fact, since the 1970s, local governments have been active in pursuing a range of abortion policies in their jurisdictions—both for and against abortion access—that may be in tension with their state governments. Because the ideological orientations of state and local governments often conflict, state preemption is a frequent threat hanging over these local initiatives. There are examples from both sides of the political spectrum, but it is more often conservative state legislatures that act to preempt more progressive policymaking by municipalities. Yet, recent history shows that aggressive preemption by states has not stopped, and will not stop, local governments from weighing in and pursuing policies that reflect local values. Even when local pro-choice policies have no legal effect, they can educate, support organizing, provide moral support, and assuage fear of seeking critical healthcare. On the anti-abortion side, symbolic local policies are often part of a strategic national agenda. The breadth and depth of interest in abortion access after Dobbs provides an occasion for local debates that can engage, energize, and mobilize voters to challenge state preemption practices. If pro-choice advocates lean into democracy and show up “down where the grass grows,” their efforts could have a substantive impact as well

(G)local Intersectionality

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of Racial Discrimination. This “relocalization” phenomenon—which brings intersectionality back to its roots in domestic law—is visible in many parts of the world. In Europe, cities in Spain proactively integrate intersectional approaches into their local human rights regimes. Outside of Europe, Montréal applies an intersectional analysis under its Charter of Rights and Responsibilities, a local governance document grounded in the values of fundamental human rights and dignity. Human rights cities like Gwangju, Korea, embrace intersectionality as a programmatic imperative. In the United States, San Francisco, Pittsburgh, Los Angeles, and Cincinnati, among others, incorporated intersectional approaches to nondiscrimination in the wake of adopting local CEDAWs. The relocalization process is not always straightforward. Challenges include the difficulties of reconciling local intersectional approaches with national laws that may not recognize intersectionality, and developing indicators tailored to local experiences. On the other hand, local adoption of intersectionality opens up robust possibilities for participation in communities’ legal and political processes, which many local governments emphasize

IN CONTEXT: FOREIGN AND INTERNATIONAL LAW IN ABORTION LITIGATION

In Dobbs v. Jackson Women’s Health Org’n, the U.S. Supreme Court, both the majority and dissenting justices, employed comparative law. For some of the justices in the majority, this reflected a change from their prior rejection of comparative law in United States courts. However, a review of the majority’s approach to comparative law reveals flaws in their analysis – in particular, a failure to appreciate the broader context surrounding comparative sources. As state courts now take the lead in considering cases relating to abortion, they have the opportunity to develop more nuanced and accurate approaches to comparative law

In the Interests of Justice: Human Rights and the Right to Counsel in Civil Cases

This report examines the international human rights treaties binding on the United States as well as other non-binding international human rights documents to ascertain the status of the right to counsel in civil cases, the so-called Civil Gideon right. The United Nations treaty monitoring bodies responsible for the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination have both indicated that legal assistance may be required to ensure fairness in civil cases. The Charter of the Organization of American States, to which the United States is a party, goes farther and contains an explicit right to adequate provision for all persons to have due legal aid in order to secure their rights. These sources support the conclusion that the Civil Gideon right is an emerging right in international jurisprudence. International bodies have been particularly apt to recognize this right when inequalities and threats to individuals\u27 fundamental interests are exacerbated by the lack of legal assistance. Since the United States is a participant in several of these international treaty regimes, this international jurisprudence concerning Civil Gideon is highly relevant to evaluating whether the interest of justice are adequately served by the United States\u27 current patchwork approach to the provision of civil counsel