Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The rationale of protecting women's health is exasperating, because while it is certainly better to have a right to abortion than not to have one, the courts' and legislatures' acceptance of this rationale is a high cost to pay, because it really is paternalist and antifeminist to be explicitly saying that women-- who are in the best position to know that a forced pregnancy could ruin their life-- don't know what is good for them.
A major area of early reform of abortion law took place in the medical arena where physicians determined, in varying degrees, abortion was justified for health reasons. U.S. v. Vuitch suggests "health" can be quite open-ended as does modern culture overall.
As to paternalism, first as to Brett, matter of degree; as to Dilan, it depends WHO decides. Roe said the woman and her physician had the basic decision. And, this is not the matter of an "experimental drug." The safety vis-a-vis childbirth or in general is well determined.
As to Anita Allen and privacy, this is too limiting:
The Supreme Court used the idea of a “right to privacy” to get women out of the kitchen, and to give them the capacity to control their fertility.
Privacy goes much further than that, and the SC and/or individual members repeatedly spoke of a "right to privacy" or some similiar term long before Griswold outside of any feminist context.
Justice Brandeis' famous dissent in Olmstead was not even about fertility. Likewise, his famous law review article also suggests "privacy" is a core aspect of things clearly protected by the Constitution.
Control of fertility true enough also includes "conservative" choices (just ask women in China), but given the breadth of privacy "to protect man, his individuality, and his conscience against direct and indirect interference by government" (Douglas, speech years before Griswold), tying it to reproductive or sexual rights is too limiting and problematic.
The Japanese ceremony to honor embryos/fetuses aborted or miscarried suggests the complexity of abortion for most people, other than those who wish to simplify it. It reminds me actually -- the comparison might seem off -- those who honor the animals who lost their lives for a meal.
Some think properly honoring the animals requires vegetarianism. Others believe differently, but this does not suddenly mean they hold the animals to have no value worthy of respect.
A look at the various religions practiced in this country that accept a legal and moral choice to abort in various cases underlines this point.
It was not just physicians who focused on health; clearly, women themselves and their advocates in general joined in the effort too.
BTW, surely patternalism was and is clearly mixed in too. I do not wish to imply otherwise. But, protection of women's health goes beyond that and is important, if only going so far. In some places in the world, it doesn't go far enough.