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Carissa Byrne Hessick Profile picture
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19 Sep, 4 tweets, 2 min read
People are more comfortable interfering in the reproductive lives of single women. I imagine that’s why early contraception cases featured married couples

Imagine telling a married woman that she should simply stop having sex with her husband if she doesn’t want (more) children
And in case you were wondering whether married women get abortions, the answer is yes. The rates are much lower than for single women, but still significant. statista.com/statistics/185…
And, to be clear, the fact that it seems more inappropriate to tell married women to stop having sex than it does to say the same thing to unmarried women does not reflect well on our social norms surrounding gender, sexual activity, or marriage.
Maggie does an excellent job articulating why the married vs unmarried person assumption matters here:

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More from @CBHessick

Carissa Byrne Hessick Profile picture
21 Sep
Twitter--the place where someone is always here to tell you that you shouldn't speak.
Seriously, I find it astounding how many people repeatedly trumpet the idea that it is somehow *bad* to explain why there are substantive problems with an argument or a policy that you don't like.
A few months ago, one guy was incensed that I took the time to explain why there were substantive legal problems with an NRO column rather than just calling the person who wrote it a racist who operates in bad faith.
Read 5 tweets
Carissa Byrne Hessick Profile picture
21 Sep
There is a lot to criticize about the Texas anti-abortion law, but trying to craft laws that subvert judicial review strikes me as something that people who call themselves "conservative" should not support.

Judicial review is a key component of our constitutional system.
As my friends on the right often remind me, ours is not a pure democracy. There are many pieces of the government that are specifically designed to make sure that majority opinion does not carry the day.

That is their response to complaints about the Senate and the filibuster.
Judicial review is one feature of our constitutional system that can (and does) frustrate majority rule. Congress and states can't pass blatantly unconstitutional laws even if a majority of Americans support those laws.
Read 8 tweets
Carissa Byrne Hessick Profile picture
10 Sep
I have seen a lot of people talking about how the Biden vaccine order will backfire, resulting in fewer people getting vaccinated. Specifically, they claim it will turn those who are hesitant into staunch opponents. Let's talk about why these claims don't make a lot of sense....
Assuming people make decisions based on costs and benefits, requiring either vaccines or regular testing for many jobs will increase the costs associated with remaining unvaccinated. So if you believe people are rational actors, then this will lead to more vaccinations.
Of course, most people often act irrationally. So it’s understandable to think that not everyone will make the simple cost benefit analysis and get a vaccine.

But that doesn’t necessarily mean that requiring something will make it more objectionable.
Read 15 tweets
Carissa Byrne Hessick Profile picture
5 Sep
In modern America, federal courts don’t have the authority to create new federal crimes.
But the history is overwhelming that they possessed the power to create new crimes at the Founding.
Why does that matter for the debate over Bivens? Well…..
I have not done the historical work to know what authority federal judges possessed over civil causes of action. So I don’t know what the original understanding of federal court power would have been on this issue.
But twice in the past five years, I did the historical work to examine two oft-repeated claims about narrow federal court authority in criminal cases. And both of those claims were just wrong.
Federal (and state) courts possessed enormous power to shape the criminal law.
Read 8 tweets
Carissa Byrne Hessick Profile picture
2 Sep
Interesting twist in all of the discussions about standing and the new Texas abortion law.
It's true that states can set their own standing rules, but it looks like all of the new SCOTUS cases that restricted standing for statutory rights might apply in TX state court!
Why does this matter? Well the clever way that the Texas legislature sought to circumvent judicial review of its antiabortion law relies on private individuals to bring civil lawsuits against abortion providers, rather than state enforcement of the prohibition.
The US Supreme Court has really cracked down on laws that allow private individuals to bring lawsuits unless they were personally harmed.
Under the TX abortion law, it would be hard for most people to argue that *they* were harmed by *someone else* getting an abortion.
Read 7 tweets
Carissa Byrne Hessick Profile picture
31 Aug
In case you were wondering about the "substantial new burdens on students" that Nate refers to here, Duke is requiring masks & vaccines and suspending indoor group seating at dining facilities.

That's . . . not very substantial.
Here's the relevant portion of the article in the local paper here in North Carolina that he's relying on for his claim about "substantial new burdens" Image
I totally get it that some places are being too cautious about COVID right now. But telling people they need to wear masks, get a vaccine, and eat outside is not really asking all that much.
In fact, they seem like not particularly onerous restrictions at all.
Read 5 tweets

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