Introduction

In a post-Dobbs world, there is no longer a fundamental right to an abortion. Although the law does not explicate an inherent fundamental right to an abortion, many wonder if the Constitution can still protect a woman’s right to an abortion. While definitive claims that abortion protections do not verbatim exist within the Constitution, it is possible protections against abortion restrictions do, and one such way these restrictions could be limited is under the 8th Amendment. This note serves to trace the history of the Eighth Amendment through precedent into modern jurisprudence, how abortion rights came into legal analysis and where they stand, and the direct application of the Eighth Amendment’s cruel and unusual punishment clause to protecting abortion.

What may seem an unusual argument for granting protections against abortion restriction statutes may inadvertently provide some of the most grounding support in constitutional law. Though the Eighth Amendment has not historically been cited to protect explicit fundamental rights, proponents for providing protections to abortion services have only loosely questioned in modern jurisprudence how the Eighth could be applied for abortion protections.[1] The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.[2] From this legislation, the Constitution has not provided much more guidance than the prohibition of cruel and unusual punishment vaguely defined. Therefore, it has been left to the courts to provide guidance through setting case precedent to what is considered cruel and unusual punishment. 

WHAT IS CRUEL AND UNUSUAL

In dissecting the Cruel and Unusual clause of the Eighth Amendment, the court must determine what standard should be used to determine what is cruel and unusual, and what is a punishment. The Court's rulings reflecting where it adopts standards for cruel punishment, whether it be from 1791 standards or aligning with the modern judgment of cruel, have been inconclusive.[3]Though, it can be safely said that historical punishments, which were more severe than today’s punishments in terms of cruelty, are no longer commonplace or standard.[4] For example, the ducking chair, crushing a person to death, and immolation were eligible punishments for a victim guilty of witchcraft in the United States prior to the adoption of the Constitution and Bill of Rights.[5] After its passage in the early years of the republic, the Cruel and Unusual Punishment clause was used to prohibit torture and barbarous punishments, though as society has progressed even many of these ‘pre-modern’ methods of torture and punishment would be prohibited in modern jurisprudence.[6] Therefore, there is a level of assurance that many past forms of punishment are not applicable to today and that federal or state governments are so ‘creative’ with their punishment for crimes to induce oppression. Now, the standard for punishment must be predictable and evenly applied to offenders similarly situated.[7]So, punishments that are unprecedented have good standing to challenge their constitutionality under the Eighth Amendment. Consequently, Fields v. Roswarski aimed to create a framework for Eighth Amendment challenges now employed in modern jurisprudence. Within the framework, to establish a claim of Cruel and Unusual punishment a plaintiff must meet two criteria: (1) an objective element that is sufficiently serious or harmful through an act or omission to produce a denial of necessities and (2) a subjective element to the depravity questions whether the state of mind consists of “deliberate indifference”, which is now the standard to establish an Eighth Amendment constitutional violation.[8] Finally, in looking to break down how the courts have defined what is cruel and unusual, and what is punishment, the frameworks for the standards of an evolving society outlined by Chief Justice Earl Warren in Trop v. Dulles states that Cruel and Unusual Punishments should “draw its meaning from the evolving standards of decency that mark the progress of a maturing society”.[9]

While it is clear the Supreme Court has taken a more expansive approach to Eighth Amendment Violations with respect to Natural Law that align with the values of an evolving society, in addressing the issue of abortion,the court catered it to a more textualist and historical mindset. The difference in constitutional interpretation therefore leaves room for questions regardings the courts opinions of specific abortion restrictions if they constitute Eighth Amendment violations. This intersection of where case precedent upholding Eighth Amendment violations provides reasonable specificity of potential limitations for abortion restrictions and thus are where a protection for abortion might be found.

WHAT IS CRUEL AND UNUSUAL PUNISHMENT

So, what does cruel and unusual punishment constitute in modern jurisprudence? Punishment that fails to meet social decency standards is overly painful, torturous, degrading, humiliating, or is grossly disproportionate to the crime committed.[10] To comply with societal expectations of punishment, the lack of specificity[11] Therefore, it has been left to the courts to determine in the context of changing societal standards for what is cruel and unusual punishment. It is important to note that there is widespread agreement that the Cruel and Unusual Punishment clause limits federal as well as state power because the Fourteenth Amendment prohibits states from abridging the, “privileges and immunities of citizens of the United States” and from depriving “any person of life, liberty, or property, without due process of law”.[12] Therefore, the Fourteenth Amendment makes Eighth Amendment claims/violations applicable to state and local governing bodies under 42 U.S.C. § 1983.[13]

Since the Bill of Rights, the Supreme Court has consistently been refining its definition of cruel and unusual punishment with its first iteration in its decision Weems v. United States.[14] Weems is considered a benchmark case because it expanded the definition of cruel and unusual punishment to include more than just mere tortuous punishment, 120 years after the Bill of Rights was passed.[15] The amount of time between its passage and refinement in Weems, is reflective of the Supreme Court's hesitation with specifying the definition. The new interpretation, different from what the framers of the Constitution intended restricting such as whipping or cutting off one’s ear, follows what was considered cruel and unusual according to society’s evolving standards.[16]Weems marked the beginning of the Court’s new interpretation of the Eighth Amendment as having an “expansive and vital character” that should take into account current punishment standards.[17] As it currently stands, there exists no court case that has laid bare an exhaustive definition of what is “cruel and unusual.” Though, as the barriers for cruel and unusual punishment become more clearly defined, so too do the applications for which they can be applied. Such is seen in Robinson v. California, the first time the Supreme Court ruled that the Eighth Amendment additionally applies to state governments through the Fourteenth Amendment.[18] With this new direction, comparing state punishments can create concern for Eighth Amendment claims: given the long held precedent set in Weems that punishments disproportionate to the offense could be “cruel and unusual”. And, if punishments significantly vary on a state by state basis, they may be deemed disproportionately applied.

EVOLVING STANDARDS OF DECENCY 

The Supreme Court defaults its moral framework to the standards of decency of an evolving society. Therefore, with respect to abortion, it is important to note that in modern jurisprudence society values the right to life more materially than a right to die.[19]Therefore, there is the notion that protecting a potential life could be seen too as what is now considered morally right. The first incidence of a state permitting physician assisted suicide began in 1994 following the Supreme Courts ruling in Washington v. Glucksberg which states that there are no constitutional protections for the right to physician-assisted suicide.[20] Soon two states followed suit permitting physician assisted suicide in 2008 and now seven more in 2013.[21] The novelty of this right to die, across state jurisdictions, is also varied in its regulations when it comes to the death penalty and is much less agreed upon the whole as it has been repeatedly protected and then overturned, by the Supreme Court.[22] As it stands today, the death penalty and now assisted suicide are decided on a state-by-state basis and do not violate the Eighth Amendment’s ban on cruel and unusual punishment.[23] This right to die, and decisions about death for patients seeking euthanasia is only granted on a state-by-state basis, further emphasizing how the right to life, federally, is society’s preferred default, especially for medical treatments.[24]

In this way, defending the right to life is easier than defending death. Even still, challenging this right to life for the ‘unborn’ can most often be viewed in a positive light. Thus, in line with what Pastor David Barnhart said, “the unborn are a convenient group of people to advocate for” because they are morally uncomplicated, do not require you to maintain relationships, allow you to advocate for them without reimagining power structures, allow you to claim you still love Jesus, and once they cease to be unborn can be forgotten.

RIGHT TO LIFE

The right to life in modern jurisprudence for medical treatments can be seen in Do Not Resuscitate (DNRs) and Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) contracts. These binding agreements have been upheld by judges as being lawful when it is in the best interest of the patient and compliant with the Mental Capacity Act 2005 (section 4).[25] In general, there is a presumption that a patient would rather choose life than death, whether they are secular or non-secular, religious or non-religious. However, although cultural traditions at present favor life over death, patient autonomy can still be triumphed over medical paternalism with a DNR or DNACPR.[26] Therefore, this right to life is typically considered the default and can only be overruled by a temporary or permanent impairment or disturbance of the functioning of the incapacitated’s mind or brain.[27]Impairment cannot be made by reference to age, appearance or condition, or an aspect of behavior is not sufficient and may mislead others.[28] Essentially, a person is considered unable to make a decision for themselves if they are unable to understand, retain, or evaluate information, although the inability to communicate due to poor memory or limited language understanding does not suffice to prove lack of capacity.[29] In essence, the ability for someone to choose their own medical outcomes applies to abortion standards and cruel and unusual punishment, applying lack of understanding to a child capable of becoming pregnant willfully and preventing abortive procedures may not constitute cruel and unusual punishment. Therefore, citing an Eighth Amendment violation for preventing a minor from obtaining a legal abortion on the grounds of limited mental capacity is not cruel and unusual punishment because the child will likely be ruled sufficiently mentally adept. Though in the eyes of the law a person sixteen years or older is presumed to have capacities of an adult, children much younger have been able to partake in many adult-like activities. For example, twenty U.S. states do not require a legal minimum age for marriage, so long as the child has a parental or judicial waiver. Further still, children can seek emancipation as early as fourteen, eleven for juveniles tried as adults for federal crimes, and it is disputed among medical professionals that minors should have the capacity to override some parental decisions related to refusal of medical advice. With this in mind, the typical age a child can become pregnant is twelve. Thus it is highly likely courts will rule that a minor has the mental capacity to know they are becoming willfully pregnant if they seek an abortion, even if they cannot legally give consent.

ADULT CRIME, ADULT TIME

Examining how punishments for juvenile offenders are dealt out in the courts vs adult punishments can help predict how potential Eighth Amendment violations can be applied to abortion restrictions for minors. In recent case precedent, the Supreme Court ruled that it does consider age when doling out prison sentences in Graham v. Florida, 560 U.S. 48 (2010), though conceding that if a court does impose a life sentence, then the offender must also be provided a “realistic opportunity to obtain release” for juveniles in non-homicide cases.[30] Later, the Court expanded this precedent holding that life in prison without parole is also unconstitutional for juvenile homicide offenders.[31] These guidelines, however, have been circumvented whereby many states have tried juveniles as adults, in some instances as low as 11, in the court of law.[32] This new wave of criminalizing minors was a reaction by states in the 1980s to growing violent crimes, leading a large number of states to pass laws permitting persons under seventeen to be tried as adults. Using the slogan, “adult crime, adult time” states consequently began overriding murky case precedent and imposing strict juvenile justice statutes.[33] This idea of perpetrating juveniles who perform ‘adult’ actions likely will lead to courts not ruling in favor of allowing abortion protections for minors because the act of consensual intercourse is often viewed as a very ‘adult act’.[34] Given the rise of states punishing minors for ‘adult’ actions, it is unlikely an Eighth Amendment claim can be invoked to protect juveniles seeking an abortion protections on an age basis. So, one possible alternative to providing protections against Eighth Amendment violations, in terms of sexual acts would be in cases involving rape or incest. Thus, living in a society where over 75% of Americans believe abortion should be allowed for cases involving rape or incest, examining these blanket abortion restrictions viewed in light of a ‘growing and evolving society,’ provide a solid foundation for Eight Amendment violations.[35]

ACTUS REUS

Another element worth examining that could trigger claims for Eighth Amendment violations is actus reus, the voluntary conduct that comprises the physical elements of a crime.[36] In its 1962 decision Robinson v. California, the Supreme Court ruled that it is cruel and unusual under the Eighth Amendment to punish people for “status” crimes which criminalizes people for who they are as opposed to what they do.[37] For example, proscribing a law that outlaws homelessness is a violation of actus reus because this is a status crime which is often acquired involuntarily.[38] Actus Reus in modern jurisprudence, narrowed in Powell v. Texas,allows state governments to punish status so long as it is done under the pretext of punishing some act provided that people have a lawful alternative. The assumption Powell distinctly makes is that: death is not considered a viable alternative, and without a lawful alternative, it is cruel and unusual punishment for lawmakers to impose restrictions on people on account of their status.[39] This demonstrates that under the Powell court the status crimes doctrine protects involuntary status not acts.[40] When applying this framework to blanket abortion statutes there might easily be valid claims for violations of actus reus. This is because it might be considered unlawful to criminalize people seeking abortions who become forcibly pregnant against their will. Where the condition of the status of becoming pregnant in cases of rape and incest is involuntary, not providing a lawful alternative to punishing this status can be viewed as cruel and unusual punishment.

ABORTION PRECEDENT INTO MODERN JURISPRUDENCE

To understand the right to an abortion in the context of the Eighth Amendment, it is important to understand abortion precedents, their justifications, and ultimately why this right was overturned. The right to an abortion was first established in the 1973 landmark Supreme Court decision Roe v. Wade. In Roe, the appellant alleged that she was an unmarried pregnant woman who sought an abortion, “performed by a competent, licensed physician, under safe, clinical conditions”. However she claimed she was unable to obtain a ‘legal abortion’ in Texas because her life did not appear to be threatened by the continuation of her pregnancy, and therefore purported to sue on behalf of herself and all other women similarly situated.[41] The court ruled abortion statutes as overly broad and vague, ultimately granting declaratory, but not injunctive, relief to the appellant. Roe grounded this ruling in two major case precedents: first it found justifications for its ruling  in Griswold v. Connecticut, 381 U.S. 479 (1965) which ruled that banning the use or sale of contraceptives to married couples violated the constitutional right to privacy.[42] And second in Eisenstadt v. Baird, 405 U.S. 438 (1972) which extended contraception access to unmarried couples. These decisions together elaborated that the fundamental right to privacy extends to “... the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”[43] As a result, the Court established a trimester framework which grants a woman the decision to terminate a pregnancy at will any time during the first trimester of pregnancy.

This fundamental right to an abortion was reinforced through Planned Parenthood v. Casey, 505 U.S. 833 (1992) holding that there exists a constitutional right to have an abortion. Although Casey upheld Roe’s precedent it replaced the more rigid trimester framework, with an “undue burden” test, which states that an undue burden arises if a state’s restriction places a substantial obstacle in the path of a woman seeking an abortion before fetal viability.[44] This new standard for testing constitutionality of abortion restrictions was reaffirmed in Whole Woman’s Health v. Hellerstedt 136 S. Ct. 2292 (2016), as revised (June 27, 2016) ruling that a woman has a constitutional right of access to a legal abortion.[45] This decision repealed Texas abortion restrictions because they placed an undue burden on the delivery of abortion services for women seeking an abortion.[46]

Most importantly, the Supreme Court found its justifications for granting the constitutional right to an abortion through the implied right to privacy in the First, Ninth, and Fourteenth Amendment.[47] Though the court solidified the right to privacy as a constitutional doctrine, the onerous task of overturning significant case precedent for the right to an abortion did not lie with questioning the constitutionality of the right to privacy, but rather if abortion rights are a privacy issue.[48]

In modern jurisprudence, the Supreme Court overruled these three landmark cases Roe, Casey, and Hellerstdt in their Dobbs v. Jackson Women's Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022).[49] Dobbs draws its justification to repeal prior decisions grounding a fundamental right to an abortion through the Ninth and the Fourteenth Amendments, citing that an implied right not readily apparent in the Constitution exists based on two criteria: (1) that it is fundamental to the right of ordered liberty and (2) it is deeply rooted in our nation's history.[50] With reference to a right being deeply rooted in our national history, the Court found that historical inquiries are essential whenever courts are asked to recognize a new component of liberty protected by the Due Process Clause of the Fourteenth Amendment.[51] In the majority opinion in Dobbs the Supreme Court cited that judges should understand what liberties are actually supposed to be protected in the Constitution as opposed what judges think Americans should enjoy, “...lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of the Court.”[52] This means the justices found that historical precedent did not sufficiently support the implied right to an abortion. Ultimately, Dobbs demonstrated the court backtracking its previous sentiments protecting the fundamental right to an abortion taking a textual approach to deciding whether the fundamental right to an abortion exists within the Constitution.[53]

In Dobbs, the Court further explains its reasoning for taking a textualist approach in favor of straying away from legislative intent citing in the majority opinion that the subject of new regulation moving in favor of providing a right to an abortion was not necessarily the intent of all legislators who passed a law: further emphasizing that it is hazardous to provide inquiries into legislative motives.[54] The majority opinion aimed to cement support for its textualist approach claiming that stare decisis is its weakest when the Supreme Court interprets the Constitution, conceding that sometimes it is more important for a matter to be settled than for it to be right, but when it comes to the Constitution, “...which was meant to endure through a long lapse of ages, the Court places a high value on having the matter settled right.”[55] Fervently, the Dobbs decision disputed that finding constitutional principles not explicit in the Constitution usurped the people’s authority to choose to disavow.[56] Though it is never incorrect to take a textualist approach, it is important to note taking a textualist approach is not always precedent to honor. So, in overturning a decision so deeply rooted in case precedent, examining the Eighth Amendment might prove to reveal existing constitutional protections against abortion restrictions.

FORCED BIRTHS v. FORCED ABORTIONS

Another avenue to explore how an Eighth Amendment claim might provide protection from abortion restrictions are forced births. A viable way to view the Eighth Amendment violations for forced abortions would be to compare it to forced births, specifically focusing on the element of force. The pro-life argument is that by engaging in a consensual act of intercourse, one is knowledgeable and accepts the consequences of becoming pregnant. Though, imposing abortion restrictions against a person who became forcibly pregnant against their will can be viewed as mandated childbirth and considered a gross miscarriage of justice. In this case, government mandated births of unwanted pregnancies in cases of rape or incest can be seen as imposing the punishment of a crime unto the person who is not guilty. With banning abortion, even in cases of rape and incest, there is no exoneration procedure in place for victims seeking a legal abortion. Punishing a group of individuals based on forced status, and then not providing them a lawful alternative to their condition, has high probability for an Eighth Amendment claim, especially using the actus reus precedent set in Powell.[57]

SHUYI LI V. LYNCH 

In modern jurisprudence, there has been no Supreme Court case that has ruled on forced abortions or forced births, though the Court of Appeals has openly ruled that persecution of another person by performing, inciting, or promoting forced abortions bars a person from seeking asylum.[58] In Shuyi Li v. Lynch, the Court of Appeals for the Second Circuit used the “persecutor bar” to determine whether performing forced abortions banned the plaintiff from seeking asylum in the U.S.[59]  The Appeals Court recognized that the severity of these actions is sufficient enough to make someone statutorily ineligible for asylum.[60]Justifications for this ruling reference the Immigration and Nationality Act (“INA”) §§ 208(b)(2)(A)(i) and 241(b)(3)(B)(I) whereby an alien who has “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion” is ineligible for asylum.[61] Ultimately, the Appeals Court ruled that performing forced abortions is persecution on account of political opinion.[62] In Shuyi, the Justices held that reporting women in violation of China’s family planning policy would result in those women suffering forced abortions.[63] The Court acknowledged that the suffering was done unto the women receiving the forced abortion.[64] Though similar cases to Shuyi have consistently been reaffirmed in the Courts of Appeal, they have never reached Supreme Court summary judgment so it is unclear exactly if the Supreme Court would rule unfavorably towards abortion restrictions. However, viewing forced births in an adjacent light to forced abortions, it is probable that the Supreme Court would also rule that forced abortion, like forced birth is persecution and could constitute an Eight Amendment violation in states that bar abortion even in cases of rape and incest. Though because there is no case that has reached the Supreme Court verifying that it is cruel and unusual punishment to require a person to keep an unwanted pregnancy against their will, a claim for Eighth Amendment violation is weaker than others.

OHIO V. CLARK

With the standards of an evolving society, implications about rape and young children are taken very seriously. In one of the most recent Supreme Court decisions Ohio v. Clark, the court ruled that statements made by very young children will rarely, if ever, implicate the Confrontation Clause, meaning that the likelihood of young children’s statements being admitted in court against their abuser is significantly increased even if the child is unable to testify in court against the accused.[65] The ability of the Supreme Court to recognize the agency and understanding that even a young child understands when they are being sexually assaulted further asserts how a child is able to understand the wrongdoing committed against them, as young as 3 years old, and verifies that their testimony is admissible in court.[66] So a claim for rape from a young child is not taken lightly nor is age a barrier to victims reporting their abuse. This is especially important in strengthening Eighth Amendment claims of rape of a minor (defined as sexual abuse of a victim under 16 years of age in the contect of statutory rape offenses that criminalize sexual intercourse).[67] Though the exact definition of rape has not been explicitly defined within the Supreme Court, which has treaded far from providing a strict definition, it has come closest in terms of a felony conviction in Esquivel-Quitana.[68]

FORCE REQUIREMENT

The legal aspects of rape and often times incest, which disproportionately afflicts juveniles at significantly higher rates, includes an element of force.[69] The traditional offense of rape requires proof of five elements including: penetration, force and resistance, nonconsent, absence of a spousal relationship (marital exemption, and a culpable state of mind (mens rea).[70] The evolution of this definition has been modified in modern jurisprudence to no longer be gender specific and now is viewed as a means to protect physical integrity and sexual autonomy.[71] As it currently stands, some states still limit the offense of rape to the sexual abuse of women. Both force and lack of consent must be proven in the case of rape.[72] Rationale for the force requirement is that penalties for this crime of violence are severe, so a force requirement remains essential to distinguish criminal misconduct from permissible behavior. Overall, the courts have distinguished that there is a force element involved in cases of rape. Further, examining that a person may becoming forcibly pregnant against their will by third party individual, and forced to give birth against their will by limiting a person’s ability to seek a legal abortion as a lawful alternative to their status, can be viewed as the state acting as an agency to inflict the consequences of the crime on the victim and is a gross miscarriage of justice. In this way states can be seen as using their authority to enhance a private interest and violate an Eighth Amendment claim viewed in light of promoting forced births in cases of rape and incest.

The Supreme Court also ruled in Estelle v. Gamble, 429 U.S. 97 (1976) which invokes how an element of force due to a prisoner’s confinement can trigger an Eighth Amendment violation.[73] The Court ruled that deliberate indifference to a prisoner’s serious illness or injury would also constitute cruel and unusual punishment.[74] Additionally, in Brown v. Plata, 131 S. CT 1910 (2011), the Supreme Court ruled that overcrowding in prisons was unconstitutional because living conditions resulted in medical care violations and that prisoners could die if they did not receive adequate medical treatment.[75] From these definitions of cruel and unusual punishment in how the Court has previously ruled, the wanton and unnecessary infliction of pain that is not necessary to restore discipline could be viewed in light of preventing a woman from seeking an abortion that was forced on her against her will.[76] The person receiving the punishment for the crime overextends into the woman’s territory should she fall pregnant against her will and mandated to carry a pregnancy to term imposed by the state against her will could trigger an Eighth Amendment violation.

VI. CONCLUSION 

As the norms of society evolve, the Supreme Court has grounds to find certain instances where abortion should not be restricted. Restrictions for abortion in the context of rape and incest provide the strongest claims for a test case to trigger an Eighth Amendment violation, so long as the Court views forced births as adjacent to forced abortions. Similar to how pro-life supporters have been enacting state laws that continually force the Supreme Court to rule on its stances for abortion restrictions, pro-choice supporters are likely to submit test cases providing instances where abortion should not be outlawed. Forcing the courts to explicitly claim a stance on abortion is most likely the most practical way, given the current political polarization of the country, for abortion laws to be quantified. Enacting protections into State constitutions that qualify greater restrictions on punishment can also help create an argument that justifies some abortion restrictions that commit Eighth Amendment violations. Therefore, if the Court does find constitutional protections against abortion statutes it most likely exists in cases of rape and incest. What is often misunderstood by people is that the Dobbs decision is not going to go away, at least not without a new legal argument. This new justification, under the Eighth Amendment for protections against abortion restrictions as opposed to ‘finding’ this right implicitly through other amendments, may be the most grounding argument that can provide people access to abortions and abortion services.

[1] Mystal, Elie. “3 Test Cases Progressives Should Bring in a Post-‘Roe’ World.” The Nation, 5 May 2022, https://www.thenation.com/article/society/after-roe-lawsuit/.

[2] U.S. Const. amend. XVII, § 2.

[3] “The Eighth Amendment.” National Constitution Center – Constitutioncenter.org, https://constitutioncenter.org/the-constitution/amendments/amendment-viii/clauses/103.

[4] “A True Legal Horror Story: The Laws Leading to the Salem Witch Trials.” New England Law Boston, https://www.nesl.edu/blog/detail/a-true-legal-horror-story-the-laws-leading-to-the-salem-witch-trials.

[5] Id.

[6] “Understanding Cruel and Unusual Punishment.” BetterHelp, BetterHelp, 11 July 2022, https://www.betterhelp.com/advice/punishment/understanding-cruel-and-unusual-punishment/.

[7] Home | Office of Justice Programs. https://www.ojp.gov/pdffiles1/nij/grants/204024.pdf.

[8] Fields v. Roswarski, 469 F. Supp. 2d 599 (N.D. Ind. 2007)

[9] Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958)

[10] “Cruel and Unusual Punishment.” Stephen G. Rodriguez & Partners, https://www.lacriminaldefenseattorney.com/legal-dictionary/c/cruel-and-unusual-punishment/.

[11] Ibid at 17.

[12] U.S. Const. amend. XIV, § 2.

[13] Furman v. Georgia, 408 U.S. 238 (1972)

[14] Weems v. United States, 217 U.S. 349, 1910

[15]  “." The Bill of Rights 1. . Encyclopedia.com. 30 Nov. 2022 .” Encyclopedia.com, Encyclopedia.com, 14 Dec. 2022, https://www.encyclopedia.com/law/legal-and-political-magazines/supreme-court-expands-definition-cruel-and-unusual-punishment.

[16] Id.

[17] Ibid at 27.

[18] Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962)

[19] 1.Samuels A. Do not resuscitate: Lawful or unlawful? Medicine, Science and the Law. 2022;62(2):144-148. doi:10.1177/00258024211032799

[20] Walker, L. E. T. G. (n.d.). Washington v. Glucksberg. Washington v. Glucksberg | Online Resources. Retrieved February 19, 2023, from https://edge.sagepub.com/conlaw/resources/a-short-course/16-the-right-to-privacy/cases/washington-v-glucksberg

[21] Id.

[22] “Death Sentence Reversals Cast Doubt on System.” Death Penalty Information Center, 29 Nov. 2022, https://deathpenaltyinfo.org/stories/death-sentence-reversals-cast-doubt-on-system.

[23] Id.

[24] Ibid at 32

[25] Id.

[26] Montgomery v Lancashire Health Board [2015] UKSC 11

[27] Ibid at 32.

[28] Id.

[29] Id. at section 3(1))  (section 3(2))

[30] Graham v. Fla., 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), as modified (July 6, 2010)

[31] Id.

[32] “Age Boundaries in Juvenile Justice Systems.” National Governors Association, 12 Aug. 2021, https://www.nga.org/publications/age-boundaries-in-juvenile-justice-systems/.

[33] Sage Publications Inc | Home. https://www.sagepub.com/sites/default/files/upm-binaries/19434_Section_I.pdf.

[34] Mystal, Elie. “3 Test Cases Progressives Should Bring in a Post-‘Roe’ World.” The Nation, 5 May 2022, https://www.thenation.com/article/society/after-roe-lawsuit/.

[35] Jacobson, Louis. “15 States with New or Impending Abortion Limits Have No Exceptions for Rape, Incest.” Poynter, 19 July 2022, https://www.poynter.org/fact-checking/2022/post-roe-v-wade-state-bans-no-exceptions-rape-incest/.

[36] “Actus Reus.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/wex/actus_reus.

[37] Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962)

[38] Id.

[39] “Chicago Unbound.” Site, https://chicagounbound.uchicago.edu/.

[40] Id.

[41] Id.

[42] Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)

[43] Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)

[44] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), overruled by Dobbs v. Jackson Women's Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022)

[45] Whole Woman's Health v. Hellerstedt, 579 U.S. 582, 136 S. Ct. 2292, 195 L. Ed. 2d 665 (2016), as revised(June 27, 2016), and abrogated byDobbs v. Jackson Women's Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022)

[46] Id.

[47] Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), overruled by Dobbs v. Jackson Women's Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022), and holding modified by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992)

[48] Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)

[49] Dobbs v. Jackson Women's Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022)

[50] Id.

[51]  U.S. Const. amend. XIV, § 2.

[52] Dobbs v. Jackson Women's Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022)

[53] Plains, B. from W. (2022, June 27). How did we get here? an analysis of the dobbs decision. Bleeding Heartland. Retrieved December 14, 2022, from https://www.bleedingheartland.com/2022/06/26/how-did-we-get-here-an-analysis-of-the-dobbs-decision/

[54] Ibid at 10.

[55] Id.

[56] Id.

[57] Id.

[58] Shuyi Li v. Lynch, 646 F. App'x 113 (2d Cir. 2016)

[59] Ibid at 51.

[60] Id.

[61] GovInfo | U.S. Government Publishing Office. https://www.govinfo.gov/content/pkg/COMPS-1376/pdf/COMPS-1376.pdf.

[62] Id.

[63] Id.

[64] Id.

[65] Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015)

[66] Id.

[67]Esquivel-Quintana v. Sessions, 581 U.S. 385, 137 S. Ct. 1562, 198 L. Ed. 2d 22 (2017)

[68] Id.

[69] ​​“Rape: Legal Aspects - Forcible Rape: Elements of the Offense.” Forcible Rape: Elements Of The Offense - Consent, Force, Sexual, and Requirement - JRank Articles, https://law.jrank.org/pages/1927/Rape-Legal-Aspects-Forcible-rape-elements-offense.html.

[70] Id.

[71] Id.

[72] Id.

[73] Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)

[74] Id.

[75] Brown v. Plata, 563 U.S. 493, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011)

[76] Id.