Alumni Q & A

Jessica Sklarsky ’09

Just weeks after the U.S. Supreme Court eliminated federal abortion protections with its June ruling in Dobbs v. Jackson Women’s Health, Jessica Sklarsky, a senior staff attorney with the Center for Reproductive Rights, secured a preliminary injunction against a personhood law in Arizona that ostensibly would grant full rights of citizenship to fertilized eggs. Sklarsky also worked with the Center on June Medical Services v. Russo, a 2020 case in which the Supreme Court ruled a Louisiana abortion restriction was unconstitutional, among other cases.

The diversity of thought she found at Duke Law helped prepare her to work on impact litigation in a field in which “people are hugely divided,” Sklarsky says. And deferring the start of her postgraduate job in the banking group at Skadden to work at the Sargent Shriver National Center on Poverty Law proved pivotal. There she observed firsthand the impact of the 2007-2009 global recession on people, and the difficulties they had accessing public benefits. “It was an eye-opening experience for me, and I think really informed where I ultimately ended up,” Sklarsky says.

After honing her litigation skills during four years at Kirkland & Ellis, Sklarsky moved to the U.S. Attorney’s office in the Eastern District of New York, where she was on a special team investigating European banks’ practices securitizing mortgages leading up to the global financial crisis. In 2017 she joined the New York office of the Center for Reproductive Rights, which engages in worldwide litigation and advocacy to ensure that reproductive rights are protected in law as a fundamental human right.

Sklarsky recently spoke with Duke Law Magazine about her recent case and the fallout from Dobbs, as well as her career path and commitment to advocating for individuals’ control over decisions regarding their reproductive life and health.

DUKE LAW MAGAZINE: What was your argument against implementation of Arizona’s personhood law, and what was at stake?

JESSICA SKLARSKY: Personhood laws are not a new tactic. They have been used to criminalize pregnancy and pregnancy outcomes long before Roe was overturned. But in the absence of Roe, laws like Arizona’s present a real threat to abortion and other reproductive health care. This is, in part, because it is impossible to predict their ramifications. That is a huge issue with Arizona’s law, and that’s why we challenged it on vagueness grounds.

The Arizona law mandates that all of Arizona’s laws be interpreted and construed to “acknowledge” the equal rights of “unborn children,” which is defined to include fertilized eggs, embryos, and fetuses. And “acknowledge” is the word that’s actually used in the statute. I don’t know what that means. I don’t think anybody knows what that means. And indeed, the defendants — those who are charged with actually enforcing this Arizona law — said in a brief that it was anyone’s guess. That was literally their response: “It’s anyone’s guess.” And that’s a problem.

The lack of clarity in these laws is, in many ways, by design, and it’s also the harm. Because pregnant people, people with the capacity for pregnancy, and health care providers don’t know how these laws are going to be used against them, it creates a climate of uncertainty and confusion, and it has a profound chilling effect on the provision and receipt of reproductive health care, which includes abortion care and other assisted reproductive care. It also raises the specter of criminalization of pregnancy outcomes and criminalization of pregnant people’s conduct. And it opens the door for prosecutors to arbitrarily and discriminatorily enforce the law.

At issue in our case at the hearing this summer was the very real concern that Arizona’s personhood law could be used to effectively create a ban on all abortions in the state, without any exceptions, even for the life of the pregnant person. So, quite literally in our case, people’s lives were on the line.

DLM: Why do you think the Supreme Court’s decision in Dobbs seemed to catch many people off guard?

JS: While states have always passed abortion bans, for decades they were always enjoined immediately because they were clearly unconstitutional under Roe. And so in May of 2021, when the Supreme Court granted cert in Dobbs, it definitely foreshadowed a very bad outcome, because the law at issue in Dobbs was plainly unconstitutional under Roe, and there was no reason for the Court to take the case if they were just going to reaffirm settled law.

For those who have been keyed into this, I don’t think it is surprising that Roe was overturned. Organizations like the Center, reproductive justice organizations, state-level advocates, and others have been sounding the alarm regarding abortion rights and access for decades. I think the surprise more speaks to our society’s general failure to listen to the voices of marginalized communities.

In all practicality, Roe has not existed for a lot of people for a long time. For decades preceding the Dobbs decision, states employed this extremely cruel but effective strategy of eliminating abortion care by basically depleting access. And they did that through TRAP (Targeted Regulation of Abortion Providers) laws requiring a clinic, for example, to have hallways that are a certain width for no medical reason or requiring people to make multiple trips to the clinic unnecessarily. The purpose of these laws is to restrict access and to make it very, very difficult to access care. States hostile to abortion passed literally thousands of these laws in the past two decades. The right to abortion is only worthwhile if you can access care, and for people who lived in these restrictive states — particularly low-income women, women of color, and other marginalized communities that already struggled to access health care — these laws put abortion out of reach for far too many, and that’s been true for a very long time.

DLM: Polls show most Americans disapprove of the Dobbs ruling. Could public opinion eventually restore or preserve access in states that have banned or restricted abortion?

JS: The harsh restrictive abortion bans that are now in place in many parts of the country are not in line with public sentiment. Kansas is a pretty good example of that. Just a few years ago, in a case that was brought by the Center, the Kansas Supreme Court determined that the state constitution independently protects the right to abortion. Even before Dobbs, there was an effort to undo that ruling and to amend the Kansas constitution in response. This summer, there was a direct vote on that question and the amendment was resoundingly rejected by Kansas voters, so the constitutional protection there remains. So I am definitely hopeful, but at the same time, I don’t want that hope to make anyone complacent.

It’s really imperative that people care about this issue, and everybody should care. There is no one who is not going to be affected by this. Abortion bans, including a national abortion ban, are a real threat. Travel restrictions are a real threat. And this is really a public health crisis. There are now studies coming out of Texas that are looking at health outcomes following SB 8, the “vigilante law.” [The Texas Heartbeat Act is a six-week abortion ban that relies solely on private individuals to enforce it through civil lawsuits.] These studies just confirm how restrictive abortion bans are deepening the maternal health crisis in this country. We are starting to hear stories of people with severe pregnancy complications being denied care, being forced to travel to get care, hearing stories of rape victims, even some who are minors, being turned away. And these are not one-off stories. The extreme harms of these laws are only beginning to be realized, and this is the reality that we live in now. It is imperative that people understand this and that they keep caring.

DLM: How did you make the career transition from Big Law to impact litigation?

JS: Something that became clearer and clearer to me over time was that I did my best work and was most motivated and happiest when I was doing something that I felt good about. After the election in 2016, like a lot of people, I just looked at my life and thought, “Wow, the world is shifting. The world’s different than I thought it was. Is this the best use of my time? Are there other things that I could be doing?”

At the same time, I was really beginning to piece together a lot of different things. Being a working woman, particularly in law, trying to manage a lot of different things, I began to understand how important it was to have control over my reproductive choices and over my own body. I grew up extremely privileged, and because of that I was naive to a lot of things. I never worried about having access to birth control, being able to access an abortion. I didn’t understand the struggles that a lot of people face in accessing reproductive health care.

So right around this time I started to understand that my experience was just not the experience of many other people, whether they lived in Mississippi or whether they lived even just 30 minutes away from me. I was also just beginning to have exposure to the reproductive justice framework, the idea of intersectionality, how different forms of oppression come together and compound, and to understand that restricting people’s choices in this way has a deep-seated element of racism to it that I never fully appreciated before. All of those things coming together made the desire to do something in this area very potent for me.

I had always thought I could never do impact litigation because I didn’t have some of the credentials I thought I needed. But as I reflected more critically on my experiences, I realized I actually did know how to do the kind of litigation being done at places like the Center. At Kirkland I had done a number of pro bono prisoners’ rights cases, and all were brought under section 1983, the federal statute that allows you to challenge unconstitutional state activity. Almost all of our federal litigation at the Center is brought under section 1983. I knew how to take a deposition. I knew how to write a brief. I could work with experts and knew how to piece together a complex, factual narrative and make it digestible. I had practical litigation skills. And so I said, “I’m just going to apply to these jobs. Maybe I’ll get one, maybe I won’t.” And I was really lucky I got a job at the Center as a staff attorney. I just had my five-year anniversary. It is definitely the most rewarding job I’ve ever had by far, and I feel very, very fortunate to be here.

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Spring 2023
Volume 42 No. 1