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Since 1973, various U.S. state legislatures have engaged in an increasingly intense dance with the courts, testing the limits of abortion regulation under Supreme Court decisions that protected a woman’s right to terminate a pregnancy before the point of fetal viability. The music changed dramatically on June 24, 2022, with the release of Dobbs v. Jackson Women’s Health Organization, in which the Court overruled both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and returned the question of abortion’s legality to the states. The judicial–legislative pas de deux will continue, however. The opinion opens the door to additional state efforts — to limit access to medication abortions, prevent third parties from assisting anyone seeking an abortion, or punish women who end their pregnancy.1 Some state legislatures have already adopted laws completely banning abortion, many without exceptions for cases of rape or incest, some with exceptions only for saving the pregnant person’s life. Many of these laws will be challenged in court, but the avenue for successful challenges has narrowed substantially.
Moreover, Dobbs has implications extending far beyond abortion. Whether designated as “privacy,” as in Roe, or “liberty interests,” as in Casey, the freedom those cases recognized is the very foundation of the clinician–patient relationship: the ability to explore medical options and the patient’s values in making decisions that profoundly affect the patient’s life and well-being. State abortion restrictions adopted and enforced under Dobbs will immediately endanger anyone who has a health- or life-threatening pregnancy complication, such as miscarriage, premature labor, or ectopic pregnancy. Deaths reported in Ireland, Poland, and elsewhere painfully illustrate the risks to women’s lives from such laws’ chilling effect on physicians who fear that even managing a miscarriage could expose them to legal or criminal liability.1,2 Physicians who care for patients capable of becoming pregnant will be directly implicated in efforts to enforce abortion bans; both patient privacy and justifications for medical decision making will become targets for government investigation and even surveillance.3
Dobbs also raises the specter of state regulation of other health care decisions, including those regarding contraception, end-of-life care, care for LGBTQ patients, in vitro fertilization, and other fertility treatments. Common forms of birth control including IUDs and emergency contraception are already being targeted by some states as “abortifacients.” State laws declaring that life begins at fertilization will potentially endow thousands of frozen embryos with rights and impose impossible burdens on both fertility centers and their clients.
In part, the potential for wide-ranging impact derives from the fact that the Court not only overruled Roe and Casey, but attacked their fundamental reasoning and their significance as long-standing precedents. The majority opinion in Dobbs, authored by Justice Samuel Alito, asserts that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Four other justices joined Alito in voting to overturn Roe and Casey (Justices Neil Gorsuch and Amy Coney Barrett, lead opinion; Justices Clarence Thomas and Brett Kavanaugh, concurring opinions). Chief Justice John Roberts, concurring separately, disagreed that Roe and Casey should be overturned, arguing instead for merely upholding Mississippi’s 15-week abortion ban.4 Roberts would have discarded “viability” as a turning point and allowed states to prohibit abortion after the point when the pregnant person had had a “reasonable opportunity to choose” to obtain the procedure.
Several aspects of the majority opinion stand out. First is its reliance on originalism, the theory that the U.S. Constitution should be interpreted as it would have been understood at its adoption in 1789. The Constitution, notes the majority, does not explicitly mention a right to abortion. Nor, they argue, is such a right “rooted in our Nation’s history and tradition,” as required in order to be recognized as an “unenumerated right” (unenumerated rights recognized elsewhere include the right to travel, the right to vote, the right to raise one’s own children, and the right to marry). The history they selectively cite reaches back to the 13th century and ends, effectively, in 1868, when the Fourteenth Amendment was ratified. They ignore the fact that for much of this time women had no legal identity separate from their husbands and were expected to be both subservient and productive (of children, housework, or other labor to support their family). Throughout this time, women could not vote, serve on juries, or needless to say, make laws. As Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor remind us in their dissent, “‘people’ did not ratify the Fourteenth Amendment. Men did.” Such is the tradition and context to which the majority turns when seeking a foundation for the scope of women’s rights in the present day.
The majority argues that Roe and Casey are different from the Court’s cases upholding rights related to contraception, marriage, child-rearing, and consensual sexual activity between adults, because only abortion involves destruction of “potential life.” Given this difference, the majority argues that overturning Roe and Casey will not threaten the rights protected in those other cases. However, as both Thomas and the dissenters observe, the reasoning the majority uses to undermine Roe and Casey — their reliance on unenumerated rights that the majority claims are not “rooted in the Nation’s history and tradition” — also applies to the cases underpinning other rights. In his concurrence, Thomas singles out Griswold v. Connecticut (right to contraception), Lawrence v. Texas (right to same-sex intimacy), and Obergefell v. Hodges (right to same-sex marriage) as “demonstrably erroneous” and ripe for overturning. Although there may be other grounds for upholding some of these rights, including the Equal Protection Clause of the Fourteenth Amendment, the willingness of at least five justices to overlook both precedent and the doctrine of stare decisis (“to stand by things decided”) in Dobbs suggests that a new case that directly challenges contraception, the freedom to marry, same-sex intimacy, or other unenumerated rights might be successful.
After Dobbs, plaintiffs will be able to challenge state abortion restrictions only under the most permissive constitutional standard of review, the “rational basis test.” In other words, any future state law restricting abortion need only be based on a legislature’s claim that it could reasonably be seen as furthering legitimate state interests. According to the Court, such interests include (but are not limited to) “respect for and preservation of prenatal life at all stages…; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures;…integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.”
Within days after the decision was released, at least 16 states banned nearly all abortions. Although some bans have been blocked by lower courts, such draconian action is clearly a reality — not mere catastrophizing by abortion supporters.5
The dissenting justices demonstrate little sympathy for the majority’s reasoning or conclusions and are clear about the risks the decision poses for a broad range of health care and social issues. In particular, they decry the abandonment of stare decisis. “The Court reverses course today for one reason and one reason only,” the dissent states: “because the composition of this Court has changed.”
The dissent notes the profound impact that the state’s exercise of power over women will have on their lives and health. Overruling Roe and Casey “says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs,” the dissent clarifies. “A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.” The dissenters cite the voluminous data presented in amicus briefs regarding the likely impact on women’s health overall and maternal mortality in particular.
The dissent further argues that rescinding the right to abortion “diminishes women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life.” It notes the burdens an unplanned pregnancy can place on finances, education, employment, and ability to care for one’s existing children. In other words, reproductive autonomy is central to full participation in society.
Americans, the dissenters point out, have relied on the availability of safe and legal abortion for nearly 50 years as a backstop for situations in which contraception fails or is unavailable, sex was nonconsensual, or a planned pregnancy takes a tragic or dangerous turn because of a serious fetal abnormality or maternal health complications. Several procedures and medications used for abortions are also routinely employed in treating women who miscarry. Such treatment may now be denied or delayed, owing to the chilling effect of potential prosecution.
The majority claims that returning regulation to the states “allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” But if myriad constitutional rights once considered fundamental for Americans are made subject to popular vote, we will be living in a society where many aspects of basic health care are threatened and the law tries to turn clinicians into adversaries of their patients.
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