On Friday, June 24, the United States Supreme Court ended constitutional protections for the right to abortion. The sweeping decision in Dobbs v. Jackson Women’s Health Organization overturns the longstanding precedents of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). For the first time in the history of the Supreme Court and the United States, a fundamental constitutional right has been taken away. Many fear the decision’s reasoning will allow states to impose restrictions on other reproductive rights including contraception and IVF technologies and lay the groundwork for a nationwide ban on abortion.
In the absence of Roe, 26 states are certain or likely to move quickly to ban abortion. Of these, 13 states have “trigger laws” that ban abortion from the moment of fertilization: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming. Another five of these states ban abortion between six and 15 weeks of pregnancy. At six weeks, an embryo is the size of a grain of rice and most women don’t even know they’re pregnant.
Eleven states have no exceptions for rape or incest. Six states have no exceptions for the health of the pregnant woman. (Even when there are life or health exceptions to these abortion bans, pregnant women experience significant hurdles to accessing abortion, say experts.) Another eight states are likely to enact abortion bans soon. These abortion bans cover much of the South and Midwest of the United States.
Donald Trump’s three Supreme Court nominees—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—joined Clarence Thomas and Samuel Alito, who authored the opinion, to strike down Roe. The five-member majority on the Court argues that Roe is “egregiously wrong” and “far outside the bounds of any reasonable interpretation” of the Constitution.
Constitutional law scholar and dean of Berkley Law School Erwin Chemerinsky disagrees: “I don’t think the reasoning of Roe was flawed. Liberty in the due process clause protects fundamental aspects of privacy and autonomy. Laws that limit abortion infringe on privacy and autonomy.”
Justices Sotomayor, Kagan and Breyer dissented in Dobbs, arguing the Court’s decision means “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 Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling,” they warned. “More will follow.” (The entire dissenting opinion starts on page 148.)
This article originally appears in the Summer 2022 issue of Ms. Become a member today to read more reporting like this in print and through our app.
The near-total abortion bans in several states grant “personhood” to fertilized eggs from the moment of fertilization, which is before the implantation of an embryo into the uterine wall that begins a pregnancy. With research showing that half of fertilized eggs end in miscarriage, experts say these bans endanger patients seeking treatment for miscarriage complications.
Abortion bans are forcing pregnant people to seek abortion pills online or travel long distances for in-clinic healthcare in states where abortion is still legal. In Alabama, the average one-way driving distance to reach legal abortion care increased from 26 miles to 327 miles. The driving distance for people in Louisiana went from 37 miles to 666 miles—a 1,720 percent increase.
The Dobbs opinion argues that abortion is not a constitutional right because the Constitution does not explicitly mention abortion, the framers of the 14th Amendment in 1868 did not intend to protect the right to abortion and finally, that abortion rights are not “deeply rooted in the country’s history and traditions.”
The Dobbs opinion focuses on mid-19th century abortion prohibitions, but ignores the long history of legal abortion in the United States. “Justice Alito disregards certain aspects of history while embracing others, suggesting a level of cherry-picking throughout this opinion,” said Michele Bratcher Goodwin, a constitutional law scholar and chancellor’s professor at the University of California, Irvine.
Throughout the opinion, the Supreme Court repeatedly refers to embryos and fetuses as “unborn human beings.” Goodwin notes that the Court ignores that the 14th Amendment refers to “persons born … in the United States” in the first sentence of the amendment.
“That’s very explicit. That’s very clear,” said Goodwin. “The Constitution does not mention embryos, fetuses or ‘unborn human beings.’”
The Court discards the 49-year-old Supreme Court precedent of Roe v. Wade, which recognized the constitutional right to abortion in 1973. Since then, the Supreme Court has repeatedly reaffirmed Roe, most recently in the 2020 case of June Medical Services v. Russo, which struck down a Louisiana law requiring doctors performing abortions to hold active admitting privileges at a nearby hospital. The Court has historically given significant deference to judicial precedents because people come to rely on them, but Dobbs says women have no “reliance interests” on Roe.
“Of course women in the United States have relied on Roe, and women have relied on IUDs and the morning-after pill,” said Chemerinsky, who worries that the language of Dobbs endangers the constitutional right to contraception established for married couples in Griswold v. Connecticut (1965) and for single persons in Eisenstadt v. Baird (1972), which recognized the constitutional right cited in Roe.
“There’s no doubt that this Court would have decided Griswold differently,” continued Chemerinsky. “There’s also no doubt that the Court doesn’t have any regard for precedent. So will they respect Griswold when they didn’t respect Roe? Once the Court says that it’s not going to protect rights except in very limited circumstances, then I don’t understand how Griswold can survive. And then laws that prohibit contraception—should they be enacted—will be constitutional.”
Many anti-abortion proponents object to IUDs and emergency contraception because they believe—contrary to scientific evidence—that they cause abortion.
In the 2014 Supreme Court decision Burwell v. Hobby Lobby Stores, the Court accepted this view by allowing businesses to refuse to cover these forms of contraception under the Affordable Care Act’s contraceptive mandate. The Trump administration later issued broad exemptions from the mandate for any business with “religious” or “moral” objections to any form of contraception.
Some even more extreme anti-abortion advocates argue that all hormonal contraception—including the birth control pill—causes abortion.
“The reasoning in Dobbs would undermine the right to purchase and use contraceptives under the Constitution,” said Chemerinsky. “I think states are going to adopt laws against contraception and the Supreme Court is likely to uphold those laws.”
The Court’s reasoning might even endanger access to in vitro fertilization (IVF), according to Chemerinsky. “Once the Supreme Court says that there’s an ‘unborn human being’ from the moment of conception, then you may see states say that when it comes to IVF, every embryo has to be implanted because the embryo is a human person. IVF isn’t workable if every embryo has to be implanted. We are going to see state laws very quickly regulate IVF in a way that’s going to make it impossible.”
Both Chemerinsky and Goodwin believe other precedents are also now vulnerable due to the “five very conservative justices who don’t care about precedent,” such as the right to engage in same-sex sexual relations (Lawrence v. Texas), the right to marry someone of the same sex (Obergefell v. Hodges) or of a different race (Loving v. Virginia) and more.
“The opinion threatens many established rights, including the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children and the right of competent adults to refuse medical care,” said Chemerinsky.
Goodwin agreed: “All prior precedents that involve privacy stand vulnerable.”
I don’t think the reasoning of Roe was flawed. Liberty in the due process clause protects fundamental aspects of privacy and autonomy.
Erwin Chemerinsky, constitutional law scholar and Dean of Berkley Law School
Immediately after the Alito draft opinion in Dobbs leaked on May 2, Republican lawmakers and anti-abortion activists from the Susan B. Anthony List announced they were working on legislation to ban abortion nationwide, which they could achieve if Republicans were to win Congress and the White House in 2024. But they may not have to wait that long, says Chemerinsky, because the Court could do that itself.
The Dobbs opinion’s repeated references to the “unborn”—23 times—lay the groundwork for striking down state laws protecting abortion rights in states such as California and New York, says Chemerinsky. “Once you say that it is an ‘unborn human being,’ then it’s a short step to saying that laws allowing abortion are unconstitutional because they deny equal protection to those persons that are unborn human beings. I believe that there may be a majority on the Court to take that position … then what restrictions will be imposed on women and what will women be prosecuted for doing [during their pregnancy]? Working in certain jobs? Drinking? Taking certain drugs?”
The opinion threatens many established rights, including the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children and the right of competent adults to refuse medical care.
Erwin Chemerinsky
People seeking abortion care and those who help them now face criminal prosecution and civil lawsuits in several anti-abortion states. But unlike before Roe, we now live in an era of mass incarceration, which makes it far more likely that women will be surveilled, arrested and jailed.
The New York-based privacy group Surveillance Technology Oversight Project recently released a chilling report detailing how anti-abortion governments and private entities are already using cutting-edge digital technologies to surveil women’s search history, location data, messages, online purchases and social media activities by using geofencing, keyword warrants, big data and more.
Police and prosecutors are already criminally charging pregnant women for miscarriage, abortion and pregnancy loss, such as Texas woman Lizelle Herrera, who was arrested in April for murder after allegedly causing her miscarriage. Approximately 1,200 women—who are disproportionately low-income women and women of color—have been prosecuted for their behavior during pregnancy over the last 15 years.
The National Association of Criminal Defense Lawyers published a report in August warning about the threat of increasing criminalization post-Roe. “A close analysis of existing and emerging state law belies the common perception that enforcement will be limited to abortion providers and irrefutably shows that erosion of a precedent that has stood for nearly half a century may well open the floodgates to massive overcriminalization,” wrote executive director Norman Reimer in the report’s preface.
In addition to surveillance and criminal prosecution, abortion bans will have devastating impacts on the health and well-being of women and their children. Research shows that patients denied wanted abortions experience more serious health problems giving birth than those having an abortion and are more likely to stay in contact with a violent partner.
They also experience economic hardship and insecurity lasting for years. Women who were unable to obtain an abortion had financial challenges that lasted through the five-year study period. They included a 78 percent increase in unpaid bills and an 81 percent increase in negative credit report notations, like bankruptcies and evictions, compared with the women who were able to get an abortion. Their children were more likely to experience developmental delays and to live in poverty.
Goodwin called the Dobbs decision “deeply cruel” and reflective of a “deep disregard for human rights and the humanity of others.” She believes the decision is contrary to the history and purpose of the Supreme Court. “The Supreme Court has historically been on the side of expanding rights rather than diminishing them. Reducing people to second class citizenship or the status of property contravenes the Constitution and is an anathema to human rights.”
In his opinion, Alito argues that the legality of abortion should be decided through the democratic process. Chemerinsky disagrees. “We don’t leave fundamental rights to democracy. The very nature of being a constitutional right is that we don’t leave it to the political process.”
Nevertheless, a large majority of Americans support abortion rights: Overall, 64 percent opposed overturning Roe v. Wade and 61 percent think of themselves as mostly supporting abortion rights, according to the latest Marist Poll. More than one-third (34 percent) of Republicans oppose overturning Roe. But in May, Republicans in the Senate, joined by Democratic Sen. Joe Manchin of West Virginia, refused to even allow a vote on the Women’s Health Protection Act, which would protect abortion rights nationwide.
“The Dobbs decision is a dark day for civil liberties and civil rights. It is an opinion that represents a significant blow to democratic values and to the rule of law,” said Goodwin. “But it is also an opinion that will energize and galvanize people to really engage in democracy.”
Read the Supreme Court decision overturning Roe v. Wade here.
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.
