Since 1973, various US 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. Music changed dramatically on June 24, 2022 with the release of Dobbs v. Jackson Women’s Health Orgin which the Court reversed both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and returned the question of the legality of abortion to the states. However, the judicial-legislative standoff will continue. The opinion opens the door to additional state efforts — to limit access to medical abortions, to prevent third parties from helping anyone seeking an abortion, or to punish women who terminate their pregnancies.1 Some state legislatures have already passed laws banning abortion entirely, many with no exceptions for cases of rape or incest, some with exceptions only to save the life of the pregnant woman. Many of these laws will be challenged in court, but the path to successful challenges is significantly narrowed.
Furthermore, Dobbs has implications that extend far beyond abortion. Whether labeled as “confidential” as in Roweor “liberty interests” as in Casey, the freedom recognized by these cases is the very foundation of the clinician-patient relationship: the ability to explore the patient’s medical options and values in making decisions that profoundly affect the patient’s life and well-being. State restrictions on abortion enacted and enforced under Dobbs will immediately endanger anyone who has a health- or life-threatening complication of pregnancy, such as miscarriage, premature birth, or ectopic pregnancy. The reported deaths in Ireland, Poland and elsewhere painfully illustrate the risks to women’s lives from the chilling effect such laws have on doctors who fear that even dealing with a miscarriage could expose them to legal or criminal liability.1,2 Physicians who care for patients capable of becoming pregnant will be directly involved in efforts to enforce abortion bans; both patient privacy and medical decision-making grounds will become targets of 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, IVF and other infertility treatments. Common forms of birth control, including IUDs and emergency contraception, are already labeled by some states as “abortifacients.” State laws declaring that life begins at fertilization would potentially enfranchise thousands of frozen embryos and impose impossible burdens on both fertility centers and their clients.
In part, the potential for far-reaching impact stems from the fact that the Court not only overruled Rowe and Casey, but attacks their fundamental reasoning and their significance as longstanding precedents. The majority opinion in Dobbs, authored by Justice Samuel Alito, argued that “Roe was egregiously wrong from the start. His motives were extremely weak and the decision had disastrous consequences.
Four other justices joined Alito in voting to overturn Rowe and Casey (Judges Neil Gorsuch and Amy Coney Barrett, lead opinion; Justices Clarence Thomas and Brett Cavanaugh, concurring). Chief Justice John Roberts, who concurred separately, dissented Rowe and Casey should be overturned, arguing instead simply to uphold Mississippi’s 15-week abortion ban.4 Roberts would reject “viability” as a tipping point and allow states to ban abortion after the point at which the pregnant woman has had a “reasonable opportunity to choose” to have the procedure.
Several aspects of the majority opinion stand out. The first is its reliance on originalism, the theory that the U.S. Constitution should be interpreted as it would have been understood when it was adopted in 1789. The Constitution, the majority notes, does not expressly mention the right to abortion. Nor, they argue, is such a right “rooted in our nation’s history and tradition” as required to be recognized as an “unenumerated right” (unenumerated rights recognized elsewhere include the right to travel, the right to vote, the right to rear of one’s own children and the right to marry). The history they selectively cite goes back to the 13th century and effectively ended in 1868 when the Fourteenth Amendment was ratified. They ignore the fact that for most of that time women had no legal identity separate from their husbands and were expected to be both subservient and productive (with children, housework, or other labor to support the family). During all this time, women could not vote, serve on juries or, of course, make laws. As Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor remind us in their dissent, “‘the people’ did not ratify the Fourteenth Amendment.” The men did. Such is the tradition and context to which the majority turns in seeking a basis for the scope of women’s rights today.
The majority argues that Rowe and Casey are different from the Court’s cases protecting rights related to contraception, marriage, child-rearing, and consensual sexual activity between adults, since only abortion involves the destruction of “potential life.” Given this difference, the majority argues that overturning Rowe and Casey will not jeopardize the rights protected in these other cases. However, as both Thomas and the dissent note, the reasoning the majority uses to undermine Rowe and Casey — their reliance on unenumerated rights, which the majority argues are not “rooted in the nation’s history and tradition” — applies to cases upholding other rights as well. In his agreement, Thomas points 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 “manifestly wrong” and ripe for reversal. 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 disregard both precedent and the doctrine of decide (“to stand up for decided things”) c Dobbs suggests that a new case directly challenging contraception, the freedom to marry, same-sex intimacy, or other unenumerated rights could succeed.
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 must be based only on the legislature’s assertion that it can reasonably be viewed as furthering legitimate state interests. According to the Court, such interests include (but are not limited to) “respect and preservation of prenatal life at all stages…; the protection of maternal health and safety; abolition of particularly horrific or barbaric medical procedures;… integrity of the medical profession; relieve pain in the fetus; and preventing discrimination based on race, sex, or disability.
Within days of the ruling, at least 16 states banned nearly all abortions. Although some bans have been blocked by lower courts, such draconian actions are clearly a reality — not just a catastrophizing by pro-abortionists.5
The dissenting justices show little sympathy for the majority’s reasoning or conclusions and are clear about the risks the decision poses to a wide range of health and social problems. In particular, they condemn the abandonment of decide. “The Court reverses course today for one reason and one reason only,” the dissent said: “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. Cancellation Rowe and Casey “says that from the moment of fertilization the woman has no right to speak. The state can compel her to carry a pregnancy to term, even at the greatest personal and family cost,” the dissent explained. “Thus a state can transform what, when undertaken freely, is a miracle into what, when coerced, can be a nightmare.” The dissent cites the extensive data presented in the amicus briefs on the likely impact on women’s health in general and maternal mortality in particular.
The dissent further argued that repealing the right to abortion “diminishes women’s opportunities to participate fully and equally in the nation’s political, social, and economic life.” He notes the toll an unplanned pregnancy can place on finances, education, employment and the ability to care for one’s existing children. In other words, reproductive autonomy is central to full participation in society.
Americans, the disaffected point out, have relied on the availability of safe and legal abortions for nearly 50 years as a safeguard for situations in which contraception fails or is unavailable, sex has been non-consensual, or a planned pregnancy takes a tragic or dangerous turn due to serious fetal abnormality or maternal health complications. Several procedures and drugs used for abortions are also routinely used in the treatment of women who have a miscarriage. Such treatment can now be denied or delayed because of the chilling effect of potential prosecution.
The majority argued that returning regulation to the states “allows women on both sides of the abortion issue to seek to influence the legislative process by influencing public opinion, lobbying legislators, voting and running for office.” But if countless constitutional rights once considered fundamental to Americans become subject to a popular vote, we will live in a society in which many aspects of basic health care are threatened and the law attempts to turn clinicians into adversaries of their patients.