Cindy Hsieh, JD candidate at the University of Pittsburgh School of Law and MPH candidate at the University of Pittsburgh School of Public Health in Pittsburgh, PA, discusses the recent Supreme Court decision in Dobbs v. Jackson Women's Health Center...
On June 24, 2022, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Center overturned the landmark case Roe v. Wade. It is essential to clarify the specific right Roe established. It was not an unqualified affirmative right to abortion but a right protecting a woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. Dobbs now lifts this protection, allowing states to substantially burden women from receiving an abortion or, even worse, ban it and force birth. Justices Clarence Thomas and Kavanaugh filed their own concurring opinions. Kavanaugh stated that the issue in Dobbs is not about the morality of abortion but rather “what the Constitution says about abortion.” He wrote that because the Constitution is neutral on the matter, it is up to each state to decide for itself the legality of abortion. The result? Over half of states will likely prohibit all or virtually all abortions.
Effect on Access in States
According to data from the Guttmacher Institute, although 13 states have “trigger bans” that result in a total or near-total ban on abortion, at least 23 states total will ban abortion in some form. Some trigger bans have even criminalized abortion. Oklahoma and Texas trigger bans make performing an abortion a felony. Even more extreme, in South Carolina, a person who has an illegal abortion could face two years in prison. Other states might continue down this slippery slope. For instance, Louisiana has already been planning to move legislation forward that would classify abortions as homicide.
Sixteen states and Washington, D.C., will continue to protect abortion access as the right has already been written into law; however, many other states are in limbo, including Pennsylvania. The level of access to abortion in these states will be left up to the state legislatures, which may call special sessions or restrict access significantly after midterm elections. For states like Wisconsin, with dormant abortion bans that were previously blocked by Roe, even if government officials don’t enforce the ban, local prosecutors could do so.
It is likely that women in states that ban abortion will travel to places where abortion is legal. However, this all depends on whether they have the funds to do so. Several big employers, including Yelp, Uber and Citigroup, recognize this issue and have pledged to fund travel expenses to access procedures for their employees. But poor women and teenagers are severely disadvantaged and face a cruel reality where they are likely left with the choice of forced birth or an unsafe abortion. It should be no surprise that anti-abortion states are also pushing for even more restrictive and innovative laws to prevent abortion access in other states.
Although it is not binding, Kavanaugh does state in his concurring opinion that a state wouldn’t be able to bar its residents from traveling to another state to access an abortion because people have a constitutional right to interstate travel. This would prevent laws from making it explicitly illegal to leave the state to obtain an abortion. Moreover, the Dormant Commerce Clause would likely prevent states from unduly burdening or discriminating against interstate commerce (an impact abortion definitely has).
However, aggressive local prosecutors could easily raise arguments using trigger bans to charge pregnant people or anyone who helps them travel by pointing to the intent to travel. It could be argued that because the criminal intent took place in the state with an abortion ban, this is enough for prosecution. Moreover, laws like S.B. 8 in Texas would allow anti-abortion lawmakers to prevent “abortion tourism.” States that follow an S.B. 8 legislation model, where private citizens can sue one another for aiding an abortion, could provide a workaround for the constitutional argument against abortion travel.
Impact on Due Process Rights
As noted by the majority in Dobbs, because the Constitution doesn’t explicitly include the right for a woman to terminate her pregnancy, it is not safeguarded as a constitutional right. But this reasoning threatens many other rights protecting privacy and autonomy that have been similarly inferred. For example, in Griswold v. Connecticut, the Court held that the Constitution extends the right to privacy to access and use of contraceptives. With the above Dobbs reasoning, it is possible that states could pass laws that prohibit contraception “after conception,” such as the morning-after pill. Other rights under the due process clause include the right to marry for interracial (Loving v. Virginia) and same-sex (Obergefell v. Hodges) couples, the right to procreate, the right of parents to decide the upbringing of their children and the right to custody of one’s child. All of these rights, and more, are under fire.
While Justice Kavanaugh rejects the idea that the due process rights above will be reversed after the Dobbs ruling, Justice Thomas suggests a counter in his concurring opinion and states that “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Note that Thomas did not mention revisiting Loving.
Mirroring the “War on Drugs” and Targeting People of Color
The majority of abortions are carried out using a two-pill treatment called mifepristone. Some states have allowed these pills to be delivered by mail after a healthcare professional visit. This is possible because early in the Biden administration, regulations requiring abortion pills to be taken in a doctor’s office were removed. However, now that abortion opponents are pushing for legislation to prevent the abortion medication from entering the state, similarities to the War on Drugs will creep up. The War on Drugs has shown us that banned behavior will not cease but will only encourage unsafe actions. Likewise, criminalizing safe and early abortions will only drive women to make riskier, and even life-threatening, decisions.
Disparities in law enforcement impact the poor and people of color significantly, from the decision to arrest to the length of sentencing. Meanwhile, wealthy and white individuals often face much less or no charges for the same behavior. A similar pattern is more than likely to appear with the enforcement of abortion bans. Though rare, some states have prosecuted women for miscarrying or having a stillbirth. These instances have already revealed a pattern of racial and class bias. Women of color already experience a higher mortality rate in childbirth, and abortion bans will only intensify the negative treatment.
The impact of overturning Roe has left many of us with questions. Will there be constitutional access to abortion for children who have been raped? Will state abortion bans criminalize unsuccessful in vitro fertilizations? Will birth control access be altered? What about same-sex marriage? The impact on marginalized groups will surely only spread more if no action is taken to prevent this chaos. Discrimination and prejudice are deeply entrenched in American history but fortunately so is resistance.
Things to do now:
Donate to an abortion fund: Local Funds by State
Engage in protests to pressure local government offices to take legislative action.
Email elected officials in Congress to pass the Judiciary Act of 2021—Article III, Section 1 of the Constitution allows Congress to change the size of the Supreme Court by bringing the Judiciary Act; this would add 4 more seats to the Supreme Court.
Access to Abortion Pills via Mail: MayDay Health
Financial Support: Repro Legal Defense Fund, Transportation Aid
Abortion Provider Finder
Cindy Hsieh is a JD candidate at the University of Pittsburgh School of Law and an MPH candidate at the University of Pittsburgh School of Public Health.
Suggested citation: Cindy Hsieh, Collapse of Privacy Rights for Women: The Overturn of Roe v. Wade, JURIST – Student Commentary, June 28, 2022, https://www.jurist.org/commentary/2022/06/cindy-hsieh-dobbs-reproductive-rights-due-process-clause/.
This article was prepared for publication by Rebekah Yeager-Malkin, Deputy Commentary Editor. Please direct any questions or comments to she/her/hers at email@example.com
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.