Navigating A Patch-Work Post Roe World

By: Brooke Helmick

A month after the overturning of Roe v. Wade, there seem to be far more questions than answers. An unstable political scene coupled with a highly nuanced, complex legal landscape ensures that identifying relevant information remains nearly impossible.

In an effort to make civics accessible to all, here are the basics of what the last thirty days without Roe has revealed.

Dobbs v. Jackson Women’s Health Clinic

The Decision Break Down

At the heart of the Dobbs decision was the consideration of whether or not the court could find a constitutional right to abortion for pregnant people. The case made headlines in May 2022 when Politico published a leaked draft of the court’s majority opinion, signaling that an overturning of the Roe precedent was imminent. In the final decision, released June 24, 2022, the Supreme Court ruled that there are no constitutional protections for abortion, therefore states are able to restrict abortion as their individual legislatures choose. The bulk of the majority opinion relies on a reading of the 14th amendment, particularly the due process clause.

In past cases, the Supreme Court has used the 14th amendment to uphold modern rights that were not explicitly stated or defined in the Constitution. Such rights include access to birth control, same-sex marriage, and interracial marriage. When deciding Roe, the justices derived an implicit right to privacy from the fourteenth amendment, which was expanded to cover access to abortion. However, the court acknowledged that states may have a desire to protect the “potential of human life.” The clash between the potential and the right to elect for an abortion are competing interests that were balanced by Roe’s trimester framework in which each state had increased ability to regulate abortion with each new trimester and up until birth. This framework was replaced in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed Roe (5-4 vote) and established a “fetal viability” metric.

In writing the majority opinion, Justice Alito – joined by Justice Thomas, Gorsuch, Kavanaugh, and Barrett – wrote that Roe “held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” Relying on a rational basis test, the justices decided that so long as a state legislature articulates that a regulation on abortion “would serve legitimate state interests”, these regulations must be allowed.

Dissent

The Dobbs decision highlights that there is a clear divide between the court’s conservative and liberal justices. Justices Breyer, Sotomayor, and Kagan wrote the dissenting opinion in this case. The dissent argued that the majority upset the balance of rights established in the Roe precedent (ie. bodily autonomy for the pregnant person versus the states’ interest in protecting fetal viability). In this, the dissent further argued that by disrupting this balance and reading the 14th amendment through an 18th-century lens, the majority opinion is relegating “women to second-class citizenship”. Furthermore, the ruling does not rely on new scientific developments of evidence of treatment danger but is instead reflective of the political alignments of the justices themselves.

Legal Responses

Although many have seen this decision as a clear step in ending abortions across the nation, the response from states, as well as the other branches of the federal government, has been varied.

Executive Action

On July 8, President Biden signed an Executive Order (EO) Protecting Access to Reproductive Health Care Services. This EO directs the Department of Health and Human Services to protect access to abortion and related medications on a federal level. Actions include: directing hospitals to perform abortions if the life of the mother is at risk, ensuring continued access to birth control and contraceptive counseling, increasing education efforts to provide accurate information about rights and access, and organizing networks of volunteer lawyers to represent individuals threatened with legal consequences for seeking reproductive and abortion-related care. Additional steps include protecting privacy as well as engaging in coordinated efforts across federal offices and departments.

The state of Texas has since sued the federal government for its guidance which directs hospitals to provide abortions in case of threat to the life of the mother. The state contends that the federal government cannot require doctors to perform abortions.

Reports also indicate that the Biden administration is looking at the possibility of declaring a public health emergency to expand abortion access. However, the White House Gender Policy Council’s Director Jen Klein has clarified that this option has yet to be utilized because it is not likely to hold the legal or financial power to alter the current debate in a substantial way.

Congressional Action

The democratic-controlled House has passed two bills intended to increase access to abortion on a federal level; however, neither bill is expected to pass the split Senate.

First is the Women’s Health Protection Act of 2022, which was passed in a 219-210 vote. A previous iteration was passed in September of 2021 but failed in the Senate in May 2022. The new version would stop states from passing bans on abortion earlier than 24 weeks – the general mark of fetal viability – and allows for exceptions after viability in cases where the life of the mother is at risk. Additional provisions include limits on states providing inaccurate information and requiring waiting periods or further tests.

The house has also passed the Ensuring Access to Abortion Act of 2022 in a 223-205 vote, which limits states’ ability to block a woman from traveling to obtain an abortion. This includes protections for doctors who have traveled outside their home state to provide reproductive care.

State by State

One month after the Dobbs ruling was delivered, the response from states varied widely.

20 states, as well as Washington D.C., have preexisting laws or rulings which have left abortion entirely legal.
9 states have kept abortion legal but could limit or ban it through judicial rulings or legislative change.
4 states have bans expected to take effect this summer due to trigger laws in place
3 states do not ban abortion entirely but have placed limitations on the procedure
8 states ban abortion with little to no exception. These states have the strictest bans in the nation.
- 6 states do not allow for any exception to the abortion ban. These states include Alabama, Arkansas, Missouri, South Dakota, Texas, and Wisconsin.
- Mississippi has a ban on abortion except in the case of rape
- Oklahoma has a ban on abortion except in the case of rape or incest
6 states attempted to enact bans or limitations but were blocked by the courts. States with legal blocks include Arizona, Georgia, Louisiana, Kentucky, Utah, and West Virginia.

In the coming months, these numbers will continue to evolve as legislation is passed, voters decide on upcoming measures and advocate organizations such as Planned Parenthood and the ACLU sue state legislatures. Lawsuits have currently been filed in Oklahoma, West Virginia, Idaho, North Dakota, Florida, Ohio, and South Carolina. Wisconsin also has a pending lawsuit filed by the state Attorney General to block an 1849 law banning abortion.

Remaining Questions

Justice Clarence Thomas’ Concurring Opinion

The Thomas concurring opinion remains at the center of questions for many activists and advocates involved in civics work. Most notably, Justice Thomas wrote that the court “should reconsider” their past rulings on cases that also consider the right to privacy. These rulings established fundamental rights in the U.S., including the right to contraception (Griswold v. Connecticut, 1965), same-sex relationships (Lawrence v. Texas, 2003), and same-sex marriage (Obergefell v. Hodges, 2015). To call these judicial precedents into question could indicate the direction of the court in the coming years. Furthermore, cases not mentioned by Thomas, such as Loving v. Virginia, which established a constitutional right to interracial marriage, also rely on the 14th amendment due process frameworks and could be called into question by the court in future cases.

Comments from Senator Ted Cruz (R-TX) have further cemented concerns that same-sex marriage will be struck down. Senator Cruz argued that the Obergefell precedent was “clearly wrong”.

Data Security & The Right To Privacy

Advocates have raised another concern that was not addressed in the Dobbs case: data security and privacy. Concerns continue to mount over whether or not a company will turn over private health data to government officials in states where limits on abortions are most restrictive. Advocates have vocalized anxieties that police and other enforcement agencies will utilize this data in cases against women who receive abortions. In early July, Google announced that its systems will automatically delete location data for users who have been identified as having visited medical facilities such as abortion clinics, fertility centers, and domestic violence shelters. Other steps to protect data include increasing users’ ability to mass delete data as well as advocating for legislation to reduce governmental data demands.

Despite this, White House officials have still recommended that Americans delete these health apps as a preventative measure. Director Klein has noted that individuals using these apps should be “really careful”. The Department of Health and Human Services has also pointed to their guidelines on how people can protect their data privacy.

Further Implications

Analysts have highlighted that the Dobbs decision has implications beyond abortion. Impacts could include questions on the legality of medication abortions, the Plan B pill, and treatment for other reproductive needs such as I.V.F., ectopic pregnancies, and miscarriages.