By Linda Clark Ashar, J.D.
Faculty Member, Dr. Wallace E. Boston School of Business
In the landmark case of Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court eliminated a woman’s personal right of liberty from the Constitution and overturned long-standing Constitutional doctrine. Although the Supreme Court claimed to limit Dobbs to a woman’s right to abortion, much of the wording of Justice Samuel Alito’s opinion and concurring Justices raises questions of how Dobbs will be applied more broadly in the future to other Constitutional doctrines.
In Dobbs, the conservative majority of the Court overruled its own precedents about Constitutional privacy and liberty. Previously, these doctrines had been defined in recognizing abortion rights in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.
Roe and Casey Recognized a Woman’s Federal Right to Choose Abortion as a Personal, Private Decision
In 1973, the Roe court held that the right to privacy under the Constitution included “a woman’s qualified right to terminate her pregnancy.” But a right of privacy was not a unique idea in Roe.
Previously, the Supreme Court had recognized a federal Constitutional right of privacy in the 1963 case of Griswold v. Connecticut. The decision in this case overruled a Connecticut law that criminalized both the use of contraception and the provision of contraception devices.
Pointing out that “zones of privacy” are embedded in the protections of the Constitution’s First, Third, Fourth and Fifth Amendments, the Griswold court then took particular note of the Ninth Amendment’s declaration. This Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In other words, a right need not be expressly called by name in the Constitution to be afforded federal protection. Following Griswold, the Supreme Court again applied the right of privacy in the 1971 case of Eisenstadt v. Baird, overruling a Massachusetts criminal statute that denied unmarried persons the right to contraceptives.
Griswold and Eisenstadt laid the groundwork for the Court’s decision in Roe. In Roe v. Wade, the Court spelled out how the right of privacy protects a woman’s personal choice to seek an abortion and can be balanced with the State’s interest in fetal viability.
But Roe hardly settled the abortion controversy. States continued to circumscribe how abortion decisions and information are managed. In 1992, the Court reviewed a challenge to a Pennsylvania statute’s limitations on abortion election in Planned Parenthood of Southeastern Pa. v. Casey.
In Casey, the Supreme Court upheld a woman’s right to choose an abortion as defined in Roe, but stated the principle differently than in Griswold and Roe. With Casey, the Supreme Court shifted the focus from privacy to liberty.
Still, the Constitutional right of a woman to make such a personal decision was not in question. The Court stated the liberty interest is “the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
In making this conceptual shift from privacy to liberty, the Casey SupremeCourt accorded some latitude to the States to articulate a state interest to justify regulating abortion. It stated that “A woman’s interest in having an abortion is a form of liberty protected by the Due Process Clause [of the 14th Amendment], but States may regulate abortion procedures in ways rationally related to a legitimate state interest.”
In the wake of Casey, deeply held opposing opinions and emotions in society across the U.S. continued to fuel advocacy on both sides of legal abortion. Several states enacted dormant statutes outlawing abortion with trigger provisions that would activate them automatically if the Supreme Court changed its mind in the future.
An example of such a trigger law is Tennessee, which criminalizes performing an abortion at any stage from fertilization without exception. These laws were waiting for Dobbs.
Dobbs Decision Raises Questions about Limitations on Liberty in Personal Life Decisions
In 2022, Dobbs reversed what the Supreme Court had previously read in the Constitution, deciding that the Fourteenth Amendment holds no liberty protection for a woman to make an abortion decision for herself. The Dobbs Court ignored the Ninth Amendment’s imprimatur that rights not specified by name have Constitutional protection. The Dobbs opinion is long, but its essence is revealed in Justice Alito’s statements: Griswold’s right of privacy theory is “facially absurd;” and “liberty” is a “capacious term” that “provides little guidance.”
In addition, the Supreme Court explains that a federal justification for abortion is precluded by our nation’s historical opposition to abortion prior to Roe, coupled with statistics as to why there are better alternatives to abortion now, such as the need for a supply of children for those wanting to adopt. To emphasize this concern, Justice Alito’s footnote 46 in the Supreme Court’s opinion cites a 2008 Centers for Disease Control and Prevention (CDC) study about adoption with this chilling statement: “The domestic supply of infants relinquished at birth or within the first month of life and available to be adopted had become virtually nonexistent.”
In an appendix to its decision, the Supreme Court listed 51 19th-century statutes that prohibited abortion in U.S. states, territories and the District of Columbia. The Dobbs Court effectively rejected its earlier Constitutional consideration of a woman’s rights in an abortion decision as counter to this history. While ardent about 19th-century history, the Supreme Court ignored the social advancement of U.S. culture and its more recent history in the 61 years since Griswold.
As other commentators have observed, Dobbs is a lesson in the fragility of Constitutional law when a majority of Supreme Court Justices use their power to frame the law to suit their personal, political and religious-based beliefs. To satisfy their personal beliefs on abortion, the Court’s majority removed the intensely personal decision of legal abortion from a woman and her physician and placed it in state legislatures.
Constitutional Issues in the Wake of Dobbs
At risk after Dobbs is not only the fate of women’s health, but the distortion of other important but seemingly unrelated Constitutional doctrines, liberties and legal principles that people take for granted. Although Dobbs says the case relates only to the issue of abortion, that assurance has a hollow ring. Multiple controversies have already arisen after the Dobbs decision.
Interstate Travel to Obtain an Abortion
The right to unimpeded interstate travel has been enjoyed by U.S. citizens since the beginning of our nation. But the words “right to travel” are not mentioned in the Constitution.
This right to travel has long been recognized under the Constitution’s Privileges & Immunities Clause and the Commerce Clause. It has also been deemed inherent in the Fourteenth Amendment.
In furtherance of the state’s trigger law banning all abortions following Dobbs, some Missouri legislators have pushed for an anti-travel amendment. This amendment would prohibit Missouri residents from traveling across the border to Illinois where abortion is legal.
New abortion laws in Texas and Oklahoma give private citizens the right to sue those who perform abortions or assist someone in getting an abortion. They could also collect civil damages from another state’s legal clinics and medical providers, as well as anyone who travels with a pregnant woman to another state for legal abortion.
In addition, lawsuits could be brought against public transportation such as airlines or bus companies and employers who provide abortion-related assistance. Furthermore, state criminal provisions against aiding and abetting abortion could lead to criminal prosecution for assisting interstate travel.
Issues Concerning the First Amendment and Access to Justice
Laws like Oklahoma’s also raise issues of criminal prosecution for informing a pregnant woman about abortion. Oklahoma’s Attorney General explains that the crime of aiding and abetting an unlawful abortion includes “advising a pregnant woman to obtain an unlawful abortion.”
In other words, general pro-choice advocacy is excluded from aiding and abetting, but advice for obtaining an “imminent” abortion will be prosecuted, notwithstanding free speech. Suppose an Oklahoma attorney advises a pregnant client how to get a lawful abortion in another state?
Is an Oklahoma attorney precluded from giving this advice? How does a pregnant woman obtain legal (or any) advice for her specific situation if anyone who counsels her about how to obtain an abortion outside Oklahoma could be prosecuted? The new anti-abortion law intends to shut down access to information and legal advice, even though the pregnant woman herself will not be the target of criminal prosecution.
Religious Freedom Questions
Anti-abortion law rests on the premise of human life arising at point of conception or at fetal viability, depending on the advocate’s belief. This view is not shared universally.
In the Jewish religion, a faith with a much longer history than the state laws of the U.S., human life does not fully begin until 30 days following live birth. Florida, a state now outlawing abortion at 15 weeks gestation in the wake of Dobbs, has been sued by Congregation L’Dor Va-Dor.
This South Florida synagogue asserts that Florida’s new anti-abortion law violates the State Constitution’s right to privacy and freedom of religion. This position raises both First Amendment and equal protection issues that are not supported by Dobbs if Florida law disagrees. Dobbs says that abortion is a moral question to be answered by state legislatures. In this case, Florida’s answer to the moral question is antithetical to an established religious belief.
Federal Law Can Preempt State Anti-Abortion Laws
Another question arising from the Dobbs decision is how federal law might overcome the range of issues arising from the differences among state laws and their conflict with federal law. The answer is anything but clear.
The Biden administration has taken an aggressive stance against Dobbs. For example, on September 2, 2022, the Veterans Administration (VA) issued an Interim Rule providing abortion services and counseling for both veterans and the beneficiaries of Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) regardless of the state abortion laws where the VA facility is located.
According to the VA’s Interim Rule, “VA has determined that an abortion is ‘needed’ pursuant to 38 U.S.C. 1710, when sought by a veteran, if determined needed by a health care professional, when the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term or when the pregnancy is the result of an act of rape or incest.… Similarly, VA has determined that providing access to abortion-related medical services is medically necessary and appropriate to protect the health of CHAMPVA beneficiaries.”
The U.S. government’s activities like this Interim Rule conflict directly with the laws of states like Texas, Missouri and Oklahoma. The federal preemption doctrine mandates that where state law and federal law conflict, federal law overrules or preempts state law, under the Constitution’s Supremacy Clause.
The preemption doctrine has been respected so far on the abortion controversy in at least one case. In U.S. v. Idaho, the government has challenged Idaho’s abortion-restrictive law as conflicting with the federal Emergency Medical Treatment and Labor Act (EMTALA), a federal statute that requires emergency room (ER) physicians at hospitals receiving Medicare funds to offer stabilizing treatment to patients presenting emergency conditions.
“Stabilizing treatment” for a pregnant woman could mean the termination of a pregnancy in a given case. Under Idaho law, such a stabilizing treatment is currently a crime. A federal judge has held, however, that under the Constitution’s Supremacy Clause, the doctor must follow federal law and provide the stabilizing treatment when it is required in the doctor’s medical judgment.
Idaho’s law is null in this specific circumstance under the preemption doctrine. This ruling grants a preliminary injunction on Idaho’s law but signals the likelihood the final ruling will be the same in such a legal situation.
However, another federal court took the opposite view in Texas v. Becerra. In this case, Texas challenged the guidance issued by the Department of Health and Human Services (HHS), authorizing ER physicians in hospitals receiving federal funds to include abortion as a stabilizing treatment under EMTALA when medical judgment indicates its necessity. Texas law limits the physician’s decision.
The legal posturing in the Texas case contains nuanced differences from Idaho, but the essential issue is the same. Doctors confronted with a decision in a critical care situation in the ER must decide on what they can do without falling afoul of a law.
In Idaho, so far, they have medical freedom to choose all of the measures deemed necessary under federal law. In contrast, because of Dobbs, the Texas court has ruled HHS lacked authority and state sovereignty overcomes federal preemption.
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Dobbs Is Only the Beginning of a Fight to Limit Rights We Currently Take for Granted
These Constitutional issues exemplify the disarray and controversy caused by the Dobbs decision. Justice Clarence Thomas’ remarkable Concurring Opinion in the case suggests that he sees this case as fertile precedent to overrule other landmark Supreme Court cases, such as:
- The reversal of legal same-sex marriage (overruling Obergefell v. Hodges)
- The abolishment of the right to use contraception (invalidating Griswold and Baird)
- The criminalization of homosexuality (overruling Lawrence v. Texas)
Justices Stephen Breyer, Sonia Sotomayer and Elena Kagan recognized the dangers lurking ahead after Dobbs and sounded this warning in their dissent. They stated, “At the least, today’s opinion will fuel the fight to get contraception, and any other issues with a moral dimension, out of the Fourteenth Amendment and into state legislatures.”
Not all states have boarded the Supreme Court’s bandwagon. In Kansas, for example, a constitutional amendment to ban all abortion procedures was placed on the state ballot. Voters overwhelmingly defeated it, affirming a 2019 decision by the Kansas Supreme Court that a person has the right to personal freedom and that the regulation of abortion must be reviewed with strict scrutiny.
Kansas is the first statewide vote on abortion restrictions post-Dobbs and most likely will not be the last. Not all states are following Dobbs, and the controversy is only beginning. Fundamental issues concerning the meaning of liberty and other Constitutional protections are already at stake and vulnerable to change.
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