The Problem with Dobbs

In his majority opinion in Dobbs, Justice Samuel Alioto repeatedly asserts that it is time to return the authority to regulate abortion to the people and their elected representatives. He suggests that this will end the contentious litigation over abortion restrictions that has plagued the courts since Roe and Casey were decided. In reality, Dobbs promises to open the floodgates to protracted litigation between states over whose rights will prevail.

Since Dobbs was decided in June 2022, eighteen states have banned abortion, either in whole or in part. Twelve have enacted a near-total ban, four have gestational bans and, in two, abortion is unavailable because enforcement is unclear. At least 66 clinics across 15 states have ceased offering services since the ruling, forcing patients to travel long distances to access care. These laws disproportionately impact the most vulnerable among us: people of color and low-income women. The states with total bans and no remaining clinics are primarily clustered in the South, states with a larger proportion of both populations compared to the U.S. as a whole. These patients are the least likely to be able to travel due to cost, lack of health care benefits, paid time-off or available childcare.

Despite the new state restrictions, Dobbs has witnessed only a marginal decrease in the number of abortions. What the Guttmacher Institute found when it studied the issue is that women traveled, often long distances, to other states to find an abortion provider. Of course, increased travel creates greater out-of-pocket costs, higher likelihood of follow-up care in an emergency room, negative mental health outcomes, delayed care and decreased use of medical services. Also troublesome is that this dynamic almost guarantees additional litigation.

The potential legal risks for abortion providers are immense. What if a woman from a ban state travels to an access state for an abortion and travels home with mifepristone, the second pill used in a medication abortion, which typically is taken at home 24-48 hours after visiting a clinic? What if she ends up having excessive bleeding and goes to her local emergency room? What if she needs a follow-up aspiration abortion, a known complication when medications are used to end a pregnancy after 10 weeks? Will the provider in the access state, that performed a legal procedure, be accused of “aiding and abetting” the abortion? Will the provider be extradited to the ban state to face criminal prosecution? Will the provider lose their license or be barred from treating Medicaid patients? Will fear surrounding this uncertainty dissuade them from providing much-needed, legal health care?

California, as well as other states that respect their residents’ rights to make personal healthcare decisions, have passed legislation designed to protect providers for performing services that are legal in their home states. But many of these laws are untested. The case law on extradition and long-arm jurisdiction is decades old. New technology enabling easy access to medical records across hospitals and providers is creating new risks, as is the ability to use social media platforms such as Facebook, Instagram or Google to track individuals who may be seeking “illegal” care. Eventually, these issues will end up in the courts, which will need to decide the thorny issue of which state’s law controls in the absence of a guaranteed federal right.

Justice Alioto’s view that stare decisis did not dictate adherence to Roe and Casey because there was no reliance on those decisions is equally misguided and ill-informed. According to the Dobbs majority, “because getting an abortion is generally ‘unplanned activity,’ and ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions,’” traditional reliance interests are not implicated. However, most people are not tracking their state’s legislation when they decide to have sex. Even if they did, contraception is still not entirely effective. More than half of unwanted pregnancies occur due to contraceptive failure.

More importantly, abortion has been legal for the past 50 years; no individual of reproductive age has experienced a time when abortion was not safe, legal and accessible. Several generations now have made decisions about when to marry, whether to pursue higher education, what jobs to take and how to follow a career path based on having control over if, when and how many children to have. Before the Supreme Court legalized contraception in Griswold and abortion in Roe, only 5.8% of women held college degrees, 4.2% attended law school, 42% were in the workforce, and 15% boasted management positions. Women’s wages were 60% of men’s.

This lack of historic understanding undergirds another key argument Justice Alito makes. As a basis for unraveling a 50-years-old constitutional right, he claims “a right to abortion is not deeply rooted in the Nation’s history and traditions.” But the history he cites is history from the nineteenth century when legislatures were comprised exclusively of white males. Women and Blacks did not have the right to vote. Surgery, including that used to terminate a pregnancy, was incredibly dangerous. Surgeons did not know how to control infection, and mortality was high.

Because abortion is significantly safer than childbirth, maternal morbidity and mortality rates dropped under Roe. By the 1960s, techniques of antisepsis and asepsis had advanced considerably. Antibiotics had been introduced. Curettage, used for abortion in the first trimester, had become a safe, accepted and routinely-used medical technique. The chance of dying from an abortion was considerably less than delivering a child. The real risk was illegal abortions. By 1967, criminal abortions had become “the most common single cause of maternal deaths in California.” As a result, the deans of all California medical schools, chairmen of medical school departments and professors of medical schools advocated for its legalization. When Roe went before the Supreme Court in 1973, most religious organizations and public health advocates similarly pressed for its legalization. They had seen the death that resulted when women were denied this simple right.

Contrary to the view of the current Supreme Court, “constitutional concepts are not static.” Prior Supreme Courts repeatedly have recognized that the Constitution should “not be shackled to the political theory of a particular era.” Nor should constitutional rights be left to the legislatures in individual states to sort out. Instead, fundamental rights should be analyzed in the context of where the country stands at a particular point in time. When advances in medicine have made abortion far safer than carrying a pregnancy to term, contraceptive failure and human error result in unwanted pregnancies, and women and their families have made life decisions based on the ability to control if and when to have children, abortion should be preserved as a constitutional right. Rather than removing courts from adjudicating these difficult decisions, Dobbs all but guarantees the courts will remain in the thick of this controversy.