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Roe and Dobbs

The missile that everyone knew had been launched finally reached its target and exploded: the US Supreme Court, in a case called Dobbs v. Jackson Women’s Health, has overturned Roe v. Wade and returned primary regulation of abortion to the States. I would guess that, in the last hundred years, only the Court’s 1954 decision in Brown v. Board of Education—outlawing de jure segregation and rejecting the “separate but equal” myth that justified it—has aroused as much public interest and emotion as has Dobbs.

Even before Dobbs was handed down, the mere potential of such a decision stimulated the historically unprecedented leak of a draft opinion.  And, again before the official decision, some crackpot devised a plan to assassinate Justice Brett Kavanaugh, apparently because Kavanaugh was expected to be part of the Dobbs majority. And now, after the decision has been announced, we see crowds in the streets, demonstrations outside the Court and the homes of Justices, proposals by Washington politicians to pass federal laws either limiting or guaranteeing access to abortion on a nationwide basis, and proposals by lawmakers in the States to react, either positively or negatively, to the decision.

The legal technicalities inherent in the majority and dissenting opinions in Dobbs, as well as the concurring opinions, can be daunting even if one has formal legal training, and more so without that training.  But much of the argument against Dobbs relates to two concepts: a right of privacy, and reliance.

The right of privacy, to a very large extent, is the foundation on which Roe and the cases following it was erected.  This is what law professor Pamela Laufer-Ukeles has said in a Times of Israel blog about that right:

This “privacy” is very special; it is exceptional. … It is about privacy in making personal, intimate, life-defining choices. This robust privacy was understood … to include … the right to marriage, including same-sex marriage, the right to reproduce, to raise children as one sees fit, to use birth control, and, until Friday, to have an abortion.

There is a serious problem with the concept of privacy Prof. Laufer-Ukeles celebrates.  The right to same-sex marriage cannot conceivably be grounded on privacy.  Civil marriage is a public rather than private institution.  A civil marriage ceremony can be performed only by a person officially licensed by the State; it must be performed before at least one witness whose identity is entered in the official record; and the record of the marriage is entered in a file that is open to the public.  In fact, what same-sex couples were seeking when they demanded the right to marry was official recognition of their relationship—which would affect tax status, inheritance rights, healthcare proxies, etc.—and official recognition is the exact opposite of privacy.

Moreover, state laws that regulate abortions typically regulate the medical professionals who perform abortions; they do not directly regulate the pregnant woman.  The medical profession is perhaps the most strictly regulated profession in America.  If, for example, you want to take a medication that you and your doctor both believe might cure a deadly disease you’ve contracted, your doctor cannot legally prescribe or administer that medication unless the federal Food and Drug Administration gives its approval.  If a right of privacy protects a woman’s right to obtain an abortion without government interference, why doesn’t the same right protect a person’s right to take what might be life-saving medication without government interference?  Is bearing a child any more “life-defining” than literally living or dying?

The second concept that is frequently invoked by those unhappy with Dobbs is reliance; this concept is relevant in a discussion of stare decisis, which is the general rule that, in order to maintain the consistency and stability of law, courts should, whenever possible, adhere to precedents set in prior judicial decisions.  Reliance is important because many people carefully take into account existing law, including prior judicial decisions, in planning and ordering their lives for the future.  Reliance is defeated when precedents are overturned, and therefore extensive reliance on an important judicial precedent argues in favor of following stare decisis and against overturning the precedent.

Although much has been said about the extensive reliance women have placed on Roe, I am skeptical.  Is it usually the case that, before women have consensual sexual relations with men, they mentally reassure themselves that, if they were to become pregnant, they could abort the pregnancy?  If a woman were concerned about pregnancy, wouldn’t she primarily rely on birth control, practiced both by herself and her partner, rather than abortion?  After Dobbs, will there be a substantial decrease in consensual sex between men and women?  If reliance on the right of abortion guaranteed by Roe has been a genuine phenomenon, one would expect such a decrease.  We shall see.

Dobbs negates a right to abortion based on the US Constitution, but it does not negate every right to abortion in the United States.  There are many States in the Union that provide much broader abortion rights than Roe; those State’s rights are not in any way diminished by Dobbs.  There will also be States that will decrease abortion rights after Dobbs—some have already done so—but I believe every State will be obligated to permit abortion where the life of the woman is at stake (because a contrary rule would not rationally serve a legitimate government purpose and would therefore be unconstitutional).

It will also always be lawful for a woman to travel to a State where abortions are broadly permitted—no State can regulate travel between States.  There are pro-choice organizations and corporations that will pay the travel costs of women who must travel to another State to obtain an abortion, and some pro-choice States (e.g., New York) are considering laws that would reimburse out-of-state women for their travel expenses to the State.

It is, moreover, a virtual certainty that after Dobbs the availability and use of abortion pills will increase—pro-choice organizations such as Planned Parenthood will surely see to that.  And no State has the power to regulate the U.S. Postal Service, so the pills could always be sent through the mails.  It’s also likely that the Dobbs decision will stimulate the creation of new, even more effective medications to induce “home” abortions.

In sum, although both political parties will strain to use Dobbs to bring droves of their voters out to the polls in November, the practical, real-life effects of the decision are likely to be much less dramatic than either side portrays.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2523973
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