What Would It Mean to Codify Roe v. Wade?

The end of Roe v. Wade, explained
Roe v. Wade is now overruled. Are access to contraception, same-sex marriage, and even the right to choose your own sex partners next?

https://www.vox.com/2022/6/24/23181720/supreme-court-dobbs-jackson-womens-health-samuel-alito-roe-wade-abortion-marriage-contraception

Roe v. Wade is overruled. The Republican Party, which achieved a generational victory when it captured a supermajority of the Supreme Court’s seats under former President Donald Trump, has now capitalized on that victory to achieve one of its longtime political goals. The half-century when American constitutional law protected a right to an abortion is now over.

Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization is substantially similar to a leaked early draft of that opinion, which was published by Politico in early May. Alito’s opinion was joined by the Court’s four most conservative members. Chief Justice John Roberts, a conservative who often takes a more incrementalist approach than Alito, wrote a separate opinion arguing that the Court should limit but not yet overrule Roe.

Alito’s final opinion doesn’t just allow Mississippi to enact the 15-week abortion ban at issue in Dobbs — a ban that violated Planned Parenthood v. Casey, a 1992 opinion that weakened Roe while retaining the constitutional right to an abortion up to the point of “viability.” Alito’s opinion goes further, and concludes that Roe and Casey “must be overruled.” It is written in Alito’s characteristically snide tone, repeatedly referring to abortion providers by the pejorative term “abortionists.” And it rests on a conservative theory that limits which rights are protected by the Constitution.

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito writes.

According to Alito, if a right isn’t explicitly mentioned in the Constitution, it must be “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’” to qualify for constitutional protection. He then spends many pages of his opinion arguing that the right to an abortion is not rooted in legal history or tradition.

Much of Alito’s account of this history is dubious. The Roe opinion itself argued that, under English “common law,” which still forms the basis for much of US law, “abortion performed before ‘quickening’ — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense.” And there is considerable historical evidence that a right to pre-quickening abortions is, indeed, firmly rooted in US legal history and tradition.

Ultimately, however, Alito’s opinion is less a triumph of one theory of history over another, than it is the triumph of one political party over another. Roe was overruled because Republicans appointed six justices and Democrats appointed only three. This outcome became inevitable the minute Justice Ruth Bader Ginsburg died in the final weeks of a Republican presidency.

So what happens now? The immediate impact is that the many state laws that already ban abortion — either outright or very early in a pregnancy — will quickly take effect. Many clinics in the states with the most rigid laws suspended abortion procedures as soon as the Dobbs opinion came down.

There’s also an open question about whether other rights, such as the right to same-sex marriage or the right to contraception, are in danger. Many of the Court’s decisions protecting a right to sexual, romantic, or bodily autonomy rely on similar reasoning to Roe. And Alito’s reasoning in the Dobbs opinion closely tracks reasoning he once used to argue that same-sex marriage is not rooted in American legal history and tradition. In other words, the logic Alito uses in Dobbs could be used to target other rights.

That said, Alito’s Dobbs opinion does contain language denying that overruling Roe necessarily means the demise of other, still-existing freedoms. Alito declares abortion to be a “unique act” because it “terminates ‘life or potential life.’” That distinguishes the now-defunct constitutional right to abortion from, say, the right to marry a person of the same sex.

This is one of the largest changes from the leaked opinion in May, which did contain some language suggesting that the Dobbs opinion is limited to abortion, but not nearly as much as the final version. That suggests that at least one of the justices who joined Alito’s opinions might have reckoned with the earlier draft’s sweeping repercussions and pushed for a slightly less aggressive opinion.

But whether other rights are next on the chopping block or not, Dobbs is already a sweeping change for America, one that will immediately change society not just in the states likely to ban abortion, but across the country.

Abortion will very soon be illegal in at least 18 states, and will be banned very early in pregnancy in at least four more

Eighteen states currently have laws on the books that either ban abortion outright or permit it only in extremely limited circumstances. Some, but not all, of these states permit abortion to save a patient’s life or protect them from a dire health consequence. Some, but not all, permit the termination of a pregnancy that results from rape or incest.

Many of these laws are now in effect, after the Court’s decision overruling Roe, but some of these states have “trigger” provisions that do not take effect until a certain condition is met — such as that 30 days have passed after the Dobbs decision. That means abortion may remain briefly legal in a few states with trigger laws, but that the bans will most likely take effect by the end of the summer.

The 18 states with near-total bans on the books are Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.

Four other states — Georgia, Iowa, Ohio, and South Carolina — have laws on the books banning abortion after the sixth week of pregnancy, which is before many people who may want an abortion will be aware that they are pregnant. (There’s also the unusual case of North Carolina, which once had an abortion ban on the books. But a more recent law appears to have legalized abortion up to the 20th week of pregnancy.)

It should be noted that this list of states will fluctuate. State supreme courts retain the power to interpret their own state constitutions, potentially to protect a right to abortion within their state’s borders. In Michigan, for example, a judge has temporarily blocked the state’s ban from taking effect, and the litigation continues. Given that Democrats currently hold a narrow majority on the state’s highest court, the state could protect the right to an abortion.

And, of course, Alito’s opinion also means that state legislatures can pass new laws regulating or banning abortion. That means states currently controlled by Republicans are likely to enact new bans in the coming weeks or months.

The future of LGBTQ rights is uncertain

Alito’s Dobbs opinion acknowledges that the Constitution protects some rights that are not specifically mentioned in the Constitution, but only rights that are “deeply rooted in this Nation’s history and tradition.”

He’s made this argument before. Specifically, Alito made this “history and tradition” argument in his dissenting opinion in Obergefell v. Hodges (2015), the landmark opinion holding that people with same-sex partners have the same right to marry that partner as anyone else. “It is beyond dispute that the right to same-sex marriage” is not sufficiently rooted in history and tradition, Alito claimed in his Obergefell dissent.

Justice Clarence Thomas, meanwhile, wrote a concurring opinion in Dobbs where he denounced the concept of “substantive due process,” the legal theory that drives many of the Court’s decisions involving a right to sexual and romantic autonomy. Alito also rejects the idea that the due process clause of the 14th Amendment implies the right to an abortion. But Thomas goes further.

According to Thomas’s opinion, which is joined by no other justice, the Court’s pro-contraception decision in Griswold v. Connecticut (1965), its decision in Lawrence v. Texas (2003) that consenting adults have a right to choose whom they have sex with and how they have sex, and its decision in Obergefell should all be reconsidered.

That said, the final version of Alito’s opinion seems to go out of its way to explain that abortion is different from these other rights — again, because abortion involves the termination of a fetal life and these other rights do not. Much of this language was added after Alito wrote the leaked early draft of the Dobbs opinion.

Indeed, Alito accuses the dissenting opinion — which is co-authored by all three of the Court’s Democratic appointees — of stoking “unfounded fear that our decision will imperil those other rights” because the dissent worries that Dobbs could endanger things like same-sex marriage or contraception.

In any event, the future of rights other than abortion will likely need to be litigated. There is no doubt that Thomas would happily light many existing rights on fire. And there is little doubt that Alito, based on his Obergefell dissent, would also happily tear down same-sex marriage.

But it takes five votes to strip away an existing constitutional right, and it remains to be seen whether Justices Brett Kavanaugh and Amy Coney Barrett — conservatives who sometimes break with Alito’s most aggressive attempts to drive the law to the right — will support mass rollbacks of existing rights.

Certain forms of contraception might now be banned

Although there may not be five votes on the current Supreme Court to permit an outright ban on all forms of contraception, the Court may permit states to ban certain forms of contraception that many religious conservatives believe to be akin to abortion.

In Burwell v. Hobby Lobby (2014), a 5-4 Supreme Court held that employers who object to certain forms of birth control on religious grounds may refuse to cover these contraceptive methods in their employees’ health plans. At least some of the plaintiffs in Hobby Lobby claimed that “two forms of emergency contraception commonly called ‘morning after’ pills and two types of intrauterine devices” can cause an abortion because they “may operate after the fertilization of an egg.”

It is far from clear that these forms of birth control actually do operate on fertilized eggs. As Dr. Mary Jacobson, an OB-GYN and chief medical officer at Alpha Medical, told me, “No existing scientific studies validate the fallacy that hormonal contraceptives or the copper intrauterine device act partly as abortifacients.”

But the question of whether IUDs or morning-after pills qualify as contraception (which is still protected by existing Supreme Court precedents) or abortion-inducing drugs (which are not protected after Dobbs) will not be decided by medical doctors. It will be decided by a federal judiciary dominated by conservative Republicans.

In Gonzales v. Carhart (2007), moreover, the Supreme Court held that state and federal lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” This line is likely to play a starring role in conservative judicial decisions permitting bans on certain forms of contraception.

Under Gonzales, to justify a contraception ban, a state does not need to prove that a particular form of contraception definitively acts as an abortion-inducing drug. They just have to convince a court that may be dominated by right-wing Republicans that there is “uncertainty” about how a pill or contraceptive device operates.

Litigation over contraception bans, in other words, is inevitable if a state decides to ban common forms of birth control such as the morning-after pill or IUDs.

Will the courts declare abortion illegal in all 50 states?
Abortion opponents will no doubt feel emboldened by their victory in Dobbs, and will try to press their advantage.

One of the most aggressive anti-abortion theories is known as “fetal personhood.” It claims that a fetus is entitled to the same rights as a fully born human being. And thus the law must treat killing a fetus the same as a homicide.

Could this theory gain purchase in this Supreme Court? Based solely on the text of the Dobbs opinion, the answer is “no.” Alito claims that his decision “returns the issue of abortion to … legislative bodies” and allows people with varying opinions on abortion to “affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.”

Alito, of course, is notoriously hostile to the right to vote. Among other things, he is the author of Brnovich v. Democratic National Committee (2021), an opinion that invented a number of judicially created limits on the Voting Rights Act that appear nowhere in the law’s text. So, if Alito’s Dobbs opinion does permit voters to shape abortion policy moving forward, it will do so only after Alito has skewed the electorate toward Republicans.

A second caveat worth considering is that the Court recently tripped over itself to ensure that Texas’s SB 8 law, an unusual ban on most abortions that relies on private litigation to enforce the ban, could take effect. (Now Dobbs permits Texas to ban abortions outright.)

The Court’s decision in that case, Whole Woman’s Health v. Jackson (2021), didn’t simply shield SB 8 from judicial review. If taken seriously, Jackson’s reasoning would permit a state to nullify any constitutional right by writing a law with a similar enforcement mechanism as SB 8 .

The Court, in other words, was willing to do considerable violence to the Constitution as a whole in order to spite abortion rights in Jackson. That suggests that five justices may be willing to take similarly extraordinary steps to restrict abortion in the future.

For the time being, however, the Court’s most recent pronouncement on abortion rights is Dobbs. And Dobbs, at least on its face, is inconsistent with the theory of fetal personhood.

At least for now, in other words, abortion is likely to remain legal in blue states.