Legal Scholars and Policy Makers Concerned Decision May Call Other Civil Rights Into Question
By Monica Ciolfi
Editors note: As the Bar News was heading to press, a leak from the US Supreme Court disclosed a draft opinion in the Dobbs v. Jackson Women’s Health Organization case authored by Justice Samuel Alito. According to Politico, which reported the leak, Justice Alito’s opinion was joined by at least four other Justices. Chief Justice John Roberts has verified the authenticity of the leaked draft and stated it did not constitute the Court’s final decision in the case, which is expected sometime in the next two months.
The US Supreme Court will deliver what is perhaps its most consequential abortion ruling since 1992 in a matter of weeks, and some legal scholars believe the decision could have a historic impact on the future of abortion rights, reproductive rights more generally, and even broader civil rights like marriage equality.
In an appeal from Dobbs v. Jackson Women’s Health Organization, the Court is expected to uphold Mississippi’s 15-week abortion ban. The case involves that state’s 2018 law banning abortion procedures after the first 15 weeks of pregnancy. Lower courts had ruled to prevent enforcement of the Mississippi law on the basis that it violated the holdings of Roe v. Wade and Planned Parenthood v. Casey, which both recognized a woman’s right to obtain an abortion before a fetus is viable, well after 15 weeks of pregnancy.
Director of the ACLU-NH, Gilles Bissonnette, said that upholding the Mississippi law could have harmful effects, not only on vulnerable communities but on public perception of the Court.
“If the Supreme Court allows Mississippi’s ban to stand, it will erase nearly 50 years of precedent, and in the words of Justice Sotomayor, create a ‘stench’ in the public perception of the Court and its legitimacy,” said Bissonnette, who also fears “politicians will try to ban abortion nationwide, including right here in New Hampshire.
Bissonnette is concerned that such a ruling would create more barriers for “people who already face systemic racism and discrimination in this country: people of color, people who are undocumented, people with disabilities, and LGBTQ+ people, as well as people who are young, have low incomes, or live in rural areas.”
Granting Cert in Dobbs
Is Itself Significant
The Court’s forthcoming decision comes after nearly a year-long pendency. Mississippi’s petition for writ of certiorari was granted in May 2021, following Justice Amy Coney Barrett’s appointment as the replacement for Justice Ruth Bader Ginsberg, who died the previous September. Both the US District Court for the Southern District of Mississippi and the US Court of Appeals for the Fifth Circuit had struck down the State’s Gestational Age Act, which prohibits nearly all abortions after 15 weeks of pregnancy, with limited exceptions for fetal abnormalities and medical emergencies. The lower courts held that the law was unconstitutional under the Supreme Court’s precedents in Roe v. Wade 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), both of which recognized the constitutional right to pre-viability abortion.
Some Court watchers and constitutional scholars who listened to the two-hour-long Dec. 1, 2021, oral argument in Dobbs picked up a clear signal of the Court’s direction.
John Greabe, UNH Franklin Pierce School of Law Professor and Director of the Warren B. Rudman Center for Justice, Leadership & Public Service, believes the Court is “extraordinarily likely to rule for Mississippi, based on the justices’ known ideological commitments and the questioning at oral argument.”
“The Court could rule for Mississippi by modifying but not completely overruling the holdings in Roe v. Wade and Planned Parenthood v. Casey,” he said.
The Supreme Court has repeatedly reaffirmed that states cannot ban abortion before fetal viability, which is typically around 24 weeks of pregnancy. In granting cert, the Court agreed to hear only one of the three questions included in the petition, namely whether all pre-viability prohibitions on elective abortions are unconstitutional. Given its decision to rule on that single question, as well as its own precedents, numerous lower court rulings, and the lack of a split among the
circuits, the Court may be ready to revise those affirmations. Commenting on its decision to grant cert, Professor Mary Ziegler of Harvard Law School, an expert on the law, history, and politics of reproduction, observed that “a court eager to take on abortion bans early in pregnancy seems unlikely to hesitate when the moment comes to eliminate abortion rights altogether.”
In Petitioners’ Brief, Mississippi argued that the US Constitution does not provide a right to abortion and, therefore, a state can freely ban abortions at any time during pregnancy, provided the regulation is “rationally related to legitimate government interests.”
Mississippi contends that a right to abortion cannot arise from the word “liberty” in the Due Process Clause of the Fourteenth Amendment, because “liberty” only implicates fundamental rights that are deeply rooted in United States’ history and tradition. Women’s Health Organization responded that the right to abortion is firmly grounded in the Fourteenth Amendment, in that physical autonomy and body integrity are essential elements of liberty, protected by the Due Process Clause. As examples, Women’s Health Organization pointed out that the Court has held that the right to decide whether to accept medical treatment, the right to use contraception, and similar rights are all included in the word “liberty.” The right of a person to the possession of their own body is recognizably important in the common law tradition and this nation’s history, Women’s Health Organization asserted, pointing out that women enjoyed a greater right to abortion during the nineteenth century than in the 1970s.
According to Professor Ziegler, “the Court wanted to take a case that would require them to either overrule all of Roe v. Wade or part of it.” And based on the questions that were asked at oral argument, it seems that there are six justices who think that Roe v. Wade is either going to be eliminated entirely or radically overhauled,” she said.
Roe v. Wade Has Been
If the Court overhauls or completely overturns Roe with Dobbs, it will be a culmination of an erosion process that began soon after the case was decided in 1973. Just three years later, the Court upheld parental consent laws, restricting minors’ access to abortion in Bellotti v. Baird, 428 U.S. 132 (1976). The following year, in 1977, Congress passed the Hyde amendment, barring federal Medicaid funding for abortions. Similar state-level prohibitions were upheld by the Court in Beal v. Doe, 432 U.S. 438 (1977).
In 1992, the Court issued the Casey decision, which upheld Roe but gave states broad authority to regulate abortions at all stages of pregnancy provided those regulations did not constitute an “undue burden” on a woman’s right to abortion. In the ensuing years, hundreds of abortion bans, including 20-week, 24-week, and so-called “heartbeat” bills were enacted. These, together with clinic and provider restrictions, parental consent, as well as laws mandating waiting periods, counseling, and ultrasounds were passed in dozens of states around the country. According to the Guttmacher Institute, a much-cited abortion research and policy organization, over 1,337 restrictive laws have been enacted since Roe v. Wade.
Three months before the oral argument in Dobbs, the high Court refused to grant an emergency application for injunctive relief in the case of Whole Woman’s Health v. Jackson. The plaintiffs in the case sought to prevent Texas’ six-week abortion ban, known as SB 8 or the Texas Heartbeat Act, from going into effect. The unusual Texas law outlaws abortion after six weeks of gestation but prohibits state enforcement, instead providing a $10,000 “bounty” to private plaintiffs bringing suit against anyone who “engage(s) in acts that aid or abet” a person seeking a later abortion. Due to the law’s lack of a “state actor” for purposes of preemptive legal action to block enforcement under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and U.S. Ex Parte Young, 209 123 (1908), neither abortion providers nor the federal Justice Department have successfully enjoined SB 8 since its effective date, nearly nine months ago.
Taken together, the oral argument in Dobbs and the Court’s inaction on SB 8 have spawned considerable state legislative activity since January to both restrict and to protect abortion rights. As of mid-April, according to Guttmacher, a total of 1,989 provisions related to sexual and reproductive health rights have been introduced across 46 states and the District of Columbia. 536 restrictions have been introduced in 42 states, with 33 of them enacted so far in nine states. At the same time, 11 protective abortion measures have been enacted in seven states. According to Guttmacher and others, such as the Planned Parenthood Federation, 26 states are certain or likely to attempt to ban abortion immediately upon the Court’s ruling in Dobbs.
Even before 2022, many states had created laws on the books prohibiting nearly all abortions.
“[Those laws] will automatically take effect if/when the Court overturns Roe,” said Greabe, who believes there are likely to be “efforts in many of those states to come up with ways to prevent their citizens from traveling to states where abortion is legal to obtain an abortion.” Guttmacher estimates that under these laws, 58 percent of–or as many as 40 million–child-bearing age women would lose access to abortion.
Impact of Dobbs in New
Hampshire and on Other
Rights is Unclear
Here in New Hampshire, the status of abortion rights is in flux. In 2021, Governor Chris Sununu signed into law the State’s first-ever abortion ban in modern times, a no-exceptions 24-week ban that mandates ultrasounds for all abortions, and provides a felony criminal penalty for doctors. In May 2022 the Governor signed HB 1609, legislation to create limited exceptions to the ban and remove the ultrasound mandate. However, a bill to enshrine existing state abortion rights in statute (HB1674) died in the House of Representatives. Going forward, we can expect continued legislative action surrounding abortion and the 24-week ban in the State House.
But beyond the escalating threat to abortion rights unleashed by the high Court’s recent action (and inaction), there is concern that the eventual ruling in Dobbs may pose risks to the other rights anchored in constitutional privacy protections. Like abortion, rights to contraception and marriage equality are also constitutionally rooted in our liberty interest in privacy, Greabe pointed out.
Again, according to Professor Greabe, “The reasoning that the majority is likely to use in overturning Roe also will call into question the correctness of the Court’s holdings in these other areas,” he said. “The only limiting factor will be whether two of the six conservative justices who, for example, certainly (or almost certainly) regard the Court’s (2015) Obergefell v. Hodges decision–which constitutionalized the right to same-sex marriage–will be persuaded that the Court should not revisit the decision for prudential reasons under the doctrine of stare decisis.”
Greabe doesn’t believe Chief Justice Roberts will wish “to go on an overruling spree in these areas.”
“The question will be whether he can persuade one of the Justices, (Gorsuch, Kavanaugh, or Barrett) to join him in forbearing. Justices Thomas and Alito certainly would vote to overrule Obergefell if given an opportunity to do so.”
Depending on whether the language in the Dobbs decision unambiguously extinguishes federal abortion rights, there could be further litigation in federal courts on the multitude of state restrictions. However, if federal abortion protections are overturned outright, their recognition will be a matter for state legislatures and courts. Without a federal constitutional foundation for the right to terminate pregnancy, either entirely or after a certain gestational point, states will have wide latitude to enforce extensive restrictions.
“[It’s] possible that other liberty-protected rights will devolve to the states, as well,” Greabe notes. “There are additional concerns that once the high Court abandons the constitutional right to abortion, there will be legislation criminalizing abortion at the state level and an effort to recognize fetal personhood under the Fourteenth Amendment.
Correspondingly, Greabe noted there could be proposed legislation prohibiting abortion.
“In other words, the Dobbs decision is unlikely to quell entrenched efforts to eradicate abortion and may call other civil rights into question.”
Professor Ziegler framed it this way: “The recent rash of anti-abortion laws reflects the uncertainty of America’s future. The writing may be on the wall for Roe v. Wade, but when it comes to what happens next, the public might still have a say.”