After Dobbs v. Jackson, the End of Roe v. Wade and the Battlefield for Liberty

Health & Gender Policy Brief #138 | By: Alexandre Ellis | July 22, 2022

Header photo taken from: Getty Images / Yasin Ozturk / Anadolu Agency

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gettyimages 1241516881 1 06ab653b4a995e1b529aa511f06ec0860262dfe2 — In the wake of the overturning of Roe v. Wade last month, abortion-rights activists continue to fight against laws restricting access to abortion, especially in states with trigger laws.

Photo taken from: Chandan Khanna / AFP via Getty Images

Policy Summary

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On June 24, 2022, the United States Supreme Court released the published opinion of Dobbs v. Jackson Women’s Health Organization.19-1392, 597 U.S. ___. In a 6-3 majority opinion, a group of unelected officials stripped people with uteruses bare of the right to choose whether they will carry a pregnancy to term. In the opinion, the conservative justices state, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” leaving the question of who can obtain an abortion to the will of the states.

Further in the decision test, the Supreme Court’s majority not only questions the constitutionality of abortion, but almost every decision that relies on the right to privacy.

Policy Analysis

The aftermath of the Supreme Court overturning Roe v. Wade and Planned Parenthood v. Casey is vast and deadly. The 9^th Amendment of the Constitution was originally used to protect the right to privacy and bodily autonomy. The 9^th amendment provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This umbrella of rights is not explicitly mentioned but has been used by the Supreme Court in the past to protect personal rights that are common sense.

The 9th amendment, 14^th amendment, and the 5^th amendment were used to originally protect the right to abortion in 1973 in Roe v. Wade. The 9^th Amendment points to the enumeration of rights not explicitly mentioned in the Constitution. Whereas both the 14^th and the 5^th Amendment address due process and inhibits the infringement of an individual’s right to due process by states and the federal government.

Within due process, the court in Roe v. Wade and later dissenters in Planned Parenthood v. Casey point to how women, non-binary, and trans individuals have been historically marginalized and are uniquely affected by legislation relating to abortion because they may have the ability to get pregnant.

Further, these combinations of rights have been used to protect other rights such as the right to same-sex marriage (Obergefell), inter-racial marriage (Loving v. Virginia), contraception (Griswold), bodily autonomy (Roe v. Wade and Oklahoma v. Skinner), and consensual sexual intercourse (Lawrence v. Texas).

Nothing in the Constitution directly highlights or textualizes the explicit rights to any of these privacy concerns. Yet, they exist for almost every American because the Supreme Court recognized them as so substantially significant that the state or federal government could not interfere with them. We have enjoyed them with the expectation that they would always exist.

Abortion States Map New HPNEW — The Guttmacher Institute, a New York-based pro-choice research organization, reported last year that 22 states already have anti-abortion laws that would kick in as soon as Roe v. Wade falls, with some states among them whose laws were passed pre-Roe (before 1973), long before the era of today’s divisive politics and passionate protests by the populace of affected females (and male partners) alike.

Photo taken from: The New York Post

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Now, with the right to abortion overturned, other rights that were recognized by the Supreme Court in the mid-20^th century are subject to reinterpretation. Justice Thomas in his concurring opinion writes, “in future cases, we should reconsider all of th[e] Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous’… we have a duty to ‘correct the error’ established in those precedents.” Dobbs v. Jackson Women’s Health Organization, 19-1392, 597 U.S. ___ (in-text citations not included).

Furthermore, everyone will be affected by the Dobbs decision – not just people who can get pregnant. We are starting to see the impact play out in states with abortion trigger laws. A trigger law is a legislative scheme that is triggered when something happens – like the overturning of Roe v. Wade.

For example, 13 states have had a law designed to be triggered when/if Roe v. Wade was overturned, including: Missouri, Kentucky, Texas, Mississippi, Louisiana, Idaho, Arkansas, Oklahoma, North Dakota, South Dakota, Tennessee, Utah, and Wyoming. These laws either totally outlaw abortion or excessively limit when people can receive abortion care.

Trigger laws have created a confusion of patchwork laws, sometimes overlapping with restrictive bans and pre-existing laws on abortion care. Pre-existing laws include laws that have laid dormant and unrepealed from before Roe v. Wade was decided. For example, in Texas, there is a trigger law, a pre-existing law, and a restrictive ban on abortion. Now, Texas courts are hearing whether the new law, the trigger law, or the pre-existing law is controlling. It is a mess, among it all are people trying to receive potentially lifesaving abortion care.