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The Path to Dobbs: The Supreme Court and Abortion Rights

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The Path to Dobbs: The Supreme Court and Abortion Rights

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and held that there is no constitutional right to abortion. This program will trace the path toward and beyond Roe, including the decisions involving the right to privacy and substantive due process. We conclude with some predictions about the effects of the Dobbs decision for abortion rights and other constitutional rights.

Transcript

- My name is Erwin Chemerinsky. I'm dean and professor at the University of California Berkeley School of Law. On Friday, June 24th, in Dobbs versus Jackson Women's Health, the United States Supreme Court, in a 6-to-3 decision, overruled Roe versus Wade. This is one of the few times in American history that the Supreme Court has taken away a constitutional right. Few cases, at least in recent history, have attracted as much attention as Dobbs. For conservatives, this is a time to be jubilant. Conservatives for decades have urged the overruling of Roe versus Wade. For progressives, this is a time to feel despondent. There seems to be a court intent on overruling so many liberal precedents. What I wanna talk about in this presentation isn't whether the court acted in a desirable or an undesirable manner. What I wanna talk about is what it means for constitutional law. I'm gonna divide my remarks into five parts. I wanna start by discussing the path to Roe versus Wade. Then I wanna talk about the decision in Roe versus Wade. Third, I'll consider the law of abortion after Roe versus Wade. Fourth, of course, I wanna focus on the decision in Dobbs versus Jackson Women's Health Organization. And then finally, I wanna conclude by examining what are the implications of Dobbs for abortion, for reproductive rights, and for other constitutional rights? So we'll begin by talking about the path to Roe versus Wade. I think the story here has to start in the 1920s. From the 1890s to 1936, the Supreme Court was aggressive in interpreting the word liberty in the Due Process Clause to protect rights to contract as well as other fundamental rights. This was the Lochner era, taking its name from Lochner versus New York in 1905. There, the Supreme Court declared unconstitutional the New York law that limited the number of hours that bakers could work. The Supreme Court said that freedom of a contract was a basic right under the liberty of the Due Process Clause, and a law limiting hours that bakers could work infringed freedom of contract. As part of this era, the court also used the liberty of the Due Process Clause to safeguard other rights that were not enumerated in the Constitution as fundamental. In two cases in the 1920s, the court interpreted the word liberty in the Due Process Clause to enact the right of parents to control the upbringing of their children. One of these cases was Meyer versus Nebraska. It involved a Nebraska law adopted during World War I that prohibited the teaching of the German language. The United States Supreme Court declared this unconstitutional as infringing the right of parents to control the upbringing of their children. Today we might think of the law as unconstitutional, as infringing freedom of speech. But the free speech clause of the First Amendment hadn't yet been incorporated into the 14th Amendment. It didn't yet apply to state and local governments. Instead, the court in powerful language said part of the liberty that everyone possesses, like parents possess, is to control the upbringing of their children. Just a couple years later, the court applied this in Pierce versus Society of Sisters. It involved an Oregon law that prohibited parochial school education. The Supreme Court declared this unconstitutional. Today, it would likely be declared unconstitutional for infringing free exercise of religion. But the free exercise clause hadn't yet been incorporated and applied to state and local governments. Once more, the Supreme Court spoke of a right of parents to control the upbringing of their children. The court said this includes the right of the parent to send the child to religious schools. The Supreme Court, in the years that followed, continued to use liberty of the Due Process Clause, the Equal Protection Clause, to safeguard aspects of privacy and autonomy. The court did so even for rights that were not enumerated in the Constitution. Skinner versus Oklahoma was a key case in 1942. Skinner involved an Oklahoma law that imposed involuntary sterilization on those who'd been three times convicted of a crime involving moral turpitude. The Supreme Court declared this unconstitutional. Justice William Douglas wrote the opinion for the court. He talked about how people have a fundamental right to choose whether to procreate. Now, the court used equal protection here rather than due process. But what's important is that the court found a right, the right to procreate, to be fundamental, even though it wasn't enumerated in the Constitution. This was actually a dramatic reversal from what the court had done just 15 years earlier in Buck versus Bell. In that case, infamously, tragically, the court had upheld a Virginia law that imposed involuntary sterilization on those who were perceived as having mental disabilities. The court didn't overrule Buck versus Bell and Skinner versus Oklahoma. But the court implicitly, clearly showed that Buck versus Bell was no longer a good law. The court spoke so powerfully and eloquently about the fundamental nature of the right of individuals to have children. And then in 1972, the court decided Stanley versus Illinois. This involved the right of parents to have custody of their children. Illinois had a law that said if a woman was unmarried and had children, and the woman was no longer able to have custody, if she died or she loses custody, the children put up for adoption. A woman who had three children passed away. The father of those children was not married to the woman, but he sued, and the Supreme Court ruled in his favor, saying a basic right under the liberty of the Due Process Clause, also protected under the Equal Protection Clause is the right of parents to custody of their children. In these cases, the Supreme Court was protecting rights that are not mentioned in the Constitution, but rights that are deemed fundamental. One more case I would mention here, and that's Loving versus Virginia from 1967. It involved a Virginia law that prohibited interracial marriage. It's hard to believe that as recently as 1967, almost 18 states had laws prohibiting interracial marriage. We all remember Loving because it struck this down as race discrimination. But it has to be remembered that another part of the opinion said that the right to marry was protected as a fundamental right under the liberty of the Due Process Clause. So before Roe ever decided, the Supreme Court had held that there are aspects of privacy and autonomy safeguarded by the Constitution. The right to marry, the right to procreate, the right to custody of one's children, the right of parents to control the upbringing of their children. These of course are the foundation for the court in Roe versus Wade saying that the right of women to choose whether to terminate their pregnancies is protected under the liberty of the Due Process Clause. Still talking about what went on before Roe versus Wade, even more basic to it, were a couple of cases about the right to purchase and use contraceptives. The first of these was Griswold versus Connecticut in 1965. Connecticut had a law that prohibited the sale, distribution, or use of contraceptives. It's a law that was rarely enforced, but it had long been on the books. Four years earlier in 1961, the court had before it the case Poe versus Ullman. That was a challenge to the same Connecticut law. It involved married couples where pregnancy would've been a great danger to the woman's life. It involved doctors bringing challenge on behalf of their patients. The Supreme Court dismissed Poe versus Ullman on rightness grounds. The court said no one has been prosecuted under this law for decades. Contraceptives are widely available in Connecticut. The case is not right. After this, the head of a Planned Parent clinic in New Haven, Connecticut went on the Yale University campus and openly distributed samples of contraceptive foam. He wanted to be arrested. He wanted to be prosecuted. He wanted to create a test case. And that's exactly what happened. In Griswold versus Connecticut, the Supreme Court, in a 7-to-2 decision, declared unconstitutional the Connecticut statute. Justice William Douglas wrote the opinion for the court. He said that privacy is protected, quote, "under the penumbra of the Bill of Rights." He said many provisions of the Bill of Rights have aspects that deal with privacy. The First Amendment, the Third Amendment about having soldiers quartered in the home, the Fourth Amendment about searches and seizure, and so on. He says, "From the emanations of these rights, there's a penumbra. Privacy is in the penumbra." And he found that the Connecticut law violated the right to privacy. Now, it's interesting that the court did not find the right to privacy under the liberty of the Due Process Clause. I think there's a historical explanation for that. Justice Douglas had lived through the Lochner era. Substantive due process, using the liberty of the Due Process Clause to check rights and requiring the government of a sufficient justification had for him, all of the negative connotations of Lochnerism. In fact, he explicitly said the court was not going to follow up on the invitation to use substantive due process, and explicitly said it's 'cause of all of the negative connotations of Lochnerism. But Douglas finding privacy in the penumbra of the Bill of Rights in its emanations was much criticized. One commentator wrote at the time that Douglas was like a cheerleader skipping through the Bill of Rights, saying, give me a P, give me an R, give an I, and found privacy in the penumbra of the Bill of Rights. The very notion of penumbras and emanations is something that was ridiculed. Moreover, the court didn't really avoid substantive due process at all. How are the Bill of Rights provisions applied to state and local governments? It's through the liberty of the Due Process Clause of the 14th Amendment. And the government can't infringe those rights without an adequate justification. That is substantive due process. I've often suggested to my students that I think that the court in Griswold versus Connecticut provided a poor foundation for the right to privacy by finding it in penumbras and emanations. As I said, Justice Douglas then found that the Connecticut law infringed the right to privacy. It's worth focusing on why he found such an infringement. He said that we wouldn't want police, and I'm quoting here, "searching the marital bedroom for telltale signs of the use of contraceptives." Privacy can mean many things. It can be about freedom from intrusion by the government. That's especially with the Fourth Amendment concerns. It can be about informational privacy, or concern with data banks maintained by the government. Or it can be about autonomy, the ability of people to make crucial decisions for their own lives. The court in its language in Griswold is focusing on privacy in terms of intrusion, searching the marital bedroom. Privacy in terms of information, looking for telltale signs of the use of contraceptives. But that's not what this case was about. No married couple was being prosecuted for using contraceptives. There's no police search for contraceptives. What this case was about was autonomy, the ability to choose whether to have a child or not. And that's what Justice Douglas's opinion doesn't focus on. Justice Goldberg wrote a concurring opinion drew by Chief Justice Warren and Justice Brennan. Justice Goldberg said the Ninth Amendment to the Constitution is important. The Ninth Amendment says the enumeration of some rights of the Constitution shall not be taken to deny or disparage the existence of other rights. Justice Goldberg said the Ninth Amendment is not a repository of rights. Rights aren't protected under the Ninth Amendment. The Ninth Amendment is an indication that it's permissible for the court to safeguard rights even without the text of the Constitution. He said courts should look to history and tradition ensuring the content to rights. And these justices would've found that the Connecticut law violates privacy based on how it's traditionally been defined. A couple of justices dissented, Justice Black and Stewart. They said there's nothing about privacy in the Constitution, therefore this should be a matter left to the legislature. But Griswold versus Connecticut is a crucial foundation for what the court subsequently did in Roe versus Wade. One other case about the right to purchase and use contraceptives that came between Griswold and Roe. It was Eisenstadt versus Baird in 1972. It involved a Massachusetts law. It prevented unmarrieds from having access to contraceptives. Marrieds could have contraceptives, but only through a pharmacy. And as Massachusetts, taking literally the court's holding in Griswold, by protecting the right of married couples to have access to contraceptives. The Supreme Court declared the law unconstitutional. Justice Brennan wrote the opinion for the court. And he said it's the right of every individual, married or single, to choose whether to bear or beget a child. So unlike Griswold, Eisenstadt focuses on the right to purchase and use contraceptives as a fundamental aspect of autonomy. It's the autonomy of individuals that decide whether or not to procreate. It's notable that when the court decided Eisenstadt versus Baird, already on the court's docket was Roe versus Wade. My sense is that Justice Brennan wrote the language I just quoted with Roe in mind. Well, this was what occurred prior to Roe versus Wade. I think this often gets ignored. There's often a sense that Roe emerged full cloth without any foundation in constitutional law. Whether one agrees or disagrees with Roe, it's obvious that the Supreme Court had been protecting rights of autonomy, including reproductive autonomy, before the court got to Roe. So I wanna move to the second part of my remarks and talk about the decision in Roe versus Wade. The case actually came to the Supreme Court in October term, 1971. But the justices decided not to resolve the matter then, but to have it re-argued the following year. There were only seven justices on the court in October term of 1971. Two appointees, Lewis Powell and William Rehnquist, had not been confirmed when Roe was argued. The justices decided better to have the case heard and decided by a full complement of nine justices. The case was re-argued in October term, 1972. It was decided in January 1973. When the court decided Roe versus Wade, abortion was illegal in 46 of 50 states. There were only four states that allowed abortion at that time. Of the 46 states that prohibited abortion, there were a couple of different kinds of laws. One, and it was about half the states that outlawed abortion, was a law that prohibited virtually all abortions. There'd be an exception for the life of the woman, but that was about it. About half the states had adopted what was thought to be a more progressive version of the anti-abortion laws. This had been posed by the American Law Institute in the Model Penal Code, and this had an exception that would allow abortion in a case of rape or incest, or if the health of the woman was in danger. Roe versus Wade came from Texas. Texas prohibited virtually all abortions. Jane Roe, her real name was Norma Jane McCorvey, was pregnant, in her first trimester of pregnancy, and brought a challenge to the Texas law. Now, obviously by the time the Supreme Court decided the case in January 1973, she was no longer pregnant. Texas said to the court dismiss the case as moot. But the Supreme Court noted that Roe could become pregnant again in the future, that this fit within the classic exception to the Mootness Doctrine for wrongs capable of repetition, but evading review. She could become pregnant in the future. And inevitably the time for human gestation is shorter than the time for human litigation. This would then never be able to resolve by the court. The Supreme Court, in a 7-to-2 decision, declared the Texas law unconstitutional. Justice Harry Blackmun, when he was appointed to the Supreme Court by President Richard Nixon, wrote the opinion for the court. The other Nixon appointee Warren Burger was in the majority. There were only two dissenters, justices Byron White and William Rehnquist. Justice Blackmun, writing for the court, said that the liberty of the Due Process Clause protects the right to privacy. Unlike Griswold versus Connecticut, he didn't focus on penumbras and emanations. He said under the liberty of the Due Process Clause, fundamental rights are protected. And this includes key aspects of privacy and autonomy. He said that laws that prohibit abortion infringe a woman's right to privacy. To force a woman against her will is an infringement of privacy, to force a woman to continue a pregnancy to term when she doesn't want to do so is a limitation on her bodily autonomy. The court said that it's not gonna answer the profound and difficult question of when human life begins. Instead, the court said that up until the time of viability, when the fetus could survive outside the womb, the state cannot prohibit abortion. Because this is a fundamental right, the court used strict scrutiny. And the court said the government has a compelling interest only at viability, when the fetus can survive on its own outside of the woman's body. The court divided pregnancy into three trimesters, each of about equal length. The first trimester, then about the first three months of pregnancy, the court said that the government can regulate in only a very limited way that the choice of abortion is left to the woman and her doctor. The court said second trimester abortions were more dangerous to the woman, and therefore there could be regulations to protect her health. And in the third trimester, after viability, the government could prohibit abortions, but only if necessary to protect the woman's life or health. As I said, there were two dissenting justices, White and Rehnquist. They said that the Constitution is silent about abortion. The issue should be left to the political process. Now, the court had many options in Roe versus Wade. It might have said that human personhood begins at conception, and laws that allow abortion are unconstitutional. It didn't do so. It might have said that abortion is left to the political process. That's what the dissent wanted, but the majority didn't do so. The court might have said that laws that prohibit abortion discriminate against women, they violate equal protection. Justice Ginsburg in a speech later said this would've been a preferable approach. The court might've said that a woman has bodily autonomy and should be able to remove the fetus at any point in time. But that's not what the court did. The court instead, as I pointed out, said prior to viability, the woman has the right to terminate the pregnancy. After viability, the state can prohibit abortion, except where necessary to protect the woman's life or health. If one goes back to January 1973, one would be surprised that Roe was not particularly controversial at the time. Richard Nixon, a Republican, was president. He did not condemn the decision. The Republican platform in 1976, when Gerald Ford ran for president, did not condemn Roe versus Wade. It really wasn't until 1980 when Ronald Reagan ran for president and especially wanted to enlist the evangelical Christian voters that abortion became a major issue for the Republican Party. And of course it's become ever more so since. Let me move to the third part of remarks and talk about the law of abortion after Roe versus Wade, prior of course, to the Dobbs decision. The composition of the Supreme Court changed over time. President Ronald Reagan got to appoint three justices to the court, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy. President George H.W. Bush got to appoint two justices to the court, Clarence Thomas and David Souter. Many thought that by 1992, these justices would be a majority to overrule Roe versus Wade. And the case that was crucial in this regard was Planned Parenthood versus Casey in 1992. It involved a Pennsylvania law. The Pennsylvania statute actually did not prohibit abortions. But the Pennsylvania statute imposed many restrictions with regard to abortion. The government, the United States Government, and this is the George H.W. Bush administration, urged the court to use this as the occasion for overruling Roe versus Wade. The deputy solicitor general, man by the name of John Roberts, was the primary author of a brief urging the court to overrule Roe versus Wade. We now know that when the justices heard oral arguments in Casey, and then met in their private conference, the initial vote was to overrule Roe versus Wade. The initial vote was to say that laws regulating abortion upheld so long as they met a rational basis test. But sometime between that conference and the release of the decision in late June, the Supreme Court ended up coming out the other way, particularly Justice Anthony Kennedy changed his mind. Instead of being a vote to overrule Roe, he was a vote to reaffirm Roe. In a 5-to-4 decision, the Supreme Court reaffirmed Roe versus Wade. There was an unusual joint opinion of Justices O'Connor, Kennedy, and Souter. They stressed the importance of stare decisis, of the court following precedent. They noted how Roe versus Wade had been the law for 19 years. They changed the law with regard to abortion. Whereas Roe versus Wade had used strict scrutiny, they said no longer was strict scrutiny to be used for abortion rights. They said government regulation of abortion would be allowed unless it placed, quote, undue burden on the right. They said, a law is an undue burden if it has the purpose or effect of impeding access to abortion. They discarded the trimester distinctions. They noted how, because of advances in neonatal technology, the time of viability had gotten earlier. At the time of Roe it was about 28 weeks. At the time of Casey was about 24, 25 weeks. But the court in this joint opinion was clear. It said it was, I'm quoting, "Reaffirming the essential holding of Roe versus Wade. States cannot prohibit abortion before viability. After viability, a state could prohibit abortion, except if necessary to protect a woman's life or health." Justices Blackmun and Stevens concurred in the judgment. They said they would continue to use strict scrutiny in evaluating abortion rights. But ultimately, of course, they agreed to reaffirm Roe versus Wade. Justice Scalia wrote an angry dissent. He said, "Roe was wrong when it was decided, and it should be overruled. The issue of abortion should be left to the political process." In the years between 1992 and 2022, the Supreme Court developed an elaborate body of law with regard to abortion rights. The court applied the undue burden test. Let me give you several examples in terms of how the law developed. One example is the court said there could be waiting periods imposed before a woman could receive an abortion. Planned Parenthood versus Casey said that after a woman requests an abortion, before one could be performed, it was permissible for a state to require a 24-hour or a 48-hour waiting period as part of informed choice. The court upheld a federal law prohibiting a specific abortion procedure. In Gonzales versus Carhart in 2007, the Supreme Court upheld the federal Partial-Birth Abortion Act, a federal law that prohibited a specific form of abortion. But the court also struck down some restrictions on abortion. These were often called targeted restriction of abortion providers. Key case here was just six years ago, Whole Woman's Health versus Hellerstedt. It involved a Texas law that said in order for a doctor to perform an abortion, the doctor had to have admitting privilege to a hospital within 30 miles. It also said any facilities where abortions were performed, even if they were only medically induced abortions, had to have surgical quality facilities. The Supreme Court, 5-to-4 decision, declared this, it was actually 5-to-3 'cause it was the year Justice Scalia died, declared this unconstitutional. Justice Breyer wrote the opinion for the court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Breyer said in deciding whether a state law is an undue burden, it's essential to balance the benefits in protecting a woman's health as opposed to the burdens that are created for the access to abortion. The court said the Texas law had no identifiable benefits in terms of women's health. If a woman was having an abortion and had complications that required her to go to a hospital, the doctors at the hospital will provide treatment. No need for the doctors to have admitting privileges. And there's no need for surgical quality facilities. Abortions are a very safe medical procedure, far safer, Justice Breyer pointed out, than childbirth. There was a strong dissent that urged the overruling of Roe versus Wade. Four years later, in 2020, in June Medical Services versus Russo, the Supreme Court reaffirmed a woman's health. Louisiana adopted a law that was identical to the Texas statute that had been struck down. In fact, Louisiana just copied it verbatim. The Supreme Court, 5-to-4, found it unconstitutional. Breyer wrote the opinion, joined by Ginsburg, Souter, and Kagan. Chief Justice Roberts concurred in the judgment and said that the Fifth Circuit was required to follow Supreme Court precedent, that precedent matters, and that the court was gonna follow its recent precedent. Four justices though, Thomas, Alito, Gorsuch, and Kavanaugh, made clear that they would vote to overrule Roe versus Wade. There were many other cases and issues with regard to abortion rights in the years between Roe and Dobbs, in between Casey and Dobbs. The Supreme Court consistently held that the government never had a constitutional obligation to pay for abortions or provide facilities for abortions. These were cases like Maher versus Roe that said that Medicaid funding could be denied for abortions. Or Harris versus McRae that upheld the Hyde Amendment that said that the government could never, federal money could never be used for abortions unless the woman's life was in danger. At the same time, the Supreme Court struck down spousal consent and notification requirements. Planned Parenthood versus Danforth involved a Missouri law that said before a married woman have an abortion, she needed to get consent from her husband. The Supreme Court said the right to abortion belongs to each woman, and no one, including the husband, could have veto power. In Planned Parenthood versus Casey, the court declared unconstitutional part of the Pennsylvania law that said that before a married woman have an abortion, notice had to be given to her husband. Court's stressing that the right to abortion belongs to each woman. An elaborate body of law developed in terms of when could states require parental notice and/or consent for an unmarried minor's abortion. The Supreme Court ultimately said that a state could require parental notice and/or consent for an unmarried minor's abortion, but only if it created an alternative procedure where a minor could obtain an abortion by going before a judge, and the judge could approve the abortion either by fine or the minor's best interest, or including that she's mature enough to decide for herself. I go through all of these cases, albeit relatively quickly, to show that an enormous elaborate body of law developed in terms of when the state could and could not regulate, when a government action was an undue burden, and when it was permissible. All of this law now is irrelevant. All has been overruled. And this brings me to the fourth part of my remarks, the core of what I wanna talk about, the Supreme Court's decision in Dobbs versus Jackson Women's Health on Friday, June 24th. The case involved Mississippi law that prohibited abortions after the 15th week of pregnancy. As the case was litigated, the issue was can a state prohibit abortions prior to viability? Roe, Casey, set line at viability. But what about here, a law that prohibits abortions prior to viability, prior to the 23rd or the 24th week of pregnancy, when science and medicine tell us that fetuses are viable? The Federal District Court and the United States Court of Appeals for the Fifth Circuit declared the Mississippi law unconstitutional. Roe, Casey say states can't prohibit abortions prior to viability, but this law prohibits abortions after the 15th week of pregnancy, significantly before viability. The composition of the Supreme Court changed even between June Medical Services in 2020 and when the court granted a review and then heard Dobbs. Most important, in September of 2020, Justice Ruth Bader Ginsburg died. In October of 2020, her successor, Justice Amy Coney Barrett, was confirmed. As soon as Barrett was confirmed, it was clear that there were five, maybe six votes to overrule Roe versus Wade. Justices Thomas and Alito had repeatedly called for the overruling of Roe versus Wade. Justice Gorsuch had been consistently critical of substantive due process, taking rights under the liberty of the Due Process Clause. Justice Kavanaugh, when he was a judge on the D.C. circuit, wrote an opinion where he clearly questioned Roe versus Wade. And Amy Coney Barrett as a law professor had signed a strong statement saying that Roe versus Wade was wrong. In her academic writings, it indicated that she disagreed with the decision. As a judge on the United States Court of Appeals through the Seventh Circuit, she upheld an Indiana law regulating abortion. So when the Supreme Court granted review in Dobbs in the spring of 2021, it seemed to me that there was likely a majority to overrule Roe. And that's without even getting to Chief Justice John Roberts. Until the case of June Medical Services versus Gee in 2020, Roberts had never voted to strike down any abortion regulation. Everything we knew about him would believe he might be a vote to overrule Roe. Mississippi used this case as the occasion to urge the Supreme Court to overrule Roe versus Wade. The Supreme Court did exactly that. It was a 6-to-3 decision. Justice Alito wrote the opinion for the court. Now, there were five justices majority. Alito's opinion was joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts concurred in the judgment. He agreed with the upholding of the Mississippi law, but on different reasons. And there was an unusual joint dissent of Justices Breyer, Sotomayor, and Kagan. One thing that was unusual was that on Monday, May 2nd, "Politico" published a copy of Justice Alito's draft opinion. I cannot think of another instance where a draft opinion from the Supreme Court was leaked. There are occasionally rumors about what the court's going to do. After decisions come down, there have often been instances where there's revelations about the deliberative process of the court. But an entire draft opinion being released was unprecedented. The court confirmed that it was actually, and was an accurate draft opinion. The final opinion had only minor changes from the draft. It is very strongly worded. The court says that Roe was egregiously wrong and exceedingly poorly reasoned. Justice Alito said that a right should be protected by the court only if it's in the text of the Constitution, or it was part of the original meaning, or there's a long unbroken historical tradition. Justice Alito said there's nothing in the text of the Constitution about abortion rights. It wasn't part of the original understanding when the Constitution was ratified, or when the 14th Amendment was adopted. And he said there's no long, unbroken tradition. Throughout American history there have been laws prohibiting abortion. He said as recently as 1973, 46 states prohibited abortion. Says that it shows that Roe was wrong. He says stare decisis is not an inexorable command. He said courts can overrule decisions. He said especially so when they were poorly reasoned, and he believed that Roe versus Wade was poorly reasoned. He said when it comes to government regulation of abortion, only a rational basis test is to be used. Government regulation is to be upheld so long as it is rationally related to a legitimate government purpose. I stress the language from Justice Alito's opinion that Roe was egregiously wrong and exceedingly poorly reasoned. As I pointed out earlier, Roe was a 7-to-2 decision. It was written by a Republican appointed to court, Harry Blackmun. Perhaps even more striking, I talked about Planned Parenthood versus Casey. It was a 5-4 decision to reaffirm Roe versus Wade. The five justices in the majority in Planned Parenthood versus Casey all had been appointed by Republican presidents. It was President Nixon who appointed Justice Harry Blackmun. It was President Ford who appointed Justice John Paul Stevens. It was President Ronald Reagan who appointed Sandra Day O'Connor and Anthony Kennedy. It was President George H.W. Bush who appointed Justice Souter. Nonetheless, the Supreme Court in Dobbs says that those cases were plainly wrong and should be overruled. Chief Justice Roberts wrote an opinion concurring in the judgment. He said that the court here should uphold the Mississippi law and allow states to prevent abortions after the 15th week of pregnancy. There's no need for the court to rule on whether states can prohibit abortions earlier than that. It wasn't the issue before the court. So there's no need for the court here to decide whether to overrule Roe versus Wade. As I said, there was a strong dissenting opinion jointly written by Breyer, Sotomayor, and Kagan. These justices deeply lament the court's decision. They defend the holding and reasoning in Roe versus Wade. They object to overruling precedent and ignoring stare decisis. But they especially talk about what the effects of this ruling will be on the lives and health of women. So the bottom line is that the Supreme Court, in a 6-to-3 result, upholds the Mississippi law, and with five justices in a majority opinion, overruling Roe versus Wade. It's worth taking a moment before getting the implication of Dobbs to talk about one other abortion case that was on the Supreme Court's docket this term. It certainly was a preview of what the court was likely to do, but it has implications to go to other abortion regulations and with regard to federal jurisdiction more generally. The case was Whole Woman's Health versus Jackson. It involved a Texas law, SB 8, that prohibits abortions after the sixth week of pregnancy. It's crucial to recognize that when the law went into effect on September 1st, it was blatantly unconstitutional. Roe versus Wade was still the law. Roe said that states can't prevent abortions prior to viability. Viability is the 23rd or 24th week of pregnancy. What makes the Texas law unusual is it's not enforced by government officials. It's not enforced by the district attorney or the attorney general of the state. It's enforced by civil suits. A doctor, or anyone who quote, aids or abets an abortion, can be sued for money damages. And the recovery is $10,000 for each violation. Whole Woman's Health, a reproductive healthcare facility in Texas, brought a challenge to this and sought a preliminary injunction. The Federal District Court granted them the preliminary injunction. The Fifth Circuit lifted the preliminary injunction. And Whole Woman's Health went to the Supreme Court for an emergency preliminary injunction before the law went into effect on September 1st. The court, 5-to-4, denied that preliminary injunction, and allowed the Texas law to go into effect. The five in the majority, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. I remember when this happened, saying that this seemed a clear indication that there were the votes now to overrule Roe. Otherwise, why wouldn't they enjoin a law that was blatantly unconstitutional? The Supreme Court scheduled oral arguments for November, and they decided Whole Woman's Health versus Jackson in December. In a 5-to-4 decision, the Supreme Court said state officials can be sued for injunctive relief only if they play a role in enforcing the law. Justice Gorsuch wrote for the court. Chief Justice Roberts joined the liberals, Breyer, Sotomayor, and Kagan, in dissent. Justice Gorsuch said state officials can be sued for an injunction only if they play a role in implementing the law. If the law just authorizes suits for money damages, then there can't be a suit for an injunction. To be sure, a defendant who sued can argue that the law is unconstitutional, but no one can go to court for an injunction. To see the implications of this, let me focus on a question that Justice Kavanaugh asked at oral argument. He asked the solicitor general of Texas, Judd Stone, could a state adopt a law that creates civil liability for performing a same-sex wedding, and say that anyone who does so is liable for $100,000? Could there be a suit to enjoin that law? And the solicitor general of Texas said that there could be no suit to enjoin the law. If there's someone courageous enough to violate it, who wants to argue as defense it's unconstitutional, then it could come to the court. But if the law only authorizes civil suits, that there can't be a lawsuit to enjoin it. California governor Gavin Newsom, his proposed legislation, to create civil liability for gun owners. There seems no stopping point for this. I mention this here 'cause obviously Roe's in the abortion context. It was a precursor to Dobbs. It did give us an indication that there were five votes to overrule Roe versus Wade. But I also think it's significant because as states adopt laws restricting abortion in the future, so long as they only authorize civil suits for money damages, there cannot be any laws seeking injunctive relief. Well, this then brings me to the fifth and final part of our remarks, the implications of Dobbs. Let me start with what it's likely to mean with regard to abortion rights. The Supreme Court in Dobbs said the issue of abortion is now left to the political process. The court specified that it thought that this meant it was left to each state to decide for itself. States can, like California, New York, Connecticut, Illinois, allow abortions. Or states can prohibit abortions, some or all abortions. Oklahoma, for example, has a law that prohibits abortions from the moment of conception. It has no exception for rape or incest. Alabama has a law that prohibits abortions from the moment of conception. Other states might have laws that prohibit abortion like Texas, after the sixth week of pregnancy. Or the Mississippi law here was after the 15th week of pregnancy. States will be able to decide for themselves. It's estimated that slightly over half the states will have laws that prohibit all or virtually all abortion. There's about a dozen states that had laws that said if Roe was ever overruled, abortion will become illegal. These were so-called trigger laws. Other states had old laws on the books. A Wisconsin law that prohibited abortion has long been on the books and is said to go into effect in light of the court's decision in Dobbs. But other states will adopt new laws restricting abortion. At the same time, there are many states that will protect abortion rights. In California, the California Supreme Court has interpreted the California Constitution and the right to privacy in the California Constitution as protecting a right to privacy. Each state will decide for itself. What are the practical consequences of this? The reality is that women in states where abortion is illegal, if they have resources, will travel to states where abortion is permitted. Before New York became the first state in this country to legalize abortion, about 25% of the abortions in England were performed on American women. It wasn't poor women who were going to England for abortions. Women with resources will travel to places like California, New York, and get an abortion. But poor women, teenagers, will again, face the choice between an unwanted pregnancy and an unsafe back alley abortion. Prior to Roe, there was much higher morbidity and mortality from illegal abortions among women of color, Black women and Latinas. That's not a surprise given the correlation of race and poverty in our society. We are likely to see that again. I expect that some states will adopt laws that try to prohibit women from leaving the state for an abortion. There's a bill right now in the Missouri legislature that will make it a crime for women to cross state lines to get an abortion. This is sure to be challenged. I think there's a strong argument that such a law violates freedom of travel. The Supreme Court has declared that the right to travel is a fundamental right. Most of those cases though involve the right to travel for purposes of interstate migration, the right to move from one state to another. There's not been a situation quite like this, but the court might invalidate these laws on the basis of the right to travel. In some ways, what the court has done is return us to what the law was before 1973. But there are differences with regard to abortion from what it was before 1973. On the one hand, there's now medically induced abortions. About half of the abortions in the United States are medically induced rather than a surgical procedure. Woman takes two drugs that end the pregnancy, that in essence induce a menstrual period. Now, it's much harder to regulate medical-induced abortions. Pills can be shipped across state lines. There can be telemedicine. I think states that prohibit abortion are going to try to outlaw this and try to prohibit women from taking drugs in the state that would end the pregnancy. The question is, does the FDA's approval of this medication preempt the ability of states to prohibit it? Might the FDA be more explicit in preempting the ability of states to regulate medically induced abortions? Might Congress try to provide more protection for these pills to be shipped across state lines in medically induced abortions? On the other hand, I think we're gonna see much more aggressive prosecutions with regard to abortion than prior to 1973. It was relatively rare before 1973 for doctors, or certainly for women, to be prosecuted for abortion. But abortion has become a political issue in a way that it never was before 1973. I think you're gonna see district attorneys trying to make their names by prosecuting doctors and even prosecuting women for having abortions. I think instances where maybe a miscarriage, an ectopic pregnancy that's terminated by a doctor could be a basis for an abortion prosecution. I think that abortion will come to dominate our political system far more than it did before 1973. In 39 states, there are judicial elections of some sort, either direct elections or retention elections. I expect that the dominant issue in many of these states in the judicial elections is gonna be the issue of abortion. State courts can provide more protection of rights under state law. State courts can interpret state constitutional rights that are not in the U.S. Constitution, which will make abortion such a crucial issue in the political process. I think abortion is gonna become an issue in city council elections, state legislative elections, House of Representative elections, senatorial elections. Cities can adopt laws prohibiting abortions. States can do so. Congress can adopt laws protecting or prohibiting abortions. I intentionally said for now the issue is left to the states. But there's certainly a chance of federal legislation. With a democratic president and a democratic congress, there might be an effort to adopt a law creating a national right to abortion. Congress might use its Commerce Clause power to do this. After all, 20 years ago, Congress used its Commerce Clause power to adopt the Federal Partial-Birth Abortion Ban Act prohibiting a specific abortion procedure. Before that, Congress used its Commerce power to adopt the Freedom of Access to Clinic's Entrance Act to protect access to reproductive healthcare facilities. Congress could use its Commerce power, create a national right to abortion. Abortion is economic activity. It's a service that's bought and sold. And taken cumulatively, there's substantial effect on interstate commerce. I think though that such legislation is unlikely to be adopted. I think that the Republicans will filibuster in the Senate any such proposed legislation, and there's no indication the Democrats have the votes to change the filibuster rules. Correspondingly, the next time there's a Republican president and a Republican Congress, they might adopt a law that prohibits all abortions in the United States, preempting laws like California's or New York's or Illinois that allow abortion. And maybe the Republicans will be willing to change the filibuster rules to do this. In the short term, abortion is left to the states. And so I think you'll see litigation in state courts, so the state constitutions put the right to abortion. You'll see efforts at the states to ban or to allow abortion. Think, as I say, it's gonna be the dominant political issue for a long time to come. What about other reproductive rights? What are the implications of Dobbs here? Well, let me start with an obvious example. The morning after pill. It's taken by a woman after sex that might have led to conception, and it would terminate a pregnancy. I expect that states that prohibit abortion are willing to outlaw the morning after pill, saying that it acts to induce an abortion. What about methods of contraception that act after conception? Think your intrauterine devices, IUDs. I expect that some states will say that they are illegal because they act to induce an abortion, to end a pregnancy. I expect we're gonna see regulation of in vitro fertilization. Usually more embryos exist than can be implanted. Well, for those who believe that life begins at conception, not implanting those embryos is a form of abortion, a destruction of human life. I expect some states may adopt laws that say that all embryos have to be implanted when there's in vitro fertilization, which will make the practice practically not viable. It won't be possible to implant all the fertilized embryos. What about for other constitutional rights? Remember as I pointed out that Justice Alito said that the only rights that should be protected are those that are in the text of the Constitution or part of the original understanding, or there's a long unbroken tradition. Think of all the rights that I mentioned earlier that are protected under privacy, even though they don't meet these criteria. I mentioned the right to marry, the right to procreate, the right to custody of one's children, the right to keep the family together, the right of parents to control the upbringing of the children, the right to purchase and use contraceptives. There's also the right of consenting adults to engage in private, consensual, same-sex sexual activity. There is the right of competent adults to refuse medical care. None of these are in the text. None of these were part of the original understanding of the Constitution. For none is there a long unbroken historical tradition. Justice Thomas wrote a concurring opinion on Dobbs where he said now the court should end all substantive due process rights. He specifically said the court should overrule Griswold versus Connecticut that safeguarded a right to purchase and use contraceptives. He said that the court should overrule Lawrence versus Texas that protected a right of consenting adults to engage in private same-sex sexual activity. He said the court should overrule Obergefell versus Hodges that protected the right to same-sex marriage. What will be the implication of Dobbs for all of these rights in the future? I don't think the current Roberts court would've decided Griswold or Lawrence or Obergefell the same way they came out. If it's a court that has little regard for precedent, might it be willing to overrule these decisions? So it is for all of these reasons that Dobbs is enormously important. As I said at the outset, this is one of the rare instances in American history that the Supreme Court has ever taken away a constitutional right. It'll have a huge effect on our political system. It will have an enormous effect in terms of women's lives. And it'll have a profound effect on constitutional law for years to come. Thank you so much for listening.

Presenter(s)

EC
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
The University of California, Berkeley, School of Law

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