Making Sense of Dobbs v Jackson Women’s Health Organization
As you know by now, on May 2, 2022, Politico shared an unreleased opinion written by Justice Alito relating to the Mississippi abortion ban. While most activists and abortion providers had been steeling ourselves for Roe being greatly eroded or even overturned, what we didn’t expect is the sledgehammer to the constitution that came. Folks, understandably, have a lot of questions. We’re going to try to answer the questions as best we can.
Is the decision here a final decision?
No. The United States Supreme Court (SCOTUS) has confirmed it is a real draft, but the decision could change before it is issued in June. Our answers below are based on this draft, but the draft goes much further in overturning Roe (with greater implications) than necessarily required to overturn Roe. Other justices could moderate the opinion so that it is more focused on only abortion.
Basically, the state of Mississippi asked to overturn Roe v. Wade. The case was appealed to the US Supreme Court (SCOTUS) in 2020 and was argued on December 1, 2021. Based on questions asked during oral arguments, most believed SCOTUS would severely restrict Roe’s protections relating to abortion access. However, the complete overturning of any case to take away constitutional rights is so unprecedented that a decision of this breadth was not necessarily expected. When SCOTUS used the overturning of Roe to also put all implicit constitutional rights in jeopardy, it was shocking to most court watchers. We’ll get into more of that in response to the questions below.
What happened to Roe? How can it just go away?
As the highest court in the country, the US Supreme Court has no binding obligation to decide any case a certain way. However, the Supreme Court typically considers previously decided cases to be subject to stare decisis which is where it follows historical precedent — in other words, cases previously decided by SCOTUS are followed by SCOTUS There have been instances where SCOTUS diverges from precedent — for instance, Brown v. Board of Education overturned Plessy v. Ferguson finding that separate but equal was unconstitutional. It gave citizens of the country more rights than they had had previously by requiring that schools be accessible by all, regardless of race.
The Dobbs v. Jackson Women’s Health decision overturning Roe v Wade is unprecedented in SCOTUS history. We can find no other decisions where a court has said “those constitutional rights we said existed? Never mind. They don’t exist.” This SCOTUS doesn’t cite any cases where that has been done either — the cases it lists as demonstrating situations where SCOTUS overturned earlier decisions are all of a different type of case — either they did not deny rights existed, but reinterpreted them for specific circumstances, they expanded rights, or they didn’t deal with constitutional rights at all. This has rocked much of the legal community since the one thing that seemed bedrock was that a SCOTUS would not abandon stare decisis to strip constitutional rights. That principle will be abandoned if this case is issued as it stands.
Does that mean it is unconstitutional for a state to allow abortions?
No — that isn’t what the draft SCOTUS opinion has found. Just because something isn’t protected by the constitution doesn’t mean it can’t be allowed by a law passed by Congress or a state legislature (or a state constitution). There is a difference between something being unconstitutional and something not being protected by the constitution. There is no constitutional obligation for cars to have seat belts. But it isn’t unconstitutional for there to be such a law and Congress did pass such a law requiring seatbelts.
Does the logic of the decision make sense?
Likely no legal observers would have been surprised if SCOTUS had opted for a holding where it found that there was a “legitimate state interest” in banning abortion much earlier in a pregnancy than what has previously been the law. Planned Parenthood v. Casey had already eroded some of Roe v. Wade’s protections and, given SCOTUS’ composition, most expected some continuation of that.
The National Women’s Law Center has put together an excellent analysis of many of the problems with the logic of the decision. Worth a particular emphasis is the notion that the “deeply rooted history” that the decision considers reaching its conclusion ignores the last 50 years of this country’s history since Roe was initially decided. Why approximately 20% of the country’s history simply doesn’t count is never explained. The draft also ignores the much longer history of abortion in this country and that Benjamin Franklin even provided instructions for abortion. Moreover, the draft heavily relies on the work of a man who had two women executed for witchcraft and who was a proponent of marital rape (among other horrible views). And while “ordered liberty” is a concept that other courts have relied on (as it simply recognizes that when living in a society, complete individual freedom must be tempered with the recognition a society needs rules), relying on it as a reason to allow access to abortion to be limited is not well explained.
In short, legal, historical, and medical scholars can all tear apart the logic of the opinion with equal fervor.
So what happens to abortion access now and when a decision is issued in June?
Right now, nothing changes. Before a final decision is issued, you still have the right to access an abortion in all 50 states.
Sources that can help you navigate your state include:
Unless something dramatically changes and SCOTUS changes its majority position, when a final decision is handed down, 26 states are certain or likely to ban abortion right away. If you’re in one of those states and realize in May that you need an abortion that is currently legal in your state, do not delay longer than necessary to seek one. We do not expect the majority position relating to abortion to change, though some language in the opinion could be edited.
Ok, once this is handed down, what happens then if I’m not in one of those 26 states that are certain or likely to ban abortion right away?
If you’re not in one of those 26 states, you should be able to continue accessing abortions the same as you can now. The law in Illinois will continue to protect access to abortions (at least for now), though it may be more difficult to obtain an appointment as surrounding states will likely immediately ban or otherwise limit access to abortions.
States could change their laws between now and June (or after June), but the websites listed above can help you navigate your rights as the information should be updated by the organizations that maintain the websites. Although we do not expect there to be a contraction of abortion rights in Illinois, with an election this fall if an anti-choice governor is elected and if the legislature becomes less pro-choice than it is, the potential exists for laws to change in an unfavorable way.
HOWEVER, if a federal abortion ban is ever passed, your ability to access abortions anywhere in the United States, including in Illinois, could change (regardless of state law). We’ll talk about that more below.
I’m in Illinois. Can I help my friend in Texas get an abortion here? Can I be criminally prosecuted if anyone finds out that I helped?
If you remain in Illinois and don’t travel to Texas and your friend gets an abortion here, you shouldn’t face criminal liability. This is not legal advice, but as a general matter, if you travel to another state and do something legal in that state, you haven’t committed a crime and if you do something legal in the state you live in, you haven’t committed a crime.
However, if you live in Texas and help your Texas friend obtain an Illinois abortion, there may be laws in Texas that apply. Contact an organization from the list above, or a local organization, to ask for advice. We’ll talk later about best practices for seeking out information if you’re in a state with restrictive laws.
Although we used Illinois and Texas as examples here, the general advice regarding criminal issues holds true for other combinations of states.
What about that $10,000 lawsuit thing in Texas?
The law has yet to be fully challenged, but Texas Monthly provides a good guide.
One thing to note is that the “bounty” is a civil suit statute that allows a person to be sued under circumstances where the person suing normally wouldn’t have the right to sue someone (this is called ‘standing’) and where there wouldn’t normally be damages to the person suing.
In general, anyone can sue anyone for anything, but courts will dismiss cases that lack merit early in the process. However, there are fewer protections in place for those sued in civil court than for those prosecuted because our judicial system (in theory) is more concerned with the loss of life or liberty in criminal court than it is with the loss of monetary damages in civil court.
Are there any precautions I should suggest my friend take in a state hostile toward abortion?
Don’t message your friend to talk about precautions. Message history or search history could be found on a cell phone or computer. Location history of a phone can also be used to show a person visited an abortion provider. Health apps may also be used, but search and location history is likely to be more problematic. Erasing an app or deleting a message may not be enough to hide a trail that leads to an abortion provider. In-person conversations with trusted individuals who can help find necessary information, leaving a phone at home when accessing an abortion, and avoiding any mention of an abortion anywhere in writing or digitally are best.
I heard Louisiana is going to make the destruction of a fertilized egg a felony — homicide!?!?! What in the world does this mean for my friend in Louisiana and do I need to worry?
As of May 12, 2022, and during the time we were preparing this article, the bill that you might have heard about was pulled. However, Louisiana may introduce it again or another state might try to pass a similar bill. Our analysis that follows of possible issues illustrates the problems that could arise when states try to take abortion bans further than what we have ever seen before. It is important to understand that if a fertilized egg never implants, a person would never know they are pregnant. Certain forms of birth control can both make it very unlikely that an egg would become fertilized AND that, if fertilized, it would not implant. The lack of fertilization is typically or always the primary means of preventing pregnancy, but it cannot be said with certainty that some fertilized eggs aren’t simply flushed from the body, with no sign of pregnancy.
Whether prosecutors would use a similar bill to prosecute people who use non-barrier forms of birth control (such as the pill, IUDs, or Plan B) for “intent to commit (fertilized egg) homicide” is something no one knows. And perhaps in a final bill, there will be more clarity relating to this. At the moment, the bill hasn’t passed. Bills that could criminalize the use of IUDs or the pill could apply to anyone physically in the state, whether or not they live in the state. That means someone from Illinois who, for instance, visits New Orleans for a weekend could be charged with homicide or conspiracy to commit homicide, or intent to commit homicide if they are sexually active and use a non-barrier form of birth control. It raises the issue that even sexually active individuals who visit states with severely restrictive laws may find they need to research the risks of visiting the restrictive states before visiting.
Criminalizing the destruction of fertilized eggs could also mean the end of IVF in states that are creating severe restrictions. More broadly, IVF and abortion rights are inextricably intertwined.
My religion allows me to get an abortion that my state will ban. Doesn’t that conflict with the 1st Amendment?
Content-neutral laws that do not single out a specific religion have been upheld as enforceable by SCOTUS. There will undoubtedly be test cases, but having a religious basis for being allowed (or even mandated) to have an abortion does not appear to be protected under current law. Justice Alito has argued for expanded religious freedom, but he has not prevailed on those arguments. He is also the author of the majority opinion in Dobbs v. Jackson Women’s Health. We don’t believe anyone is counting on religious freedom changing the scope of religious freedom to allow it to override the impact of Dobbs v. Jackson Women’s Health.
How much worse can this abortion stuff get? Have we reached the bottom?
Unfortunately no. It can get worse. Remember how we said that folks in states that have abortion protections can continue to get abortions? Well, that could change. There are reports that some Republicans are planning for a day when they take control of Congress and the presidency to institute a federal ban on abortion. A federal ban would override state protections unless specific carveouts are included in the federal ban. This is called federal preemption.
What about Plan B? Is it banned? I keep seeing tweets about states banning Plan B
This is all bad, but should we be surprised that this SCOTUS is banning abortion? So many of the appointees are openly hostile to abortion?
From a legal perspective, even knowing that SCOTUS would make it much harder to impossible to obtain an abortion in Mississippi, there were ways this could have been accomplished without an explicit overturning of Roe. SCOTUS, for instance, could have referenced improving outcomes and care for premature births as evidence that a state could have a legitimate interest in banning abortions at a very early point in time. That makes the explicit language overturning Roe more concerning.
What do you mean, more concerning? Isn’t this abortion stuff bad enough?
Well, not to downplay the absolute horror show of the abortion aspect of the decision, but it does get worse. The logic of the opinion applies to a number of implied rights: the right to obtain birth control, the right to privacy in consensual sexual relationships, the right to marry someone of a different race or someone of the same gender, and many more.
What’s more, once SCOTUS abandons stare decisis to strip implied rights, the logic can be extended to anything SCOTUS has found to fall within constitutional rights but which is not specifically stated. For instance, Brown v Board of Education, which barred segregation based on race could be at risk.
However, decisions like Citizens United v. FEC (which allows corporations to engage in political speech) and DC v. Heller (which found that individual citizens have the right to own firearms) could also be overturned once the precedent is set for overturning decisions finding that constitutional rights should be recognized.
I use a birth control pill because I need it for non-contraceptive reasons. I don’t even have sex. Should I worry?
If you’re in Illinois or another reliably blue state, probably not. There does not (yet) seem to be a federal contraceptive ban movement. That doesn’t mean things couldn’t change.
Trying to educate legislators on the problem with a ban before any momentum is gathered in favor of a ban may help. Call your state and local representatives and tell them that such a ban would jeopardize your health.
If such a ban were passed, the ban would likely be appealed to SCOTUS and we don’t know what SCOTUS would do. We also don’t know if the access that Congress has included in the ACA to accessing contraception could be used to help ensure access, at least for those with insurance, even if SCOTUS ultimately finds no constitutional right to contraception. Until we see an actual bill, speculating how things could play out is very difficult. It is reasonable to be concerned that it is a goal of some and to work to ensure that contraception bans fall apart before they gain momentum.
How do we live in a world where there isn’t any kind of clarity regarding constitutional rights?
Setting intentions aside for the moment, a SCOTUS that does not hold as sacred rights found to be implied in the constitution may quickly lose the public’s trust. And our system of government is built on the checks and balances of the judiciary, executive, and legislative branches of government. The judiciary has no self-enforcing empowerment. Its power comes from the belief that it has power — it has no army or budget to impose its will. So can it remain an accepted check and an accepted branch of government if it is seen to be unreliable in a way that strips rights as desired? That remains to be seen. Without it, our system of checks and balances starts to crumble and may fall apart eventually.
It is worth noting that the Koch Brothers and Mercer foundation are heavy supporters of the Federalist Society, which is a pipeline that has been used for the justices we believe will be voting to overturn Roe v. Wade. Koch Brothers aim for a smaller government. And in a terrifying and often overlooked plan, have been working towards a constitutional convention of the states, ostensibly aimed at a balanced budget amendment, but where the constitution as it stands could be completely gutted. Given that the Koch Brothers have been planning for decades for this convention, and those who support equality and equity from our government have not been focused on such a convention, we cannot assume the outcome would be favorable to an equal and equitable society.
So…what do we do?
At all levels of government, we must vote for pro-choice candidates. Jane’s Army is working to do that in Illinois. The more laws we enact protecting abortion access, the more chance we have of holding onto it. And we also vote for candidates who see other civil rights — such as the right to marry who you wish to marry, the right to a private sex life, and the right to access birth control — as paramount. Anti-abortion forces have been working to overturn Roe v. Wade since it was decided nearly 50 years ago and we must be equally committed to long-term work to ensure access to abortion and other civil rights.
We must talk openly and without shame about access to abortion.
We support abortion clinics and providers. Find and support your local abortion fund by entering your address in the National Network of Abortion Fund’s fund locator.
We also recognize that progress made can be lost and our engagement is the only thing protecting us from losing gains we make.
And we have to be realistic that things may get worse before they get better. That doesn’t mean people don’t care — it means that for fifty years, anti-abortion forces worked for this outcome and the reason they got to this point is because they consistently voted with an eye on re-shaping SCOTUS (to gut or overturn Roe v. Wade) as their singular focus. They worked at the state and local levels to set the stage for when it all came together.
Vote. Know who you’re voting for. Encourage others to vote. Explain the stakes. And don’t give up even when it is difficult. Check out our Voting Information Guide to help you make a plan and VOTE!
By Robin Dusek, Policy Director, She Votes Illinois