Roe v. Wade has been overturned by the United States Supreme Court in a 6-3 decision today. The six conservative Justices favored the Opinion (although Chief Justice John Roberts favored the judgment, but not overturning), and the three liberal Justices dissented. In so doing, the Court has ended the federally-protected, Constitutional right to an abortion, returning it to the states and the American people, effectively making abortion illegal in a number of states throughout the country for millions of women.
In fact, 13 states — Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming — have “trigger laws” that will ban abortion in their states within 30 days or less of the decision. All of the laws make exceptions for the life of the mother, most do not include exceptions for rape and incest. The Washington Post notes that seven states, including my state of Ohio, don’t have trigger laws, but courts have previously blocked or struck down their state laws banning most or all abortions. Without Roe, those laws will likely go into effect in Ohio, Iowa, Georgia, Alabama, and South Carolina. Indiana and West Virginia are likely to enact laws banning abortions as well, The Post said.
What does an abortion ban in those states mean in practical terms? Women in such states will need to travel hundreds of miles to access abortion, aside from all sorts of other potential deleterious consequences, including the Court going after other precedents, like Lawrence, Griswold, and Obergefell. Those are the cases, respectively, that a.) ruled sodomy laws (targeted toward same-sex sexual activity) unconstitutional; b.) ruled in favor of protecting married couples who seek contraceptives; and c.) ruled in favor of same-sex marriage.
Not mentioned in Justice Clarence Thomas’s writing was Loving, which protected interracial marriages, but I don’t see why that would be an exception if the others are fair game for overturning those precedents on the basis of correcting so-called “super due process,” or “substantive due process.”
There is also sure to be an effort by Republicans, especially if they regain control of Congress in November, to ban abortion nationwide. Former Vice President Mike Pence is already calling for as much.
We knew this was likely to come after the Justice Samuel Alito draft Opinion was leaked in May, but it still feels surreal now that it’s official.
I have not yet read the full 213-page ruling in Dobbs, but you can read it here.
Unequivocally, I want to state: I was wrong. I thought stare decisis would protect Roe. I thought when Justice Neil Gorsuch was appointed to the Supreme Court by President Donald Trump, people didn’t have to worry about Roe. I thought people concerned after Justice Ruth Bader Ginsburg died in 2020, didn’t have to worry about Roe. I thought with the subsequent appointments of Justices Brett Kavanaugh and Amy Coney Barrett by President Donald Trump, people still didn’t have to worry about Roe.
I was wrong. I wish I hadn’t been.
The Supreme Court got it wrong. I’m not going to pretend to be a law expert, though. I know that conservatives, libertarians, and even liberals, including RBG at one point, have acknowledged the flimsy legal framework around Roe and its standing in the Constitution, but I do think we’re overthinking it.
If the U.S. Constitution doesn’t protect bodily autonomy — in this case, the bodily autonomy of women to seek and receive an abortion — then, what kind of Constitution is it? If you want to situate it on due process grounds, like Roe does, or privacy, or the Ninth Amendment itself (if a right isn’t mentioned explicitly in the Constitution, that doesn’t mean we, the people, don’t have it), bodily autonomy necessarily must be in the Constitution and a protected right.
Without bodily autonomy, how can we have the right to expression that comes forth from our mouths and our fingers (through pens and keyboards)? Or how can we have a right to bear arms to protect our bodily autonomy, if we do not have a right to bodily autonomy? And on and on.
As I’ve written before, who owns your body? You do. Not anyone else, and certainly not the state, be it a local government, a state government, or the federal government.
To quote the Libertarian Party’s Pop Punk Caucus, “Forced birth is irrational and repugnant.”
Prohibition does not work.
Prohibition does not work.
Prohibition does not work.
What prohibition does “succeed” at is making the thing sought — abortion, in this case — more dangerous and difficult for women, not to say nothing of penalizing pregnant women for a host of activities and/or their doctors and/or anyone who tries to “aid and abet” a woman to receive an abortion. As one defense attorney I follow on Twitter put it:
So, now what? Again, I’m not smart enough to know much of an answer to that. There are well-rooted grassroots organizations that have better answers for that, so I’ll leave it to them, but one area I find promising is revising the law to end the Food and Drug Administration’s prescription requirements for use of oral contraceptives, which are used to reduce unwanted pregnancies and the incidence of abortion.
Jeffrey Singer and Michael Cannon wrote a white paper for the Cato Institute outlining how those requirements not only violate the rights of individuals to access the medicines they want, but the requirement also makes patients less safe.
Instead of it taking 12 years for oral contraceptives to have over-the-counter status like Plan B did, Singer and Cannon argue that Congress should stop “playing politics with the pill” and switch to OTC status immediately.
Again, on bodily autonomy grounds, why ought the government have a say in what I put in my body? Be it an oral contraceptive pill or anything else. It doesn’t even matter if they are ostensibly doing it in the name of “consumer safety” and to protect me, as Singer and Cannon point out, because the unintended consequence is to make us less safe. How many women were made worse off in that 12-year period when Plan B wasn’t OTC?
And inevitably, unfortunately, a great many women are going to be made worse off still after today’s Roe decision.