By Amanda Hainsworth
In Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), the United States Supreme Court overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), thus ending nearly a half century of federal constitutional protections for abortion. As a result of Dobbs, nearly half the states in the country have already outlawed or severely restricted abortion access, including through recently enacted abortion bans, pre-Civil War abortion bans that remain on the books in some states, or “trigger bans” – that is, bans that were enacted before Dobbs but went into effect once Roe was overruled. Several other states are likely to enact bans or severe restrictions as legislatures return to session.
The results of this new abortion landscape have already proven far-reaching. Abortion clinics have shuttered operations throughout the Southeast, creating vast “abortion deserts” and forcing patients to travel long distances to access care, if they can travel at all. Patients who can afford to travel must do so with the knowledge that their travel and their inquiries may be subject to digital surveillance or even prosecution, not only of themselves, but of their friends, families, and helpers. Those in rural communities, poor people, domestic violence victims, and countless others for whom travel is not affordable, practical, or safe face a Sophie’s choice: they must either attempt to procure abortion pills from an online pharmacy and take them without medical supervision,[1] or accept forced birth. A ten-year-old rape victim in Ohio, for example, was forced to travel to Indiana to avoid the horrifying prospect of compelled motherhood as a child. The doctor who performed the abortion in Indiana, where abortion was legal at the time, was subsequently targeted by state officials and harassed by the public. This is to say nothing of the providers in abortion-banning states who, in order to avoid criminal prosecution, must now determine whether a hemorrhaging miscarriage or ectopic pregnancy is life-threatening enough to lawfully provide a medically necessary abortion. Beyond these implications, the Dobbs decision has paved the way for what was once merely political rhetoric to become enshrined as state healthcare policy—on topics including abortion, gender-affirming care, contraception, and even the HIV prophylactic, PrEP. This, in turn, threatens our healthcare system as a confusing patchwork of conflicting state bans and protections emerges over time.
This article will address: first, the Dobbs decision and what it might mean for the future of constitutional privacy rights; second, the immediate consequences of and responses to the Dobbs decision; and third, the continuing legal implications of the Dobbs decision as some states continue to ban or severely restrict abortion and others try to safeguard it.
The Dobbs Decision & the Future of Constitutional Privacy Rights
Anti-abortion proponents have worked tirelessly to end federal constitutional protections for abortion ever since Roe was first decided in 1973.[2] They set the stage through incremental victories, starting in 1976 with the Hyde Amendment which, by banning federal funding for abortion except to save the pregnant person’s life or in cases of rape and incest, effectively denies abortion access to poor people.[3] After the Supreme Court upheld the Hyde Amendment, anti-abortion proponents shifted their efforts to state legislatures, which began to enact state laws designed to make access to abortion more difficult—for example, by imposing waiting periods, parental consent requirements, and onerous informed consent and ultrasound requirements; banning specific types of abortion procedures; and targeting abortion providers with regulations designed to force them out of business. While some of these efforts were struck down under Casey as imposing an “undue burden” on a person’s right to an abortion, many were upheld.[4] Abortion access in many parts of the country began to steadily erode. Against this backdrop, anti-abortion state legislatures became emboldened in more recent years to enact flagrantly unconstitutional abortion bans or restrictions. One such ban, Texas Senate Bill 8 (“SB8”), involved an unconstitutional 6-week abortion ban enforceable exclusively by private citizens. The admitted purpose of SB8’s private enforcement regime was to foreclose federal judicial review of an otherwise patently unconstitutional abortion ban. [5] The Supreme Court allowed SB8 to go into effect in September 2021 and then almost entirely upheld it on the merits in December 2021. The Supreme Court’s response to SB8 was not only catastrophic for pregnant people and abortion providers in Texas, but also proved a harbinger of what was to come in Dobbs, which involved a similar, facially unconstitutional abortion ban and was on the docket for the October 2021 term.
Sure enough, on June 24, 2022, the Supreme Court issued its decision in Dobbs and overruled Roe and Casey, ending federal constitutional protection for abortion. In doing so, the Court relied on a test that it used in Glucksberg v. Washington, 521 U.S. 702 (1997), to deny recognition of a constitutional right to physician-assisted suicide. The Glucksberg test recognizes only those rights that are “deeply rooted in our Nation’s history and tradition” and that are “an essential component of . . . ‘ordered liberty’” as constitutionally protected. Dobbs,142 S. Ct. at 2246 (quoting Glucksberg, 521 U.S. at 721). Before Dobbs, the Supreme Court had never applied the Glucksberg test to unenumerated privacy rights (such as the right to abortion) and expressly rejected it in Obergefell v. Hodges, 576 U.S. 644, 671 (2015), on the grounds that “it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.” Nevertheless, the Dobbs court applied the Glucksberg test and, after canvassing the legal treatment of abortion prior to the Civil War, 142 S. Ct. at 2249-2254, concluded that abortion is not deeply rooted in our Nation’s history and tradition and, therefore, not constitutionally protected, id. at 2242, 2283-85.
In reaching this conclusion, the Supreme Court took great pains to suggest that the state’s interest in “fetal life” differentiates abortion from other precedents involving privacy rights, such as those recognized in Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception for married couples), Lawrence v. Texas, 539 U.S. 558 (2003) (sexual intimacy between members of the same sex), and Obergefell, 576 U.S. at 675 (same-sex marriage). The majority opinion would have us believe that this difference makes Roe and Casey some type of legal aberration akin to Plessy v. Ferguson, 163 U.S. 537 (1896)—something “egregiously wrong” on the day that it was decided and easily excisable from our constitutional fabric. Dobbs, 142 S. Ct. at 2265. However, Roe was built on the substantive due process decisions that came before it: Loving v. Virginia, 388 U.S. 1 (1967) (interracial marriage), Griswold, and Eisenstadt v. Baird, 405 U.S. 438 (1972) (extending Griswold to unmarried couples), and provided the doctrinal foundation for decisions that came after, such as Lawrence and Obergefell. In other words, Roe was neither an aberration nor an outlier in its constitutional basis. Notably, none of the privacy rights that came before or after Roe can trace their roots to the colonial period.
There is good reason to fear for the future of constitutional privacy rights given this Supreme Court’s willingness to contort stare decisis principles to reach a desired outcome. Indeed, few precedents recognizing a constitutional right have been affirmed, reaffirmed, and consistently applied more than Roe and Casey. See, e.g., Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 419-20 (1983) (“[A]rguments [against Roe] continue to be made,” but that the doctrine of stare decisis “demands respect in a society governed by the rule of law”); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 759 (1986) (the “vitality” of “constitutional principles cannot be allowed to yield simply because of disagreement with them”); Casey, 505 U.S. at 853-55 (taking full account of the diversity of views on abortion and the importance of various competing state interests before once again reaffirming Roe); see also June Med. Servs. LLC v. Russo, 140 S. Ct. 2103, 2120 (2020) (plurality opinion); id. at 2135 (Roberts, C.J., concurring); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016); Gonzales v. Carhart, 550 U.S. 124, 146 (2007); Hodgson v. Minnesota, 497 U.S. 417, 434-35 (1990); Bellotti v. Baird, 443 U.S. 622, 639 (1979); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 61 (1976). As the Dobbs dissent points out, absent a changed legal or factual circumstance or some other cognizable rationale for eliminating a half-century of protection of a constitutional right, we are left with “one reason and one reason only” for the Court’s decision: “the composition of [the] Court has changed [and] the proclivities of individuals rule.” Dobbs, 142 S. Ct. at 2320 (Breyer, J., dissenting). [6]
The Reality of a Post-Roe World
As abortion bans go into effect across the country and constitutional privacy rights hang in the balance, serious legal questions have started to emerge that will likely take years—and, inevitably, further Supreme Court intervention—to resolve. Questions have already surfaced regarding the extent to which federal law may preempt conflicting state abortion bans. For example, the federal government has argued in two separate cases that near-total abortion bans in Idaho and Texas conflict with the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to provide stabilizing emergency treatment, including abortion care, when necessary. Federal district courts in Texas and Idaho have already reached conflicting decisions on that question, [7] which could lead to a circuit split. Likewise, it is unclear whether and the extent to which the federal government’s regulation of medication abortion, which is subject to restrictions under the FDA’s Risk Evaluation and Mitigation Strategy (REMS) drug safety program, preempts state bans that specifically target medication abortion. The extent to which medication abortion remains available is essential to ensuring abortion access in a post-Dobbs world, given medication abortion now accounts for more than half of all abortions performed in the United States.
There are also many unknowns about the potential extraterritorial reach of abortion bans into states where abortion remains protected and legal. This has led some states, including Massachusetts, to enact so-called “shield” laws in an effort to make it harder for out-of-state investigators, prosecutors, and bounty-hunters to subject our residents to out-of-state consequences for providing or assisting a person in accessing abortion care or gender affirming care (which has similarly been the subject of criminal bans in some states). While specific provisions of these “shield” laws vary, they generally limit or prohibit the involvement of in-state institutions or agencies in facilitating out-of-state consequences for abortion care. For example, the Massachusetts law, among other things, prohibits discretionary rendition, prevents adverse licensing consequences, prohibits malpractice insurance premium increases, and bans interstate law enforcement collaboration in connection with or resulting from out-of-state investigations, litigations, or prosecutions for reproductive and gender affirming care. In recognition of the unique risks that providers may face due to the breadth of state bans, the Massachusetts law is the only law in the country that expressly covers providers of abortion and gender affirming care “regardless of the patient’s location” as long as the care complied with Massachusetts law.
While these laws are certainly important in ensuring the continued availability of abortion services in states where abortion remains legal, it is not possible for one state to entirely immunize a provider from out-of-state consequences if that provider is subject to the jurisdiction of another state. Thus, despite these protections, the fear among providers of potential out-of-state consequences (no matter how hypothetical) has caused some to preemptively restrict access in states where abortion remains legal, particularly around medication abortion. [8] These types of self-imposed restrictions make it more difficult, if not impossible, for out-of-state patients to access abortion even in those states that allow it, and will pose serious health and socio-economic consequences for pregnant people, and in particular poor people, across the country.[9]
Some of these fears are compounded by the increasing availability and use of digital surveillance in connection with law enforcement investigations. In states with abortion bans, we have already seen invasive investigations into people seeking abortion care or information about abortion. This may include monitoring of not only call histories, text message, and emails, but also location data, online payment records, Google search histories, and fertility tracking apps. Location data showing abortion clinic visits has long been available. The Massachusetts Attorney General, for example, reached a resolution in 2017 with an advertising agency that used geofencing technology to target advertisements to cellphone users within a certain geographic proximity to an abortion clinic in the state. The ubiquitous nature of personal data on the internet now poses a much more serious risk to individuals trying to obtain abortion care, to their healthcare providers, and to their friends, family members, and helpers.
These implications are just the tip of the iceberg. It remains to be seen how far Republican-controlled state legislatures will go in banning abortion. The recent experience in Kansas, where voters rejected state constitutional restrictions on abortion at the ballot box, may caution elected officials against going too far, as access to abortion remains popular across the political spectrum. At the same time, some federal Republican lawmakers have made clear that their endgame is to enact a federal ban and perhaps ultimately secure constitutional recognition of fetal personhood. Dobbs leaves the door open for the recognition of fetal rights at least as coextensive as those of a gestating parent. And, to the extent anti-abortion proponents are successful in any of such efforts, not only would states like Massachusetts no longer be able to protect reproductive rights, but some could further restrict reproductive autonomy by banning certain forms of contraception, artificial reproductive technologies, or embryonic stem cell research, and could begin to use criminal homicide statutes in pregnancy termination, including miscarriage, cases.
Conclusion
Many in the legal profession, including judges, lawyers, legal academics, and most recently the justices of the Supreme Court, have suggested that abortion law would become simpler without federal constitutional protection.[10] But that is simply not the case. While it is not possible to know at this writing exactly what lies ahead, it seems clear that abortion regulation will remain with the states until Congress acts—either to codify Roe or to enact a federal ban. Unless Congress codifies Roe, providers, patients, and many others throughout the country will continue to face potential criminal, civil, and life-threatening consequences for the provision of essential healthcare. Given the implications of Dobbs for other constitutionally protected privacy rights that protect marriage, sexual intimacy, and family formation, it is reasonable to fear a retrenchment of those rights as well.
*This article represents the opinions and legal conclusions of its author(s) and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
[1] Although medication abortion is safe and widely prescribed by doctors, many patients would prefer medical supervision in managing their abortions and many patients may experience barriers to accessing pills online. See Abigail R.A. Aiken, et al., “Safety and effectiveness of self-managed medication abortion providing using online telemedicine in the United States: a population based study,” The Lancet Regional Health- Americas (Feb. 17, 2022), available at: https://tinyurl.com/y6d2whxm (noting that 1% of patients who self-managed their own abortion with pills obtained online experienced adverse health outcomes).
[2] See generally Mary Ziegler, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, Yale Univ. Press (2022).
[3] For a comprehensive discussion of the Hyde Amendment and its impact on pregnant people, see Alina Salganicoff, et al., The Hyde Amendment and Coverage for Abortion Services, Kaiser Family Foundation (March 5, 2021), https://tinyurl.com/4pv742ym.
[4] See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016); Gonzalez v. Carhart, 550 U.S. 124, 124 (2007); Stenberg v. Carhart, 530 U.S. 914 (2000); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 750 (1986); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 421-25 (1983); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983); Bellotti v. Baird, 443 U.S. 622, 625-26 (1979); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 56-57 (1976).
[5] Senate Bill 8, 87th Leg., Reg. Sess. (Tex. 2021) (codified at Tex. Health & Safety Code §§ 171.203(b), 171.204(a)). See also Emma Green, “What Texas Abortion Foes Want Next,” The Atlantic (Sept. 2, 2021), https://tinyurl.com/45eubtyt (asserting that S.B. 8 was crafted out of “frustrat[ion]” with courts that “block[] pro-life laws because they think they violate the Constitution or pose undue burdens”).
[6] Compare Vasquez v. Hillery, 474 U.S. 254, 265 (1986) (Stare decisis “contributes to the integrity of our constitutional system of government” by ensuring that decisions “are founded in the law rather than in the proclivities of individuals.”); see also Blackstone’s Commentaries on the Laws of England, 1 Blackstone 69 (respect for precedent “keep[s] the scale of justice even and steady, and not liable to waver with every new judge’s opinion.”)
[7] United States v. Idaho, No. 1:22-cv-00329-BLW, 2022 WL 3692618, at *8-*10 (D. Id. Aug. 24, 2022) (finding that EMTALA preempts Idaho’s abortion ban); Texas v. Becerra, No. 5:22-cv-185-H, 2022 WL 3639525, at *21-23 (N.D. Tex. Aug. 23, 2022) (reaching opposite conclusion).
[8] See, e.g., Kelsey Butler, Montana Planned Parenthood Won’t Give Abortion Pill to Some Out-of-State Women, Bloomberg News (July 1, 2022); Caroline Kitchener, New restrictions from major abortion funder could further limit access: The National Abortion Federal has imposed rules that many providers say are burdensome and legal unnecessary, Wash. Post (Aug. 25, 2022).
[9] Caitlin Gerdts, et al., Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth after an Unwanted Pregnancy, Women’s Health Issues 26-1, 57-58 (2016), https://tinyurl.com/56e3pb9d; Diana Greene Foster, et al., Socioeconomic Outcomes of Women Who Receive and Women Who are Denied Wanted Abortions in the United States, Am. J. Pub. Health 108, no. 3, at pp. 407-413 (2018), https://tinyurl.com/yeawzmpf.
[10] David S. Cohen, et al., The New Abortion Battleground, 123 Columbia Law Rev. at 2 (Aug. 4, 2022 Draft), available at: https://tinyurl.com/2b9ys9yd.
Amanda Hainsworth is an Assistant Attorney General and the Managing Attorney of the Civil Rights Division of the Massachusetts Attorney General’s Office. Among other responsibilities, Amanda has led the AG’s Office’s work on reproductive rights and its response to the Dobbs decision.
