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July 1, 2022

The End of Roe v. Wade: An Appalling Decision by the U.S. Supreme Court

By David A. Hoffman

When I was 19 years old, my 17-year-old girlfriend got pregnant.  It was 1966, and abortion was illegal.  We were both in college, and we were not ready to be parents.  Fortunately, because we were both raised in White, upper-middle-class homes with parents who could find a willing doctor and could afford to pay for an abortion, we had a choice.  But even with that choice, we were both frightened by the secrecy; the medical risks associated with an unregulated, illegal procedure; and the limited options if something went wrong.  The whole process was terrifying and dangerous.  However, her getting an abortion meant that both of us could finish college, and each of us went on to have loving families and successful careers.  But how many people (especially people of color and those with low incomes) had the options we had?

On June 24, 2022, in the Dobbs case, a bare majority of the U.S. Supreme Court overturned Roe v. Wade and removed constitutional protection for the right to choose abortion, which had existed for nearly fifty years.  If Congress does not reverse the result in Dobbs, it will propel us back to an era when reproductive freedom (and the opportunities that go along with it) were severely limited.  And even though some states, such as Massachusetts, have enacted laws that protect abortion rights, nothing legally stands in the way of national legislation – proposed by ardent anti-abortion advocates – that would outlaw abortion in every state.

Among the many appalling aspects of the Dobbs decision is its reliance on the intent of the drafters of the 14th Amendment, which was enacted in 1868 by men (since women did not have the right to vote) – indeed, it was a time when a woman was described in one Supreme Court opinion as having “no legal existence separate from her husband.”  Although today’s Court claims that its decision does not provide a green light for outlawing contraception, consensual homosexual acts, and same-sex marriage – all of them rights that the Court previously found to be implied in the constitutional protection of due process and “ordered liberty” – justices in future years may use Dobbs to dismantle all of those protections (which Clarence Thomas, in a Dobbs concurrence, proposed).

But there are other dimensions of Dobbs that are equally inexcusable.  First, the majority completely ignores the disparate impact of its decision on those who can become pregnant and bear children – particularly those who are low-income or people of color.  As the three dissenting Justices noted in Dobbs, “a ban on abortions increases maternal mortality by 21 percent, with white women facing a 13 percent increase in maternal mortality while black women face a 33 percent increase.”  Carrying a child to term imposes a mortality risk that is 14 times greater than the risk associated with abortion.  None of these medical risks is borne by cis-gender men, who also do not face the economic impact of being forced to carry a pregnancy to term.

Second, states can now enact, and have enacted, abortion bans that lack exceptions.  For example, a person impregnated by a rapist or via incest, or carrying a pregnancy that endangers that person’s life, will have no federal constitutional right to terminate the pregnancy, beginning at the moment of conception.  In some states, families facing a heart-breaking pregnancy in which the fetus is impaired and will not live will now be required to carry the pregnancy to term and suffer a further tragedy for themselves and their child.

Third, Dobbs permits states to prosecute not only residents who seek abortion, but also individuals and organizations from any state who assist people in obtaining abortions in their home states or elsewhere.  Mega law firm Sidley Austin received a letter on July 7, 2022, from anti-abortion legislators in Texas, in response to Sidley’s offer to reimburse travel costs of employees who leave Texas to obtain an abortion: “To the extent that Sidley is facilitating abortions performed in violation of [Texas law], it is exposing itself and each of its partners to felony criminal prosecution and disbarment.”  Sidley has not yet responded to this letter, but Dobbs has already ushered in an era of neighbors spying on neighbors, motivated by bounties available under some state laws.

Finally, Dobbs is perhaps the most dramatic result to date of a no-holds-barred, end-justifies-the-means politics on the Right that handed two Supreme Court seats to ultra-conservatives under circumstances that have never occurred previously in our nation’s history.  Republicans in the U.S. Senate refused to even interview, much less confirm, Merrick Garland when he was nominated to the Court eight months in advance of the 2016 presidential election.  And those same Republicans rushed to confirm Amy Coney Barrett as a justice, even though her nomination occurred while voting in the 2020 presidential election had already begun.  If sound, time-honored political norms had been observed, the first of those two seats would have been filled by President Obama and the second by President Biden.  Instead, they were filled by Donald Trump, who sought nominees likely to overturn Roe v. Wade.

The only hope I can find in my heart in this disheartening time is that, because a large majority of the public supports Roe v. Wade, public disgust about the Dobbs decision could translate into mid-term election results this year that would enable Congress to pass pro-choice legislation.  Such an outcome at the polls could also open the door for undoing the Supreme Court’s dreadful decisions this term regarding climate change and guns, but my hope is that the first order of business will be immediately reinstating Roe v. Wade as the law of the land, for the sake of teenagers facing tough choices, parents who are not able to manage yet another child, and for all of us who value freedom, equality, and social justice.

In the meantime, please consider adding to your list of causes to support – as Boston Law Collaborative, LLC has recently done – the National Network of Abortion Funds (“NNAF”), which provides financial assistance for people in need of abortion services.  This help is especially needed for travel to states in which abortion is still legal.  NNAF stands for the principle that “every person has the non-negotiable human right to determine whether, when, and how to create a family.”  We at BLC support that principle.



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