Dobbs: Its Consequences & Implications
On June 24, 2022, the Supreme Court formally announced its decision on Dobbs v. Jackson, upholding Mississippi’s ban on abortion after only 15 weeks of gestation and allowing the abortion regulation to fall to the states. The decision overturned nearly 50 years of precedent established by Roe v. Wade and Casey v. Planned Parenthood. One year later, we’re just beginning to grapple with what this means for women in the United States, and how it could affect future court decisions that also rested on the right to privacy. Who is most affected by new laws that severely curb abortion access? What happens when a woman in a state with strict laws needs an abortion because of a medical emergency? How are healthcare professionals impacted? And what is the argument for overturning Dobbs anyway? We’ll discuss all of these questions in this post, and arm you with knowledge about the history of abortion in America and the current state of affairs.
But first, it’s important to acknowledge that many of us are still in mourning. Losing Roe was, and continues to be, hard. After Dobbs, Indiana was the first state to hold a special legislative session to write more restrictive abortion laws, despite the fact that most Hoosiers did not support these efforts. Right now, abortion is still legal in Indiana because the ban is temporarily suspended while a lawsuit makes its way through the court system. But we don’t know if it will stay that way in the future. In some sense, moving forward feels like falling backward in time.
Who Does Dobbs Affect the Most?
The Dobbs decision gave individual states, and not women, the power to decide when and under what circumstances abortion should be permissible. Taking power out of the hands of women alone is reprehensible. Worse still is that it makes abortion a medical procedure that is available only to women who are lucky enough to live in states that protect and support it, and to those who have the means to travel to those states.
That is to say, it’s low-income women who are bearing the brunt of this injustice. By overturning Roe, we have created a system where a simple and safe necessary medical procedure - not to mention a human right - is available to the few. According to Human Rights Watch, the impact of Dobbs falls disproportionately on marginalized communities, including people of color and low-income households. As a matter of fact, 15 million women of color and almost 3 million women with disabilities that are of reproductive age live in states that have effectively banned or are likely to ban abortion.
How Dobbs is affecting the Healthcare System
Strict abortion laws are also putting women’s lives at risk. The Dobbs ruling has created a climate of fear and legal uncertainty in healthcare settings, leaving healthcare providers unsure of how to counsel patients and move forward with care. In Texas last November, a woman named Amanda Zurwaski nearly died from sepsis because her doctors weren’t comfortable providing a timely abortion after she experienced a medical problem during a planned and wanted pregnancy. Doctors told her they couldn’t perform an abortion until her condition became life-threatening- which was an inevitability. More recently, she and four other women sued the state of Texas because they were turned away from receiving abortions due to medical crises and emergencies.
This is what happens, of course, when healthcare is criminalized. It places a burden on patients, providers, and third parties, putting them at risk of civil or criminal recourse. In Texas, providers can lose their license and receive a life sentence for providing abortions that are not in line with the code. In Ohio, abortion providers can be charged with reckless homicide, a felony of the third degree. These consequences are severe. Doctors should not be attempting to interpret vague laws that restrict their ability to provide appropriate care for their patients during medical emergencies. Zurwaski barely survived sepsis. Waiting for someone’s life to be on the line before providing care is a recipe for disaster. It’s difficult to see a future where this does not involve actual casualties.
Implications for Other Precedents that Rested on the Right to Privacy & the Basis for the Decision
It’s also hard to predict where this anti-choice campaign will end. Abortion rested on the right to privacy, which is inferred from the Fourteenth Amendment. When the court struck down its abortion precedent, it weakened the argument for the right to privacy. Other fundamental rights rest on this very argument - including the right to contraceptives. That makes its erosion concerning.
The basis for this break in precedent was, as Justice Alito argued, that abortion was not “deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of common law to until 1973.”
There are two problems with the basis of this argument. First, it’s not true. Abortion has been practiced since antiquity, and it was common in early America, where herbs like pennyroyal and savin were commonly used to induce first-trimester abortions. There were no laws governing abortion in the United States until the mid-19th century when the male-dominated American Medical Association (AMA) launched a criminalization campaign. The movement was steeped in white supremacy. After the Civil War, there was a moral panic that ending slavery and experiencing an influx of immigrants could make Black and Brown Americans outnumber Whites. To prevent this, the AMA created laws to govern women’s bodies and prevent White women from receiving abortion access. 60 years later, in 1910, all 50 states developed anti-abortion laws.
In other words, the United States does not have an “unbroken tradition of prohibiting abortion”. But we do have an unbroken tradition of white supremacy and institutional racism. And that legacy is certainly being upheld by the Dobbs decision.
The second issue with the majority argument is that, even at the time of the Fourteenth Amendment, women were still consigned to second-class citizenship. As the minority argument states:
“We refer to the “people” who ratified the fourteenth amendment. What rights did those “people” have in their heads at the time? But of course, “people” did not ratify the fourteenth amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights or women’s liberty, or for their capacity to participate as equal members of our Nation.”
When we idealize the historical roots of our nation, we overlook centuries of institutional racism and misogyny. Or, we aspire to constitutional rulings that uphold them. When we consider what the framers had in mind, we must also consider their bias. Arguments like this run up against the very fabric of what the Supreme Court is supposed to do: does it exist to enforce the exact views of the framers, who were often purposefully vague in wording and biased against entire classes of people? Or are justices supposed to view the Constitution as a living document that creates guideposts but can be interpreted in a modern, informed context?
Only time can tell us how Dobbs will continue to affect women and other folks in the future. But there is one thing that is in our control. We can refuse to accept this. We can fight for our rights. Those of us who have the means to circumvent strict laws can refuse to forget the members of our community that can’t. We can refuse to be silenced.