Vox's Ian Millihiser tells us what's on the block next for the Roberts Court in a post-Roe, Dobbs world.
Alito’s Dobbs opinion acknowledges that the Constitution protects some rights that are not specifically mentioned in the Constitution, but only rights that are “deeply rooted in this Nation’s history and tradition.”
He’s made this argument before. Specifically, Alito made this “history and tradition” argument in his dissenting opinion in Obergefell v. Hodges (2015), the landmark opinion holding that people with same-sex partners have the same right to marry that partner as anyone else. “It is beyond dispute that the right to same-sex marriage” is not sufficiently rooted in history and tradition, Alito claimed in his Obergefell dissent.
Justice Clarence Thomas, meanwhile, wrote a concurring opinion in Dobbs where he denounced the concept of “substantive due process,” the legal theory that drives many of the Court’s decisions involving a right to sexual and romantic autonomy. Alito also rejects the idea that the due process clause of the 14th Amendment implies the right to an abortion. But Thomas goes further.
According to Thomas’s opinion, which is joined by no other justice, the Court’s pro-contraception decision in Griswold v. Connecticut (1965), its decision in Lawrence v. Texas (2003) that consenting adults have a right to choose whom they have sex with and how they have sex, and its decision in Obergefell should all be reconsidered.
That said, the final version of Alito’s opinion seems to go out of its way to explain that abortion is different from these other rights — again, because abortion involves the termination of a fetal life and these other rights do not. Much of this language was added after Alito wrote the leaked early draft of the Dobbs opinion.
Indeed, Alito accuses the dissenting opinion — which is co-authored by all three of the Court’s Democratic appointees — of stoking “unfounded fear that our decision will imperil those other rights” because the dissent worries that Dobbs could endanger things like same-sex marriage or contraception.
In any event, the future of rights other than abortion will likely need to be litigated. There is no doubt that Thomas would happily light many existing rights on fire. And there is little doubt that Alito, based on his Obergefell dissent, would also happily tear down same-sex marriage.
But it takes five votes to strip away an existing constitutional right, and it remains to be seen whether Justices Brett Kavanaugh and Amy Coney Barrett — conservatives who sometimes break with Alito’s most aggressive attempts to drive the law to the right — will support mass rollbacks of existing rights.
Kavanaugh and Barrett had no problems ending Roe. They will end everything else, as will Alito.
It gets worse.
Although there may not be five votes on the current Supreme Court to permit an outright ban on all forms of contraception, the Court may permit states to ban certain forms of contraception that many religious conservatives believe to be akin to abortion.
In Burwell v. Hobby Lobby (2014), a 5-4 Supreme Court held that employers who object to certain forms of birth control on religious grounds may refuse to cover these contraceptive methods in their employees’ health plans. At least some of the plaintiffs in Hobby Lobby claimed that “two forms of emergency contraception commonly called ‘morning after’ pills and two types of intrauterine devices” can cause an abortion because they “may operate after the fertilization of an egg.”
It is far from clear that these forms of birth control actually do operate on fertilized eggs. As Dr. Mary Jacobson, an OB-GYN and chief medical officer at Alpha Medical, told me, “No existing scientific studies validate the fallacy that hormonal contraceptives or the copper intrauterine device act partly as abortifacients.”
But the question of whether IUDs or morning-after pills qualify as contraception (which is still protected by existing Supreme Court precedents) or abortion-inducing drugs (which are not protected after Dobbs) will not be decided by medical doctors. It will be decided by a federal judiciary dominated by conservative Republicans.
In Gonzales v. Carhart (2007), moreover, the Supreme Court held that state and federal lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” This line is likely to play a starring role in conservative judicial decisions permitting bans on certain forms of contraception.
Under Gonzales, to justify a contraception ban, a state does not need to prove that a particular form of contraception definitively acts as an abortion-inducing drug. They just have to convince a court that may be dominated by right-wing Republicans that there is “uncertainty” about how a pill or contraceptive device operates.
Litigation over contraception bans, in other words, is inevitable if a state decides to ban common forms of birth control such as the morning-after pill or IUDs.
It's just the beginning, as I said. Jia Talentino at the New Yorker:
In the states where abortion has been or will soon be banned, any pregnancy loss past an early cutoff can now potentially be investigated as a crime. Search histories, browsing histories, text messages, location data, payment data, information from period-tracking apps—prosecutors can examine all of it if they believe that the loss of a pregnancy may have been deliberate. Even if prosecutors fail to prove that an abortion took place, those who are investigated will be punished by the process, liable for whatever might be found.
Five years ago, Latice Fisher, a Black mother of three from Mississippi, who made eleven dollars an hour as a police-radio operator, experienced a stillbirth, at roughly thirty-six weeks, at home. When questioned, she acknowledged that she didn’t want more kids and couldn’t afford to take care of more kids. She surrendered her phone to investigators, who scraped it for search data and found search terms regarding mifepristone and misoprostol, i.e., abortion pills.
These pills are among the reasons that we are not going back to the era of coat hangers. They can be prescribed via telemedicine and delivered via mail; allowing for the prescription of an extra dose, they are ninety-five to ninety-eight per cent effective in cases of pregnancy up to eleven weeks, which account for almost ninety per cent of all abortions in the U.S. Already, more than half of all abortions in the country are medication abortions. In nineteen states, doctors are prohibited from providing abortions via telemedicine, but women can seek help from clinicians in other states and abroad, such as Rebecca Gomperts, who leads Aid Access, an organization based in Austria that is openly providing abortion pills to women in prohibition states, and has been safely mailing abortion pills to pregnant people all over the world since 2005, with the organization Women on Web. In advance of the U.S. bans, Gomperts has been promoting advance prescription: sympathetic doctors might prescribe abortion pills for any menstruating person, removing some of the fears—and, possibly, the traceability—that would come with attempting to get the pills after pregnancy. Misoprostol can be prescribed for other issues, such as stomach ulcers, and Gomperts argues that there is no reasonable medical argument against advance prescription. “If you buy bleach in the supermarket, that’s more dangerous,” she has said.
There was no evidence that Latice Fisher took an abortion pill. She maintained that she had experienced a stillbirth—an occurrence in one out of every hundred and sixty pregnancies in the U.S. Nonetheless, she was charged with second-degree murder and held on a hundred-thousand-dollar bond. The district attorney, Scott Colom, had campaigned as a progressive reformer; advocates pushed him to drop the murder charge, and to provide a grand jury with more information about an antiquated, unreliable “float test” that prosecutors had used as a basis for their allegation that Fisher’s baby was born alive. Fisher was eventually cleared of all charges; the ordeal took more than three years.
Even if it remains possible in prohibition states to order abortion pills, doing so will be unlawful. (Missouri recently proposed classifying the delivery or shipment of these pills as drug trafficking. Louisiana just passed a law that makes mailing abortion pills to a resident of the state a criminal offense, punishable by six months’ imprisonment.) In many states, to avoid breaking the law, a woman would have to drive to a state where abortion is legal, have a telemedicine consultation there, and then receive the pills in that state. Many women in Texas have opted for a riskier but easier option: to drive across the border, to Mexico, and get abortion pills from unregulated pharmacies, where pharmacists may issue incorrect advice for usage. Some women who lack the freedom and money to travel out of state, and who might fear the consequences of seeking a clinical confirmation of their gestational stage, will order abortion pills without a clear understanding of how far along they are in pregnancy. Abortion pills are safe and effective, but patients need access to clinical guidance and follow-up care. Women in prohibition states who want to seek medical attention after a self-managed abortion will, as a rule, have to choose between risking their freedom and risking their health.
Both abortion and miscarriage currently occur more than a million times each year in America, and the two events are often clinically indistinguishable. As such, prohibition states will have a profoundly invasive interest in differentiating between them. Some have already laid the groundwork for establishing government databases of pregnant women likely to seek abortions. Last year, Arkansas passed a law called the Every Mom Matters Act, which requires women considering abortion to call a state hotline and requires abortion providers to register all patients in a database with a unique I.D. Since then, six other states have implemented or proposed similar laws. The hotlines are provided by crisis pregnancy centers: typically Christian organizations, many of which masquerade as abortion clinics, provide no health care, and passionately counsel women against abortion. Crisis pregnancy centers are already three times as numerous as abortion clinics in the U.S., and, unlike hospitals, they are not required to protect the privacy of those who come to them. For years, conservative states have been redirecting money, often from funds earmarked for poor women and children, toward these organizations. The data that crisis pregnancy centers are capable of collecting—names, locations, family details, sexual and medical histories, non-diagnostic ultrasound images—can now be deployed against those who seek their help.
If you become pregnant, your phone generally knows before many of your friends do. The entire Internet economy is built on meticulous user tracking—of purchases, search terms—and, as laws modelled on Texas’s S.B. 8 proliferate, encouraging private citizens to file lawsuits against anyone who facilitates an abortion, self-appointed vigilantes will have no shortage of tools to track and identify suspects. (The National Right to Life Committee recently published policy recommendations for anti-abortion states that included criminal penalties for anyone who provides information about self-managed abortion “over the telephone, the internet, or any other medium of communication.”) A reporter for Vice recently spent a mere hundred and sixty dollars to purchase a data set on visits to more than six hundred Planned Parenthood clinics. Brokers sell data that make it possible to track journeys to and from any location—say, an abortion clinic in another state. In Missouri, this year, a lawmaker proposed a measure that would allow private citizens to sue anyone who helps a resident of the state get an abortion elsewhere; as with S.B. 8, the law would reward successful plaintiffs with ten thousand dollars. The closest analogue to this kind of legislation is the Fugitive Slave Act of 1793.
The good news is that moving the battle over abortion rights to the states is that Blue states like New York, Illinois, and California are fighting back with new pro-choice legislation and executive orders now.
California Governor Gavin Newsom and other top officials vowed that the most-populous state will be an abortion sanctuary and will lead other liberal areas seeking to protect reproductive rights in the wake of the US Supreme Court ruling dismantling Roe v. Wade.
State lawmakers are quickly advancing bills to expand abortion access, including a measure to let voters to decide in November whether to enshrine the right to the procedure in California’s constitution. Newsom, a Democrat up for re-election in the liberal bastion in November, signed a bill on Friday that would protect out-of-state abortion seekers from civil actions in their home states, as well as local providers.
“I want folks to know all around the rest of the country and many parts of the globe, that I hope we’re an antidote to your fear, to your anxiety, perhaps to the cynicism that many of you are feeling about the fate and future of not only our state but the world we’re living in,” Newsom said.
The governor appeared in a Friday briefing with his wife Jennifer Siebel Newsom, Attorney General Rob Bonta, Senate President pro tempore Toni Atkins, reproductive rights advocates and state legislators to express outrage, sorrow and resolve after the highest court struck down the 1973 decision that established abortion rights.
Newsom has proposed a $125 million package to bolster abortion access in his state. The money would go to providing care for uninsured people, improving infrastructure for reproductive health facilities and giving grants for outreach and education. He also has proposed that companies that move to California from areas with restrictive laws on abortion and LGBTQ+ rights would have a stronger chance of winning tax credits aimed at increasing employment and capital investment.
But the bad news is your rights to your body as a woman are now soley determined by where you live, and that is an unsustainable situation. By the end of the year I expect multiple red states will have Texas style bounty laws, not to get around Roe anymore, but to draft citizens into ratting out their pregnant sisters, mothers, co-workers, churchgoers.
The fight over whether anti-abortion states can imprison pregnant people who go to other states to get an abortion is the next big legal battle, and all indications are that this court will say yes they can based on Alito's ruling in Dobbs, that the state has a duty to protect the unborn by punishing women who seek abortion elsewhere.
This is the new regime coming in Texas, Missouri and other states very soon. The goal on Dobbs now shifts to a national ban on abortion, because this was never about babies, or state's rights. It's about control and punishment. And even if we fight back and keep Congress and the WHite House, this court has shown that it will go as far as it takes to yank rights away from people. A ruling on "fetal personhood' classifying all abortion as murder is on the horizon.
And let's remember that a Roberts Court that trashed Roe can and will take numerous other Civil Rights Era decisions and toss them into the sun. It's all on the table now, segregation and discrimination protections, same-sex marriage and LGBTQ+ rights, contraception, the whole damn enchilada.
The battle's over for Roe. The war over Dobbs is just beginning.
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