Abstract
Excerpted From: Carole J. Petersen, Women's Right to Equality and Reproductive Autonomy: the Impact of Dobbs V. Jackson Women's Health Organization, 45 University of Hawaii Law Review 305 (Spring, 2023) (257 Footnotes) (Full Document)
The United Nations Working Group on the Issue of Discrimination Against Women in Law and Practice views the right to reproductive autonomy as essential to women's equality. The UN Committee on the Elimination of Discrimination Against Women (established by the Convention on the Elimination of All Forms of Discrimination Against Women also emphasizes the importance of reproductive autonomy and the gender-specific health risks of enforced pregnancy and childbirth. Many international courts and treaty-monitoring bodies have also issued decisions recognizing that denial of abortion care violates a woman's human rights, particularly when a pregnancy threatens her life or health, or resulted from rape or incest. Comparative studies of national laws further demonstrate that the global trend is towards liberalization. Even jurisdictions that still formally prohibit abortion often provide broad exceptions - not only for the life of the woman but also for situations in which the pregnancy would likely damage her physical or mental health, or the well-being of her family.
Yet, sections of the United States are rapidly moving in the opposite direction. In Dobbs v. Jackson Women's Health Organization, the United States Supreme Court upheld (by a vote of 6 to 3) a Mississippi statute prohibiting abortion after the fifteenth week of pregnancy. The Court had originally granted certiorari to decide the limited question of whether all pre-viability bans on elective abortions are unconstitutional and Chief Justice Roberts (who concurred in the judgment but did not join the majority opinion) argued that the Court should confine itself to that limited question. Nonetheless, the Supreme Court went further and decided (by a vote of 5 to 4) to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. As of January 2023, twenty-four states had either prohibited abortion in most circumstances or were in the process of doing so. Meanwhile, other states (and also the federal government) have responded to Dobbs by reaffirming or strengthening legal protections for reproductive autonomy. There are also competing lawsuits pending in the federal courts concerning mifepristone, a drug commonly used for early abortions: one seeks a nationwide ban on the drug while the other seeks to make it more accessible. Thus, the decision in Dobbs has set the stage for new conflicts, at least some of which will likely work their way to the Supreme Court.
While individuals of all gender identities can become pregnant, this Article focuses on the impact of Dobbs on women's right to equality, as restrictions on abortion disproportionately affect women and perpetuate stereotypes of their role in society. Part II of the Article begins by reviewing the approach taken in Roe, which analyzed abortion from the perspective of a gender-neutral right to privacy, part of the liberty that is protected by the Due Process Clause. In Casey, the Supreme Court dispensed with the trimester framework, but upheld Roe's “essential holding” (the right to terminate a pregnancy pre-viability). Casey also arguably broadened the jurisprudential foundations for a right to abortion, reflecting the intertwining rights of liberty and equality. This interpretative approach to the Fourteenth Amendment's Due Process Clause - sometimes referred to as “equal dignity” - was further developed in the cases of Lawrence v. Texas, States v. Windsor, and Obergefell v. Hodges, which confirmed the rights of LGBT citizens to equal citizenship. Yet, the concept of equal dignity was never as robustly applied in cases relating to women's right to access abortion. Moreover, the Supreme Court never expressly overruled Washington v. Glucksberg or Geduldig v. Aiello, cases that would come back to haunt advocates for reproductive autonomy.
Part III of the Article then analyzes the likely impact of Dobbs on constitutional interpretation in the federal courts. In addition to resurrecting Glucksberg and its rigid test for unenumerated rights, Justice Alito's majority opinion takes a very narrow view of American history, ignoring the reproductive autonomy that women originally exercised and the discriminatory motives underlying the campaign to criminalize abortion at the state level in the 1800s. While the majority opinion expressly states that it has no impact beyond the right to abortion, it is difficult to reconcile the approach taken in Dobbs with other case law on substantive due process, particularly recent cases protecting the rights of the LGBT community. Justice Alito also failed to acknowledge the relationship between a right to reproductive autonomy and the Equal Protection Clause. Ultimately, this could undermine equal protection jurisprudence in areas other than abortion.
Part IV considers the impact of Dobbs from a more pragmatic perspective. Contrary to the expectations of many in the anti-abortion movement, Dobbs is unlikely to substantially decrease the number of abortions in the United States. This is partly because advocates for reproductive autonomy are employing new strategies, including law reform and litigation at the state level. Women in restrictive states are also finding ways to get around the new bans, as abortion pills can be obtained from other states and, if necessary, from foreign countries. But the inequality that has long existed in reproductive health care will be further exacerbated by Dobbs. Women of color, women who live with disabilities, and women who live in poverty will suffer disproportionately, partly because they will have greater difficulty obtaining abortion pills from outside their states, but also because they have higher rates of maternal mortality and are more likely to be targeted for investigation and prosecution if they “self-manage” an abortion. The question is how legislators and policy makers will grapple, if at all, with those systemic inequalities. Part V thus briefly concludes with some recommendations for legislation at the state level.
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Dobbs clearly did not take the issue of abortion entirely out of the federal courts. It has simply created new conflicts, at least some of which may eventually work their way to the Supreme Court. It is, however, clear that the current majority on the Court will not be receptive to arguments grounding a woman's right to reproductive autonomy in the federal Constitution. Thus, advocates for reproductive autonomy must rely primarily on state courts, state constitutions, and the ordinary political process. But these avenues may be more productive than previously expected. It is particularly encouraging that so many voters have supported access to abortion, not only in liberal states like California, but also in a conservative state (Kansas) and a swing state (Michigan). These successes have already inspired activists in many other states to campaign for amendments to state constitutions.
Even in states that have anti-abortion majorities, there may be opportunities to lobby for legislation to reduce the negative - and highly discriminatory - impact of Dobbs. If those who claim to be “pro-life” are serious about their mission then they should be willing to agree to additional funding for maternal health and for clearly-worded exceptions for situations in which a pregnancy threatens a woman's physical or mental health. The Republican Party is well aware of the role that Dobbs played in the midterm elections in 2022, and some Republican candidates have already modified their public positions on abortion in anticipation of the 2024 elections. This may provide an opportunity to negotiate statutory language that pregnant women (and those who care for them) can rely upon. There are many examples around the world that legislators could borrow from, including the United Kingdom's Abortion Act 1967. It provides a broad range of compassionate exceptions to the general ban on abortion and gives doctors the discretion to determine when those exceptions have been met. In the early 1990s, when I first began to research comparative legal frameworks, I criticized the British model because it is inherently patronizing and does not recognize any right to reproductive autonomy. But years later, I have come to appreciate its practical benefits, particularly the fact that the British National Health Service (NHS) pays for abortions, just like other forms of health care. In the short term, the British model may represent the best “worst-case scenario” for women living in the most conservative parts of post-Roe America. In the longer term, the United States hopefully will become more supportive of women's right to equal citizenship and rejoin the global movement for reproductive autonomy, reproductive health and reproductive justice.
Professor of Law, William S. Richardson School of Law, University of Hawai'i at Mnoa. Please email any comments to:
