By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The United States Supreme Court on Friday issued its 5-4 opinion in Dobbs v. Women’s Health Organization, overturning the long-settled precedent of Roe v. Wade, which in 1973 had established a constitutional right to abortion in the United States.
Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett voted in favor of Justice Samuel Alito’s majority opinion to overturn Roe. Chief Justice John Roberts filed an opinion concurring in the judgement – affirming the abortion-restricting Mississippi state statute that had been challenged in the lawsuit- but arguing Roe should not have been overturned. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan issued a joint dissent, and Justices Thomas and Kavanaugh each authored separate concurrences.
This post will not engage with the reasoning or logic of the opinion, concurrences, or dissent. This isn’t a law review article addressed to legal scholars and lawyers. I’ll instead focus on what comes next, both politically and practically, pitched towards a general audience with no particular legal knowledge or training, now that Roe has been overturned
First the political level. Over the last five decades, both parties exploited the Roe-based status quo, as extended in 1992 in Planned Parenthood v. Casey, which allowed each of them to pander to their respective bases, while not changing all that much at the practical level, since the baseline was the Court’s 1973 decision that abortion was a constitutional right. (I don’t deny that at the practical level, it has become increasingly difficult for many women to obtain access to abortion in many no choice states.)
Those who want to see abortions restricted have obviously won the day’s abortion battle – a seeming win for Republicans, for whom overturning Roe has been a public priority for decades. Yet the party may come to rue the day that they got what they wished for, after stacking the Court so that Friday’s result was inevitable.
Consider what the NYT reported Friday about the reaction of Donald Trump, who arguably did more than anyone else in recent years to secure Roe’s overturn, as he nominated three justices – Gorsuch, Kavenaugh, and Barrett – who voted to do so in Dobbs.
According to the NYT in Trump Privately Called a Roe v. Wade Reversal ‘Bad’ for His Party Trump spent the weeks following the leak of the draft Alito opinion in May harboring misgivings. The NYT pointed out that for many years, Trump had supported abortion rights – while saying he abhorred the procedure.
The man most responsible for shaping a United States Supreme Court that delivered the conservative movement a long-sought victory has spent weeks saying he didn’t think it will be good for his party.
Publicly, after a draft of the likely decision leaked in May, former President Donald J. Trump was remarkably tight-lipped for weeks about the possible decision, which the court ultimately handed down on Friday, ending federal abortion protections. But privately, Mr. Trump has told people repeatedly that he believes it will be “bad for Republicans.”
The decision, Mr. Trump has told friends and advisers, will anger suburban women, a group who helped tilt the 2020 presidential race to Joseph R. Biden Jr., and will lead to a backlash against Republicans in the November midterm elections.
In other conversations, Mr. Trump has told people that measures like the six-week abortion ban in Texas, which allows people to file lawsuits against those who enable abortions beyond that time-frame, are “so stupid,” according to a person with direct knowledge of the discussions. The Supreme Court let the measure stand in December 2021
Now, these alleged private misgivings didn’t prevent Trump from taking a victory lap Friday after the Dobbs decision was handed down. Per the NYT:
But in an interview that Fox News published after the decision on Friday, Mr. Trump, asked about his role, said, “God made the decision.” He said the decision was “following the Constitution, and giving rights back when they should have been given long ago.”
“I think, in the end, this is something that will work out for everybody,” Mr. Trump told Fox News.
By early afternoon on Friday, Mr. Trump put out a statement taking a victory lap, including applauding himself for sticking by his choice of nominees. All three of Mr. Trump’s appointees to the court were in the majority
“Today’s decision, which is the biggest WIN for LIFE in a generation, along with other decisions that have been announced recently, were only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court,” Mr. Trump said.
Whether or not Dobbs will prove to be a boon for Republicans or not in part depends on how important the issue is to influencing voter’s electoral choices. Here a Friday poll result reported by the Washington Examiner, Just 5% call abortion top concern is on point. Yes, I am aware of the bias of the source – but the poll result seems sound:
Abortion, the No. 1 concern in today’s media and politics, ranks nearly dead last among areas voters care about as they struggle with paying daily bills, soaring inflation, and interest rate hikes, according to a just-released survey.
While the Supreme Court’s decision overruling the 1973 Roe v. Wade right to abortion has dominated today’s network and cable coverage, the latest McLaughlin & Associates poll said just 5% of voters call it a top concern.
Just below abortion, at 1%, is reviewing the 2020 election, over which the media are also obsessing.
Permit me to speculate a bit here. Respondents may have answered this way because the status quo for nearly five decades is that abortion is legal nationwide- no matter the difficulties women in some states may have faced when they tried to obtain them. Responses to pollsters as well as actual votes cast may be very different once states close the door on legal abortion – especially if state prosecutors seek to put women in jail if they prove they’ve traveled out of state to obtain an abortion. At least some Republicans are waking up to realization that going after women for obtaining abortions might not prove to be politically all that popular, as The Hill reported in Hutchinson says Arkansas abortion providers should face ‘criminal penalty,’ not women:
Arkansas Gov. Asa Hutchinson (R) on Sunday said abortion providers should face criminal penalties for performing procedures but said women would not be prosecuted in his state for getting an abortion.
In an interview with NBC’s “Meet the Press” moderator Chuck Todd, the GOP governor said only doctors who perform an abortion to save the life of a mother would not be prosecuted.
After the U.S. Supreme Court overturned Roe v. Wade on Friday, Arkansas’s trigger law banning abortions with the only exception to save the life of the mother went into effect.
The law makes it illegal to perform an abortion, with violators facing up to 10 years in prison. There are no exceptions for rape or incest.
The Hapless Democrats: Always Fighting For, But Never Actually Achieving Anything
So, I suggest, in the longer-term, over-turning Roe may not prove to be such an outright victory for Republicans as it seems at present.
How do things look on the blue side? Just after the Dobbs decision was released, Democrats quickly went to the time tested plays in their playbook, invoking the memes that turn out their base – and goose their fund-raising – but never seems to result in any concrete protections for abortion rights.
True to form, Chuck Schumer – my Senator – sent me a fundraising email within hours of the opinion’s release:
The Supreme Court just officially overturned Roe v. Wade and the constitutional right to abortion in America.
Mitch McConnell has indicated that if Republicans take back control of the Senate, they could pass a nationwide abortion ban. And the Supreme Court would stand by it.
Chuck Schumer is fighting like hell to get more Democrats elected so we can restore reproductive freedom – but he can’t do it without you. Rush a donation now to help elect more Democrats who will defend and restore the right to abortion! {Jerri-Lynn here: emphasis in original.]
Sorry, Chuck the game’s now changed. Abortion is no longer constitutionally protected throughout the country. Blaming it on the Republicans and saying the Democrats will fight like hell to fix this ain’t good enough.
The Democratic move here is to blame the loss of nationwide access to abortion completely on Republicans – and particularly, Trump. See this tweet from Laurence Tribe, the distinguished emeritus professor of constitutional law at Harvard Law School (HLS) , citing TrumpPacking:
If only that we’re true! Must get more people to see how deadly #TrumpPacking has become https://t.co/ZhFzc1jLbl
— Laurence Tribe (@tribelaw) June 24, 2022
Alas, Tribe makes the mistake of seeing the failure to protect abortion rights as a wholly partisan issue, placing blame for the Dobbs decision solely on Republicans, and failing to own the mistake Democrats made in failing to ensure that the ability of American women to secure abortions, nationwide, would be protected – regardless of who sat on the Supreme Court – when they had the chance to do so.
No amount of wriggling should now absolve leading Democrats for the roles they played in placing women who live in a large and growing number of no choice states from losing access to safe, legal, local abortions.
Three men — Presidents GHW Bush (Justice Thomas), GW Bush (Justices Alito, Roberts), Trump (Justices Gorsuch, Kavanaugh, Alito) — two of whom won with a minority of the popular vote — have done this to tens of millions of women and to the rule of law. This must be undone.
— Laurence Tribe (@tribelaw) June 25, 2022
I’m sure Professor Tribe had the best of his intentions when he fired off that tweet. I’m sick of good intentions in the service of tactically stupid manoeuvres.
Now, allow me to indulge for a moment in a bit of inside baseball disclosure here. In 1990, Tribe published Abortion: The Clash of Absolutes. At any time, Tribe always had a legion of current and former HLS students working for him as research assistants. Many worked on the abortion book, and in his foreword to the book, he singled out a full half dozen ‘especially’ for their help, including me, and another name you’d all recognize.
Who played his assigned role Friday and stepped up to the plate and denounced the Dobbs decision.
Today, the Supreme Court not only reversed nearly 50 years of precedent, it relegated the most intensely personal decision someone can make to the whims of politicians and ideologues—attacking the essential freedoms of millions of Americans.
— Barack Obama (@BarackObama) June 24, 2022
I’m not the only one who has remembered, however, that when this Tribe student had power to do something about protecting abortion rights nationwide, he didn’t. He didn’t merely whiff. In fact, he hid in the locker room and didn’t even step up to the plate:
— Ken Klippenstein (@kenklippenstein) June 24, 2022
I think that Tribe makes a major tactical mistake in seeking to place blame for the present situation on Republicans alone doesn’t get us any closer to figuring out how to secure access to abortions in states where they remain legal for women who live in no-choice states. By hammering the nasty Republican, anti-Trump memes one can rightly be accused of politicizing the sufferings of individual women. Not to mention failing to give Trump-voting, pro-choice women a reason for supporting measures to open up new options for women who live in no- choice states. I want to see formation of a broad, national movement, to make abortion safe, and legal, throughout the United States again. Which politicians and pundits will sit down and think through the winning strategy and tactics to get us to that point?
Practical Steps the Biden Administration Can Take
So, please spare us the outrage, and the empty rhetoric. It may energize the base, but other than helping with fundraising, what real impact has it had?
Here’s the current scorecard with regard to state abortion laws, as reported by Politico, Abortion laws by state: Where abortions are illegal after Roe v. Wade overturned.
In some states, patients who were waiting for an abortion at a clinic on friday were sent home when the Dobbs decision came down, as reported by the 19th, Patients sat in abortion clinic waiting rooms as Roe fell. They all had to be turned away.
Patients were in the lobby, waiting, the moment it became a post-Roe America.
The staff at Alamo Women’s Reproductive Services Clinic in San Antonio had just received a call from their attorney: Abortion procedures in Texas would have to stop immediately. The dozen or so patients in the lobby Friday morning would have to be turned away. The clinic staff would have to be the ones to tell them.
Andrea Gallegos, the clinic’s administrator, and the rest of the staff walked out and addressed the room: “The Supreme Court made this decision today and, unfortunately, your geographical location affects your bodily autonomy,” she said they told waiting patients.
I’ll discuss three issues, each affecting women who live in what are – or will soon be no-choice states – and which may improve their future access to abortions – even if they must travel to another state to obtain one.
The first is in ensuring nationwide access to mifepristone, an abortifacient approved by the FDA in 2000 to terminate pregnancies. I remember reading about such drugs when I was working on Tribe’s book – although I cannot recall precisely whether mifepristone, was one. IIRC, it was, but I don’t have Tribe’s book to hand to check. The Biden administration has moved quickly to deploy federal drug regulatory authority to ensure access to mifepristone nationwide. As reported by Stat, The Biden administration wants to get tough on states’ abortion pill restrictions. It won’t be easy:
Attorney General Merrick Garland is hinting he’s ready to get tough on states that block access to an FDA-approved pill used to terminate pregnancies.
He’s got a lot of work ahead of him.
On Friday, the Supreme Court ruled that the U.S. Constitution does not protect the right to an abortion, overruling the landmark 1973 Roe v. Wade decision. In response, the Justice Department declared that it will “work tirelessly to protect and advance reproductive freedom.” Namely, it warned that states can’t restrict access to mifepristone, a drug approved by the FDA in 2000 to terminate pregnancies.
“The FDA has approved the use of the medication mifepristone. States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland wrote in a statement.
Despite Garland’s declaration, more than 30 states have already enacted some form of mifepristone restrictions, according to the Guttmacher Institute, a think tank that supports abortion rights. Some states have had those restrictions on the books for years, and even Democratic administrations have never challenged them.
Legal scholars who spoke with STAT say that states’ mifepristone restrictions are, in fact, vulnerable to a potential legal challenge. That’s because the FDA has the sole authority to approve drugs in the United States. There’s legal precedent, too, for courts striking down states’ restrictions on FDA-approved drugs. Massachusetts’ effort to ban the opioid Zohydro, for example, was struck down because the FDA’s approval of the drug “preempted” the state law.
Precisely how these legal challenges will pan out is uncertain – although Stat suggests that the feds will likely win, once the issue finally wends its way through the courts:
Patti Zettler, an associate professor of law at Ohio State University, put it simply: “When state and federal law conflict, federal law wins.”
But it won’t be easy to crack down on the mifepristone restrictions — and the process will take some time and creative lawyering.
“It’s true that it is not a slam dunk,” said Greer Donley, an assistant professor of law at the University of Pittsburgh, who authored one of the first papers arguing that mifeprestone laws could be challenged to protect abortion access.
Donley guessed it could take “at least a year, if not two,” for mifepristone restrictions to be overturned — and even longer if the fight gets caught up in appeals.
But that outcome is by no means certain, and in the interim, women will almost certainly be prosecuted in no-choice states for violating state statutes that criminalize the drug’s use. A lively black market for mifepristone will no doubt develop as well and that reality raises its own set of issues.
A second issue is how location data could be used by those who oppose abortion to target women who travel out of state to obtain an abortion. Recall that Texas has enacted an abortion bounty statute that allows bounty hunter plaintiffs The Texas Abortion Law Creates a Kind of Bounty Hunter. Here’s How It Works. to collect bounties and legal fees from abrtion providers. Similar enforcement measures are mulled or pending in other state statutes, some targeting women who seek abortions, and will no doubt proliferate, as new state legislation is introduced in the wake of Dobbs.
One’s smartphone and computer data could provide a considerable boon to bounty hunters who might pursue individual residents of no choice states, as reported by Insider, Internet history, texts, and location data could all be used as criminal evidence in states where abortion becomes illegal post-Roe, digital rights advocates warn.
On Friday – before the Dobbs decision was announced – three senators, Ron Wyden, Elizabeth Warren, and Cory Booker, and House member Sara Jacobs, wrote to Federal Trade Commission chair Lina Khan, asking that she investigate Apple and Google for allowing the collection and sale of the personal data of mobile users:
We write to request that the Federal Trade Commission (FTC) investigate Apple and Google for engaging in unfair and deceptive practices by enabling the collection and sale of hundreds of millions of mobile phone users’ personal data. These two companies knowingly facilitated these harmful practices by building advertising-specific tracking IDs into their mobile operating systems.
Apple and Google both designed their mobile operating systems, iOS and Android, to include unique tracking identifiers which they have specifically marketed for advertising purposes. These identifiers have fueled the unregulated data broker market by creating a single piece of information linked to a device that data brokers and their customers can use to link to other data about consumers. This data is bought or acquired from app developers and online advertisers, and can include consumers’ movements and web browsing activity.
While purportedly anonymous, these advertising identifiers are easily linkable back to individual users. This is because some data brokers sell databases that explicitly link these advertising identifiers to consumers’ names, email addresses, and telephone numbers. But even without buying this additional data, it is often possible to easily identify a particular consumer in a dataset of “anonymous” location records by looking to see where they sleep at night.
Both Apple and Google now allow consumers to opt-out of this tracking. Until recently, however, Apple enabled this tracking ID by default and required consumers to dig through confusing phone settings to turn it off. Google still enables this tracking identifier by default, and until recently did not even provide consumers with an opt-out. By failing to warn consumers about the predictable harms that would result by using their phones with the default settings that these companies chose, Apple and Google enabled governments and private actors to exploit advertising tracking systems for their own surveillance and exposed hundreds of millions of Americans to serious privacy harms.
With the Supreme Court likely to overturn Roe v. Wade, individuals seeking abortions and other reproductive healthcare will become particularly vulnerable to privacy harms, including through the collection and sharing of their location data. Data brokers are already selling, licensing, and sharing the location information of people that visit abortion providers to anyone with a credit card. Prosecutors in states where abortion becomes illegal will soon be able to obtain warrants for location information about anyone who has visited an abortion provider. Private actors will also be incentivized by state bounty laws to hunt down women who have obtained or are seeking an abortion by accessing location information through shady data brokers.
The last issue is whether states can restrict travel to other U.S. states – which some no-choice states might seek to do to prevent their residents from obtaining an abortion. This issue is discussed at length in an article in The Hill, The right to travel to seek an abortion in a post-Dobbs world. The constitutional status of interstate travel isn’t altogether clear. Although interestingly, Justice Kavanaugh – part of the Dobbs majority – does think there is a constitutional right to interstate travel:
The news was bleak in Friday’s Supreme Court holding in Dobbs v. Jackson, and I am not here to tell you otherwise. But the opinion itself contains a few glimmers worth analyzing. One is from Justice Brett Kavanaugh in a concurring opinion: “For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel.”
The right to travel has not been adumbrated extensively in case law. With respect to international travel, it received a bump of attention during COVID-19, when some Americans were forced to quarantine out of the country until they could produce negative COVID tests; and also when, at the beginning of the pandemic, some governors sought to ban interstate travel from states deemed to be “COVID hotspots” — a futile exercise that was soon abandoned. Almost no case law emerged.
The Hill article does a deep dive into arguments supporting a constitutional right to interstate travel (albeit a journalistic deep dive; it’s no law review article). Due to space considerations, I’m not going to discuss those here, but refer interested readers to that discussion. I’ll instead focus on a more immediate and pressing concern. If a state were to enact a travel ban for residents who travel out of the state to seek an abortion – as is the case in Missouri, where such a bill is pending, according to The Hill – a similar difficulty arises as in the mifepristone discussion above. Even if the Supreme Court eventually clearly and expressly recognises a constitutional right to interstate travel, for any reason whatsoever, it would take time for the judicial process to run its course. In the interim, the pregnant woman entangled in the lawsuit would be trapped in her home state – unable to obtain an abortion.
Several pro-choice states, including California, Colorado, Connecticut, Maine, Massachusetts, and New York are expected to see an upsurge in women visiting their states in order to obtain abortions. California Governor Gavin Newsom announced a plan Wednesday to add $57 million in funds to the state budget so as the influx of out-of-state patients that might travel to the state to access abortion care, as reported by Axios, Newsom unveils plan to increase funding for abortion access in California. Many corporations have also announced they will provide funding and support for employees who live in no choice states to travel out of state to obtain abortions.
Due to reasons of space, I won’t consider how prosecutors in no-choice states might seek to go after people in other states who help women procure abortions in states where abortion remains legal. I again refer interested readers to The Hill’s travel article cited above for further details. I do want to note that at least one pro-choice state, Massachusetts, is taking steps both to shield its state’s abortion providers from liability in other states, and to prevent disclosure of state medical records:
At the other end of the spectrum, citing the Massachusetts Constitution’s protection of reproductive rights, Gov. Charlie Baker on signed an executive order designed to shield Massachusetts-based health care providers from liability for providing services to abortion-seekers from out of state, prohibiting extradictions, and protecting records from disclosure to states with criminal penalties against abortion seekers, allies and service providers.
And now for another personal anecdote to bring home why this all matters. I doubt whether many Javert-like prosecutors have time or inclination to themselves investigate and pursue women for obtaining out-of-state abortions. Those who promote restrictions know that bounty statutes would allow individuals to do the heavy lifting. And there are enough no-choice zealots who probably don’t need all that much incentive to act as bounty hunters, perhaps combing through rubbish, for tell-tale evidence – positive home pregnancy test, or a mifeprestone packet – or examining location data and smartphone data trails.
I have a cousin, who for decades has brayed on at family gatherings about his considerable no-choice activities. Blockades of abortion clinics, that sort of stuff. The same cousin whom when we meet for lunch insists on grabbing the hands of everyone sitting around the table and loudly ‘saying the blessing.’ I’m sure he’s celebrating this weekend. He has visited me and once chided me for merely having a magazine on my coffee table that featured a cover story profiling Faye Wattleton, then head of Planned Parenthood. It annoys him intensely that I don’t engage, and just smile sweetly and ask about how his children are.
I remember being at my sister’s wedding in 1989, when this cousin buttonholed my father and told him he shouldn’t pay my HLS tuition if I was going to take a constitutional law course with Larry Tribe.
This was a ludicrous thing for him to say, on so many levels. But I’ll deal here with one only.
Now, one thing my parents were always very good at during my childhood and beyond was encouraging my intellectual curiosity and independence. They supported me as early as the first grade, when an elementary school librarian objected to me borrowing books that weren’t on the children’s table. Once I learned to read, I was off and running, and I didn’t want to be limited to reading what I disdained as ‘baby books’. I told the librarian I was reading the book with my daddy, and the librarian retorted that my daddy could borrow his own books. My mother stepped in to support me, and wrote to that librarian, asking her not to interfere with my choice of books.
My father listened carefully to my cousin’s tirade, nodded, but didn’t say anything. That wasn’t unusual; Dad was a man of few words and wasn’t going to waste any on what was my sister’s wedding day in a debate with my cousin, over what Dad regarded as my HLS choices. My parents eventually ensured, however, that my cousin received a response. Some months later, when I was selected to join Tribe’s legion of research assistants, Mom gleefully told my aunt – i.e., my cousin’s mother – how proud they were that I’d scored the Tribe research gig. Message sent!
Alas, all too many women who now live in no-choice states are now potentially more vulnerable to the undue concern of the likes of my cousin when they seek an abortion – even in a state where to do so remains legal. I want to know what politicians are going to do to help them. I don’t care what party these protectors of women’s rights belong to.
But please don’t tell me you’re going to ‘fight for’ anything. Certainly not if you want me to send you any funds. Nor should you claim it’s all the other party’s fault: there’s ample blame to go around for the position we find ourselves in. Those who’ve been paying attention know that.
I’m not listening to any more sweet nothings.
