Abortion and the Shameful Consequences of Dobbs v. Jackson

Justice Alito’s opinion in Dobbs v. Jackson struck down Roe v. Wade by ignoring five decades of reliance on that decision. His final opinion reflected no significant change from its previously leaked version and the same fundamental flaws remained on display: tendentious legal reasoning, dubious history and disrespect for precedent. Those flaws were discussed in a blog that addressed the leaked opinion and, for the most part, they need no further comment here. (See, “Abortion: Justice Alito’s Draft Opinion.”)

Nevertheless, one aspect of the Alito opinions, both draft and final, demands further emphasis in light of unfolding events. The earlier blog observed that “Alito failed to acknowledge at any point the range of devastating consequences that will be visited upon women by restrictive and punitive legislation in various red states.” That cruel and cynical omission remained a hallmark of the final opinion as its shameful consequences have become increasingly obvious.

It cannot be claimed that Alito was somehow unaware of those consequences. They were clearly and carefully spelled out in the dissenting opinion of Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan:

The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life. So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die within a few years of birth. States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.

Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.

The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases.  That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain, access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, “the views of [an individual State’s] citizens” will not matter.The challenge for a woman will be to finance a trip not to “New York [or] California” but to Toronto.

Tragically, the consequences described by Justice Breyer are now increasingly painful realities. For example, many of the state laws triggered by the Dobbs decision make no exception for rape or incest—or the age of the victim. In one case that received national attention, a ten year old Ohio rape victim had to travel to Indiana for an abortion. Initial reports of the case were scoffed at by voices on the right, including the “mainstream” Wall Street Journal. When the facts were fully confirmed, no apologies were forthcoming. (Erik Wemple in the Washington Post provided a devastating account of the Journal’s comical dithering.)

Indeed, many of the more zealous in the anti-abortion movement insisted that the girl should have carried the rapist’s offspring to term. That argument conveniently ignored not only the psychological damage to the girl, but “the brutal toll of pregnancy and delivery on the body of a child.” Moreover, the Ohio case is far from unique. As the New York Times reported, “One 10-year-old became the focus of debate, but more than 1,000 girls under 15 seek abortions each year. ‘How are we going to help the pregnant kids?’” If Justice Alito and any of his conservative colleagues felt any compassion for pregnant children, they were quite successful in concealing it.

Such children are, of course, but a small percentage of the women who will be subject to the merciless rule of the ayatollahs in Republican legislatures. Indeed, the clumsy laws passed in zealous haste have serious implications for women’s health in a variety of situations, some having nothing to do with abortion. Doctors have expressed uncertainty and fear over the risks of prosecution under murky laws. An AP News article reported that not only had women with ectopic pregnancies been denied treatment, but a woman suffering from lupus found that she “must stop taking medication that controls her illness because it can also cause miscarriages.” While similar problems exist for other medications and conditions as well, the affected patients are but collateral damage in the eyes of right-wing ideologues.

In addition to banning abortions without any exception for rape or incest, the draconian restrictions already on the statute books, or currently proposed, also include:

• bans on abortion after periods as short as six weeks or even from conception
• bans of travel out-of-state to obtain an abortion
• bans on medication abortions
• imposing a criminal penalty on a woman for obtaining an abortion

While thus far there does not appear to have been any recent attempt to prosecute a woman for obtaining an abortion, an article in the Atlantic, “The Coming Rise of Abortion as a Crime,” argues convincingly that we may not have long to wait.

The only justice to address restrictions in state laws was Justice Kavanaugh (he of the disingenuous confirmation testimony that gave assurance of his respect for Roe v. Wade as a precedent). Kavanaugh made this blithe observation:

[A]s I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter. 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.

Kavanaugh’s “view” will provide little comfort to women in states where Republican legislatures are right now busily at work creating burdens or barriers to such travel. Nor is there any assurance that, if the issue reaches the Supreme Court, Kavanaugh’s view would prevail: Justice Alito notably declined to include any such assurance in his opinion for the Court. Perhaps Kavanaugh’s representation here was as disingenuous as those he made during his confirmation hearing. In any event, Kavanaugh was obviously unconcerned by the fact that many women will lack the financial resources for interstate travel.

The Court is clearly open to states conferring absolute primacy on the assumed interests of a fetus, or zygote as the case may be. Whether it will go a step further, and insist on such primacy, remains to be seen. It is surely not a mere coincidence that each of the six justices in the majority is a Catholic or, in the case of Justice Gorsuch, a nominal Episcopalian who was raised as a Catholic. (Justice Sotomayor is also a Catholic but clearly leaves the teachings of her faith at the courthouse door.) It has been widely agreed that the Court should reflect a diversity in such matters as race and ethnicity. In assessing future appointees, it may well be important to consider also a diversity of religious belief.

• CLARIFICATION: I referred to the  to the dissent as Breyer’s dissent, whereas it was a joint dissent, with Breyer listed first because he was the most senior dissenter.