June 27, 2022
On Friday, the U.S. Supreme Court overturned Roe v. Wade, ending nearly 50 years of constitutional protections for abortion. The Dobbs v. Jackson Women's Health ruling is expected to result in abortion bans in nearly half the states. Here two WAPPP-affiliated faculty reflect on the historic ruling overturning constitutional protection for abortion and the impact it will have on women's rights and other protected civil liberties.
The Dobbs decision is heartbreaking for everyone committed to women’s autonomy and equality. The decision also has potentially devastating implications for other rights, many longstanding and currently part of the social, historical, and moral fabric of America. The original Roe v. Wade decision was based on the Court’s finding that access to abortion was a “fundamental” right, stemming from the notion of individual privacy as the foundation of individual liberty. Though there was no right to “privacy” mentioned in the Constitution, the Court found that many other sections of the Bill of Rights created a “penumbra” of privacy embedded in the right to “liberty.” This foundational privacy right was the basis for several extremely important Court decisions recognizing individual rights, including access to contraception, to the ability to interracially marry, to engage in same-sex intimacy and, ultimately, same-sex marriage. Although the Dobbs decision notes in passing there is no intention to question those other decisions now, the legal reasoning of the opinion seems to reject the basis for those rights, too. It is also very hard to trust that guarantee from some of the same justices who indicated their respect for Roe as settled law during their confirmation processes.
— Sarah Wald, Adjunct Lecturer in Public Policy; HKS Co -Chair of Joint Degree Program in Law and Policy
This decision will affect women’s and girls’ rights and lives in almost every domain. Losing control over whether to be pregnant and whether to become a parent in a country without recognized rights to healthcare, much less contraception, paid parental leave, and childcare, will hurt prospects for economic equality and closing the gender wage gap. The Dobbs decision degrades equality before the law, as half the population now doesn’t have constitutionally protected rights to bodily autonomy and medical freedom. The reproductive health implications are almost too numerous to name, but the upshot is that—as state policies and laws restricting abortion multiply— navigating whether and how doctors can fulfill their Hippocratic oath will become perilous. Partners, husbands and boyfriends, parents and friends will become potential accomplices in crime if they help loved ones pursue medical care and reproductive choice.
It remains to be seen what impact Dobbs could have on other human and civil rights. The majority opinion indicates a Court that is relatively unencumbered by current legal precedent and creative in their originalist disposition to the Constitution. This potentially opens the door for “reinterpreting” guaranteed civil rights and liberties grounded in equality before the law. In democracies, courts are meant to protect and deliver on people’s rights, and the majority abdicated that to us. Therefore, the more urgent question is what will states and localities do to protect and expand guaranteed rights? How can we reimagine our relationship to the law and its leaders such that it serves a diverse—and divided—moral polity heading into a dynamic future?
— Zoe Marks, Lecturer in Public Policy