Six questions (and some answers) about Dobbs, Roe, and the future of reproductive rights in America

I’m getting questions about abortion rights after Dobbs. I post more regularly on Twitter @jedshug, but let me try to briefly address some of the main questions here, executive summary first:

1. What about an exception to save the life of the mother? A fetus that 100% won’t survive?

Sorry, there seem to be five clear votes that there is no abortion right, even in the most horrifyingly clear situations.

2. Could SCOTUS or Congress ban abortion nationwide?

Yes. SCOTUS unlikely. If Republicans sweep the 2022 Senate and then the 2024 Presidential and House elections, a national ban by statute would be on the table.

3. Can this Congress “codify” abortion rights? Could the Democrats have done so in 2009 or earlier?

Not really. I think this whole “codification” rhetoric/angst is mostly a red herring. If Congress had passed such a broad law, it would get struck down by the Roberts Court. Only a law closely tied to “interstate commerce” could survive, and even then…

4. Can anti-abortion states criminalize travel by their residents to get an abortion in another state? Maybe. This is a very complicated legal question… And it raises a similar question:

5. What about other “unwritten” rights or “substantive due process rights” like a right to travel? Marriage equality? Privacy and birth control?

Good questions. I’d worry about IUDs and surrogacy, worry a bit less about marriage equality, and the Pill could raise some legal questions, but I don’t want to be too alarmist here.

6. Abortion drugs: Can the FDA (and the DOJ) use a doctrine called “preemption” to protect FDA-approved mifepristone, etc., from state criminal or civil penalties?

I’m skeptical. It’s urgent that Congress pass a clear preemption statute, and nuke the filibuster to do it. While they’re at it, add seats to the Court. But none of that is likely.

More complete answers:

1. What about the life of the mother or a catastrophic fatal fetal illness/genetic defect?

There is no sign of such an exception in this decision. In fact, Kavanaugh, the 5th vote to overturn Roe, wrote in concurrence:

“The Court will no longer decide how to evaluate the interests of the pregnant woman and the interests in protecting fetal life throughout pregnancy. Instead, those difficult moral and policy questions will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.” p. 11.

I agree that there should be a religious exemption (e.g., Jewish law/ Halacha requiring abortion to save the life of the mother), but I am not optimistic about this Court taking an even-handed approach to religious freedom.

2. Could the Supreme Court rule in the future that a fetus is a life and it must be equally protected against murder nationwide?

Yes, but unlikely. I speculate there are only 2 votes (maybe 3) for that enormous step. Alito’s reasoning at p 31-32, signed by five Justices, indicates that abortion “ends potential life.” _Potential_ life. Kavanaugh’s concurrence rejects a more pro-life national position, and I just don’t see Gorsuch agreeing that it ends “a full human life,” but maybe they’d agree that 3d trimester is a full human life? It really depends on future appointments.

If Republicans take over Congress and a Republican wins the presidency, Congress could ban abortion nationwide. I think the GOP would need huge majorities in both Houses, because some number of Republicans wouldn’t go along with that, but it is possible. [Update 6/27 on how this statute could be sustained by the Roberts Court: My colleague Julie Suk and I agree that a Republican Congress could rely on the 14th A., Sec 5, and make claims about its interpretation of “life” being a “congruent and proportional” enforcement of equal protection (of life), so that even if the Court didn’t go all the way to a fetal life interpretation of 14th A, Sec. 1 on its own interpretation of “equal protection,” it might defer to Congress’s fact-finding (plus a special “abortion”/life rule to distinguish this case from U.S. v. Morrison) and sustain such a federal statute. More likely than Interstate Commerce Clause.]

3. Congress “Codify” Roe? This is a red herring.

The Supreme Court can protect — or abolish — abortion nationwide because the 14th Amendment gives it the power to apply due process and equal protection nationwide against the states. But Congress needs an enumerated power, like regulating interstate commerce or enforcing due process/equal protection *but only congruently and proportionately* to rights recognized by the Supreme Court. Once the Court struck down Roe, there is no congruence or proprotionality to “codify” a 14th amendment right to abortion. The other option is “interstate commerce,” but the conservative Supreme Court has been narrowing such congressional power since the mid-1990s, especially for local and “family-law” issues. Could Congress pass a law now to protect “interstate abortion commerce” or “interstate abortion travel”? Yes, they should, and nuke the filibuster to get there. More on interstate travel:

4. Can anti-abortion states criminalize travel by their residents to get an abortion in another state?

Maybe. This is a very complicated legal question. Justice Kavanaugh’s concurrence tries to clarify some tough questions, on p. 10:

“[M]ay 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. May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause.”

5. What about other “unwritten” rights and substantive due process rights? Travel? Marriage equality? Birth control? Privacy?

This is the same part of Kavanaugh’s concurrence where he tries to clarify that other unwritten rights (and maybe “substantive due process” rights) are still safe. He also wrote:

“First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold; Eisenstadt; Loving v. Virginia, & Obergefell (marriage equality 2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”

I don’t think he was just describing the effect of the majority. I think he was signaling that he is not going to vote to overturn those precedents. And even though Roberts voted against Obergefell and marriage equality in 2015, I just don’t see him as a fifth vote to overturn it, especially not now. However, if Roberts dies or retires during a Republican presidency, all bets are off.

The real problem is for surrogacy and IUDs. In surrogacy and implantation, as I understand it, doctors try to implant multiple eggs, and if more than one impants, the process generally calls for “selective reduction,” which many states would criminalize as abortion. States can also claim that IUDs sometimes prevent a a fertilized egg from implanting, even if the science shows that such occurrences are rare. Could a state legislate that any fertilized egg/zygote a “human life” and an IUD is murder? I know this sounds crazy, but yes.

Could a state say the same about the Pill? Not if they care about science, but they don’t care about science, and I don’t trust this Court, either.

Could a state say the same about the Pill? Not if they care about science, but they don’t care about science, and I don’t trust this Court, either.

6. Preemption? Can the FDA’s approval of mifepristone create federal protection that preempts state criminal and civil penalties?

I doubt it. The Court decided Wyeth v. Levine in 2008 against FDA preemption of state tort law, and I thought it was a good result and well-reasoned. The doctrine emphasizes that Congress needs to expressly/explicitly preempt, or that the agency interpretation that there is conflict and preemption has to be persuasive. Here is Wyeth:

“As Congress enlarged the FDA’s powers to “protect the public health” and “assure the safety, effectiveness, and reliability of drugs,” Congress took care to preserve state law. The 1962 amendments added a saving clause, indicating that a provision of state law would only be invalidated upon a “direct and positive conflict” with the FDCA. §202, id., at 793. Consistent with that provision, state common-law suits “continued unabated despite . . . FDA regulation.” Riegel v. Medtronic (GINSBURG, J., dissenting); And when Congress enacted an express pre-emption provision for medical devices in 1976, it declined to enact such a provision for prescription drugs…”

“The weight we accord the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf. Mead (2001); Skidmore (1944). Under this standard, the FDA’s 2006 preamble does not merit deference.”

That’s not a promising decision, which a mix of liberals and conservatives signed. (Stevens wrote it, joined by Kennedy, Souter, Ginsburg, and Breyer, with Thomas concurring).

Here is an interesting article on this question, “The New Abortion Battleground,” by Cohen, Donley and Rebouche, forthcoming Columbia L. Rev. They concede:

“In the context of federal preemption of state drug law, plaintiffs must rely on implied preemption theories. The Supreme Court has noted that Congress expressly preempted state law when it created legislation that governed medical devices, but never did so for pharmaceuticals.”

The authors argue for implied preemption, but I am not yet persuaded, and I very strongly doubt the Roberts Court would be, because it undermines federalism, it seems to run against the text and purpose of the FDA statute preserving state law, and… well… we’re talking about abortion drugs and a very anti-abortion Court.

If the Supreme Court did not defer to the FDA and preemption in a complicated case about drug labels, where Congress gave little sign of preemption, why would the Roberts Court find preemption here? Roberts and Alito voted with the FDA over the states in that case, but I think the issues were so different that they could easily explain a vote against the FDA here. I think this case loses 6-3.

Congress must pass a clear preemption statute that abortion drugs preempt state criminal and civil law, and the Democrats should nuke the filibuster to do it. While they’re at it, add seats to the Court. But unless we speak out, none of that is likely, and unless we all mobilize in every state and federal election of our lifetimes, it’s going to get worse, not better.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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