E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Based on the
commentary so far, I’m not convinced anyone has a firm grasp on the consequences
that would follow should the Supreme Court use the Dobbs case to
overrule Roe v. Wade. This is not
meant as a criticism, only to point out the likelihood that there could be many
unexpected effects. Perhaps it is
inherently difficult to think through the implications of changing a
longstanding legal reality on which so many millions of people have relied for
so long. (I’ll note I’m happy to learn
about scholarship which has already made the points I detail below).
Certainly some consequences
are easy to anticipate. It is clearer now
than it was, say, 20 years ago which states will continue to allow abortions
under something like the Roe-Casey framework and which will not. At the same time, no one regardless of their
views should think that the fact that multiple states will ban most abortions
returns us to a pre-Roe reality.
That 1960s reality is gone. The
future will be quite different, just as the structure of politics today is
different.
Two implications
occur to me that I have not seen mentioned.
[Updated with a new link after the jump]
One is whether the
exceptions written into laws banning abortion will actually be effective with
respect to pregnant women whose lives are in danger.You might think the answer is obviously yes,
but the worrisome case of Savita Halappanavar in Ireland is to the contrary.Her case suggests that there might well be a dangerous
disconnect between how doctors and prosecutors understand such exceptions.In particular, if there is uncertainty about
whether doctors will be prosecuted in a situation in which the patient might
live, doctors will likely not proceed.Could
doctors obtain in advance the equivalent of nonprosecution agreements?This does not seem likely, as it could make
prosecutors complicit in situations where the abortion takes place but it turns
out that the mother would have lived.Pro-life organizations will be ever-watchful of these cases.But if doctors adopt a de facto policy of no
abortions at all, even in a situation where there is a high probability of
death or injury, the result may well be tragic deaths like Halappanavar’s.
The second is the
implications for the regulation of pregnancy nationwide which connects in turn
to the legal status of women generally.That may seem a false start – getting rid of Roe is about
abortion, right?But overruling Roe
opens a door to state regulation of the entire course of pregnancy.This is because a non-Roe universe
zeroes out the fundamental right of bodily integrity for pregnant women
(people) under the substantive due process doctrine.The deferential rational basis test becomes
the default standard – although, again, only during pregnancy.Suddenly pregnant women are vulnerable to
state regulation in a way that has never been the case since Roe was
decided.And motivated by their success
in overturning Roe, some in the pro-life movement may well feel that this is a
power that should be exercised.
Nevertheless, I
think it’s unlikely that state will enact general codes of regulation
applicable to all women during pregnancy.There would be too much political resistance.But to understand the potential here more
fully, consider the legal situation of women who received state assistance of
some kind (like Medicaid) in states like Mississippi and Louisiana that will
ban nearly all abortions in the wake of Roe being overruled.States could condition receipt of further
assistance on compliance with a code of pregnancy regulation.Such a code could require notice to the state
when women discover they are pregnant, attendance at educational programs
designed to convince them they should not leave the state to seek abortions,
helpful information about what healthcare they should receive, and so on.But whatever the usefulness of the
information and services pregnant women receive, it is hard to avoid the
conclusion that pregnancy transforms them into second-class citizens.They are subject to special regulations that
others are not.Subject only to the
rational basis test, states can subject them to all manner of paternalistic
legislation.
Furthermore, even
if this regulation is confined to women receiving state assistance, it may well
have implications for the citizenship status of all women.Scholars like Linda Kerber have shown how
during the draft when women were not allowed to serve in the military, this
fact was cited against them as evidence that women were not citizens in the
full sense.A non-Roe universe
creates the same reality by underwriting the legitimacy of selective regulation
of pregnant women.By allowing states to
regulate the entire course of pregnancy as they see fit, it establishes the
principle that women can be treated unequally once they become pregnant.Second-class citizenship, that is, in literal
terms.Once this legal principle is
established, can it be confined to the states that ban abortions?And even if it can, shouldn’t we all be
concerned if a vast area of the country is willing to subordinate the rights of
women?