The Supreme Court of the United States' decision on Dobbs v. Jackson Women’s Health Organization overturning abortion protection granted under Roe v. Wade sent shockwaves as it upends nearly 50 years of legal precedents.
Now, abortion advocates and people seeking abortions will have to contend with 50 different state constitutions, which have differing views.
Several states are looking to amend their constitutions through ballot measures either to grant legal protection for abortions or to ban them. Experts say the legal uncertainties surrounding the Dobbs decision could linger for years to come.
KPBS spoke with two legal experts, Dan Eaton and Maggie Schroedter, to answer questions from the community about the impact of the court's decision.
Eaton is an employment attorney and media legal analyst. He also teaches business ethics at San Diego State University.
Schroedter is the president of the Lawyers Club of San Diego and a bankruptcy attorney.
Below are their answers. The answers have been edited for brevity and conciseness.
During the confirmation hearings, the justices cited the long-standing "stare decisis" clause that settled law remains settled law. Why did they even hear the case? – Bradley Tinnon, Oceanside.
Schroedter: SCOTUS heard the case because, presumably, a majority of the Justices believed that Roe and Casey were wrongly decided. The Court noted that “(a)lthough 'stare decisis' plays an important role and protects the interests of those who have taken action in reliance on a past decision … (it) is not an inexorable command.” The Court then reasoned that "stare decisis" did not apply because: (1) Roe was wrong; (2) the quality of the reasoning was poor; (3) the holding of Roe was not workable; (4) it had effect on other areas of the law; and (5) it would not upend concrete reliance interests, like those involving property and contract rights.
Eaton: The closest insight into why at least four of the nine justices agreed to hear this case is in the Court’s announced statement of the question it agreed to answer in the appeal: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
As Chief Justice John Roberts pointed out in his concurring opinion in this case, the Court could have overruled the part of Roe v. Wade and Planned Parenthood v. Casey that barred pre-viability abortion restrictions without overruling the core right announced in Roe and Casey that a woman has a constitutional right to terminate her pregnancy at some point.
"Stare decisis," which a leading law dictionary defines as “to stand by things decided,” is a policy of judicial decision-making that a judge generally should apply rules announced in prior decisions, especially constitutional decisions. But "stare decisis" is not a “clause” found in either the U.S. Constitution or in any federal statute and it is “not an inexorable command,” as Justice Samuel Alito noted in the majority opinion.
Since Roe v. Wade provided fundamental rights to privacy and body autonomy for people with uteri, its overturn removed those rights. As women can no longer trust how our data will be used against us while we travel outside of “safe-for-now” states, what are the steps politicians in California will take to ensure our data is safe and won’t be used against us in hostile states? – Sarina D., La Mesa
Schroedter: Congresswoman Sara Jacobs (D-San Diego) introduced the My Body, My Data Act, legislation to protect personal reproductive health data in response to the Dobbs decision. The My Body, My Data Act would create a national standard to protect personal reproductive health data, enforced by the Federal Trade Commission. The bill would prevent certain information from being collected and retained, such as personal reproductive health data, and from it being disclosed or misused. If this bill becomes law, it would preempt conflicting state laws.
Gov. Gavin Newsom also just signed a bill AB 1666 which protects out-of-state patients who travel to California for an abortion from lawsuits in other states, as well as doctors who perform abortions in California. It also provides that California will not cooperate with any states that attempt to prosecute women or doctors for receiving an abortion or providing abortion care. That said, California law does not preempt other state laws. If a California resident receives healthcare in a state which now criminalizes abortion, California cannot prevent that state from enforcing its own law.
Eaton: Action by individual states that protect abortion rights is likely to be less effective than action by federal officials and individuals themselves in guarding digital privacy.
What can we do to protect the remaining rights under the privacy umbrella from the same fate, and is there any way to restore abortion access to women, particularly to women of limited economic means, in states that have made it illegal? – Anonymous, Vista
Eaton: Reinforced protection of the related privacy rights may come through adding those rights to state constitutions and through a litigation strategy, in the face of state measures to curtail those rights, that focuses on how and why the "stare decisis" analysis is different in these other contexts than in the abortion context.
Restoring abortion rights in those places where they have been rescinded will be harder. State legislatures that are imposing increased restrictions on abortion are getting most of the attention in the aftermath of Dobbs, but state laws are only one part of the legal framework. Challenges are being mounted to some of these laws in state and federal courts, with some seeking to overturn all or parts of these restrictive laws based on state constitutions.
There is a dispute in the legal academy about whether Congress could enact right to abortion by way of a federal statute based on its power to regulate interstate commerce, enact legislation ensuring equal protection of the law under the fourteenth amendment, or both.
Schroedter: Vote. Our elected representatives matter. For example, a pro-choice Congress could pass federal legislation making abortion legal across the country, which legislation would preempt conflicting state laws. Because of our governor and legislature, California continues to offer abortion services for out-of-state patients.
You can also volunteer to register voters and encourage voting in states that have made abortion illegal, and donate (if you are able) to Planned Parenthood and other pro-choice organizations, which are continuing to fight for vital healthcare services and advocate for patients across the country.
What are the legal implications for people in states like California to mail the morning after pill or provide other forms of non-surgical contraception to states where it is banned? - Heather, La Mesa
Eaton: Mailing a pill that induces abortion — even one approved by the Federal Food & Drug Administration — to a state that prohibits such drugs is illegal.
Laws in California, Massachusetts and other states laws now prohibiting state officials from cooperating in official investigations from other states where abortion is illegal may not be enough to avoid professional harm to the sender of such pills, such as doctors and pharmacists.
On June 24, Gov. Gavin Newsom signed into law AB 1666 barring the application of any “law of another state that authorizes a person to bring a civil action against a person or entity civil actions in California state court” who receives or seeks an abortion; performs or induces an abortion; knowingly engages in conduct that aids or abets the performance or inducement of an abortion; or attempts or intends to engage in any such conduct.
Article IV, section 1 of the U.S. Constitution generally requires one state to give “full faith and credit” the public acts and judicial proceedings of every other state. The California legislature’s legislative analysts have opined that AB 1666 would survive a challenge on this basis.
Can pregnant people from other states, such as Texas, be prosecuted for getting an abortion in California?
Schroedter: Presumably, no, not under the current legislature and governor. Gov. Newsom passed legislation providing that it will not cooperate with other states that attempt to prosecute pregnant people or doctors for receiving an abortion or providing abortion care.
This underscores the importance of voting. A 10-year-old girl from Ohio was raped and was forced to travel to Indiana for an abortion, which is still legal there. Indiana’s Republican attorney general said that he is investigating the doctor for an alleged failure to report the abortion and abuse.
Eaton: Perhaps not, partially because the criminal consequences of abortions are usually directed at those who provide or assist them rather than on the women who get abortions. Moreover, in his concurring opinion, Justice Brett Kavanaugh said it was simple, as a constitutional matter, that the constitutional right to interstate travel blocks a state from barring one of its residents from traveling to another state to obtain an abortion.
Are there any restrictions on abortions in California?
Schroedter: In California, abortions are legal up to 24 weeks. After 24 weeks, abortion is legal if the life or health of the mother is at risk.
Which states are banning or severely restricting abortions?
Eaton: The following nine states now ban abortion, in most cases with no exceptions for rape or incest: Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota, Texas, Wisconsin, and West Virginia.
As many as 12 additional states may soon have laws that ban or severely restrict abortion, though some of those laws are now tied up in court: Arizona, Kentucky, Louisiana, Utah, Idaho, North Dakota, Tennessee, Wyoming, Ohio, South Carolina, Florida, and Georgia.
What are ectopic pregnancies and are there any restrictions on getting abortions for them?
Schroedter: An ectopic pregnancy is when a fertilized egg grows outside a person’s uterus. The states that ban abortion do not provide an exception for an ectopic pregnancy. Some state laws allow abortion only to the extent the life of the mother is at risk. That said, many states now have severe restrictions on what constitutes “at risk,” sometimes requiring a panel of doctors to make that determination. Moreover, providers are now at risk of being criminally prosecuted.
Download Eaton's full answers.
Download Schroedter's full answers.
