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At a turning point in reproductive justice, abortion laws now lie in the hands of the states

Abortion rights demonstrators rally, Saturday, May 14, 2022, outside the Supreme Court in Washington, during protests across the country.
Jacquelyn Martin
Abortion rights demonstrators rally, Saturday, May 14, 2022, outside the Supreme Court in Washington, during protests across the country.

States have been preparing for a Supreme Court ruling that stikes down the right to abortion natonwide since a draft opinion was leaked last month. Friday’s 213-page ruling in Dobbs v. Jackson Women's Health Organization is nearly identical to the draft, according to legal experts.

WSHU’s J.D. Allen spoke with Hofstra University law professor James Sample about this turning point for reproductive justice. Sample is concerned with how the nation’s highest court views the Fourteenth Amendment, which grants equal protection under the law.

JS: This is a seismic decision overturning nearly half a century of American law. The Roe decision was decided in 1973. It was reaffirmed by the court many, many times, most notably in a decision called Planned Parenthood v. Casey in 1992. Today's decision means that states around the country are authorized to treat women differently, depending on what their state legislature wants to do.

WSHU: We know that at least half of states plan to restrict, ban and criminalize abortion with Roe overturned. What are the nationwide implications that a patchwork of reproductive rights, and also legal penalties for infringing on these new laws, will have on the legal system?

JS: First of all, that in most of “red” America, abortion is or will within very short order be illegal, meaning that it will be criminalized, including the aiding and abetting of abortion. It means that other rights grounded in substantive due process — like abortion had been for 50 years — are also increasingly under threat.

So, same sex marriage, the right to contraception, those are classic examples, the right to interracial marriage, the right to engage in gay sex [wrote] Justice Clarence Thomas, in a concurrence that no other justice joined. But largely, one might assume that the justices didn't join that concurrence in part because those questions were not squarely presented before the court in this case. All of those decisions, and all of those reproductive and personal autonomy rights, are now in severe jeopardy.

With respect to abortion rights, women are, in roughly half the states, going to be second-class citizens relative to women in other states and relative to men in the same state.

WSHU: You started by saying women in red states — this is also going to have an impact on blue states, too. The decision is likely going to create an influx of women seeking care from states where abortion is an illegal procedure. States are trying to prepare for that by different means.

JS: Yes, without a doubt, the decision means that in states that are more hospitable to reproductive rights, we'll see what you might call abortion tourism. And that will certainly redound to the benefit of providers in those states.

But the severe consequence, even in that scenario, will be most harshly visited on women who lack the means whether that’s financial, or in terms of the time required, or in terms of the discretion of seeking an abortion, if it means traveling from Texas to California. It's very difficult to do that without getting a couple of days off from your employer. It's very difficult to do that if you've been the victim of rape or incest and you don't want your partner to know or you were victimized by a family member who has some degree of dominion and control over you. Those women are always in a precarious situation.

And today, the Supreme Court made the hardships that they face even more severe.

WSHU: This is the second Supreme Court decision to unsettle New York and the rest of the country this week, after striking down the New York concealed carry gun law in a ruling expected to impact half a dozen other states — the high court’s first major gun decision in more than a decade.

JS: In the span of 24 hours, the Supreme Court yesterday told states that they had no right to undertake measures aimed at mitigating a national epidemic of gun violence. Today, this very same Supreme Court majority turns around and tells the nation that abortion rights are entirely up to the states and cannot be guaranteed by the Constitution.

… So, this decision reflects a Supreme Court that is way out of step with the American public. Different polling numbers, depending on how the question is asked, show that broad majorities of Americans across the country supported abortion rights and supported keeping Roe v. Wade as the central governing precedent on this issue. But all it takes is three appointments by President Trump to the Supreme Court, and you now have 5-4 or 6-3 [majority], depending on how you read it. And there's some question as to how broadly Chief Justice Roberts’ opinion should be read that you have a court that is able to undo 50 years of American history and to criminalize reproductive freedom.

A native Long Islander, J.D. is WSHU's managing editor. He also hosts the climate podcast Higher Ground. J.D. reports for public radio stations across the Northeast, is a journalism educator and proud SPJ member.