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Informed Citizens

are Better Citizens

by Robin Roenker

In June 2022, through its ruling in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court determined that abortion—a medical procedure to intentionally end a pregnancy—is not a right protected by the U.S. Constitution. As a result, access to abortion is no longer legally protected on a federal level. Now, states can determine to what extent abortion will be legal or banned within its own borders.

The ruling overturned the U.S. Supreme Court’s landmark 1973 decision in Roe v. Wade, which made abortion legal across all states in the U.S. for nearly 50 years. The Court’s recent ruling also overturned its 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey, which also upheld the view that the U.S. Constitution protects the right to an abortion.

“The Dobbs decision did something very unusual, which was that it took away a federal constitutional right—and you don’t often see that from the U.S. Supreme Court,” says Kimberly Mutcherson, a professor and co-dean at Rutgers Law School in Camden who has devoted her career to reproductive justice, bioethics and health law.

Understanding the Court’s decision

In Roe v. Wade, the Court ruled, in part, that the right to abortion was protected under the Due Process Clause of the Fourteenth Amendment, which says no state may “deprive any person of life, liberty or property without due process of law.” Specifically, in the Roe ruling—and again in the Casey ruling—the Court determined the U.S. Constitution legally protects an individual’s right to an abortion as a component of their right to privacy, stemming from the Fourteenth Amendment’s protection of liberty, or individual freedom.

However, with the Dobbs ruling, the Court reversed these earlier decisions, arguing now that abortion is not protected by the Fourteenth Amendment. In presenting the majority opinion, Justice Samuel Alito wrote: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”

As Professor Mutcherson explains, “When the U.S. Supreme Court makes decisions, they basically create a floor, and they are essentially saying states cannot give anything less [in terms of rights] than [the threshold] we have created here,” she says. “But Dobbs has taken away that ‘floor’ [of protection] for abortion, so it basically means that each state can now do essentially whatever it wants in the context of abortion.”

Issues of legal precedent

The U.S. Supreme Court often defers to a doctrine called stare decisis, a Latin term that means “to stand by things decided” when it deliberates on its rulings. In other words, the Court uses previous rulings, or legal precedent, on matters of law when issuing its opinions. That is why the Court rarely reverses itself. While the overruling of precedent established in Roe and Casey is rare—The Washington Post estimates the U.S. Supreme Court reversed itself 145 times between 1789 and 2020—it does happen.

For example, with its landmark ruling in Brown v. Board of Education (1954) the U.S. Supreme Court famously overturned precedent set by Plessy v. Ferguson (1896), a case that upheld the constitutionality of segregation and the concept of “separate but equal” accommodations for African Americans. In Brown, the U.S. Supreme Court required the desegregation of schools, declaring “the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal,” the Court said.

“What defenders of Dobbs would say is, there are other times that the Court has overturned precedent, and it’s been celebrated as a good thing, such as with Brown vs. Board of Education,” explains Michael Coenen, a professor at Seton Hall University School of Law and a constitutional law expert. “But critics of Dobbs would argue that while segregation was obviously an egregious wrong, abortion is a much more morally complex issue—with reasonable views on each side—and that since people have charted their life plans on this precedent, it’s very disruptive and inappropriate to just set precedent aside in the way the Court did.”  

What the ruling means for the states

Pro-life advocates—people who argue that life should be protected—have celebrated the Dobbs decision. Meanwhile, pro-choice advocates—people who believe a woman should have the right to choose whether to keep or terminate a pregnancy—feel the decision strips away fundamental personal rights.

In his concurring opinion in the Dobbs decision, Justice Brett Kavanaugh shared his belief that the U.S. Constitution is neither pro-life nor pro-choice, because it, in fact, says nothing about abortion. As a result, the ruling is meant to “leave the issue for the people and their elected representatives to resolve through the democratic process,” Justice Kavanagh wrote.

In other words, since the issuing of the Dobbs decision last summer, each individual state is now charged with determining its own laws to legalize or restrict abortion, which has led to a patchwork of differing policies across the country.

Under Roe, women could obtain an abortion at approved clinics without fear of legal consequence typically up to week 24 of their pregnancy. In a post-Roe America, according to the Center for Reproductive Rights, 12 states have made abortion illegal. Another dozen states are proposing legislation to ban or restrict access to abortion. Prior to the Dobbs decision, some states had already passed so-called “trigger laws” that would immediately or promptly restrict access to abortion in the event of Roe being overturned.

The state of Kansas asked its citizens to vote on a proposed amendment to their state constitution that would prohibit the right to abortion. In the first state decision on abortion rights following the Dobbs decision, the majority of Kansas voters voted “no” on such an amendment, so abortion there remains legal.

Meanwhile, at least 15 states, including New Jersey, California and New York, have pledged to be so-called abortion safe havens. In July 2022, Governor Phil Murphy signed two bills into law that provide additional legal protections for women who seek abortions in New Jersey and for healthcare professionals who provide them. These laws ensure that out-of-state residents can access confidential care and that healthcare providers are insulated from disciplinary action.

“Some states have proposed laws that restrict the ability of their own residents to travel somewhere else to receive an abortion,” Professor Coenen says. “But that brings about separate questions regarding whether or not those laws are even constitutionally permitted.”

Professor Mutcherson says, “It’s incredibly complicated for both women seeking an abortion and healthcare providers, because there’s so much litigation happening that the rules in some states are changing day to day.”

Recent court decisions

There have been several lower court decisions on abortion since the Dobbs ruling. In December 2022, the Arizona Court of Appeals ruled that doctors could not be prosecuted under an 1864 law—passed when Arizona was still a territory—that banned abortion. The same Arizona court upheld a law passed in May 2022 that allows abortions up until the 15th week of pregnancy. The state appeals court ruling could be appealed to the Arizona Supreme Court.

Meanwhile, in January 2023, the South Carolina Supreme Court ruled that its state constitution provides a right to privacy, stating in its ruling, “the decision to terminate a pregnancy rests upon the utmost personal and private consideration imaginable.” South Carolina’s ruling overturned the state’s six-week abortion ban. While the South Carolina Supreme Court said the right to abortion “was not absolute,” the ruling held that the law violated a provision in its state constitution that says: “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.”

The Idaho Supreme Court saw things differently, ruling that its state constitution does not include a right to abortion. In January 2023, the Court upheld three separate abortion bans—one outright ban, a six-week ban in the case of a threat to the life of the mother, and one that allows family members to sue abortion providers in civil court. Another Idaho law that allows for criminal charges against abortion providers is being challenged in federal court by the U.S. Justice Department.

Impact on other privacy issues

Some worry the Dobbs decision may signal a threat to other current federal constitutional rights, including the right to use birth control and the right to marry someone of the same sex. In ruling on these issues previously, the U.S. Supreme Court—in the cases of Griswold v. Connecticut (1965) and Obergefell v. Hodges (2015), respectively—had also linked these rights to issues of privacy, as protected by the Fourteenth Amendment.

In the Court’s Dobbs opinion, Justice Alito specifically stated that the U.S. Constitution does not mention a right to privacy. Future court cases, therefore, could seek to challenge federal constitutional protection for birth control, same-sex marriage, interracial marriage and other rights previously linked to privacy. In fact, Justice Clarence Thomas wrote in his concurring opinion that the U.S. Supreme Court “should reconsider” its past rulings on these issues.

“If you have an opinion that says, ‘Well, actually, we feel that whole right to privacy thing is rather specious and should have never been decided in the first place, then it’s possible to imagine peeling away these other layers [of rights based on privacy] as well,” Professor Mutcherson says.

While Professor Mutcherson believes legal challenges to federal birth control protections could be forthcoming, she feels stripping away federal legal protection for same-sex marriage would be much more complicated, and less likely. Professor Coenen agrees.

“With respect to same-sex marriage, the issue is a bit more complicated since, in explaining its ruling, the Court talked about both the Fourteenth Amendment right to privacy as well as a separate provision of the Fourteenth Amendment called the Equal Protection Clause,” Professor Coenen says. “So even if the right to privacy aspect falls away, [same-sex marriage] is still well-supported by the Equal Protection Clause.”

Still, Professor Coenen understands some citizens’ worry that “if the Court is attacking the roots of these cases, then the cases themselves could fall later.” The full impact of the Dobbs decision on other privacy issues is “not yet clear,” he says, and will only become so over time.

While same-sex marriage is still legal in all 50 states because of the Court’s Obergefell decision, the U.S. Congress took steps to codify it into law. In November 2022, the House of Representatives and U.S. Senate passed the Respect for Marriage Act. President Joseph Biden signed the legislation into law on December 13, 2022. The law requires that all 50 states recognize same-sex and interracial marriages performed in any other state; however, the law doesn’t require that individual states must perform these marriages.

Discussion Questions

  1. Professor Kimberly Mutcherson points out in the article that with the decision in Dobbs the Court took away a federal constitutional right, which is rare. How do you feel about the Court taking away a right that Americans had for nearly 50 years.
  2. What do you think of the stare decisis doctrine? Should the Court look to previous rulings when deciding new cases? Explain your answer.
  3. In the article, Professor Michael Coenen mentioned that some are critical of the Dobbs decision because they “charted their life plans on this precedent,” calling it “disruptive and inappropriate” to just set it aside. Do you agree or disagree with that position? Explain your answer.
  4. Read the sidebar: Technology and Privacy Post Dobbs Ruling below. How important to you is protecting your personal data? Should law enforcement or the government be allowed to force tech companies to turn over their users’ personal information? Explain your answer.

Glossary Words
appealed
— when a decision from a lower court is reviewed by a higher court.
codify — organize as laws.
concurring opinion — a separate opinion delivered by one or more justices or judges that agrees with the decision of the court but not for the same reasons.
desegregation — the elimination of racial segregation.
egregious — unusually or obviously bad.
overrule — in this case, to void a prior legal precedent.
overturned —in the law, to void a prior legal precedent.
precedent — a legal case that will serve as a model for any future case dealing with the same issues.
reverse— to void or change a decision by a lower court.
segregation — the policy of separating people from society by race or social class.
specious –misleading in appearance.
upheld — supported; kept the same.

This article and the sidebar below originally appeared in the winter 2023 edition of Respect, NJSBF’s diversity newsletter.

BONUS SIDEBAR: Technology and Privacy Post Dobbs Ruling

The U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization has brought up concerns about technology and the information that apps and big tech companies have stored on their users.

For example, period-tracking apps, which are used by millions of women to track their menstrual cycles, store personal health data, including when a pregnancy could be likely and when it might have been terminated. In addition, other apps, including many gaming apps, collect location data, and could reveal whether someone is at or near a facility that offers abortion services. Privacy experts point out that this data can be subpoenaed and is also sometimes sold to a third-party, which could be problematic for someone in a state that criminalizes abortion.

“We’re very concerned in a lot of advocacy spaces about what happens when private corporations or the government can gain access to deeply sensitive data about people’s lives and activities,” Lydia X.Z. Brown, policy counsel with the Privacy and Data Project at the Center for Democracy and Technology, told National Public Radio. “Especially when that data could put people in vulnerable and marginalized communities at risk for actual harm.”

Unlike doctors, period-tracking apps, such as Flo, Clue or Apple’s Health app, are not bound by patient privacy protection under the federal Health Insurance Portability and Accountability Act (HIPAA).

Data storage is key

Where your data is stored is key no matter what the situation. Evan Greer, director of Fight for the Future, a digital rights advocacy group, told Newsweek that data stored in the cloud can be subpoenaed, while data stored on a personal device would require a search warrant. “A warrant is a much higher legal bar than a subpoena,” Greer said.

The Washington Post reported that Google received more than 50,000 law enforcement subpoenas for data information in 2021. The tech company shared that information in 82% of those cases.

“Digital evidence has just revolutionized how criminal investigations are conducted in this country,” Catherine Crump, director of the Samuelson Law, Technology and Public Policy Clinic at UC-Berkeley Law School, told The Washington Post. “We live our lives online, we leave digital breadcrumbs of our prior activities, and of course those are going to be caught up in abortion investigations.”

Just deleting an app from your phone may not be enough, according to Leah Fowler, research director at the University of Houston’s Health Law and Policy Institute.

“Deleting your app from your phone does not always mean you’ve deleted your data anywhere other than your device,” Professor Fowler told The Wall Street Journal. “Sometimes you have to contact an app’s customer service support team directly to ensure that your historical data has been wiped on the developer’s end.” —Jodi L. Miller

Glossary Words
search warrant
—document issued by a judge that allows the police to search a particular area or person.
subpoenaed—to summon.