Issue link: https://maltatoday.uberflip.com/i/1471907
13 maltatoday | WEDNESDAY • 29 JUNE 2022 OPINION Linda C. McClain & Nicole Huberfeld Linda C. McClain is Professor of Law, Boston University Nicole Huberfeld is Edward R. Utley Professor of Health Law and Professor of Law, Boston University AFTER half a century, Ameri- cans' constitutional right to get an abortion has been overturned by the Supreme Court. The ruling in Dobbs v. Jackson Women's Health Organization – handed down on June 24, 2022 – has far-reaching consequences. What did the Supreme Court rule? The Supreme Court decided by a 6-3 majority to uphold Missis- sippi's ban on abortion after 15 weeks of pregnancy. In doing so, the majority opinion overturned two key decisions protecting ac- cess to abortion: 1973's Roe v. Wade and Planned Parenthood v. Casey, decided in 1992. The opinion, written by Justice Samuel Alito, said that the Con- stitution does not mention abor- tion. Nor does the Constitution guarantee abortion rights via an- other right, the right to liberty. The opinion rejected Roe's and Casey's argument that the consti- tutional right to liberty included an individual's right to privacy in choosing to have an abortion, in the same way that it protects oth- er decisions concerning intimate sexual conduct, such as contra- ception and marriage. According to the opinion, abortion is "fun- damentally different" because it destroys fetal life. The court's narrow approach to the concept of constitutional liberty is at odds with the broad- er position it took in the earli- er Casey ruling, as well as in a landmark marriage equality case, 2015's Obergefell v. Hodges. But the majority said that nothing in their opinion should affect the right of same-sex couples to mar- ry. Alito's opinion also rejected the legal principle of "stare decisis," or adhering to precedent. Sup- porters of the right to abortion argue that the Casey and Roe rulings should have been left in place as, in the words of the Casey ruling, reproductive rights allow women to "participate equally in the economic and social life of the Nation." Chief Justice John Roberts con- curred in the judgment that Mis- sissippi's law was constitutional, but did not agree with the ma- jority opinion that Roe and Casey should be overruled entirely. The ruling does not mean that abortion is banned throughout the U.S. Rather, arguments about the legality of abortion will now play out in state legislatures, where, Alito noted, women "are not without electoral or political power." States will be allowed to regu- late or prohibit abortion subject only to what is known as "ration- al basis" review – this is a weak- er standard than Casey's "undue burden" test. Under Casey's un- due burden test, states were pre- vented from enacting restrictions that placed substantial obstacles in the path of those seeking abor- tion. Now, abortion bans will be pre- sumed to be legal as long as there is a "rational basis" for the legis- lature to believe the law serves legitimate state interests. In their dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor faulted the court's narrow approach to liberty and challenged its disregard both for stare decisis and for the impact of overruling Roe and Casey on the lives of women in the Unit- ed States. The dissenters said the impact of the decision would be "the curtailment of women's rights, and of their status as free and equal citizens." They also expressed deep concern over the ruling's effect on poor women's ability to access abortion services in the U.S. 30 years ago when Casey was being argued, many legal experts thought the court was poised to overrule Roe. Then, the court had eight justices appointed by Republican presidents, several of whom indicated readiness to overrule in dissenting opinions. Instead, Republican appointees Anthony Kennedy, Sandra Day O'Connor and David Souter up- held Roe. They revised its frame- work to allow more state regula- tion throughout pregnancy and weakened the test for evaluating those laws. Under Roe's "strict scrutiny" test, any restriction on the right to privacy to access an abortion had to be "narrowly tai- lored" to further a "compelling" state interest. But Casey's "undue burden" test gave states wider lat- itude to regulate abortion. In recent years, states have adopted numerous restrictions on abortion that would not have sur- vived Roe's tougher "strict scruti- ny" test. Even so, many state re- strictions have been struck down in federal courts under the undue burden test, including bans on abortions prior to fetal viability and so-called "TRAP" – targeted regulation of abortion provider – laws that made it harder to keep clinics open. President Donald Trump's pledge to appoint "pro-life" jus- tices to federal courts – and his appointment of three conserv- ative Supreme Court justices – finally made possible the goal of opponents of legal abortion: overruling Roe and Casey. What happens next? Even before Dobbs, the ability to access abortion was limited by a patchwork of laws across the United States. Republican states have more restrictive laws than Democratic ones, with people living in the Midwest and South subject to the strongest limits. 13 states have so-called "trigger laws," which greatly restrict ac- cess to abortion. These will soon go into effect now that the Su- preme Court has overturned Roe and Casey, requiring only state attorney general certification or other action by a state official. Nine states have pre-Roe laws never taken off the books that significantly restrict or ban access to abortion. Altogether, nearly half of states will restrict access to abortion through a variety of measures like banning abortion from six weeks of pregnancy – before many women know they are pregnant – and limiting the reasons abor- tions may be obtained, such as forbidding abortion in the case of fetal anomalies. Meanwhile, 16 states and the District of Columbia protect ac- cess to abortion in a variety of ways, such as state statutes, con- stitutional amendments or state Supreme Court decisions. None of the states that limit abortion access currently crimi- nalize the pregnant person's ac- tion. Rather, they threaten health care providers with civil or crimi- nal actions, including loss of their license to practice medicine. Some states are creating "safe havens" where people can travel to access an abortion legally. Peo- ple have already been traveling to states like Massachusetts from highly restrictive states. The court's decision may drive federal action, too. The House of Representatives passed the Women's Health Protection Act, which protects health care providers and preg- nant people seeking abortion, but Senate Republicans have blocked the bill from coming up for a vote. Congress could also recon- sider providing limited Medicaid payment for abortion, but such federal legislation also seems un- likely to succeed. President Joe Biden could use executive power to instruct fed- eral agencies to review existing regulations to ensure that access to abortion continues to occur in as many places as possible. Con- gressional Republicans could test the water on nationwide abortion bans. While such efforts are likely to fail, these efforts could cause con- fusion for people who are already vulnerable. Roe overturned: What you need to know about the Supreme Court abortion decision