Activate, Issue #3: Choice & the Slippery Slope

What happens after Dobbs could reshape American culture beyond abortion.

Activate’s Advisors are Nikola Bozinovic, Ellen Ehrenpreis, Catherine Foster, Jon Foster, Don Keller, and Glen Van Ligten.

“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”  Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 856 (1992).

As we await the Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization, the case challenging the constitutionality of Mississippi’s 15-week abortion ban—a decision widely expected to throw out 50 years of federal jurisprudence upholding women’s right to make their own reproductive choices—red states are outdoing one another in efforts to enact the most restrictive, most punitive anti-abortion laws in the country.  These range from Texas’ six-week ban (enforceable by vigilante civil suits) to Oklahoma’s law criminalizing all abortions—regardless of gestational age—except those needed to save the life of the pregnant woman. 

For its part, Florida just passed a 15-week ban that requires two doctors to certify in writing that a post-15-week abortion was necessary to save the pregnant woman’s life or to “avert serious risk of imminent substantial and irreversible physical impairment of a major bodily function … other than a psychological condition,” and requires abortion providers to deliver monthly reports counting all abortions—with a separate report on the count of medication abortions—and explaining the reasons for each abortion (regardless of the gestational age).

Missouri currently criminalizes abortions after eight weeks, but it has also passed a law that will take effect if and when the Supreme Court abandons Roe v. Wade, making any abortion (other than where the life of the woman is at risk) a felony offense.  And Missouri is even considering legislation to prevent pregnant Missourians from leaving the state to find an abortion in a state where it remains legal. 

These states and others are all relying on Justice Kavanaugh’s prediction during oral argument to prevail: “that the Constitution’s silent and, therefore, neutral on the question of abortion … [and] leaves the issue for the people of the states … to resolve in the democratic process.”  Thus, it seems inevitable that the women who live in these and other red states will, as a result of “the democratic process,” no longer be permitted to “participate equally in the economic and social life of the nation.”

Too grim?  Lest we think that abortion is only the last-chance means of controlling a woman’s reproductive life, and that contraception remains available even in red states, think again.  During Justice Ketanji Brown Jackson’s confirmation hearing, Republican Senators peppered her with questions about constitutional rights that, according to these Senators, the Supreme Court has simply “made up” over the years, and which (as Justice Kavanaugh pointed out) do not appear in any express language in the Constitution. These purportedly invented rights include one—the right to privacy in one’s personal life—which the Court has applied to invalidate anti-sodomy laws, as well as laws banning same-sex marriage and interracial marriage. 

That same “invented” right also applies to contraception.  In 1965, the Supreme Court invalidated a state statute that criminalized contraceptive use. In Griswold v. Connecticut, the Court famously concluded that the right to privacy—though nowhere mentioned expressly in the Constitution—was part of the “penumbra” of rights that could be inferred from various guarantees in the Bill of Rights, chiefly the First, Fourth, and Fifth Amendments.  These “penumbras,” Justice Douglas wrote, are “formed by emanations from those guarantees that help give them life and substance.”  The right to privacy from government intrusion into, in this case, intimate marital choice about reproduction, was reasonably inferred from those express guarantees of the First, Fourth, and Fifth Amendments, the Court concluded.

This is hardly revolutionary: the Ninth Amendment expressly contemplates the need to infer and recognize constitutional guarantees that do not explicitly appear in the founding document.  The Ninth Amendment provides “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.“  (The Ninth amendment was the product of debate among the Founders about whether a bill of rights was even necessary since it would be impossible to recite a comprehensive list.  Madison acknowledged that “by enumerating particular exceptions to the grant of power, it would disparage those rights which were not singled out,” a problem he addressed by including the Ninth Amendment.) 

The right to privacy that the Supreme Court in Griswold inferred from the Bill of Rights has been a source of controversy ever since; it marked the beginning of a period in Supreme Court history in which that privacy right was invoked repeatedly to void laws intruding into the most personal of decisions.  It led to invalidation of anti-sodomy statutes, prohibitions on interracial and same-sex marriage, and—pertinent today—bans on abortion.  It hardly bears pointing out that what links these Supreme Court decisions together is that they all empowered people who had long been disadvantaged in American society: people of color, women, and LGBTQ.  A decision in Dobbs that tosses aside this penumbral right puts every other decision that rests upon it at risk, too.  And stripping the right to choose from the Constitution exposes abortion to national “heartbeat” legislation—never mind the right’s current “let the states decide” mantra.

So, what do we do?  First, if you’re in a blue state, push for legislation like Connecticut’s, protecting abortion providers and patients from civil or criminal liability arising from laws in red states meant to punish out-of-state providers.

And push the private sector, too.  Large employers can still have an influence by providing health care benefits that guarantee their female employees access to abortion services in states that continue to allow abortion, and steer employees away from red states with regressive reproductive rights laws.

If you can, provide financial support for Planned Parenthood and the ACLU’s Reproductive Freedom Project.  They’re still on the front lines fighting for the right to choose, and they can use your help.

And finally, focus on the 2022 midterms.  We’ll discuss that in the next issue.