For Young Lawyers, the Potential Consequences of Dobbs Are Particularly Palpable

AYLA PRESIDENT’S COLUMN

BY BLAIR LEAKE, WRIGHT & GREENHILL, P.C.

The opinions expressed in this column are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

I am not the only person penning a column right now about the sudden criminalization of abortion. Certainly, my iteration will not be the most compelling, the most original, nor the most well-sourced of the bunch. However, the stripping of women’s rights in the year 2022 is such an affront to societal progress that it deserves as much of our attention as we can collectively bear. It is worth pointing out that most, if not all, of AYLA’s members had not even been born when the right for a woman to make her own reproductive medical decisions was first constitutionally recognized. We do not know a world where such a right was not a foregone conclusion. Young lawyers are also more likely to face family planning decisions than are our more seasoned peers. Thus, perhaps a (not-all-that) young lawyer can add a different perspective to the cacophony of voices currently weighing in.

Growing up, the discourse surrounding abortion always seemed to focus largely about whether using abortion as a form of birth control was moral, and thus whether a personal decision was moral. Legality was not even on the table. The legal debates instead focused on questions of what constitutes viability and undue burdens—and thus seeking to move the legal goalposts pursuant to Planned Parenthood v. Casey. C.D.C. data reflects that 92% of abortions are performed in the first 13 weeks of pregnancy, however, and thus most viability debates only touched on a tiny sliver of abortions being performed.

The parameters for public discourse were all but set because we as a society had accepted the general proposition of bodily autonomy as a human right. Once that was established, the questions and discourse became more nuanced and questions of degree—or at the very least less intrusive on the understanding that bodily autonomy was the baseline. In that context, it seemed like an archaic impossibility that our government could ever criminalize abortions performed for the health of the mother, for pregnancies brought about by rape or incest, or for fetal conditions such as triploidy. The unthinkable is suddenly nigh, however, as we stand at the precipice of just such a potential dystopian future depending on the state within which you reside.

Sadly, the discourse has necessarily changed as of late. Some of my colleagues seem far more concerned with academic questions of substantive due process applicability than about the stripping of their own long-held constitutional rights. The prior debates about what constitutes viability now seem almost genteel compared to the new reality of urgent debates about what constitutes a life-saving emergency—and who gets to make that decision in a setting where mere seconds of indecision could prove fatal. The notion of hospital lawyers making those decisions pre-emptively in standardized edicts as opposed to treating doctors who actually studied medicine should terrify everyone.

As I write this, my wife and I are currently expecting a daughter. The confluence of that timing with Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) and Texas’s abortion laws has produced personal fear levels that range from concerning to terrifying at any given moment— both in the short and long term. Suddenly, we as a family are faced with hypothetical questions such as whether any Texas doctors would even be willing to perform an abortion if my wife’s life depended on it. We are also faced with the depressing question of whether my soon-to-be-born daughter—a fifth-generation Texan—would be better off being raised in a different state that does not statutorily endorse forced childbirth upon rape victims, children, and women generally.

It was previously unnecessary to focus public discourse on basic notions of bodily autonomy because Roe v. Wade and Casey stood as baseline pillars formally enshrining and protecting the same. Heretofore, bodily autonomy was simply a given, leaving the debate to focus on linedrawing and on non-legal personal questions of morality. Those pillars are gone. Without them, the discourse must change again. Debating half-measures and minor carveouts—such as exceptions for the health of the mother, and not punishing rape victims—falls short of bodily autonomy as a human right by a country mile. Politicians dangling the same as bargaining chips arguably risk losing entire swaths of voters if they refuse to provide those rights as a matter of course in the immediate future. The goal for us all should be to get back to framing the discourse around the explicit understanding that abortion is an issue between a woman and her doctor. Anything less constitutes bowing to and accepting the death knell of fifty years of progress on women’s rights—and thus human rights. AL