The Problem with Dobbs

Continued from page 25 old. New technology enabling easy access to medical records across hospitals and providers is creating new risks, as is the ability to use social media platforms such as Facebook, Instagram or Google to track individuals who may be seeking “illegal” care. Eventually, these issues will end up in the courts, which will need to decide the thorny issue of which state’s law controls in the absence of a guaranteed federal right.

Justice Alioto’s view that stare decisis did not dictate adherence to Roe and Casey because there was no reliance on those decisions is equally misguided and ill-informed. According to the Dobbs majority, “because getting an abortion is generally ‘unplanned activity,’ and ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions,’” traditional reliance interests are not implicated. However, most people are not tracking their state’s legislation when they decide to have sex. Even if they did, contraception is still not entirely effective. More than half of unwanted pregnancies occur due to contraceptive failure.

More importantly, abortion has been legal for the past 50 years; no individual of reproductive age has experienced a time when abortion was not safe, legal and accessible. Several generations now have made decisions about when to marry, whether to pursue higher education, what jobs to take and how to follow a career path based on having control over if, when and how many children to have. Before the Supreme Court legalized contraception in Griswold and abortion in Roe, only 5.8% of women held college degrees, 4.2% attended law school, 42% were in the workforce, and 15% boasted management positions. Women’s wages were 60% of men’s.

This lack of historic understanding undergirds another key argument Justice Alito makes. As a basis for unraveling a 50-years-old constitutional right, he claims “a right to abortion is not deeply rooted in the Nation’s history and traditions.” But the history he cites is history from the nineteenth century when legislatures were comprised exclusively of white males. Women and Blacks did not have the right to vote. Surgery, including that used to terminate a pregnancy, was incredibly dangerous. Surgeons did not know how to control infection, and mortality was high.

Because abortion is significantly safer than childbirth, maternal morbidity and mortality rates dropped under Roe. By the 1960s, techniques of antisepsis and asepsis had advanced considerably. Antibiotics had been introduced. Curettage, used for abortion in the first trimester, had become a safe, accepted and routinely used medical technique. The chance of dying from an abortion was consider ably less than delivering a child. The real risk was illegal abortions. By 1967, criminal abortions had become “the most common single cause of maternal deaths in California.” As a result, the deans of all California medical schools, chairmen of medical school departments and professors of medical schools advocated for its legalization. When Roe went before the Supreme Court in 1973, most religious organizations and public health advocates similarly pressed for its legalization. They had seen the death that resulted when women were denied this simple right.

Contrary to the view of the current Supreme Court, “constitutional concepts are not static.” Prior Supreme Courts repeatedly have recognized that the Constitution should “not be shackled to the political theory of a particular era.” Nor should constitutional rights be left to the legislatures in individual states to sort out. Instead, fundamental rights should be analyzed in the context of where the country stands at a particular point in time. When advances in medicine have made abortion far safer than carrying a pregnancy to term, contraceptive failure and human error result in unwanted pregnancies, and women and their families have made life decisions based on the ability to control if and when to have children, abortion should be preserved as a constitutional right. Rather than removing courts from adjudicating these difficult decisions, Dobbs all but guarantees the courts will remain in the thick of this controversy.

Beth H. Parker is founder and Principal of Parker Law & Mediation. She is an Adjunct Professor at UC Law San Francisco. She has served as the General Counsel of three Planned Parenthood affiliates and their separately incorporated 501(c)(4) Action Funds, where she has advised Senior Management and the Boards on a wide array of health care, regulatory compliance, nonprofit governance and political advocacy issues, handled government investigations, and managed litigation. Between 2013 and 2018, she was Chief Legal Counsel of Planned Parenthood Affiliates of California, the state-wide entity that coordinates the legal, legislative, advocacy, regulatory and electoral work for Planned Parenthood’s seven California affiliates. A graduate of Harvard Law School, Beth was a member of Harvard’s Legal Aid Bureau. She earned her BA in Architecture and Urban Studies magna cum laude with Honors in her Major from Yale University.