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What ending Roe means for Mass.; how & why this could unwind 50 years of 'settled' law
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It's rare for a Supreme Court decision to become a household word. For every "Roe," "Dred Scott" or "Brown," there are hundreds of others that don't enter our everyday conversations in the same way.
On Friday, the court added a new case to that list: "Dobbs."
With a 6-3 decision the court overturned 49 years of what was called, even by some of the overturning justices, settled law, ending a person's constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. The decision overturns Roe v. Wade and declares there's no constitutional right to an abortion in the United States.
The decision will have an immediate effect on state laws, jurisprudence and many American lives — even in Massachusetts where the right to an abortion is protected. The state will likely feel the impact on its health care system as it positions itself as a haven for others. And the fallout from this ruling will animate American politics for years.
Legal experts and constitutional scholars are still synthesizing the opinion, concurrences and dissent in this decision, but here's what we know so far:
- Dobbs overturns the holdings of both Roe and Planned Parenthood v. Casey. The latter is often unmentioned when people use the shorthand "Roe." The 1994 Casey decision upheld the right to abortion while setting an "undue burden" standard for limiting the procedure.
- In so doing, Justice Samuel Alito cited several reasons in his 78-page opinion, writing:
- Roe was improperly decided, and Casey did not do the required work to address that.
- The 14th Amendment does not provide for the right to privacy or personal autonomy that Roe and later Casey claimed.
- Historical tradition shows that abortion is not rooted in this country's traditions and history prior to the Roe decision.
- Casey's use of stare decisis (or the court's doctrine of deference given to earlier decisions) was improperly applied.
Though the decision was expected, given the early draft leaked in May, it still shook the legal and political worlds, and the culture as a whole. Protests were immediate, abortion rights opponents cheered and vowed to press further, and nearly every state rolled out or touted laws to curtail or expand abortion rights.
As you can imagine, the broader implications of the Dobbs decision will take years to sort out. But we're looking at what we know now and will watch for in the future.
Local Reactions
In Massachusetts, reaction to the Dobbs decision was immediate.
- Just hours after the decision was released, Gov. Charlie Baker issued an executive order to try to protect people coming to the state to get abortions — and local medical professionals who provide them — from states that ban abortions.
- Members of the state's all-Democratic congressional delegation issued statements scorning the Dobbs decision and vowing to push for federal legislation protecting people's right to an abortion.
- Opponents of abortion rights, including Republican gubernatorial candidate Geoff Deihl, Archdiocese of Boston Archbishop Sean O'Malley and organizations like Massachusetts Citizens For Life cheered the decision, promising to press for changes to Massachusetts laws.
- Proponents here, meanwhile, have pledged to bolster protections for people seeking abortions in the state.
- Protesters made their way to the State House and Copley Square Friday night, joining demonstrations that cropped up across the country through the weekend.
- As WBUR's Martha Bebinger has reported, some efforts to better protect those seeking abortions started before Friday, following May's leak of an earlier Alito draft opinion. Advocates have disseminated information on medications that induce an abortion and created funding pools for those who need help securing an abortion. The state has create a $500,000 pool to help those seeking the procedure, and the state Legislature may increase that to $2 million.
By the numbers
WBUR's Gabrielle Emanuel recently dug into the numbers in Massachusetts. The vast majority of abortions here happen very early in pregnancy, and the number has decreased for the last two decades.
- This aligns with national trends, according to research gathered by NPR. In all, the statistics show many popular beliefs about the procedure just aren't true.
- Annually, there are fewer abortions in America now than in 1973, when Roe was first enacted, hitting a low in 2017 before increasing slightly in 2020. Experts attribute that to improved access to birth control and medical care.
- Contrary to claims made by opponents, polls have consistently showed a clear majority (59%) of Americans believe abortion should be legal in all or most circumstances.
- And there's a growing consensus in the medical community that the part of the brain that processes pain does not develop until week 29 or 30 of pregnancy. Several states have endorsed bans on abortion far earlier in pregnancy, using fetal pain as an argument to shrink the time frame for allowing the procedure.
Beyond Abortion
For some court watchers, legal experts and the dissenting justices, the how behind the Dobbs decision was just as groundbreaking as the what.
Alito, in his opinion, and Thomas, in his concurrence, both savaged the idea that there is a natural right to privacy in the Constitution, saying the reasoning in both Roe and Casey to justify that belief was (to Alito) "egregiously" wrong.
But that idea, that a right to privacy exists in several constitutional amendments, pre-dates both cases to 1965's Griswold v. Connecticut, a ruling that said states could not ban married couples from using birth control. Justice William Douglas, in the controlling opinion, wrote that privacy exists in the "penumbra" of the First, Third, Fourth and Ninth amendments, meaning each amendment depended on the idea of privacy as a rationale. In a concurring opinion, other justices cited the Ninth and 14th amendments for the same reason.
That determination, that a right to privacy is an assumed part of the Constitution, has become implanted in the last half century of American jurisprudence. Decisions protecting birth control, abortion, same-sex couples, same-sex marriages, interracial marriages and others have depended on this reasoning.
So, for some experts, the Dobbs decision to pull this tenet of jurisprudence root and stem from the high court's understanding of the Constitution, leaves several branch cases on much softer ground.
Alito, for his part, stressed this decision applied only to abortion, but Thomas pointedly said he would not stop there, citing Lawrence v. Texas (which struck down so-called "anti-sodomy" laws), Obergefell v. Hodges (which enshrined the right for same-sex couples to marry) and even Griswold, as potential cases to overturn.
With the court's choice to deny a constitutional right to privacy, coupled with a greater willingness to overturn prior precedents (diminishing that doctrine of stare decisis we discussed earlier), many experts expect the court will eventually hear challenges to the cases above, potentially unwinding 50 years of "settled" law.
