A sign reads “Codify Roe” as abortion rights supporters protest outside the First Street U.S. Courthouse in Los Angeles, June 27, 2022. (Photo/JTA-Mario Tama-Getty Images)
A sign reads “Codify Roe” as abortion rights supporters protest outside the First Street U.S. Courthouse in Los Angeles, June 27, 2022. (Photo/JTA-Mario Tama-Getty Images)

Berkeley Law dean: Overturn of Roe threatens to unravel a fabric of rights

Although the overruling of Roe v. Wade on June 24 was no surprise, it still felt shocking to read the opinion and realize that the Supreme Court took away a right that has existed since 1973.

But the reality is that this was to be expected once Donald Trump won the presidency in 2016. As a candidate, Trump said he would appoint justices who would vote to overrule Roe v. Wade, and he appointed three very conservative individuals for the court, each of whom was thought to be a sure vote to overrule Roe.

When Justice Ruth Bader Ginsburg died in 2020 and was replaced by Justice Amy Coney Barrett, it was clear that there were five votes to overrule Roe: Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Barrett. And these five justices did exactly that in Dobbs v. Jackson Women’s Health Organization.

What does it mean for Roe to be overruled?

The court said that abortion will be left to the political process. Initially, this means that it will be left to each state to decide for itself whether to allow or prohibit abortion.

In California, abortion will remain legal. There is no statute prohibiting abortions in California and politically it is highly unlikely for one to be enacted. Moreover, the California constitution explicitly protects a right to privacy, which has been held to protect a right to abortion.

Abortion will remain legal in many other states, as well. But it is estimated that over half of the states are enacting laws that prohibit all or virtually all abortions.

Alabama and Oklahoma, for example, have laws that outlaw abortions from the moment of conception. Some states have laws on the books that went into effect once Roe was overruled — many with no exceptions for pregnancies that result from rape or incest. Other states have laws that prohibit abortions from early in pregnancy, such as the Texas statute that forbids abortions after the sixth week of pregnancy.

Women in these states who want abortions and have money will travel to places where abortion is legal. But poor women and teenagers again will face the cruel choice between an unsafe, back-alley abortion or an unwanted child.

Congress, though, could enact a law for the entire country, creating a right to abortion or outlawing abortions entirely. Indeed, there is precedent for such congressional action on abortion. Twenty years ago, Congress enacted the federal Partial Birth Abortion Ban Act, which criminally prohibits a particular form of late-term abortion throughout the country.

RELATED: What Jewish law really says about abortion

A Democratic Congress might try to adopt a law protecting a national right to abortion, but Senate Republicans are sure to filibuster such a bill and block it from being enacted.

And when there is a Republican president and a Republican Congress, they are sure to try to enact a law forbidding all abortions in the country, and a Republican Senate might be willing to end the filibuster to do this. Then laws in California and other states allowing abortion will be preempted by federal law.

The court’s decision in Dobbs also puts other rights in jeopardy. The court said that Roe was “egregiously wrong” because it protects a right that was not included in the text of the Constitution, was not protected by the original meaning of the Constitution, and was not traditionally safeguarded as a constitutional right.

But by that reasoning, countless other Supreme Court decisions protecting basic aspects of privacy and autonomy were wrongly decided, as well.

For example, it was not until 1965, in Griswold v. Connecticut, that the court held that the Constitution protects a right to purchase and use contraceptives. It, too, is not a right in the text of the Constitution, nor was it contemplated when the document was ratified, nor historically protected.

Now that Roe has been overruled, I expect some states will pass laws prohibiting types of contraceptives that act after intercourse, like the emergency IUD and the morning-after-pill. Under the court’s reasoning, those laws, too, would be constitutional.

Or consider the right to marry. It wasn’t until 1967, in Loving v. Virginia, and 2015, in Obergefell v. Hodges, that the court protected a constitutional right to marry, striking down laws prohibiting interracial marriage in the former case and laws forbidding same-sex marriage in the latter. But this right cannot be found in the text, the original meaning or tradition.

Likewise, the court has protected the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right of competent adults to refuse medical care and the right of consenting adults to engage in same-sex sexual activity under the liberty of the Due Process Clause. These rights, too, cannot be justified under the court’s approach in Dobbs.

Simply put, the court’s pulling out the thread of abortion rights threatens to unravel a fabric of rights that has been protected for decades. These are fundamental aspects of liberty that warrant constitutional protection.

My understanding of Jewish law is that it does not regard a fetus as a human person, that it does not prohibit abortions and makes clear that protecting the woman’s life is paramount.

Unfortunately, a majority of the justices imposed their religious beliefs and took away a basic constitutional right.

For 49 years, women have had the right to choose for themselves whether to terminate a pregnancy. Never before has the court taken away a right that has existed for so long and been important for so many people. The consequences, most of all for women’s lives, will be enormous.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of J.

Erwin Chemerinsky
Erwin Chemerinsky

Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at Berkeley Law.