Ideas
June 27, 2022 10:43 AM EDT
Chemerinsky is the Dean and the Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

In overruling Roe v. Wade, the Supreme Court held that women no longer have a constitutional right to abortion. In Dobb’s v. Jackson Women’s Health Organization, the Court ruled that the issue of abortion is left entirely to the political process. What will this mean?

At first glance, this restores the law to what it was before 1973 when Roe v. Wade was decided. Each state will determine for itself whether to protect abortion rights or whether to outlaw some or all abortions. It is expected that over half the states will prohibit all or virtually all abortions.

Before 1973, women desiring abortions who had financial resources would travel to places where abortion was legal or find a friendly doctor to perform a safe, illegal abortion. Poor women and teenagers without resources faced the cruel choice between an unwanted child and an unsafe abortion. Women of color suffered much higher rates of death and illness from illegal abortions.

We are sure to see all of this again. But there are also ways that the situation is much different from 50 years ago. Abortion has become a political issue in a way that it was not before Roe v. Wade. Conservative politicians who have been railing against abortion rights for decades are not going to give up this political issue. There likely will be far more aggressive enforcement of prohibitions of abortions than occurred prior to 1973. Expect to see doctors and women prosecuted for violating state laws prohibiting abortion much more frequently than occurred prior to Roe.

Conservative politicians will look for new forms of restrictions, such as a proposed Missouri law that would prohibit a woman from leaving the state to obtain an abortion. Some states will adopt laws to eliminate forms of birth control that take effect after conception, such as IUDs and the morning after pill. There will be regulation of medical procedures, such as in vitro fertilization, with some states likely to adopt laws requiring all embryos to be implanted. All of this will lead to litigation and the Court will have to decide if there are any constitutional limits on the states or if the matter is truly entirely left to the political process.

Read More: Abortion Access After the End of Roe

At the same time, medically induced abortions now are possible and account for almost half of all abortions. This will make it harder for states to prohibit abortions as pills can be sent across state lines. States that outlaw abortions will make consuming these pills a crime, though enforcement will be difficult. Also, there will be much more organized efforts to raise money to help women in states where abortion is illegal to have access to the procedure.

Abortion will come to dominate our political process like never before. State judicial elections—and 39 states have some form of judicial election—will focus on abortion because state judges can protect rights under state constitutions. Elections for state legislatures and city councils and for members of Congress often will focus on abortion rights more than ever before.

With a Democratic President and a Democratic Congress, there will be renewed efforts at passing a federal law protecting a national right to abortion. But it seems unlikely that Democrats can overcome a certain Republican filibuster in the Senate. And the next time there is a Republican President and a Republican Congress, they are sure to try and pass legislation outlawing all abortions in the United States, with Republicans perhaps more likely to be successful in changing the rules of the filibuster to adopt such a law.

Someday, when there is a liberal Supreme Court, it likely will overrule Dobbs and again recognize a constitutional right to abortion. But in the years and perhaps decades until that happens, abortion will be the defining political issue for the U.S.

It is unclear what that will mean for our political system. Will those who favor abortion rights mobilize in a way that makes a political difference? And if so, where and what difference will it make? For decades, especially out of a desire to overrule Roe, Republicans in elections have emphasized judicial appointments. Now will Democrats do this?

The central question in the abortion debate is who should decide. Roe v. Wade held that it is for each woman to decide for herself whether to terminate a pregnancy. Dobbs v. Jackson Women’s Health Organization says it is for the legislatures and the political process. The only thing that is certain is that the implications—for women’s lives and for our society—will be enormous and for a long time to come.

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