In Dobbs v Jackson Women’s Health Organization, Justice Samuel Alito gleefully declared that any recognition of abortion was surely “calculated to perpetuate give-it-a try litigation” before judges “assigned an unwieldy and inappropriate task.” Continued adherence to that standard,” he said, “would undermine, not advance, the evenhanded, predictable, and consistent development of legal principles.” That’s legalese for getting the courts out of the abortion business.
If it was proliferation of litigation that the good justice was concerned about, his cure was worse than the disease. It now seems certain that Alito’s decision has opened the floodgates of litigation testing the permissible scope of restraints on abortion.
Laws regulating abortion vary from state to state. In 20 states and the District of Columbia, abortion is legal, widely available and likely to be protected. Voters have a say too. In a post-Roe referendum in Kansas, voters just rejected a constitutional amendment that would have enabled the legislature to curtail abortion rights. And it wasn’t even close.
But 13 other red states enacted “trigger bans” some time ago in anticipation of the outcome in Dobbs, laws that would go into effect soon after the Supreme Court invalidated Roe v. Wade. In these states, abortion will soon be banned, criminalized or severely limited unless the courts intercede.
Women’s right to emergency health care is also an issue. In a new development, the Biden administration’s first legal action since the Supreme Court struck down Roe, Attorney General Merrick Garland started a lawsuit in Idaho federal court, arguing that the state’s “trigger ban” violates a federal requirement to provide medical care when the life of a pregnant woman is in jeopardy.
Garland argues that the federal law trumps the Idaho law, which allows doctors to be criminally prosecuted for providing abortions. “We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment they are entitled to under federal law.” Idaho’s governor, Republican Brad Little, commented on the lawsuit that Garland’s action was “overreach” and that he would “defend Idaho’s laws in the face of federal meddling.” And Little’s Republican attorney general predictably backed up his boss.
Another key issue, left unresolved in Dobbs, is whether a state may punish women for leaving the state to get an abortion or criminalize the actions of those who help them. Justice Brett Kavanaugh in his concurrence in Dobbs asked and answered a rhetorical question: Surveying the terrain, he mused: “[M]ay a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel.”
So far, no state has enacted legislation preventing interstate travel to obtain an abortion. But such legislation may soon be introduced in Texas, Missouri, South Dakota or Arkansas. Can it possibly be the law that all citizens have a fundamental right to travel from state to state — just not pregnant women?
Of course, what Kavanaugh had to say is pure dictum, a convention judges use to wax philosophical about things that are not before them. Dicta are not binding on future courts in future cases and can later be ignored. And who knows how the other five conservative justices feel about the issue?
Legal experts are divided. Some say there is a constitutional right to travel recognized expressly in the Articles of Confederation, and implicitly guaranteed by the commerce clause. Other constitutional scholars such as Kermit Roosevelt, a law professor at the University of Pennsylvania, argue that there is “pretty clear” precedent in the Supreme Court for states being able to enforce laws beyond their boundaries in circumstances where the state has a “legitimate interest.” Whether a state has a legitimate interest in a woman’s seeking a legal abortion in a sister state remains to be seen.
Judges don’t like their decisions to spawn an avalanche of new litigation, and Alito’s opinion in Dobbs acknowledged this. Unfortunately, his opinion likely opened a Pandora’s Box. A majority of the American public disapproves of the decision to overturn Roe v. Wade. When the American public disapproves of a law, it is likely to disobey it, as it famously did during the Prohibition era.
Then there are drugs like Mifepristone, which can be used up to week 10 of pregnancy. Such drugs in tablet form can be made available on the internet, prescribed by a physician in a blue state or in Canada, and delivered by mail in a plain package into a red state prohibiting abortion or abortifacients. It is likely illegal for a state to search and seize a package transmitted by mail unless it obtains a warrant from the court upon a showing of probable cause. But to embark upon such a mammoth enforcement effort appears unworkable and difficult.
Many of the bans in the 13 states are unqualified, such as the one in Idaho outlawing abortion even in cases of rape or incest or where intervention is necessary for the health or to save the life of the mother. This test will also breed litigation. What is the degree of consanguinity necessary to constitute incest? What is the degree of proof necessary to establish the rape? There is hardly time for indictment, trial, conviction and appeal. What is meant by the health of the mother, physical health or mental health? How close to death must the mother be to establish that her life can be saved only by an abortion? The legal issues involved in such cases are exquisite. And they all will inevitably be litigated, and may only be settled by the Supreme Court.
The Biden administration, acting to do what it can to neutralize Dobbs, inaugurated a “reproductive rights task force” to gut abortion bans that conflict with federal laws.
Garland indicated that he would go to court on abortion-related issues, such as interstate travel, abortion counseling and access to abortion pills. “[U]nder bedrock constitutional principles,” Garland said, “women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal,” adding that the First Amendment safeguards anyone who offers information or counseling about “reproductive care that is available in other states.”
Some have portrayed the overturning of Roe as the end of the abortion debate, but it’s really just the beginning. As they say in the opera: “It ain’t over till the fat lady sings.”
James D. Zirin is a former federal prosecutor in the Southern District of New York.