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U.S. Supreme Court,
Constitutional Law

Jun. 27, 2022

DOBBS: What’s next?

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The Dobbs court disclaims any "authority or expertise to adjudicate" disputes about the status of a fetus (Dobbs, at p. 65), but that will not keep the issue from coming before the court in the form of a challenge to the right to travel to obtain an abortion.

Steven S. Kimball

Sessions & Kimball LLP

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Sacramento , CA 95814

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UC Berkeley Boalt Hall

Steven is a lawyer in Sacramento

Georgia gubernatorial candidate Kandiss Taylor was roundly mocked for her platform expressed in a slogan painted on the side of a bus: “Jesus Guns Babies.” Taylor lost the primary by a wide margin (she doesn’t concede; she is a Trumpist, after all) but she must find some vindication in a trio of cases issued this week by the United States Supreme Court: Carson v. Makin, New York State Rifle and Pistol Association, Inc. v. Bruen, and Dobbs v. Jackson Women’s Health Organization. In Carson, the court held that Maine must include religious schools in its school voucher program to pay for private schools where a town has no public school. Thus, a school that embraces references in the Old and New Testament calling for the death of homosexuals can receive public funding. In Bruen, the court overturned the more than 100-year-old Sullivan Act, which limited licenses to carry a handgun in public to those with self-defense needs. Now, the person in the seat next to yours in Carnegie Hall may be packing. And finally, Dobbs, which we knew was coming because of a leaked draft (by whom is still unknown despite Justice Roberts’ investigation), has arrived and the 50-year-old constitutional right to an abortion is gone and the states are in control. So, a 14-year-old impregnated by the father of her friend (the case that arguably was the beginning of the end of Ireland’s abortion prohibition) in the great state of Texas may find that the state can and will use whatever measures it deems necessary to keep her from getting an abortion.

Lamenting these decisions is of little use. They are, as the dissent asserts, the product of the changing composition of the court. (Dobbs, at p. 6 (dis. opn. of Breyer, Sotomayor & Kagan).) The conservative wing of the court simply has the votes. Given the power of the conservative majority to make what can only be described as radical changes in established law, the Dobbs court displays a remarkable insouciance about the fallout of that decision: “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, applying long standing principles of stare decisis, and decide this case accordingly.” (Dobbs, at p. 69) Truly, let the chips fall where they may. This kind of judicial shrug bears a family resemblance to the unfortunate and meretricious responses by more than one conservative justice in confirmation proceedings that judges, like umpires, just call balls and strikes.

For the rest of us, the question remains how the conservative majority may vote on related issues. In other words, what’s next? To be sure, the majority, as well as Justice Kavanaugh’s concurrence, declare that overturning the constitutional right to abortion will not affect the court’s decisions in, for example, Griswold v. Connecticut (1965) 381 U.S. 479, Eisenstatd v. Baird (1972) 405 U.S. 438, Loving v. Virginia (1967) 388 U.S. 1, and Obergefell v. Hodges (2015) 576 U.S. 644, on contraception and marriage. (Dobbs, at p. 71.) The majority acknowledges the dissent is skeptical. (Ibid.) Moreover, the distinction offered in the court’s repeated disclaimers that Dobbs will have a domino effect is that “abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” (Dobbs, at p. 5; see also id. at pp. 32, 37, 38, 49, 66, 71.) Further, the court, in applying the lenient rational basis test to the Mississippi law, held that “‘protecting the life of the unborn’” was a legitimate interest justifying the statute. (Id. at p. 78.) This rationale could be used to bolster a state law that criminalizes travel to another state to obtain an abortion because it involves destruction of an “unborn human being,” a form of homicide. The Dobbs court disclaims any “authority []or expertise to adjudicate” disputes about the status of a fetus (Dobbs, at p. 65), but that will not keep the issue from coming before the court in the form of a challenge to the right to travel to obtain an abortion.

To his credit, Justice Kavanaugh did address what he called “abortion-related legal questions raised by today’s decision [which] are not especially difficult as a constitutional matter.” (Dobbs, at p. 10 (conc. opn. of Kavanaugh, J.)). Among these were “[f]or example, may 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 travel.” (Ibid.) However, this question has been the subject of quite a bit of scholarship, which does not express this view with equal firmness – in fact, quite to the contrary. (See, e.g., Dellapenna, Abortion Across State Lines (2008) 2008 B.Y.U. L. Rev 1651, 1689 [“The Supreme Court decisions do not resolve the question of the limits imposed on the application of state law by the right to travel”]; Bradford, What Happens if Roe is Overruled? Extraterritorial Regulation of Abortion by the States (1993) 35 Ariz. L. Rev. 87, 165 [“[I]f Roe is overruled, a state could constitutionally prohibit its own residents from exiting the state to obtain abortions, as long as it equally prohibited abortions within the state. If the [Supreme] Court is true to its right-to-travel holdings, an extraterritorial abortion statute would probably pass constitutional muster”]; Kreimer, “But Whoever Treasures Freedom.”: The Right to Travel and Extraterritorial Abortions (1993) 91 Mich. L. Rev. 907, 917 [“in the criminal case the prevailing dual sovereignty theory holds that a single series of actions may be separately punishable offenses under the criminal laws of two sovereigns, and hence that Pennsylvania would be fully within its rights in punishing me even if California has acquitted me”].

One news article has already pointed out that Kavanaugh may be signaling to the other four justices in the Dobbs majority that he would not provide a critical vote to uphold a state “law outlawing travel . . . .” (Stohr, Kavanaugh Says States May Not Bar Travel to Obtain an Abortion (June 24, 2022) U.S. Law Week.) Maybe that’s the end of the story, but it seems unlikely.


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