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Civil Rights

Jan. 26, 2024

The womb on trial

The significance of laws banning abortions even in the cases of rape or incest cannot be understated – these laws put women and those physicians willing to provide them with medical care in a very dangerous situation.

Nanci E. Nishimura

Partner, Cotchett, Pitre & McCarthy LLP

840 Malcolm Rd Ste 200
Burlingame , CA 94010

Phone: (650) 697-6000

Fax: (650) 697-0577


Catholic U of Amer Columbus SOL; Washington DC

Nishimura is Vice Chair of the California Commission on Uniform State Laws and former Chair of the California Commission on Judicial Performance.

Kelly W. Weil

Partner, Cotchett, Pitre & McCarthy LLP


Loyola Law School; Los Angeles CA

Weil serves on the Leadership Council for the Los Angeles Center for Law and Justice and on the Board of Directors for the Consumer Attorneys of California.

Women’s reproductive rights have been on trial throughout our nation’s history. Going back to 1776, the Declaration of Independence stated that all people have “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” A woman’s right to control her own Life, Liberty and the pursuit of Happiness when it came to reproductive rights, or her own body, it was not addressed in the Declaration of Independence or the U.S. Constitution. Over the next two hundred years, states began to pass laws interfering with a woman’s right to make reproductive medical decisions for herself. The issue finally presented to the U.S. Supreme Court was: Are reproductive rights constitutional, or unalienable rights?

For fifty years, the answer was yes. On Jan. 22, 1973, the U.S. Supreme Court issued its landmark decision in Roe v. Wade, effectively granting women in all 50 states the constitutional right to an abortion. In the Roe majority opinion, seven of nine Supreme Court justices – all males – agreed that the Due Process Clause of the 14th Amendment (which recognizes that no state shall “deprive any person of life, liberty, or property, without due process of law”) implied a right to privacy and a woman’s right to choose.

The constitutional right to an abortion was stripped away on June 24, 2022. In Dobbs v. Jackson Women’s Health Organization, six out of nine Supreme Court Justices – all males except for Justice Barrett – overturned Roe, holding that the 14th Amendment did not confer the constitutional right to an abortion. States are now free to pass laws which interfere with women’s reproductive rights. With those rights gone – the womb is on trial, again.

Recent attacks on a woman’s right to bodily autonomy

Following Dobbs, the Governor of Ohio lifted a preliminary injunction blocking state officials from enforcing the Human Rights and Heartbeat Protection Act of 2019, which banned abortion for any reason (except for risk of death or substantial irreversible impairment) after a heartbeat was detected. The Act has since been litigated in the Ohio Courts of Common Pleas, and multiple competing legislative efforts leave women’s reproductive rights hanging in the balance. Other states, including Texas, have similar laws. Under Dobbs, such state laws are not unconstitutional – making the issue one between women and their legislators instead of between women and their doctors.

Women, girls, and medical providers are suffering the consequences. The significance of laws banning abortions even in the cases of rape or incest cannot be understated – these laws put women and those physicians willing to provide them with medical care in a very dangerous situation. In one egregious example which garnered national attention, soon after Roe was overturned, a ten-year old child in Ohio who was raped and impregnated by a 26-year-old man was denied an abortion under Ohio’s Human Rights and Heartbeat Protection Act and had to travel to Indiana for an abortion.

Anti-abortion groups are now targeting the “abortion pills” Mifepristone and Misoprostol, which have been FDA-approved and safely used by millions of women in nearly 100 countries for more than twenty years.

Women everywhere are finding a way to regain their rights

In the past 30 years, more than 60 countries and territories worldwide have made legal abortions available to all women. Only four countries in the world have abolished legal protections guaranteeing a woman’s right to an abortion: El Salvador, Nicaragua, Poland, and the United States.

But even after Roe was overturned in 2022, legal abortions do not seem to have significantly decreased in the U.S., despite being banned in 14 states and substantially limited in seven states. Where restrictions reduced the legal abortion rate to near zero in some states, there has been a corresponding increase in states where medical abortions remain legal. The World Health Organization reports that legal restrictions on abortions do not result in fewer abortions – they result in more illegal and unsafe abortions, which drive up maternal mortality and morbidity rates.

Voters have responded. In November 2023, Ohio voters approved a constitutional amendment which ensures access to abortion and other forms of reproductive healthcare. Ohio is now the seventh state (among California, Vermont, and Michigan) where voters have decided to protect access to legal abortion at the state level following the Dobbs ruling. According to press reports, since 2022, over 360 bills have been introduced and executive orders have been issued to protect abortion access in 33 states and the District of Columbia.

The trial of the year 2024: The womb

On Jan. 22, 2024, on what would have been the 51st anniversary of Roe v. Wade, the White House announced steps to ensure access to abortion medication, emergency abortions at hospitals, and contraception under the Emergency Medical Treatment and Labor Act (EMTALA). Originally passed in 1986, the Biden Administration Department of Health and Human Services issued guidance on EMTALA protections requiring hospitals and clinicians to provide emergency abortions nationwide, including in states where abortions are limited or banned. EMTALA is also intended to make no-cost contraception more available under the Affordable Care Act (ACA). EMTALA is not perfect and is being challenged. The Supreme Court has agreed to hear the challenge to the Biden Administration’s interpretation of the EMTALA in its April 2024 session.

Abortion will continue to be an issue at the heart of the 2024 elections. Future elected officials at all levels – local, state, and national – will determine this important issue. There is hope, but we must vote!

The trial of the womb will begin and end in November of 2024 and will signal to the world where the United States stands on the issue of a woman’s right to control her own body. Jury selection is now underway.


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