New York State Bar Association’s Women in Law Section Issues Statement on the Supreme Court’s Decision in Dobbs Overturning Roe v. Wade

By Women in Law Section

New York State Bar Association’s Women in Law Section Issues Statement on the Supreme Court’s Decision in Dobbs Overturning Roe v. Wade

6.28.2022

By Women in Law Section

U.S.SupremeCourt_675

June 24, 2022 will forever be etched in our memories as the day our fundamental rights as equal citizens were taken away from American women and all childbearing persons. The majority’s decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. __ (2022), for the first time in U.S. history chooses to use the Constitution to limit rather than expand civil rights.  Dobbs overturns the landmark case Roe v. Wade[1] which, almost 50 years ago, recognized a woman’s Constitutional right to abortion.  The Court also overrules Planned Parenthood of Southeastern Pa. v. Casey,[2] which had affirmed Roe as stare decisis in 1992, and thus overturns a super-precedent.

The Supreme Court’s disastrous decision will unleash and inflict irreparable harm on the lives of girls, women, childbearing persons, men, and all persons in the United States, as well as on the rule of law.

Although there have been no substantial changes in the law or facts, other than the composition of the Court, since Roe was decided, the majority’s decision erases five decades of precedent relied upon by Americans.  It also undermines the Court’s standing as a non-political branch of government.  Even Chief Justice Roberts recognizes that the majority goes too far when he says: “None of this, however, requires that we also take the dramatic step of altogether eliminating the abortion right first recognized in Roe.”  Dobbs, 597 U.S. ____ (Roberts, C.J., concurring in judgment), slip op. at 5.

The majority’s decision is an attack on the constitutional rights and lives of women and all childbearing persons.  It intentionally disregards the importance of women’s autonomy over their lives, physical selves, and well-being.  It takes away from women and all childbearing persons the right to make decisions about their own bodies, reproductive freedom, and healthcare.  It subverts women’s status as equal citizens under the law and the right to privacy and liberty under the 14th Amendment.  Make no mistake: without body autonomy, there is no equality.  As the dissenting justices state:  “[O]ne result of [the] decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”[3]

Dobbs allows states to ban abortion, even without exceptions to protect the life and well-being of the mother and even in cases of rape or incest.  Within weeks, women and childbearing persons in at least twenty-one states will be subject to such laws.  Some laws will go as far as to criminalize healthcare decisions by persons seeking abortions and the conduct of anyone who assists them, including medical professionals, parents, and loved ones.  This is taking place even though a majority of Americans support a woman’s right to choose, including in states where abortion has been strictly curtailed.[4]

No woman or childbearing person should be deprived of their right to decide whether to bear a child or their right to access safe reproductive care.  No one should be forced to continue a pregnancy when their own life is at stake.  No victim of a crime should be forced to continue a pregnancy resulting from rape or incest.  No one should be subject to arrest or criminal prosecution based on the choices they make regarding their own healthcare.  No one should be subject to arrest or criminal prosecution in the case of a miscarriage.  No one should have to resort to unsafe or back-alley abortion methods.  And yet, this is now the new reality for millions of Americans.

We live in a nation where there is no safety net for families.  We have no universal healthcare, no universal childcare, and no nationwide paid family or medical leave.  Millions of women and their partners have relied upon Roe and Casey for family and life planning and for healthcare decisions.  Against this backdrop, the majority fails to recognize that forced pregnancies increase maternal mortality rates, which already are exceptionally high for women of color in the United States.[5]  Forced pregnancies resulting from child rape and incest are likely to result in an increase in forced marriages, poverty, and ongoing abuse, effectively ending those girls’ childhoods and futures.  Forced pregnancies not only adversely impact women and girls, but their family members, partners, children, and communities.[6]

Furthermore, the purported bases for the majority’s decision have no place in modern-day American jurisprudence.  Among the rationale cited by the Court as “deeply rooted in history” are a 17th century jurist who supported marital rape and had women executed for witchcraft, and 19th century statutes that criminalized abortion at a time when women were disenfranchised and had no say in choosing elected representatives or jurists, and when, in many states and territories of the United States, Black women were enslaved.[7]

The majority also fails to acknowledge that some religions recognize and permit women to access abortions.[8]  Thus, the decision would deprive persons of religious freedom by preventing them from making decisions about their health and families based on their religious beliefs and tenets.  At least one lawsuit has been filed objecting to the impact of state anti-abortion laws on religious freedoms.[9]

The decision is a harbinger for the Court’s next actions involving individual rights and privacy.  This decision has far-reaching and disastrous consequences for our country, imperiling the privacy and freedoms we have earned and cherish, including rights regarding contraception, sex, and marriage.[10]  The majority takes great pains to assert that this decision is limited to abortion.  But Justice Thomas shows us how the Court might in fact roll back the rights we have gained under Griswold, Lawrence, and Obergefell.[11]

We are grateful that New York State in 2019 enacted the Reproductive Health Care Act codifying Roe v. Wade into New York law. We applaud the New York legislature and Governor Kathy Hochul for recently enacting six bills expanding abortion access and protecting healthcare providers and those traveling to New York State for abortion services.

We recognize, however, that these laws and rights are at risk if Congress were to pass a federal law banning abortion.  That is why we need to act now.

The Women in Law Section of the New York State Bar Association urges members of Congress from all parties to pass federal legislation protecting freedom of choice and the rights of women, and to block any federal abortion ban.  We also continue our strong support for proposed equal rights amendments to the U.S. and New York State Constitutions, and we urge legislative bodies to pass such amendments once and for all.

* * *

About the Women in Law Section

The New York State Bar Association’s Women in Law Section is a dynamic group of attorneys – both women and men – that serves as a critical voice for women.  Our mission is to advance women in the legal profession and advocate for the fair and equitable treatment of all women under the law.  For more information about our Section, committees, and ways you can get involved, please visit: https://nysba.org/committees/women-in-law-section/.

[1] 410 U.S. 113 (1973).

[2] 505 U.S. 833 (1992).

[3] Dobbs, 597 U.S. ____ (Breyer, Sotomayor, Kagan, J.J., dissenting), slip op. at 4; see also id. at 12 (“The Constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).”).

[4] See, e.g., https://news.yahoo.com/cbs-news-poll-americans-react-130011112.html (published June 26, 2022); https://www.houstonpublicmedia.org/articles/news/health-science/2022/05/04/424672/poll-shows-majority-of-texas-voters-would-oppose-overturning-roe-v-wade/ (published May 4, 2022).

[5] See Center for Disease Control “Maternal Mortality Rates in the United States, 2020,” at https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates-2020.htm

[6] See “Unintended Pregnancy and Its Adverse Social and Economic Consequences on Health System: A Narrative Review Article,” at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4449999/ and “Economic burden of unintended pregnancy in the United States,” https://www.rtihs.org/publications/economic-burden-unintended-pregnancy-united-states.

[7] Appendices A and B of Dobbs cite laws of states and territories dating from 1825-1919.  Women were not permitted to vote in 49 of the 50 states and territories when those laws were enacted and, in many of those states and territories, slavery was still in full force at the time those laws were enacted.

[8] See https://www.nbcnews.com/news/us-news/religions-support-abortion-rights-leaders-are-speaking-rcna27194 (“Some religions support abortion rights. Their leaders are speaking up”).

[9] https://www.npr.org/2022/06/15/1105229512/florida-abortion-law-synagogue-lawsuit-15-weeks

[10] The dissent, co-authored by Justices Breyer, Sotomayor, and Kagan, set forth the stark result of this decision: “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”  Dobbs, 597 U.S. ____ (Breyer, Sotomayor, Kagan, J.J., dissenting), slip op. at 4.  They spell out the brutal consequences to women and child-bearing persons: “from the very moment of fertilization, a woman has no rights to speak of.  A state can force her to bring a pregnancy to term, even at the steepest personal and familial costs.” Id. at 2.

[11] Dobbs, 597 U.S. ____ (Thomas, J., concurring), slip op. at 3.

*Opinions expressed herein are those of the Women in Law Section and do not represent those of the New York State Bar Association unless and until they have been adopted by its House of Delegates or Executive Committee.

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