Supreme Court overturns federal abortion rights

The U.S. Supreme Court on Friday reversed the court’s Roe v. Wade decision granting women the federal right to an abortion in the United States. The 6-3 decision sends authority to regulate abortion back to the states.

The final opinion, which upheld a Mississippi law banning abortion after 15 weeks, was an expected but nonetheless stunning end to 50 years of federal abortion rights for women throughout the country. The decision doesn’t end rights granted in individual states, and abortion is still legal in California.

“The Constitution does not confer a right to abortion; Roe v. Wade, 410 U.S. 113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 are overruled; the authority to regulate abortion is returned to the people and their elected representatives,” the court wrote.

In justifying its decision, the majority wrote: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered Liberty.’ The right to abortion does not fall within this category.”

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the decision continued. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

Reaction was swift to the court’s opinion.

Assemblymember Rebecca Bauer-Kahan (D-Orinda) had already been bracing herself and the state for the ruling, as an outspoken critic of the rollback of legal abortions throughout the country and after the leaked draft of the Supreme Court opinion earlier this spring.

However, she noted that despite being aware of the inevitability and ramifications of Friday’s news, it was still “hard to comprehend that our rights to control our own future and our own bodies were just ripped away from us.”

“This decision is unconscionable,” Bauer-Kahan said in a statement Friday morning. “It is devastating. The institution meant to protect us has betrayed us.”

Bauer-Kahan said that while she was impacted by the decision personally as a woman and mother of a daughter, she has “never been more ready to fight,” via her position as an elected representative, alongside other state lawmakers. In particular, she pointed to legislation she’s authored: Assembly Bill 1242 and AB 1666. The latter was signed into law by Gov. Gavin Newsom on Friday afternoon, after clearing the State Senate on Thursday. It is effective immediately under an urgency clause.

“This bill will immediately protect anyone in California from civil penalties for abortion,” Bauer-Kahan said on Twitter. “We will continue to fight and be a sanctuary for abortion care.”

“Extremist laws that the Supreme Court has now deemed constitutional will endanger our incredible providers and will penalize people desperately seeking abortions in their last effort to control their own lives,” she continued. “In California we will not let this happen.”

AB 1242 is set for a hearing on Tuesday, and requires clearance from the Senate Public Safety Committee.

The two bills are aimed at providing a “comprehensive framework of civil and criminal protections for everyone in California, especially the patients who will seek care and our incredible providers,” Bauer-Kahan said Friday.

Tri-Valley Congressman Eric Swalwell (D-Livermore) also emphasized that he and fellow California lawmakers would be continuing to push for protecting access to legal abortions in the state.

“We are frustrated, we are upset, and we are angry — but we are not helpless,” Swalwell said in a statement on Friday. “The Senate must immediately take up legislation that we passed in the House to codify Roe into federal law.”

“House Democrats won’t back down from this fight,” he added. “Too much is at stake.”

Swalwell followed the statement with an invitation for community members to join him at the Hayward Planned Parenthood on Saturday morning in support of reproductive rights, where he sought to address constituents’ concerns.

Although debate around access to legal abortion services has come to be increasingly partisan in recent years, Congressman Mark DeSaulnier (D-Concord) noted that the Supreme Court’s decision Friday came in spite of widespread support from voters for reproductive rights, and decades of legal precedent.

“This ruling overturns nearly 50 years of precedent and runs counter to what over 60% of Americans of both political parties favor,” DeSaulnier tweeted Friday. “We must do everything we can to fight it — the health, safety, and freedom of millions of Americans depends on it.”

Alameda County District Attorney Nancy O’Malley and Contra Costa County District Attorney Diana Becton were among the more than 80 signatories of prosecutors around the country to a letter pledging not to prosecute providers, patients, or others aiding in the procurement of abortion services as of Friday afternoon.

“Criminalizing and prosecuting individuals who seek or provide abortion care makes a mockery of justice; prosecutors should not be part of that,” the letter said in closing.

The two candidates for the newly redrawn Assembly District 20 that now includes a portion of the Tri-Valley also weighed in on Friday’s news.

“This is a dark day in history for women in America,” said Liz Ortega, who garnered the most votes in this month’s primary election for the seat, on Twitter Friday. “But as a mother, union leader and your next Assemblymember I will do everything in my power (to) ensure CA stays a safe haven for all women and girls.”

Her opponent, Dublin City Councilmember Shawn Kumagai, also emphasized his commitment to reproductive rights in a statement Friday.

“I’m proud to have a 100% rating from Planned Parenthood Advocates Mar Monte for my steadfast pro-choice record,” Kumagai said. “I support a state constitutional amendment to enshrine reproductive rights into the California Constitution, and when I am in the Assembly, I will continue to be a relentless voice at the state level to protect fundamental abortion rights and expand access to critical care.”

Stanford Law School Professor Henry T. (Hank) Greely, director of Stanford Center for Biomedical Ethics, predicted during an interview just prior to Friday’s decision that the court would completely overturn Roe v. Wade and say there is no federal constitutional right to an abortion.

Abortion rights are “a corpse whose ventilator will be disconnected” in the coming year on a state-by-state basis, he said.

“States like California … will probably make it easier for people from another state to come in. States like Oklahoma and Texas and Mississippi, but also some of the Upper Midwest, some of the Midwest states will ban it and make it illegal,” he said.

Greely said it’s likely that there will be a workaround through the use of abortion pills.

“I must state that some of the states with the most stringent laws may end up modifying them to include, say, rape and incest exceptions or make clear the health of the mother exception or maybe even establish early time limits like 10 weeks or six weeks instead of zero weeks,” he said.

But passage of laws might be limited in their overall effectiveness, he said.

“I think it’s very easy for legislators to pass very, very stringent laws that they know won’t go into effect, that make the 20% of their constituents who are strongly pro life happy and don’t really change the world in any way. The pill makes enforcing a ban much harder on the states that will ban it. And some of the states that have banned it may loosen their laws a little bit,” he said.

Socially and politically, Greely said he it’s unclear how the Supreme Court decision will play out but predicted that the most passionate advocates will become even more politically active.

“This is one of those issues that minorities (of people) on both sides care very, very deeply about. Most of the population will have a view one way or the other, but it’s not something as important to them as the price of gasoline. I doubt that there will be major political swings based on this,” he said.

But there could be political consequences. Empowering or mobilizing a small number of people can end up having major political effects, even if most of the people don’t feel strongly one way or the other, he said.

“I don’t feel confident making any prediction about what the long-term political effects will be. Short term, the pro-abortion forces will be very motivated, and will work very hard,” he said. Exactly how that would play out isn’t clear, but they would likely work on state legislatures and maybe Senate seats.

“But it’s hard to overturn a Supreme Court decision. It took the anti-abortion people 49 years to overturn Roe. I think the pro-life people, the anti-abortion people, will feel empowered and emboldened by their success, which is an impressive success,” he said.

“But I think they’re also going to be faced with the question, ‘Where do they go from here?’ And for many of them, they probably don’t go anywhere. For many of them, the goal was ending abortion if they’ve ended abortion in their state, or at least passed laws,” he said.

“Even if the practice of abortion ended, given the availability of the pill, I think they’ll say OK, good, mission accomplished. Go back to something else. But there will be some, some people who will want to continue, continue to push the borders: of protecting embryos, of protecting fertilized eggs, and who will push farther. So I think there’ll be small groups — small but not trivial groups — of people who will be strongly motivated by this result in opposite directions,” he said.

Greely said thus far he doesn’t see a law that would effectively make it illegal for a woman to travel to another state to receive an abortion, while some bills might be introduced.

“I think they would run into a lot of political resistance to that and particularly from relatively well-off people who think that their spouses or partners or daughters might want to go across the border from Missouri to Illinois to have an abortion,” he said.

There are substantial constitutional questions to trying to enforce a law that would ban an activity done in another state where the activity is legal.

“I would have said over the last 50 years that those (laws) probably would be held unconstitutional as violating the rights of Americans to travel from place to place and do things in one state that they can’t do otherwise. Nobody has ever tried to punish their citizens for doing gambling that would be illegal in their state if they do it in Las Vegas. So I think there would have been serious constitutional questions. I think there are still serious constitutional questions,” he said.

But he didn’t know how the current Supreme Court would react if such laws were passed.

“I don’t know of any way to know how these five — the five most conservative (justices) — would react to it. I think the three liberal justices plus Chief Justice Roberts would be very sympathetic to the view. You can’t constitutionally criminalize in one state something somebody does in another state,” he said.

However, California Senator Diane Feinstein noted that traveling to another state would not be an option for everyone seeking abortion services, and highlighted dire ramifications.

“Make no mistake, some women will die because of this decision – whether through unsafe and unregulated abortions, a lack of access to medically necessary lifesaving abortions, or suicide,” Feinstein said in a statement Friday morning. “I remember those dark days, passing a plate in college to collect money for a classmate to go to Mexico for an abortion. This court has returned us to that shameful past.”

Feinstein urged Congress to pass a law that would “restore women’s reproduction rights and ensure control over their own health care,” calling this the “only option.”

“Anything short of that devalues the lives of women and signals they can’t be trusted to make decisions about their own bodies,” Feinstein added.

Stanford Law School Constitutional scholar and professor Jane Schacter wrote in an online essay that the court’s decision is “seismic” and will potentially have additional consequences down the line.

“Justice (Samuel) Alito’s opinion emphasizes that states can now choose their policy on this contested issue and Justice (Brett) Kavanaugh’s concurrence goes out of its way to emphasize that point. But Kavanaugh explicitly raises the specter of a national legislative response. His opinion, which seems meant to emphasize that states are still free to choose their own resolution of the abortion question, is far from reassuring with its reference to a role for Congress in reproductive rights. He is foreshadowing what is inevitable: a drive for Congress to enact a national ban on abortion. Indeed, calls for a national ban picked up steam as soon as the Dobbs opinion was leaked. Such a ban would put a quick end to any federalism-inspired notion that different states can choose different policies on this fraught subject. Kavanaugh’s reference to such a national ban at least suggests that he sees in the Constitution a basis for congressional authority to enact such a ban.”

Schacter added that the same constitutional doctrine, the 14th Amendment, which supported the Roe and Casey decisions cited in the justices’ opinion also supports other important rights, including access to birth control, a right to be intimate with the partner of your choice and marriage equality. If the justices’ same reasoning is applied to those other rights, it certainly would jeopardize them, she said.

In a statement on Friday morning, Stanford University School of Medicine Dean Lloyd Minor and Vaden Health Services Executive Director Jim Jacobs said that as a university and academic medical center operating in California, Stanford abides by California state laws, which require that comprehensive reproductive care is available to patients and provide legal protections for those seeking these services.

“We continue to abide by California laws and will keep providing these services in support of women’s health and health equity for all those who rely on this access regardless of identity,” Jacobs said.

The statement also included resources for mental health and well being for individuals and families in the face of the decision.