The new threat to reproductive choice

The U.S. Supreme Court recently decided to hear and decide Dobbs vs. Jackson Women's Health Organization (19-1392) in its next term, which could end Roe v. Wade's guarantee of abortion rights and access to contraception.

Dobbs concerns the constitutionality of a 2018 Mississippi law that prohibits abortion after 15 weeks of pregnancy. Based upon the arguments of the state of Mississippi in its brief to the court, the Supreme Court will not only consider whether a state can ban abortion before a fetus is considered viable, the point at which at which a fetus' survival is possible outside the womb, but could also decide if a state can entirely ban abortion or restrict the sale of contraceptives.

Unlike past challenges to Roe that only sought to modify the interpretation of the criteria for permitting restrictions on abortion, the plaintiffs in Dobbs are arguing that the U.S. Constitution does not prohibit a state from restricting or banning abortion, and by implication, that the Constitution would not prevent a state from limiting or banning the sale of contraceptives. In the past, the Supreme Court has refused to hear cases which directly sought to overturn or challenge Roe v. Wade. This dynamic has changed with the new Republican, conservative and anti-choice majority of the Supreme Court.

In Roe v. Wade, the Supreme Court ruled that a constitutional right to privacy, which includes personal decisions regarding marriage, procreation and conception, includes a woman's decision to end a pregnancy. This right of personal privacy was found by the court in the rights of an individual under in the 4th, 5th and 9th Amendments to the Constitution. The constitutional right to personal privacy was most clearly stated by the Supreme Court in Griswold v. Connecticut, a 1965 case ruling that a Connecticut law banning or limiting the use of contraceptives was unconstitutional, based on these rights of privacy.

Roe also held that the right to terminate a pregnancy was not absolute; a state was considered to have a sufficient interest in protecting a fetus by banning abortion after a fetus was considered viable. "Viability" was defined as the term of a pregnancy when a fetus is medically able to live outside of a mother's womb, at 24 to 28 weeks. According to Roe, before a fetus is viable, a woman's interest in controlling her own body outweighs any other interests a state may have in limiting a right to abortion. In Supreme Court cases following Roe dealing with state laws attempting to restrict the right of abortion, including the 1992 case of Planned Parenthood v. Casey, the viability of the fetus has always been the dividing line. In all of these cases, the Supreme Court ruled that before the fetus was viable, a pregnant woman had freedom of choice; after viability, a state could ban or limit the right to an abortion.

The brief recently filed by the State of Mississippi in Dobbs argues that the ruling of the court in Roe should be overturned entirely, arguing that the right of privacy on which the Supreme Court in Roe based its opinion, does not exist in the constitution, and furthermore that the Roe court's application of fetal viability as a standard to determine if abortion is permissible, should be rejected. If the Supreme Court agrees with the state of Mississippi that this right of privacy as applied to marriage and procreation does not exist under the U.S. Constitution, any state or the federal government could theoretically entirely ban abortion or the sale of contraceptives with no exceptions since there would be no constitutional basis for protecting an individual's right to prevent or terminate a pregnancy.

Even if the Supreme Court in Dobbs does not go so far as to reject the existence of a constitutional right to privacy, the court could agree with the argument that viability of a fetus is not a proper standard to determine if a ban on abortion is permissible. If the court rejects viability as a standard, states could ban abortions much earlier in a pregnancy. Many states have recently adopted laws that prohibit abortions once a fetal heartbeat can be detected, at about the sixth week of pregnancy. These laws effectively end most abortions, because many women do not know they are pregnant before that time. If the Supreme Court in Dobbs finds that the ruling in Roe that a state cannot ban abortion prior to viability of the fetus is no longer the law, a state could ban abortions entirely. Some states, such as Alabama, have already adopted laws prohibiting almost all abortions.

California laws follow the rights to abortion and contraception set forth by the Supreme Court in Roe v. Wade and Griswold v. Connecticut. The California Reproductive Privacy Act, (California Health & Safety Code Sectons 123460-123468) provides that the state cannot restrict the right to an abortion prior to the date a fetus is viable. However, unlike Roe, in California viability is not based upon any particular term of the pregnancy, but rather when "in the good faith medical judgment of a physician on the particular facts of the case before that physician, there is a reasonable likelihood of the fetus' sustained survival outside the uterus without the application of extraordinary medical measures." California Health and Safety Code Section 123464(d). Abortion in California is illegal only when, based upon the good faith judgment of the physician the fetus is viable, and if the life or health of the mother is not threatened by the pregnancy. Health and Safety Code Section 123468(b). California Health and Safety Code Section 123462 further provides that "every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, and that every individual has the fundamental right to choose or refuse birth control."

If the Supreme Court in Dobbs rules either that Roe v. Wade should be overturned, that the standard of fetal viability to measure whether a state can limit reproductive rights must be rejected, or that the U.S. Constitution does not protect rights of privacy which includes reproductive rights, the rights to abortion and contraception set forth in California law will be still be protected, since the Dobbs case refers only to the right of a state to limit or ban abortion.

However, a decision by the Supreme Court in Dobbs to either overturn Roe, to reject viability of the fetus as a standard to determine if a state's restriction on abortion is permissible, or ruling that the constitution does not protect rights of privacy which include reproductive rights, could have consequences in California. It would allow a future California legislature to modify or repeal the existing California laws in order to restrict abortion rights, or to limit the sale of contraceptives. A Supreme Court opinion in Dobbs which holds that a right of privacy including a right to abortion is not protected under the constitution, or that the viability of a fetus is not a proper standard to determine if a restriction on abortion is permissible, could also threaten the legality of the California Reproductive Privacy Act. Such an opinion could provide grounds for arguing in future California cases, that the California statutes are unenforceable, since their rationale and enforceability depend upon the statutes' own definitions of protected "rights of privacy" and "fetal viability" which may conflict with the U.S. Supreme Court opinion. \

Furthermore, a Supreme Court that overrules Roe v. Wade would likely uphold much broader federal laws limiting or ending abortions in all states, including California.