‘Completely catastrophic’: Stanford legal experts foretell grim future after reversal of Roe v. Wade

June 24, 2022, 11:19 p.m.

The Supreme Court effectively eliminated the constitutional right to abortion in a long-anticipated decision published Friday morning, nearly 50 years after a court of the same political composition enshrined that right in the landmark Roe v. Wade 1973 case.

As thousands take to the streets to protest the ruling, both nationally and in The Bay, Stanford-affiliated law experts agree that the Supreme Court’s decision will foster legal turmoil for years to come.

“This decision will wipe out the Court’s remaining legitimacy,” wrote former U.S. Senator Russell Feingold (D-Wis.), the president of the American Constitutional Society and an affiliate of the Stanford Constitutional Law Center, in a statement to The Daily.

Decades after Roe and the concurring 1992 Planned Parenthood v. Casey ruling dictated that states could not restrict reproductive decisions made before fetus viability outside of the womb, Mississippi Governor Phil Bryant signed a law that did just that.

When Jackson Women’s Health Organization defied the law, Mississippi State Health Officer Thomas Dobbs petitioned federal courts, and Dobbs v. Jackson Women’s Health Organization made its way before the Supreme Court in late 2021. In early May, a leaked draft opinion by Samuel Alito presaged the overturn of Roe and Casey and shook the nation.

“If this were the final opinion, it would be a constitutional earthquake that could put a wide range of previously-recognized constitutional rights in jeopardy,” wrote Jane Schacter, a constitutional law scholar, in a May statement to The Daily.

Schacter noted on Friday that the Supreme Court’s recent decisions “closely track priorities of conservative politicians.” She pointed to the Court’s June 23 ruling that nullified a New York law that required permits for gun owners to carry their weapons outside of their property. 

The rulings, Schacter said, are in step with how the Federalist Society — a right-wing legal association that all Republican-appointed Supreme Court justices are affiliated with — interprets the Constitution. 

“After informing us that the right to an abortion is not in the text of the Constitution, Alito then turns to ‘history’ and his particular brand of originalism,” wrote Rebecca Talbott, a Stanford Constitutional Law Center fellow and civil rights litigator. Echoing Schacter, Talbott continued that making decisions solely based on the original text has a chilling effect on rights for marginalized groups, including women. “With originalism, we will always fail to find any rights for women that men would not have needed or wanted.”

Law and sociology professor Michele Dauber, said that the decision returned women to the status of second-class citizens. She also warned of the grim reality that awaits many women in states that will outlaw abortions.

“This decision provides no exceptions for rape and incest, meaning survivors will be forced in many states to have their rapist’s baby — a level of cruelty that is hard to even fathom,” Dauber wrote to The Daily. “Women who are drug addicted will be denied abortions and then prosecuted and incarcerated for having babies born with drugs in their bloodstream. Women have been plunged into a dystopian hellscape.”

Similarly, the Stanford Democrats Executive Board criticized anti-abortion rights claims of conservative politicians and judges, citing conservative obstruction to the expansion of affordable child care, the permanent implementation of the child-tax credit, paid paternal leave and the realization of universal preschool.

“We repudiate anti-abortion Republicans’ claims to be ‘pro-life’,” the Stanford Democrats Executive Board wrote to The Daily.

Talbott called it an “irony” that the states which will swiftly enact bans on abortions “aren’t exactly leading the world in accessible and affordable prenatal and maternal health services, accessible and affordable child care, or accessible and affordable early childhood education and pre-K,” which she said are critical support systems for a child’s development.

“You wonder why we seem to only care about our nation’s children so long as they’re in someone’s womb,” Talbott wrote.

Regarding the legal ramifications of the ruling, Talbott described how Alito’s majority opinion “paid fealty to precedent” only when it suited his decision. She noted that Alito suggested that rule by precedent meant Americans would “still be governed by Plessy v. Ferguson and Dred Scott” while simultaneously citing other precedent as justification for denying a place for abortion rights in the 14th Amendment.

Dauber forecasted that the overturn of Roe may be just the beginning of the right’s rewriting of social privileges, citing the Life at Conception Act supported by 164 U.S. Representatives and 19 U.S. Senators that will outlaw morning-after pills.

“The people who are leading this movement are intent on women’s sexual autonomy, and abortion is only the first step,” Dauber wrote.

Beyond the decision’s impact on abortion rights, Talbott warned the Court’s justification could lead to the reversal of landmark rulings protecting the right to gay marriage, same-sex relations in general and the right of couples to buy and use contraception without government restriction. 

Indeed, Justice Clarence Thomas wrote that “substantive due process distorts other areas of constitutional law” and that “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — the very cases Talbott listed. The Stanford Democrats decried Thomas’s sentiment.

“We have no doubt that the noxious partisan agenda at play in Dobbs v. Jackson (2022) will influence justices’ reasoning as these additional rights come under threat,” they wrote.

Stanford Constitutional Law Center director Michael McConnell, a senior fellow at the Hoover Institution, expressed hope that states could use this decision to find a middle ground on the issue of reproductive rights, though he feared it may not occur in the near future. He hopes however that all discussion on and reactions to the ruling will be civil.

“I hope that opposition to the decision is channeled into democratic engagement and not violence or intimidation against opponents of abortion,” McConnell wrote to The Daily.

Jed Ngalande '23 is the politics and government beat reporter for The Daily's news section. Contact him at news 'at' stanforddaily.com.

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