Exploring the impact of Dobbs v. Jackson

June 29, 2022

Last week, the Supreme Court of the United States decided in Dobbs v. Jackson Women’s Health Organization that “the Constitution does not confer a right to abortion; Roe (v. Wade) and (Planned Parenthood of Southeastern Pa. v.) Casey are overturned; and the authority to regulate abortion is returned to the people and their elected representatives.” Since this decision, 13 states that had legislated bans, which were set to go into effect if Roe were struck down, will prohibit abortion within 30 days.

VCU News spoke to four experts about the impact this decision could have in the U.S. and what this change in access to reproductive health care will mean for those it affects.

Deirdre M. Condit, Ph.D., Department of Political Science

Deirdre Condit
Deirdre Condit, Ph.D.

Condit, an associate professor of political science at the VCU College of Humanities and Sciences, conducts research in feminist political theory on women and politics, the politics of reproductive and genetic technologies, maternal political theory and sex and gender identity. She has spoken on the History of American Reproductive Law in an installment of C-SPAN3’s “American History TV.”

From the founding of the nation, women’s status as citizens within the democracy has been unclear. As Elizabeth Cady Stanton’s Declaration of Sentiments issued at Seneca Falls, New York, in 1848 noted, women at the founding lived within a democracy, were subjects of the democracy, but had no purchase on governance within that democracy. As the dissent in Dobbs underscores, since then, women have had to claw their way to have secure constitutional inclusion for even the most minimal of rights, including citizenship, within the constitutional framework.

Despite the court’s rather disingenuous attempt at isolating the Dobbs decision from the myriad of cases that clearly are implicated in this decision, the impact of this case will be catastrophic across our democracy, generally, but for women, in particular. The court overtly ignores the fact that its decision immediately wrought enormous trauma to women’s lives all across the country; women in states with trigger laws are suddenly rendered politically powerless to take care of their own health. Second, health care providers across the country are now scrambling to understand whether and how to treat women with life-endangering health care situations. And finally, the long-term implications for understanding the status of women as citizens in the democracy in which they live has now been undermined. 

The court argues that the word “abortion” does not exist in the Constitution, but then, neither do the words “fetus” or “fetal life” or “potential human life.” Rather, the 14th Amendment explicitly identifies “persons born” as the measure of human rights-bearing status. The court’s argument dispenses with the idea that women have liberty interests in their own body but empowers states to elevate the personhood of fetuses. Moreover, the court’s sleight of hand reliance on footnote 20 from Geduldig v. Aiello, which argued that pregnancy has nothing to do with sex, and that therefore, pregnant women can be treated differently from other people without offending the Constitution, relegates pregnant women, in particular, to a status outside the constitutional protections that lie at the very heart of the founders’ design.

We cannot yet fully understand the cataclysmic impact that this decision will have on the body politic, but we can say, assuredly, that the impact on women of child-bearing capacity will be significant and certainly more threatened. 

Sarah Jane Brubaker, Ph.D., L. Douglas Wilder School of Government and Public Affairs

Sarah Jane Brubaker
Sarah Jane Brubaker, Ph.D.

Brubaker, a professor of criminal justice and public policy and administration and director of VCU’s certificate in gender violence intervention at the Wilder School of Government and Public Affairs, studies sexual and domestic violence, gender violence and reproductive and sexual health in connection with criminal justice and public policy.

There are many problems related to the recent overturning of Roe v. Wade, but I’d like to touch on three areas. The first is gender violence. A major form of gender violence is sexual assault/coercion, which is common in our culture and can lead to unwanted pregnancies. Forcing someone to be pregnant and give birth in these circumstances further traumatizes the victim and denies them autonomy and choice over what happens to their bodies. This applies to rape by a stranger, an acquaintance or a partner.

The 2010 National Intimate Partner and Sexual Violence Survey estimates that 2 million women in the U.S. have become pregnant as a result of rape by an intimate partner, and 5% of women reported that, at some point in their lifetime, an intimate partner had tried to impregnate them when they did not want to get pregnant.

Reproductive control is a major form of domestic violence, where an abusive partner controls the reproductive decisions of another person. This can involve tampering with birth control to cause a pregnancy, denying contraception or forcing one to use contraception, increased abuse during pregnancy and other forms of power and control that are used to increase the victim’s dependence on the abuser.

The state prohibiting abortion expands the power and control of the abuser and further traps victims, denying them autonomy and freedom. Being forced to be pregnant and give birth further ties the victim to the abuser and gives them even less hope of escaping a violent relationship.

Intimate partner violence victims are among the least likely among pregnant people to be able to travel out of state or safely self-manage a medication abortion at home, leaving them no choice but to carry a pregnancy to term. The Guttmacher Institute reports the unintended pregnancy rate in the United States is highest among women aged 18-24, the age group with the highest prevalence of intimate partner violence.

The second area is expanded criminalization. As fetal rights and fetal personhood agendas have gained support, not only have they contributed to restrictions on abortions, they have increased the criminalization of pregnant people’s reproductive decisions and behaviors beyond abortion. Fetal personhood laws, currently operating in 38 states, criminalize a pregnant person for presumed harm to their fetus. Many states increasingly also have fetal personhood laws that grant full legal protections to fetuses, sometimes from conception, even though as many as 50%-75% of pregnancies end in miscarriage in the early weeks. Because of these fetal personhood laws, there have already been cases of pregnant people being arrested, detained and prosecuted for having miscarriages, using drugs while pregnant and being denied the right to give birth as they choose (e.g., at home, vaginally versus  cesarean section) because the court has placed the rights of the fetus above the rights of the pregnant person. This will only increase as more states criminalize abortion.

Pharmacists and health care providers are also at risk of arrest for assisting with miscarriage care — which uses medication similar to abortion pills — ectopic pregnancy care and other lifesaving forms of care. And research shows that Black and brown people, and those who are economically vulnerable, will be most vulnerable to the surveillance and criminal response of enforcing these laws.

The last problem I want to raise is health risks to pregnant people experiencing miscarriage or ectopic pregnancy. Miscarriage care requires medical treatment to ensure that the pregnancy matter is cleared from the body and often involves medication used in abortion pills. If pharmacists are not able to supply the medication and health care providers cannot provide this care, there is an increased risk of harm to the pregnant person. In addition, in the United States, 1 in 50 pregnancies are ectopic, when a fertilized egg implants outside the uterus. Ectopic pregnancies are not viable, meaning they will never reach full term. Without treatment, they can lead to hemorrhaging and death.

John M. Aughenbaugh, Ph.D., Department of Political Science

john aughenbaugh
John M. Aughenbaugh, Ph.D.

Aughenbaugh, an associate professor of political science at the VCU College of Humanities and Sciences, teaches courses on constitutional law, public policy and courts and politics. He cohosts “Civil Discourse,” a podcast with Nia Rodgers, a VCU Libraries public affairs research librarian, that uses federal documents, including the U.S. Constitution, to spark conversations about the workings of government.

While many in the country are reeling from, or, conversely, championing the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, anyone who thinks court cases concerning abortion have ended in this country will more than likely be quite disappointed.

First, just because the court held there is no right to abortion in the federal constitution does not mean there will not be debates concerning whether women have such a right in the various state constitutions. State governments derive their powers generally from the 10th Amendment of the federal Constitution, but specifically from the powers granted them by their citizens in state constitutions. Thus, could state courts find there is a right to an abortion in a state constitutional provision? Yes, see state court rulings in Massachusetts and California. Could state courts declare their constitutions do not protect such a right? The answer is also yes; see a recent ruling by the Iowa Supreme Court. It is worth bearing in mind that how state courts interpret state constitutional provisions could have a significant impact on what elected officials may be able to do concerning abortion.

Additionally, we should not be surprised to see court cases on a number of other issues, including: conflict between federal laws — say, if Congress protects or bans a woman’s right to choose based on the Interstate Commerce Clause of the federal Constitution — and state laws that provide the opposite; whether states could ban their citizens from crossing state lines to receive an abortion; and if states may prohibit or limit medication abortions (abortion pill) in conflict with federal law and Food and Drug Administration regulations.

In short, while the Supreme Court may have declared there is no privacy right to an abortion in the federal Constitution, I suspect the Dobbs ruling will merely change the focal points and location of abortion litigation in this country.

Kathleen Ingram, Ph.D., Department of Psychology and Department of Gender, Sexuality and Women’s Studies

Kathleen Ingram
Kathleen Ingram, Ph.D.

Ingram, an associate professor in the Department of Psychology and chair of the Department of Gender, Sexuality and Women’s Studies in the College of Humanities and Sciences, has studied the impact of unsupportive social interactions (negative responses from others) to the lived experiences of girls and women, LGBTQIA+ individuals, people of color and individuals with disabilities.

The ability to exercise control over major life decisions contributes to a person’s mental health and well-being. Decisions about whether and when to have children are among the most intimate and consequential choices a person can make. The U.S. Supreme Court’s decision to eliminate the constitutional right to abortion will have significant mental health implications for people who experience an unwanted or unsafe pregnancy.

From more than 50 years of research about abortion and mental health, we can draw two main conclusions.

First, having an abortion does not cause mental health problems. For many people, the unwanted pregnancy is the primary source of distress. In addition, a person’s mental health status before they became pregnant is a key predictor of their mental health after having an abortion.

Second, denying access to abortion can cause harm to those who are facing an unwanted or unsafe pregnancy. For example, in the Turnaway Study, researchers found that women who were denied an abortion experienced higher levels of distress, lower self-esteem and greater economic hardship compared to women who received an abortion. Also, for individuals in a relationship with a violent partner, being unable to obtain an abortion can increase the risk for continued exposure to physical violence.

Historically, discussions and research about abortion have focused on white cisgender women.  However, the Supreme Court’s decision to overturn Roe v. Wade limits the rights of all people who are or can become pregnant. The court’s decision is likely to have a disproportionately negative impact on those from historically excluded groups, such as Black, Indigenous and other people of color; transgender men and nonbinary individuals; people with limited financial resources, people with disabilities, young people and individuals living in rural areas.

We already have a mental health crisis in the United States. Eliminating the constitutional right to abortion will place further strain on our overburdened mental health system. The American Psychological Association, the American Psychiatric Association and the National Association of Social Workers have condemned the Supreme Court’s decision to overturn Roe v. Wade. Ultimately, the court’s decision will have devastating consequences for countless people across the country. This ruling undermines individuals’ bodily autonomy, further stigmatizes abortion and jeopardizes the health and well-being of people who are faced with an unwanted or unsafe pregnancy. It perpetuates an unjust social system in which power resides in the hands of a few while others are treated as second-class citizens.