‘A seismic moment in Constitutional history’

Experts in law and medicine examine the Supreme Court’s decision overturning the right to abortion

With the impact of the United States Supreme Court’s decision in Dobbs v. Jackson — in which a majority of justices voted to overturn Roe v. Wade — reverberating across the nation, members of the Harvard Law School community met to discuss its implications on June 29.

According to Harvard Law School Professor I. Glenn Cohen ’03, the ruling represented “a seismic moment in Constitutional history, indeed in American history … I can’t think of another moment in my lifetime quite like it.” Added his colleague, Professor Noah Feldman, “I feel that my whole life in constitutional law will have a B.C. and an A.D. part — before and after Dobbs — and I think that will be true for a lot of us.”

During a panel discussion moderated by Cohen and hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, experts in law, medicine, and ethics raised concerns about the prospects for access to legal and safe abortion in many parts of a post-Dobbs America.

Petrie-Flom panelists.

Dr. Louise P. King, a practicing surgeon and a Harvard Medical School professor of reproductive biology, explained that this ruling will lead to both restrictions and uncertainties that will jeopardize lives and the availability of health care. “When these laws do go into effect, in states in which abortion is restricted, the laws are vague enough [in referring to] medical emergency, and referring to reasonable belief, to [not] give us guidance on when we can and can’t intervene.” In particular, she said, patients with ectopic pregnancies and septic pregnancies may not present as clear emergencies — so doctors could be legally prevented from performing life-saving surgeries even when they see a threat. “I might have to wait until someone’s vital signs become unstable, or an organ system is affected. Sepsis moves very slowly, until it doesn’t.”

Just as alarming, King argued, is a potential shortage of doctors. “We will see physicians facing decisions for which they have little guidance, under the restrictive laws being put forward. The moral injury of being faced with that will lead to many more of our colleagues leaving the profession. If they are prosecuted, they will not be able to provide care to all of the patients coming through our doors. … I wish that wasn’t the case, but it truly is what we’re seeing.”

A large number of people who are most deeply affected by this decision will not have the resources to seek this type of assistance, or to pay for it. As is frequently the case in our current times, those who are already suffering the most will suffer further.

Dr. Louise P. King, Harvard Medical School

The closest thing to a positive step, she said, would be for lawmakers to provide “preemptive guidance” for when a surgeon can now legally intervene. Meanwhile more liberal states including Massachusetts will need to prepare for a new influx of patients. “A large number of people who are most deeply affected by this decision will not have the resources to seek this type of assistance, or to pay for it. As is frequently the case in our current times, those who are already suffering the most will suffer further.”

Harvard Law Professor Jeannie Suk Gersen ’02 addressed the originalist reasoning used by Justice Samuel Alito’s opinion for the Court to determine that abortion was not a constitutional right — in particular his invoking Washington v. Glucksberg to claim that the 14th Amendment’s guarantee of liberty refers only to “fundamental rights that are deeply embedded in the nation’s history.” This approach, she said, gave a particular resolution to a longstanding debate between conservative and liberal judges.

“When you define it at that very low level of generality, what you’ll find is that the right to abortion specifically is not represented robustly in the nation’s history. However, the liberal justices for decades have advocated for a way of interpreting liberty that is broader than that: You don’t ask about the lowest level of the activity at issue, but you think about it in terms of broader concepts such as privacy, bodily autonomy, the right to control important decisions about your life. So, the framing of the question is often outcome determinative, and that’s what we see here.” She added that one salient aspect of Alito’s reasoning in the Dobbs opinion is that it is grounded in the laws and norms of 19th century America — a time when abortion was under fire, but also when women could not vote, practice law, or control property.

I feel that my whole life in constitutional law will have a B.C. and an A.D. part — before and after Dobbs.

Noah Feldman

Feldman warned that the same line of thought is likely to jeopardize other accepted rights — and that it already has. “The conservatives on the Court are in an historical process where they are trying to implement originalism in a wide range of areas, destroying pre-existing constitutional doctrine to do so.” In the context of guns, church and state, and abortion, Feldman added, “some conservatives have been pushing for this for a long time, but they didn’t have the votes to get it done. In that sense, Justice Thomas is the most influential member of the Court right now; he’s also the most conservative member.”

While Justices John Roberts and Brett Kavanaugh may be more cautious, Feldman said that Justice Thomas will likely have more impact on other applications of the 14th Amendment. “That includes gay marriage, it includes the right to have sex with the partner of your choice, it even includes the right to contraception and against forced sterilization. Justice Thomas didn’t pull any punches. He said, ‘I think we should revisit all of these’.”

UC Davis School of Law Professor Mary Ziegler, who was a visiting professor at Harvard Law School this spring, put last week’s events into historical context. “There are structural things that helped bring us to this moment,” she said, noting among other things the political polarization of the country, the growth of a conservative legal movement that allied itself with the anti-abortion movement, a gradual chipping away of Roe, and a Supreme Court confirmation process that has changed in “profound ways.” There is, she said, no simple answer to how we got here. “But if you’re in law school and wondering what we can learn from this, [it’s that] certainly social movement lawyering matters, but so do broader politics. How this change was affected was not just through litigation; it was a much broader story.”

If you’re in law school and wondering what we can learn from this, (it’s that) certainly social movement lawyering matters, but so do broader politics. How this change was affected was not just through litigation; it was a much broader story.

Mary Ziegler, Harvard Law School visiting professor

Further restrictions on abortion rights are likely, the panel noted — particularly in the area of medical abortion, which Ziegler warned is soon likely to be regulated. “I am a hundred percent sure that states will regulate medication abortion in the bans they already have in place. If anything, there is a zeroing-in on abortion medication, which conservative states are viewing as the major battlefront in a post-Dobbs America,” she said. Gersen warned against the expectation that states would be willing or able to protect existing rights. “The fantasy of the Supreme Court getting out of this space will become very clear very soon.”

Gersen also called for America to break its dependence on the Supreme Court. “Even though we knew this decision was coming, this was the result of several decades of our reliance upon the Supreme Court to guarantee our liberties. And we’re out of practice for a variety of reasons, one of them being that we expect the Supreme Court to decide these fundamental issues. We’re out of the habit of thinking that Congress can actually get things done. And practically speaking right now, it doesn’t seem that there is a lot of will on the part of Congress to say this is a right that we care about, and that the American people should have. It’s a wake-up call on the larger level, not just abortion, but on how our society has become so Supreme Court oriented.”