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Reproductive Litigation Six Months Post-Dobbs

Credit: Joe Ravi | Wikimedia

It has now been six months since the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization stripped a human right from half of the U.S. population. In one swoop, citizens in states with a guaranteed right to choose felt fortunate to live in protected boundaries, while citizens in battleground or Dobbs-supporting states scrambled to figure out their rights, protections, and future healthcare needs. All of us asked the terrifying question: “What happens now?”

Six months later, we’ve gained some familiarity with the decision’s impact. During the If/When/How’s event immediately following the leaked decision in May of 2022, the esteemed Professor Michelle Oberman told us abortions will not stop, they will just change. Specifically, abortions will happen privately with pills at home. Young women and girls will be required to sift through unknown websites in the hopes of receiving mailed healthcare materials, options, and medications. Because of this, access to mailed abortion pills is the first lifeline that Dobbs supporters want to cut.

In preparation for the overturning of Roe v. Wade and Planned Parenthood v. Casey, the West Virginia legislature passed the “Unborn Child Protection Act” that bans abortions in nearly all cases. The act additionally joins a prior law restricting the prescription of generic mifepristone, an abortion pill, through telemedicine. The generic mifepristone maker, GenBioPrio Inc., filed suit in response on the basis that individual state regulation “destroys the national common market and conflicts with the strong national interest in ensuring access to a federally approved medication to end pregnancy.”

Likewise, in North Carolina, a suit has been filed against the state’s own restrictions on mifepristone. Physician Amy Bryant, however, argues that North Carolina’s restriction is preempted by the Food, Drug, and Cosmetic Act’s (“FDA”) Risk Evaluation and Mitigation Strategies’ (“REMS”) provisions.

Both suits are basing their arguments on the FDA’s approval for mifepristone in 2000 and the follow-up implementation of a REMS in 2011, with amendments in 2016 and 2021. The final REMS removed both “physician-only restrictions” and “clinic-only” rules so that pharmacies could distribute the drug without requiring women to be physically handed the pill in a doctor’s office. The FDA is a federal body, and thus, these provisions are within the Supremacy Clause and have the statutory basis to preempt both West Virginia’s and North Carolina’s decisions. While we wait to see how the court rules on these cases, however, another battle regarding access to reproductive health is brewing.

In December 2022, Trump-appointed judge Matthew Kacsmaryk began his push against birth control. His argument rested on a 1970 provision of Title X, which declared that it was unlawful to prohibit health care providers from informing parents about their children’s requests for reproductive care. The plaintiff, Alexander Deanda, claimed that he should have knowledge that his daughter sought such health care because they “would be violating his Christian religious beliefs of practicing abstinence until marriage.” Kacsmaryk, an “anti-contraception warrior,” agreed.

Amidst the new litigation against reproductive health, and fifty years post Roe v. Wade, again I return to my feelings from just days after Dobbs:

In our first year as we read Erie v. Tompkins, we learned there is no “transcendental body of law,” no “general common law,” and no ubiquitous “right and wrong” that will be revealed to us if we simply wait. Our legal system is not made by divine rights, but is crafted by a flawed humanity: legislators with lobbyists to satisfy, and justices with preconceived motives.

On June 24, we learned this flawed humanity overturned what we believed to be a fundamental right. After five decades of precedent, stare decisis was disregarded. And now in twenty-two of our fifty states, half of all people have been, or likely will be, stripped of their access to a safe and necessary medical procedure.

We must understand this is not the end of the campaign. The fight is far from over on both sides of this line. But today, we are mourning, and we are terrified. Mourning the loss of our rights to privacy, autonomy, and human dignity. Mourning our dreams of gender equality. Terrified of the chilling effects that we will see from the medical community. Terrified of which rights our legal system will strip next.

Marching in the San Francisco Pride Parade just two days after the decision was released, posters declaring “Love is Love” waved beside “Reproductive Rights are Human Rights” signs with various other calls to action in the wake of Dobbs. Our communities banded together, mixing the joy of how far we have come and the distress of how far we have fallen. We must continue that vigor. We cannot let this issue be disregarded.

As Obama famously said,

Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.”

As future lawyers, we are the change we seek. We are in the best position to push back against these laws, to fight for the America we want, to fight for the 73% of women seeking abortions in this country that live at or below the poverty line, and the 50% of women seeking abortions living on less than $14,000 a year. We must fight for the children who will grow up in poverty, because 60% of all women seeking abortions already have at least one child. We must fight against the discrimination that we see against black and brown women who seek abortions at almost five times the rate of white women in this country. We must fight for those that are not privileged to live in a state like California.

You are likely asking what you can do. Right now, you can contribute to the If/When/How Legal Defense Fund and support SCU Law’s chapter of If/When/How: Lawyering for Reproductive Justice. After graduation, you can give your pro-bono hours to prosecuted women. To once again paraphrase Professor Oberman, abortions will not cease, they will only change. Together, we can help in this time of change and division.

*The views expressed in this article do not represent the views of Santa Clara University.


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