Justice Samuel Alito’s leaked opinion in Dobbs v. Jackson Women’s Health claims not to take a position in the abortion culture war. Rather, the draft argues that Roe v. Wade improperly took abortion away from the people, and that overturning Roe lets us all vote according to our own understanding of when life begins. The actual impact of the decision, however, would go far beyond abortion. The opinion explicitly recognizes the constitutionality of laws that profess to protect prenatal life “at all stages of development.” This gives a blank check to politicians who want to regulate the behavior of pregnant people and even people who merely could become pregnant in the future—signed by the highest court in the land.
Alito’s draft opinion says that it takes no position on whether or when a fetus has legal rights. Unsurprisingly, given the very different laws currently on the books in different states, it contemplates that states will fall onto a spectrum of permitting versus prohibiting abortion. But in the actual meat of the opinion, in which Alito lays out the legal analysis lower courts should follow, he tips his hand: If future laws regulating abortion are challenged in court, the judge should apply the lowest level of constitutional scrutiny, known as rational basis review. Under this test, someone arguing that a law violates their constitutional rights must prove that the law has no rational relationship to a legitimate goal. For obvious reasons, this is incredibly difficult to do, and laws are practically never struck down under that test. Alito goes further, however, and supplies the legitimate goal, writing “These legitimate interests include respect for and preservation of prenatal life at all stages of development.” (Emphasis added.)
This is a stunningly broad statement. Restrictions on the behavior of pregnant people, up to and including criminalization, would presumably be constitutional under this analysis so long as a judge could imagine a rational relationship to preserving prenatal life, no matter how early or tenuous the pregnancy. Think of the uncountable ways that a pregnant person might harm a fetus, which could under this understanding of the law be criminalized: failing to quit smoking cigarettes? Having an occasional glass of wine? Staying on antidepressants? Remaining in a stressful or physically demanding job?
If this seems unlikely to you, reflect on the many ways that prosecutors and courts have already attempted to use the law to control the behavior of pregnant people. A 16-year-old girl was indicted for depraved heart murder because she had used cocaine before having a stillbirth at 36 weeks. The prosecutor pursued the charge even though no cocaine showed up in the baby’s blood and the baby was born with the umbilical cord wrapped around its neck. Another court sentenced a pregnant woman found guilty of forging checks to six months imprisonment instead of the typical sentence of probation because if she was in jail, she couldn’t use cocaine. Under Alito’s logic, states could pass laws criminalizing any use of substances that could harm a pregnancy—take caffeine as an example. Some studies show that drinking more than 200 mg of caffeine is associated with higher rates of miscarriage. Banning pregnant people from drinking caffeine is certainly rationally related to preserving prenatal life.
Courts could—and have—even try to regulate how people give birth. In 1996, a woman named Laura Pemberton hoped to have a vaginal birth after a previous C-section but was unable to find a hospital that would let her try. After she went home with the intention of laboring there under the care of a midwife, the hospital got a court order enforced by paramedics and police showing up at her house and carrying her out on a stretcher to receive another C-section against her will. It is possible to imagine a state banning home births, or banning C-sections entirely, or allowing physicians to override patient decisions about how and when to give birth, claiming that they are merely preserving prenatal life.
In 2013, the Journal of Legal Medicine published an article by three physicians arguing that laws regulating maternal fetal medicine could begin to hold pregnant people responsible for complications related to their obesity. It might be difficult to punish fat people for getting pregnant, but it would be incredibly easy to forbid fertility clinics from providing services to people over a certain BMI. And this too would pass Alito’s rational basis review analysis.
The draft opinion is not yet official, and thus is not yet the law of the land. But if I were an enterprising legislator or lobbyist bent on further restricting the rights of pregnant people, I would not be limiting myself to merely banning abortion. Alito provides a constitutional road map for an unprecedented flood of legal regulation telling people how and when to be pregnant. Depending on how receptive your state legislature is to such laws, you may want to add “get a lawyer” as item one on your birth plan.
