Jurisprudence

The Supreme Court Overturned Roe and Opened Pandora’s Box

Photo Illustration by Slate.
Photo Illustration by Slate. Photos by Unsplash and StMax89/iStock/Getty Images Plus.

On Slate’s Amicus podcast this week, Dahlia Lithwick and Mary Ziegler, a professor at the University of California, Davis School of Law and author of Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, discussed what the decision in Dobbs v. Jackson, the case overturning Roe v. Wade, will mean in the short, medium and long term for reproductive and other freedoms. Their conversation has been lightly edited for clarity.

Dahlia Lithwick: Walk me through what it means in states that have “trigger laws,” states that have laws that need to be ratified by elected officials, and states in which laws go into effect today. Is it true that right now there are clinics closing; patients who were on the table at 10:10 on Friday when the decision came down, not being able to procure an abortion. To the extent that you can project what this means—in the very near term, in the medium term and in the longer term. Can you just walk us through how this dominoes out across the country?

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Mary Zeigler: Well, we know that in the states with “trigger laws,” many of these laws will go into effect very quickly. There are some states that have sort of delay mechanisms. There has to be certification by the attorney general, for example, and then 30 days have to go by. Many states, even Friday have already been banning abortion. I think South Dakota was the latest, but I’m sure there are more that have been happening in the immediate aftermath of the decision. That number will grow.

In other states there’s more complexity. For example, Michigan has abortion on the ballot before voters directly. There’s also state constitutional litigation unfolding in Michigan. So there’ll be some states that are in a holding pattern in the near term. Then of course this issue will be politically contested in a variety of places. Those include states that once had state constitutional protections for abortion, but now no longer do. Well, I’m jumping the gun a little bit, but in Iowa and likely Florida. There will be states that have complicated politics on abortion where we’ll see money pouring in nationally. That’ll especially be true of states that have been regional outliers, where people have been traveling to get abortions.

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We may see conflicts. I think President Joe Biden flagged these potential conflicts in remarks in the aftermath of the decision, essentially saying that the right to travel is at stake. So it’ll be interesting to see, once trigger laws go into effect, how far are states willing to go to enforce abortion laws? How far are they willing to go in terms of surveillance? How far are they willing to go in terms of regulating the conduct of people out of state? How far are they willing to go in regulating the line between speech and conduct? For example, people posting websites about how to perform an abortion at home or advertising abortion medication.

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We don’t know the answers to these questions. I think it’s fair to assume that – contrary to what Justice Brett Kavanaugh is telling us – this is Pandora’s box, right? So we have no idea where this is going to take us other than to imagine that it’s going to be polarizing and it’s going to be difficult for people who had not lived through the pre-Roe era to imagine.

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One of the things we can say for certain about the pre-Roe era is that more likely than not the person who was targeted in jurisdictions where abortion was prohibited was the physician. We’re in a different world now, right? Where it can be somebody who puts medication abortion pills in the mail. It can be somebody who… The famous hypothetical from the S.B. 8 context is the Uber driver who takes somebody to a clinic, or somebody who drives someone across state lines. So I think one of the things that I see as materially different in Dobbs that maybe we haven’t fully wrapped our heads around is that the pregnant people themselves are going to be the targets, as you say, of surveillance and of some of these vigilante schemes that are being put into effect in ways that really don’t map onto the reality pre-Roe.

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Absolutely. The availability of medication even puts in play punishment for pregnant people. That’s not happening now and I think decent amount should be said about the fact that the mainstream anti-abortion movement does not at this moment want to punish pregnant people. They’ve actually been fighting state legislators who want to do that, saying no, no, don’t do that. The people who do want to punish pregnant people though, have more influence in the anti-abortion movement than they have historically. I chalk much of that up to self-managed abortion because those people are saying essentially, okay, you don’t want to punish pregnant people. You don’t think you should, granted, but what are you going to do when someone in Oklahoma gets abortion medication from a doctor in Europe and a pharmacist in India? Are you going to just let that go?

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I think that’s going to be a difficult answer for many people, for Republican lawmakers and people in the anti-abortion movement. So I think it’s not only the case that we’re seeing surveillance of a kind that was impossible in the pre-Roe era, although it’s worth emphasizing that pregnant people were surveilled then too and forced to testify. But we’re also, I think, going to see at least more of a push to punish pregnant people themselves. I don’t know if that’s going to work yet. I think that’s a conflict that is very unpredictable, but it’s going to happen. The conversations about punishing pregnant people directly are not over.

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It’s also worth emphasizing that the folks who are being defined as “aiders and betters” by many in the anti-abortion movement is a much larger group of people than we would’ve seen in the pre-Roe era. The National Right to Life Committee, for example, recently put out a model bill that would define lots of things as criminal aiding and abetting. Abortion doulas, websites encouraging people to use abortion medications. Lots of things that come close to free speech or advocacy being defined as aiding or abetting. So the stakes of this are going to be high for a broader group of people.

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