ObGyn briefs in the case
The medical profession filed several amicus curiae briefs in the Dobbs case. (These are “friends of the court” briefs filed by nonparties to the litigation. The purpose is to give a court a perspective on the case not presented by the parties.) The American College of Obstetricians and Gynecologists (ACOG) took the lead in filing an amicus brief.7 Nearly 2 dozen other medical organizations joined the brief, including the American Academy of Pediatrics, American College of Osteopathic Obstetricians and Gynecologists, American Gynecological and Obstetrical Society, American Society for Reproductive Medicine, Council of University Chairs of Obstetrics and Gynecology, North American Society for Pediatric and Adolescent Gynecology, Society for Academic Specialists in General Obstetrics and Gynecology, Society of Gynecologic Oncology, and Society of OB/GYN Hospitalists.
The brief argued that abortion is a safe procedure, an abortion ban would harm the health of pregnant patients, and it would undermine the physician-patient relationship and interfere with patient autonomy. It also discussed the issue of fetal pain,8 telling the Court that “Every major medical organization that has examined the issue of fetal pain and peer-reviewed studies on the matter have consistently concluded that pre-viability abortion does not result in fetal pain perception.”9 The brief was cited in the dissent for the fact that “About 18 percent of pregnancies in this country end in abortion, and about one-quarter of American women will have an abortion before the age of 45.”10
The Court received a different view from an amicus brief filed by the American Association of Pro-Life Obstetricians and Gynecologists.11 It told the Court that abortion, especially later-term, poses health risks: the abortion process itself may injure the woman, abortion puts women at risk for future preterm births, later-term abortion raises a woman’s risk of developing breast cancer, and abortions (especially those later in the pregnancy) are linked to a greater risk of psychological harm.12 The brief also noted that 93% of obstetrician-gynecologists do not perform abortions, and “abortion has been deemed contrary to sound medicine for thousands of years” (citing the Hippocratic oath).13 The brief was not cited by the Court.
Many other medical and pro-life medical groups presented amicus briefs. A list of and links to all the briefs is available on the SCOTUSblog website at https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/.
Ramifications
The Court decision does not make abortion illegal but allows states (and possibly Congress) to decide whether, when, and how abortions may be performed. Some states may ban most abortions (making it illegal to have or to perform abortions). Thirteen states had “trigger laws” to go into effect limiting abortion if the Court permitted such limitations. Most of those states were almost immediately entangled in lawsuits challenging the state laws. Some states, for example, have privacy provisions in their state constitution that state courts could interpret as allowing abortion, thereby voiding the state statutes prohibiting abortion.
At least a few states have abortion laws still on the books that were passed decades ago (perhaps before Roe) and were never repealed. Those laws may once again be valid, although state courts might hold that those statutes were repealed by Roe and must be passed again to be valid. Some experts anticipate that 28 states will eventually have significant limitations on abortion.
The Guttmacher Institute maintains a frequently updated table on the abortion laws in each state.14 According to one estimate, 29 states are hostile to abortion rights (or lean that way), with about 40 million women aged 13 to 44 (58% of the United States) living in states with some hostility to abortion.15 Congress may pass some national abortion laws, but that seems unlikely and there may be some limits on its ability to control private medical practice within states.
An additional legal issue will arise from medication-induced abortions, generally through the use of mifepristone and misoprostol. They now account for the majority of abortions. These medications might be used for abortion, up to about 9 weeks of pregnancy, in states prohibiting abortion. The drugs once were available only with an in-person visit, but now the US Food and Drug Administration (FDA) permits mail-order delivery. The potential exists, therefore, to circumvent states’ prohibition on abortion through mail-order postal shipments. The FDA controls the licensing of pharmaceuticals in interstate commerce, but not the practice of medicine within a state. Therefore the ability of individuals (within a state) to possess or use drugs is unclear.
The abortion wars of the last 50 years gave rise to state laws related to abortion, including consent by minors, information to parents, special informed consent, and facilities requirements. If these laws were once struck down because they were inconsistent with Roe, but were never formally repealed, they may now become legal requirements.
In the foreseeable future, abortion laws generally will not be determined by federal courts but by state law, generally legislatures. In legislative hearings, town hall meetings, and conversations with lawmakers, ObGyns should engage the topic of abortion with scientific expertise, reason, openness, and humility. It will be impossible for the profession to speak with a single voice, as the briefs filed this Term demonstrate. Where there are honest differences in science, the reasons for the different interpretations should be explainable to lay decision makers. The profession, who are not being pseudo-lobbyists, can contribute a great deal to the rational consideration of this emotional topic.
Farewell to Justice Breyer and welcome to Justice Jackson
On January 27, 2022, Justice Stephen Breyer informed President Biden of his intention to retire from the Court at the end of the Term. At age 84, he was the oldest member of the Court, but he continued to be among the most active of the justices and seemed to relish the work of the Court. He had been under pressure from liberal groups to retire earlier so a successor could be confirmed by a Democratic Senate. In many ways he was the Renaissance man of the Court: he spoke fluent French, wrote books, and famously sprinkled his questions with complex and funny hypotheticals.
Justice Breyer was a law professor before becoming a judge and enjoyed presentations to many groups, from children to law professors. He loved the Court and defended it—most recently against partisan attacks from both the right and the left. In the decisions of the Court, he was one of the more liberal justices. He had, for example, indicated that the death penalty is unconstitutional.
In his January retirement letter, he said that he would step down at the end of the Term if his replacement had been appointed and confirmed. She had. The new justice had clerked for Justice Breyer in 1999–2000.
Ketanji Brown Jackson was nominated by President Biden on February 28, confirmed by the Senate on April 7 by a 53–47 margin, and sworn in on June 30, 2022. Justice Jackson had previously been a federal district court judge and on the Court of Appeals for the D.C. Circuit. She attended Harvard-Radcliffe College and received her law degree from Harvard Law School. She worked as a criminal defense attorney and was active in the US Sentencing Commission.
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