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Reproduction Rights
On June 24, the United States Supreme Court overturned Roe v. Wade and retracted the federal right to an abortion. For Missourians, the decision set off a domino effect. Minutes after the Dobbs v. Jackson Women’s Health Organization decision was announced, Missouri Governor Mike Parson and Attorney General Eric Schmitt issued proclamations enacting the state’s “trigger law,” banning almost all abortions statewide. Specifically, they authorized Section 188.017, a Missouri statute that lay dormant while Roe v. Wade was in effect. The statue prohibits abortion “except in cases of medical emergency” and says that any provider who performs an abortion in violation of the subsection can be guilty of a class B felony.
According to Susan Frelich Appleton, a family law expert and the Washington University Lemma Barkeloo & Phoebe Couzins Professor of Law, the Dobbs v. Jackson decision could have wider consequences for Missourians and Americans alike.
Photography courtesy Washington University
Washington University School of Law Prof. Susan Appleton, Thursday, Aug. 6, 2009, at Seigle Hall.
What are your most important takeaways from the Dobbs v. Jackson decision?
The core reason that the Constitution does not protect abortion, according to the majority in Dobbs v. Jackson, is that abortion is not grounded in constitutional text. Specifically, those who wrote the 14th Amendment back in the 1800s could not have meant for its reference to “liberty” to include abortion. Of course, one could say the same about many other rights that the court has recognized as part of liberty; that the framers didn't have in mind a right to contraception, or interracial marriage or same sex marriage. It's not clear whether the court can eliminate one of these without having the entire structure collapse. The majority says abortion is unique in that it ends potential life. The dissent says no, because the emphasis on history at the time of the adoption of the 14th Amendment puts many of these other rights in jeopardy. Justice Clarence Thomas, who writes a separate concurring opinion, seems to explicitly invite challenges to access to birth control and marriage equality.
How might this ruling affect Supreme Court decisions going forward?
It's clear to me that the majority's analysis about what the framers specifically referenced in the 14th Amendment is really ominous news for gender equality more generally, because certainly women were not full and equal citizens in 1868.
What kinds of barriers existed for Missourians seeking abortions prior to the Dobbs decision?
I think it's worth noting that access was a problem even when Roe v. Wade was constitutional law. First of all, states had enacted a number of hurdles for abortion patients. That's why Missouri residents were going to Illinois even before Dobbs was decided, because Missouri had made it so hard to get an abortion here. Even when Roe was in its heyday, the Supreme Court said that there's no right to government funding for abortions for indigent people, even if there's a medical emergency. Poor people who didn't have the financial ability to obtain an abortion were dependent on private charity, or couldn't have access to abortion at all. Many abortions are obtained because of economic situation. A number of abortion patients would be happy to carry a pregnancy to term if they had the ability to support a child, send the child to a decent school, have decent drinking water, and raise the child in a healthy environment. The absence of a social safety net actually makes abortion more common.
What effect might this ban have on Missourians seeking treatment for ectopic pregnancies or those thinking about in vitro fertilization?
I think ectopic pregnancy is clearly a medical emergency. It definitely threatens the life and health of the pregnant person, and there's no way the pregnancy can continue to a healthy birth. I do think the IVF question is a serious one. Missouri does have a law that says that life begins at conception. It was litigated many years ago, when abortion was still considered a constitutional right. I think it remains to be seen whether IVF, in which embryos are created, manipulated, and often destroyed, would be problematic under the ban read in tandem with a law that says that life begins at conception.
Under this new ban, will Missourians be able to obtain an abortion out of state?
A Missouri legislator, Mary Elizabeth Coleman, has proposed a law that would extend beyond Missouri's borders to target abortions that involve embryos conceived in Missouri. The law on extraterritorial application in a context like this is very unsettled. There are lots of arguments based in the Constitution that might be brought to challenge that kind of overreach, but we don’t have much to go on. These cases haven’t arisen frequently. Usually we assume that even if Missouri thinks gambling is bad, for example, it’s perfectly fine for Missourians to go to Las Vegas and play the slot machines. There have been lots of controversial issues where states have taken different positions—from recreational marijuana to surrogacy to gambling—but we haven't really worried about these problems, even though they were theoretically possible. Legislatures never really pushed that far. But they might push that far here. We would have to settle these large constitutional questions about federalism in the context of abortion, which brings so much political baggage with it. That would be, I think, a chaotic mess.
Challenges to abortion bans have already been raised in other states. Do you see any possibility for similar challenges in Missouri?
You could ask whether the medical emergency exception is too vague. You might be able to ask exactly what it means for Missouri to have a law that says that life begins at conception. Does that mean fertilization? Does that mean implantation? What does that mean? Other states have been taking different avenues. For example, Florida has in its state constitution an explicit right to privacy. I think that some of these challenges are succeeding on the basis of state constitutional grounds. If the Missouri Constitution doesn’t already have language that is more protective than the Federal Constitution, Missourians should work to make it so.
You’ve spoken in the past about legal arguments contending that abortion bans qualify as sex discrimination. Can you explain that line of reasoning?
One of the main arguments is based on the common law notion that we don’t require people to come to the aid of someone else. I can't be prosecuted for failing to donate a kidney to my child, even if my child would die without it, because I'm allowed to privilege my own bodily integrity. Anti-abortion laws single out women and pregnant people to be good Samaritans to their fetuses. They have to donate their bodies for nine months to support the life of another person. Legally, I don't have to dive into the river to save someone, because it poses a risk to me. I can let the person drown. So I shouldn't have to devote my body for nine months to sustain the life of another person. It's an interesting contrast to all of these laws we're seeing, including gun litigation, about self defense. You have a castle doctrine that lets you protect your brick and mortar home from intruders. Why can't you protect your body from an unwanted occupant—namely, the fetus? I would say that anti-abortion laws discriminate against women by conscripting them into supporting another person for nine months.
