On June 24, 2022, the United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, reversing decades of precedent and withdrawing the constitutional right for women to control their bodies, futures, and lives. This ruling will have profound implications for the lives of people across the Country. Women are the most directly affected – they have lost their personal autonomy and liberty. As the joint dissent in Dobbs explained, “[t]oday, the Court . . . says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.” Families too will bear the burden of the Court’s decision. No longer can they make the difficult, and important, decisions regarding their future. Numerous states, including Michigan, have laws on the books that prohibit abortion or severely restrict the circumstances in which a woman may obtain one. Many of these laws have already gone into effect and abortion clinics around the country have already begun shuttering their doors.
It can be difficult to accept this change. Never before has the Supreme Court withdrawn a right granted to the people under the Constitution. And there are clear indications that the Court may not be satisfied with stopping at the right to abortion. Roe v. Wade, the decision recognizing the right to abortion was predicated on substantive due process under the Fourteenth Amendment to the United States Constitution. Other rights are found in the Fourteenth Amendment’s Due Process Clause including the right to make decision about the education of one’s children, the right to contraception, the right to gay marriage, the right to gay intimacy, the right against forced sterilization, the right against forced surgery or administration of drugs, the right to interracial marriage. Substantive due process encompasses the idea that our Constitution enshrined certain fundamental rights to life, liberty, and property even though those rights were not specifically enumerated. During the framing of the Constitution, many opposed the idea of creating a bill of rights for fear that people would use a list of enumerated rights as an exclusive list. That is why the Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This explicitly recognizes that the Constitution, and Bill of Rights, could not encompass the rights necessary to fulfill the purpose and spirit of the Constitution – freedom, equality, and self-determination.
Unfortunately, the Constitution in its original form, fell short of the promise of freedom and equality. The Constitution explicitly protected the institution of slavery. And while neither gender nor sex are mentioned in the Constitution or the first ten Amendments, women were not offered equal status. Our country fought a civil war over the issue of slavery, culminating in the downfall of the Confederacy, the Reconstruction Era, and the Thirteenth, Fourteenth, and Fifteenth Amendments. While these Amendments guaranteed Black Americans their freedom and equal status under the law, we unfortunately still fight to fully realize those promises. As of the adoption of the Fifteenth Amendment in 1870, providing people the right to vote regardless of their “race, color, or previous condition of servitude”, women still did not have the right to vote. This right would not be obtained until 1920 with the adoption of the Nineteenth Amendment. Much the same as the fight for equality based on race, the fight for gender equality continues.
This historical digression is important to understanding the error of the Supreme Court’s ruling in Dobbs. The Court largely predicated its decision in Dobbs on the fact that at the time of the founding, and at the time of the ratification of the Fourteenth Amendment, there was no history or tradition of women having a right to make the decision regarding their bodies and abortion. This ignores the history of denying women any rights. Even after women attained the right to vote, they were not treated as first-class citizens. We still fight against pay-discrimination, hiring discrimination, and sexual harassment. In 2021, there were only nine female governors out of the 50 states. And in 2022, only 24% of the United States Senate and 28% of the House were women. Currently, only three of the nine Supreme Court justices are women and until 1981, there had never been a woman on the Supreme Court.
In sum, the Supreme Court looked at a history of de jure second-class citizenship for women prior to 1920 and de facto second-class citizenship for most of the century after 1920 and concluded that this history demonstrated that women do not have the right to make decisions about their own bodies. This was wrong. Unfortunately, we must live with the reality of the Dobbs decision for the time being. However, this does not mean that we must accept the decision as correct. We must fight to protect the right to abortion through the legislative process at both the State and Federal levels. Voting, protesting, and volunteering are critical. Furthermore, we must work to help those directly affected by the Dobbs decision. There are numerous non-profit organizations that help women travel to obtain safe and legal abortions. There is also important work to be done in the courts. Opponents of the right to abortion access began their journey to Dobbs 50 years ago when Roe v. Wade was first decided, and we must do the same. However, the United States Constitution and Supreme Court are not the only places where we can seek to protect women’s right to choose. State constitutions are fonts of rights independent of the Federal Constitution, and state supreme courts can recognize the right to abortion much like the United States Supreme Court did in Roe v. Wade.
In Michigan, a 1931 law prohibits abortions in all cases except those necessary to protect the life of the mother. MCL § 750.14. Performing an abortion in Michigan under any circumstance other than to protect the life of the mother is a felony. There is no exception for rape, incest, or in cases where the fetus has severe genetic abnormalities that will lead to pain, suffering, and death if the fetus is brought to term. Fortunately, as of this writing, the Michigan Court of Claims has entered a temporary injunction preventing the enforcement of this law on the basis that the Michigan Constitution protects the right of women to control their own bodies. However, this injunction is not permanent and may be reversed. Dana Nessel, the Michigan Attorney General, has also sought an opinion from the Michigan Supreme Court on the right to abortion under the Michigan Constitution. There is also a ballot initiative seeking to legalize abortion under Michigan law. Hopefully, these mechanisms work because it is the democratic will of the people. According to polling data from Pew Research, most people in Michigan support legal abortion access.
Even if these attempts to protect the right to abortion in Michigan are successful, it is critical to redouble our efforts to protect all peoples’ rights. Furthermore, this fight cannot be limited to the ballot box. The Supreme Court’s decision in Dobbs emphasizes the importance of continuing to fight for people’s rights in courtrooms across the Country. Oliver Law Group, P.C. has been, and will continue to be, dedicated to protecting the rights of all people, especially those marginalized by those in power. If you believe you have a case that speaks to our ability to ensure women’s rights, or any right of the people, we look forward to stepping in and stepping up to do our part to ensure all people’s rights both now, and in the future.