In July, Northwestern Pritzker School of Law, in partnership with Feinberg School of Medicine and Medill School of Journalism, Media, Integrated Marketing Communications, hosted a multi-disciplinary panel discussion , “Implications of Dobbs v. Jackson Women’s Health Organization Decision.”
On June 24, the Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization. This opinion overruled Roe v. Wade and Planned Parenthood v. Casey, each of which recognized a constitutional right to receive an abortion. Dean Hari Osofsky hosted the hourlong panel, which discussed the legal, medical, and journalistic perspectives of the decision and the consequences that will unfold as a result. The panel included Paul Gowder, professor of law; Dr. Cassing Hammond, associate professor of obstetrics and gynecology at Northwestern Medicine; Andrew Koppelman, John Paul Stevens Professor of Law; Heidi Kitrosser, Jack N. Pritzker Visiting Professor of Law; and Doreen Weisenhaus, senior lecturer at Northwestern Pritzker Law and senior lecturer and director of Media Law and Policy Initiative at Medill.
Kitrosser opened up the discussion by dissecting the Court’s constitutional argument and what it means for other historical rulings. “One debate that has come up a lot in the wake of Dobbs is ‘What does this bode for other rights? What does this bode for cases like Griswold v. Connecticut that preceded Roe upholding the right to contraception? What about the right to same-sex intimacy, recognized in Lawrence v. Texas? [What about] same-sex marriage recognized in Obergefell case? What about interracial marriage, etc?’” she said.
In the aftermath of the decision, Supreme Court Justice Samuel Alito said that the Dobbs v. Jackson case has nothing to do with those other rights, but Kitrosser noted that advocates have reason to be worried. “If you take what the Court said seriously, it does call into question those other rights,” Kitrosser said. “The court’s methodology arguably wants to commutate those other rights.”
Dr. Hammond spoke on the dangers of childbirth and how the Dobbs decision will affect clinics across the country. “The risk of death from childbirth in the United States is greater than the risk of death from any abortion procedure,” he said. “The risk of dying from a first-trimester suction abortion is one in one million. That is less than the risk of death from a single shot of penicillin, and certainly less than the risk of death from the car ride into the clinic to have a pregnancy termination.” He also noted that one in four American women will have had at least one abortion by the time they are 45, making the demand on clinics in abortion-safe states even more stressed with the surge of patients.
Gowder pointed out what he calls a specific oversight of the Court: “Another fact that the Court utterly failed to acknowledge in the context of its claim that abortion rights are not historically rooted, is that forced birth was a key element in the economics of slavery,” Gowder said. “Every person who’s studied the history of slavery realizes that a key portion of the economic value of an enslaved woman was the fact that that woman could be raped and then the children of that rape would be the property of the master, frequently the rapist.” In response to this, enslaved women would find ways to terminate their pregnancies against the will of their enslaver, he continued. “So for the court to say that the right to abortion was not historically rooted without even discussing the relationship between forced birth and enslavement is unconscionable.”
Koppelman stated that abortion is protected by the 13th amendment, which abolishes involuntary servitude. “Compulsory motherhood, the requirement to bear children against one’s will, was constitutive of slavery. It was a part of what it meant to be a slave for a large part of the slave population,” he said. “I think that these parallels ought to give you pause even if you are a part of the large anti-abortion faction of American politics.”
Koppelman and Hammond brought up that anti-abortion laws not only affect women who want to abort their pregnancies, but also women who need to evacuate their wanted pregnancy because of ectopic pregnancy, premature ruptured membrane, miscarriages, and other complications. “In restrictive states, the law is now going to make it a felony for physicians to do anything but wait and let patients get sick,” Hammond said.
Weisenhaus discussed the effect of Dobbs on journalism. Journalists are already stretched thin in the growing number of events happening in the United States. “There are so many other stories to cover,” she said. “This year alone there have been over 320 mass shootings, and so resources are going to Uvalde, they’re going to Buffalo, they’re going to Highland Park, they’re covering economic issues, inflation, mid-term election, January 6th hearings…there is a challenge for the media.”
“Ensuring equitable access to contraception, to abortions, and other women’s health services is a part of a pledge that my colleagues and I all made when we became women’s health care providers,” Hammond said to conclude the event. “We consider it a virtue, we consider it a responsibility, it’s something that we absolutely cherish. Unfortunately, the Dobbs decision threatens our ability to fulfill our pledge.”