Mel’s Musings – What’s the next shoe to drop?

It’s true. The leak of a few months ago was accurate and the Supreme Court has struck down Roe v. Wade along with fifty years of precedent in their recent Dobbs v. Women’s Health Organization decision. Now, civil liberties advocates are waiting for the next shoe to drop.

National Public Radio commissioned a poll to find out how Americans feel about the Dobbs decision; 58% said they had little confidence in the Supreme Court and that the majority opinion in Dobbs was political activism and not simply a legal interpretation of the Constitution. Of those surveyed, 56% oppose the Supreme Court decision overall including 69% of college graduates and 59% of women. On the other hand, the Vatican applauded the findings of the Supreme Court in Dobbs but issued a statement saying that being “pro-life” is more than simply being anti-abortion. The Vatican defined being pro-life as being against abortion of course but also being for prenatal care, maternity leave, parental leave (for both parents) as well as providing welfare, healthcare and other assistance to mothers and children. The Vatican statement went on to say that any pro-life position should also include a stance against gun violence and opposition to assisted suicide and the death penalty.

The difficulty with the Dobbs decision is not so much the finding that abortion isn’t a constitutional right; it’s the implication that privacy is not a constitutionally protected right. If the decision to abort a pregnancy is not a private decision, what other personal decisions are not private?

The right to abortion, proclaimed in Roe v. Wade, had its antecedents in the previous Supreme Court case of Griswold v. Connecticut. The State of Connecticut outlawed the sale of contraceptives reasoning that sex was for procreation and if people were going to indulge their marital impulse it was best that it be indulged within the institution of marriage and for the sole purpose of making babies. Estelle Griswold was the president of Planned Parenthood of Connecticut, which was making contraception available to any woman who wanted it in blatant violation of the law. In Griswold the Supreme Court ruled that the act of sex was a private one, carried on in private and the decision whether to go commando or to wear or imbibe protection of some sort was a private act. This case was the basis of the privacy right that was expanded in Roe.

If the decision to end a pregnancy isn’t a privacy right, why would the decision to prevent a pregnancy in the first place be one? If the State has the right to regulate these private decisions, why doesn’t the State have a right to intervene, regulate or even ban other private decisions, like contraception, since Dobbs has effectively declared that there is no constitutional right to privacy as a practical matter? That’s the real danger of the Dobbs v. Women’s Health Organization decision.

A Third Way Think Tank study has found that women’s income drops 4% every time they have or adopt a child. This is due to a number of factors. First, the actual costs of pregnancy – medical checkups, prescriptions, delivery and after care can be enormous. Those costs often aren’t covered completely by insurance and if you’re uninsured, heaven help you. Second, children are expensive in and of themselves what with diapers, feeding, clothing, daycare, healthcare etc. The Department of Agriculture (why they have their noses in this topic escapes me) says that their studies indicate that the cost of raising a child from birth to age 18 – excluding any private education or college costs – on average is $230,000 per child. Third, women lose income from bearing children because of time off from work. The United States, by and large, has no paid parental leave so women typically are at a loss for income during part or all of the pregnancy. Absences from work to bear children or taking time off to rear children can also put women on a different career trajectory leading to lower incomes over a lifetime of employment.

The Turnaway organization’s study has found that women who carry an unwanted pregnancy to term are four times more likely to live in poverty. “Unwanted” children tend to experience higher rates of abuse and neglect, are far more likely to engage with the criminal justice and child welfare systems as well as have poorer health outcomes than children whose parents welcomed the pregnancy. If abortion is truly outlawed then society has to be ready for increased welfare and other societal costs; i.e. increased penal system expenses, a rise in the need for and utilization of foster care, increased personnel and other outlays for social services, Medicaid and county poor relief budgets going up etc.

The Guttmacher Institute surveys abortion providers in all fifty states. They calculate there were approximately 930,160 abortions performed in the United States in 2020 compared with 916,460 in 2019. Generally, abortion has been on the decline in this country since 1981. The Centers for Disease Control says that 56% of all abortions in this country are performed surgically while 44% of abortions are brought about through medication. The CDC studies further point out that 40% of abortions annually are performed on women who do not have children while 60% are performed on women who have already have a child or children. The CDC studies suggest those women with children who have an abortion are prioritizing the kids they already have, given their economic and social condition at the time of the abortion. The CDC figures have found that on average 9% of abortions are performed on teens 13-19, 57% on women in their 20’s, 31% on women in their 30’s and 4% on women in their 40’s (the percentages have been rounded up to the nearest highest whole number which accounts for the total being slightly above 100%).

The Dobbs v. Women’s Health Organization hasn’t outlawed abortion. It simply declares it is not a constitutionally protected privacy right anymore and the individual states may allow, regulate, restrict or outlaw it at their discretion. Even with the Dobbs decision, states may not be able to truly ban all abortions in their jurisdiction. Merrick Garland, the Attorney General of the United States, has asserted the federal government’s prerogative of “preemption”. The Doctrine of Preemption is the generally accepted legal precept that federal laws trump state laws, a concept first laid out by the Supreme Court in the Marbury v. Madison case. According to the Justice Department, since the FDA has said that Mifepristone and other abortifacients are safe for purpose and legal, states may not outlaw them, so medicine induced abortions will still be available to all.

Surgical abortions will also be available for those with money. No state may regulate interstate commerce and that includes travel, so citizens with money and a mind to have an abortion could trek to an abortion friendly state and have the procedure done there. In the 1890’s, South Dakota used to be a “divorce friendly” state. People came here from all over the country to get a relatively quick, easy and inexpensive divorce. (There’s a great article on women and divorce in the June 2022 Smithsonian Magazine). The same thing that happened with divorce before the turn of the 20th Century in South Dakota (and in Nevada for much of the last century) will also similarly take place regarding abortion in various locales around the country. Already a number of companies and corporations have indicated that they will fund part or all of the costs for their employees to travel to a state that provides abortions if the employee wants the procedure and can’t access it in their state. The list of companies providing that “benefit” include; Disney, Comcast, Sony, Netflix, Paramount, Warner Brothers, Bank of America, META (Facebook), Dick’s Sporting Goods, Yelp, Alaska Airlines, Microsoft, OK Cupid, Bumble, JP Morgan Chase, Johnson and Johnson, Allbirds, Starbucks, PayPal, Reddit, Door Dash, Levi Strauss, Conde Nast, Goldman Sachs, Apple, Citigroup, Discovery, Google, Amazon, Adobe, Box.com, Intuit, Mozilla, Pantagonia, Grub Hub, H& M, Nike, Adidas, Estee Lauder, Urban Outfitters, Ulta Beauty, Him & Hers, Nordstrom, Chobani, Ben & Jerry’s, Impossible Foods, Expedia, Uber, Lyft, Air BnB, Live Nation, Black Rock, Wells Fargo, Deutsche Bank, Zillow, T Mobile, Duolingo, WeWork, Open Sea, Indeed.com and the list goes on and on.

Lost in the jubilation and protest over this decision “ending” abortion is the fact that Dobbs is not really the end of abortion as pointed out above. States also cannot criminalize behavior that is legal is other states; for example, if you were to smoke marijuana recreationally in a state where that was legal and then came back to South Dakota sober no South Dakota law or authority could touch you. The same will be true for out-of-state abortions, regardless of what South Dakota politicians do or proclaim. As a practical matter, no state will be able to forbid its citizens from leaving the borders of their state to get an abortion. In fact, Justice Brett Kavanaugh wrote in his concurring opinion to Dobbs that “…such a ban would fail on the constitutional right to interstate travel…” and such a preemptive declaration that travel bans would be unconstitutional is “not an especially difficult constitutional matter”.

Also lost in the aftermath of the Dobbs decision is the fact that abortion is a medical procedure and not just birth control. There are abortions done in cases of incest, rape and life of the mother. There are abortions that deal with ectopic pregnancies, pregnancies that can threaten a mother’s life or potentially end her fertility. There are abortions for birth defects that will be fatal for the fetus, often discoverable only later in pregnancy and so on.

However you may feel about the subject of abortion, the Dobbs decision should concern you. It’s true much of our privacy we give up voluntarily by clicking “yes” to terms of service, posting online, agreeing to accept “cookies”, submitting to video surveillance etc. but where should we draw the line? If the government has the right to curtail the right to privacy in your bedroom and beyond, then just where do you have privacy?

If your right to privacy doesn’t constitutionally exist can your neighbor, or anyone else for that matter, fly a drone over your home? How does no longer having a constitutional right to privacy affect HIPAA (the Health Insurance and Portability and Accountability Act) which is supposed to guarantee the privacy of your medical records? If your right to privacy is not protected could the government interfere in marriages, require you to document and report your child rearing practices, dictate the pronouns you choose to use or choose not to use and criminalize other behavior that used to be conducted in the privacy and sanctity of the home? I think we all assumed we had some right to privacy. The Supreme Court has just said “no”. Regardless how you feel about the subject of abortion, the pronouncement by the Supreme Court that citizens should have no expectation of a constitutionally protected right to privacy should be of deep concern to every freedom-loving patriot.