Where Does Dobbs Go From Here? - by Aron Solomon
Now that the Supreme Court has overturned Roe v. Wade in a new landmark decision in Dobbs v. Jackson Women’s Health Organization, more commonly known as the Mississippi abortion case, many Americans are looking to their federal and state leaders to see what will happen next.
After drafts of the Court’s opinion were leaked in January, some states, such as New Jersey, began taking proactive steps to protect women’s reproductive rights, while others were preparing to make abortion illegal in their states the minute Dobbs gave them the green light to do so.
There’s really no point in doing a retrospective as to what happened on Friday in the Supreme Court. While there seems to already have been a million think pieces written in the past 72 hours on our post-Dobbs world, few of these pieces are forward-looking and address the crux of the issue moving forward: what happens from here.
While over a dozen states, such as Louisiana, had “trigger laws” to immediately make abortion illegal, other states were planning to enact laws hours after the court released Friday’s decision. The state-by-state legal abortion landscape is indeed changing by the hour. The most critical thing to remember is that any anti-abortion law that was blocked by a court because it went against Roe can now become good law.
In New Jersey, for example, anticipating the Court’s decision in Dobbs, the state moved to ensure that abortions would remain safe and legal there.
New Jersey lawyer, Nancianne Aydelotte, a partner in njladylawyers.com, explains that:
“In January, Governor Phil Murphy signed a bill into law called the Freedom of Reproductive Choice Act, which will ensure that women, in the state, will have access to abortions."
“Residents of the Garden State can expect to see a huge increase in out-of-state patient visitation. The decision of the court will cause states like New Jersey to be a type of ‘safe haven’ for quality women’s health coverage.”
The political implications here are truly massive. The Democrats have been ham-handed since the minute the Dobbs decision was released on Friday, seemingly taken by surprise by one of the worst-kept surprises in American history.
While the Democrats are banking on Dobbs motivating voters in November, the reality is that it will primarily motivate those opposed to abortion. Immediate Democratic fundraising emails that went viral on social media motivated many Democrat voters to reply with some variation of “we’ll give you money when you do the work you haven’t been doing on this issue.”
Politics aside - which is impossible to do here - codifying Roe at this point is impossible. Members of Congress such as “Democrat” Joe Manchin won’t even let it come up for a vote. “Misled” (this is how she self-characterized on Friday) Republicans such as Susan Collins won’t act or vote any differently than they have in the past. While it’s too much for some people to process only a couple of days after this decision, the status quo of political inaction seems to be locked in.
All of this needs to be framed by statements made by Justices in their recent Supreme Court confirmations. By (mis-stating/omitting/lying/you choose) their view of Roe as “settled law,” the newest Justices have helped propel the Supreme Court to an all-time low in public trust. This is a Court and a political system in crisis.
One thing we know today for certain is that future court confirmation hearings are going to be much more contentious. Not just the Supreme Court but all federal courts, where some candidates will simply have a rockier road to confirmation and others won’t be confirmed. But none of this matters now in the Supreme Court, as the Justices who form the new power base in the Supreme Court are all in their 50s. With a massive Red Wave expected to sweep Congress in the midterm elections, with a Republican next expected to reside in the White House following the 2024 election, many are looking through a glass darkly today.
With former Vice-President Pence leading the call for a national abortion ban, new terms are about to enter our collective lexicon. One is “abortion tourism,” a term that means exactly what you think it means. As new states ban abortion by the hour, making safe and legal abortion in one’s home state no longer a reality, women will cross not only state lines but international ones as well. Cities such as Toronto, less than an hour’s flight from many major U.S. cities, are well-positioned to become abortion tourism capitals.
Yet all of these new solutions bring many new questions. Would the Canadian government report women entering the country for abortions to American authorities? What might happen to American women when they seek to reenter the United States? There may be a differentiation between land crossings and air crossings. What if somebody is flying out of a state that bans abortions and flying back into the state? While it’s doubtful, at least for the next 2 1/2 years, that the federal authorities such as U.S. Customs and Border Protection would interrogate these people upon re-entering the country, what about local and state police in the airport in which they land? Are we really about to enter an era where any miscarriage can be investigated?
The nation might start to feel very much like 1984 by 2024.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.