Cary Franklin

Is there another way to get the same nationwide protections for abortion that were lost when Roe was overturned?
Congress could pass a bill that essentially writes the protections afforded by Roe into federal law. (In fact, Democrats recently attempted to do this with the Women’s Health Protection Act, which didn’t get enough votes.) Such a law could protect patients’ access to abortion and protect healthcare providers’ ability to provide abortion services since a federal law securing the right to abortion would supersede state bans on abortion. This would be a way of protecting the right of all Americans to access reproductive healthcare regardless of where in the US they live. But there are a number of obstacles.

What’s stopping Congress from passing this law (aka codifying Roe)?
Most importantly, it’s not clear if there are enough votes in Congress. If Democrats lose seats in the midterm elections, such a law basically has no chance of passing. On the other hand, the Supreme Court’s decision in Dobbs is unpopular and Americans are paying more attention to the issue than they were before. Perhaps this provides some momentum—but it’s still a major climb and not at all clear that Congress will act.

Are there other major roadblocks?
Even if a law were to pass, it would face legal challenges by anti-abortion forces. Opponents of abortion would argue that Congress does not have the authority to pass such a law and that the regulation of abortion should be left to the states to decide. I believe Congress does have the authority to pass such a law, but the current Supreme Court is highly skeptical of abortion and sometimes skeptical of federal authority, so I can’t say with certainty which way they would rule on this question. Before we even get to the Court, though, Congress would have to act.

How was Roe originally argued under the constitutional right to privacy?
The Court’s opinion in Dobbs is a sweeping rejection of the reasoning the Court has used to interpret the Constitution’s liberty protections for at least half a century. In cases like Griswold (contraception), Roe (abortion), Lawrence (same-sex intimacy), and Obergefell (same-sex marriage), the Court has held that when interpreting the liberty provision of the 14th Amendment, courts should use history as a starting point, but should also take into account new insights and evolving understandings. For many decades, the Court has explained that the Constitution lays out basic principles and broadly-worded protections—such as the protections for liberty and equality—and that, over time, Americans may come to understand more fully how these principles and protections ought to apply to the facts on the ground.

What do you mean by that?
For example, Americans at the time of the 14th Amendment’s enactment (in 1868 after the Civil War) did not understand same-sex marriage as falling within the Amendment’s liberty and equality protections. But now, as the Court explained in Obergefell, we have come to understand that the right of same-sex couples does fall within these protections, and that this is the kind of basic and essential right that the Amendment was designed to protect. In Dobbs, however, the Court rejected this approach and said that courts must ask whether a specific right is “deeply rooted in history and tradition.” If a right is not deeply rooted (i.e., if it has not been explicitly protected throughout American history), it is not a constitutional right. The Court held in Dobbs that the abortion right fails this test. It has not been explicitly protected throughout American history and therefore is not one of the rights protected by the 14th Amendment.

How does that decision threaten other aspects of American life?
The problem is that many other rights Americans now cherish would also fail this test. The rights to contraception, same-sex intimacy, and same-sex marriage have not been explicitly protected throughout American history. So now, under the doctrinal test the Court adopted in Dobbs, these rights seem vulnerable. It may be that the Court has no appetite to eliminate these rights, or that it will find a way to distinguish these rights from the abortion right. But I think people are right to be concerned given the Court’s embrace of this history-and-tradition test for determining what the 14th Amendment protects.

For more info, here are some resources on choosing Roe-friendly candidates:
–Websites to help you research candidates and local ballot measures
–States where the midterms can make or break reproductive rights
–A slate of candidates endorsed by #VoteProChoice