FAQs from Dobbs: Are My Rights at Risk?

By: Amira Hasenbush

Last Friday’s ruling from the Supreme Court has had the entire country reeling. By overturning Roe v. Wade, the Supreme Court has now handed the issue of abortion back to state legislatures to decide individually, and has left us with more questions than answers. That being said, I will do my best to answer the biggest questions. Feel free to contact me if there is something I may have missed.

Is Abortion Now Illegal in the United States?

No. The Supreme Court held that the right to an abortion is neither protected nor denied by the US Constitution, and states are free to legislate in whatever way they choose regarding abortion. However, as the dissent made clear - this is not a neutral decision - this took away a right that has been protected for 50 years. As they say, “It means that a majority of today’s Court has wrenched this choice from women and given it to the States.”

Will People be Able to Legally Travel to Other States to Get an Abortion if it is Illegal in their Home State?

We hope so, but the question remains unanswered. Justice Kavanaugh wrote a separate concurrence to state that he believes that it should be protected by the Constitutional right to travel. However, the dissent pointed out that it’s only a matter of time before these questions end up before the Court. In the meantime, this question should be reviewed carefully on a state-by-state basis.

Will My Access to Contraception be Impacted by this Decision?

We don’t know yet. The majority claimed that this decision was specific to abortion because abortion is a unique act that involved potential life. While the majority claims that this decision does not cast doubt on protections for contraceptive rights, the dissent says that such a claim is disingenuous. Certainly, there could be claims that contraception also concerns “potential life.”

Will My Access to IVF and Fertility Care be Impacted by this Decision?

Depending on your state, possibly. The majority left the question of how this impacts IVF completely unanswered (which the dissent specifically pointed out). They also explicitly stated that they are not currently defining when personhood begins. Many states are now using this change as an opportunity to pass laws that will prohibit abortion. Without intervention, many may be written in a way that accidentally defines things too broadly and could sweep embryos and IVF into the law’s jurisdiction. It’s possible that some legislatures may make that choice intentionally.

Is My Same-Sex Marriage at Risk?

If you are currently married, and your marriage was valid at the time it was entered into, courts have repeatedly held that such marriages must be upheld and protected, regardless of changes that could occur in the future. For example, when San Francisco began granting marriage licenses to same-sex couples, and then California passed Prop 8, which blocked marriage equality, the marriages that were entered into in that brief window before Prop 8 were still held to be valid marriages.

Is Marriage Equality at Risk?

Possibly. While the majority repeatedly points out that abortion is unique and that this ruling does not impact rulings on contraception or marriage, all of these rights have been found to be protected by the Supreme Court under what is known as the substantive due process rights found in the 14th Amendment of the US Consitution, which states that no state may “deprive any person of life, liberty, or property, without due process of law.” Liberty in this context has been interpreted to include the protection of certain private parts of life, including sexual practices, contraception, the choice whether and when to have children, how to raise children, the right to marriage, and abortion. The Court has now held that substantive due process does not protect abortion by looking at what was protected when the Constitution was written and when the 14th Amendment was ratified. They argued that rather than interpreting liberty and what substantive due process rights are protected by looking at the world in a modern context, we should only protect what was protected when the words were written. Since contraception, marriage equality and similar rights were not protected at those times, this decision puts all of those rights into question, despite the majority’s claims. In fact, Justice Thomas went out of his way to write a concurrence in which he specifically stated that he does not believe that the Constitution protects any substantive due process rights, and he invited people to bring other cases to overturn rulings that protect access to contraception and marriage equality.

What Can I Do to Protect My Parentage Rights?

If you have children as a same-sex couple, a queer family, a single parent, a multi-parent family or a family that has had children by assisted reproduction, talk to a family formation lawyer in your state about what you can do to protect your family. Under most circumstances, you will need to get a judgment from a court to protect your family - this can be an adoption or a parentage judgment, but judgments are what have to be recognized by every other state in the country. They protect you both in your home state and throughout the US. The Supreme Court in a unanimous decision in 2016 (which included Justices Thomas and Alito) held that the Full Faith and Credit Clause of the United States Constitution requires states to recognize adoption judgments from other states, regardless of their own public policy, so long as the state that issued the judgment had jurisdiction. A BIRTH CERTIFICATE WITH YOUR NAME ON IT IS NOT A JUDGMENT AND IS NOT ENOUGH.

What Else Should I be Doing to Protect My Family?

Make sure you have estate planning documents in order - powers of attorney, advanced healthcare directives, nominations of guardianships and trusts. These are all gifts to your family to keep things more secure in the event that you pass away or are incapacitated and cannot speak for yourselves.

I Live in California, so None of this Applies to Me, Right?

While California continues to protect abortion rights, marriage equality, and parentage rights of many family structures, if you ever plan to leave the state - even to travel - you could potentially be at risk. All of the protections listed above are necessary for you, too.