What are my Rights after Dobbs?

It is time to make our voices heard – over droning extremist literature, the slicing diction of those stirring discontent, and the roaring sounds of hate. By now, the Supreme Court’s decision in Dobbs has spread worldwide, and mixed emotions are being shared on social media. The published opinion, more than 200 pages of legal jargon, is far too complicated for anyone but the most intelligent legal scholars to understand.

Justice Alito wrote the majority opinion, 79 pages worth, upholding a Mississippi 15-week abortion ban with exceptions for medical emergencies and severe fetal abnormalities with a vote of 6-3. There are no exceptions for rape or incest. One of the significant issues in this case was whether to overturn Roe v. Wade and Planned Parenthood v. Casey. In a 5-4 vote, Roe was overturned, arguing that Roe was egregiously wrong when decided.

Roe was decided through the Fourteenth Amendment’s Due Process Clause; here, the majority opinion argues that the Constitution is silent on abortion and there is no right to an abortion through the Fourteenth Amendment. By overruling Roe, the Court has made it so that there is no constitutional right to an abortion; this does not automatically make abortion illegal across the board. But an estimated 26 states have trigger laws in place for the instance Roe was overturned.

The majority makes the distinction that just because they found that a right to abortion is not fundamental does not mean other Due Process Clause cases (contraceptives, same-sex marriage, and interracial marriage) will be on the chopping block. Justice Roberts would not have overturned Roe but agreed with the majority’s decision to uphold the Mississippi law.

Justices Kavanaugh and Thomas concurred with Justice Kavanaugh stating the Constitution is “neutral” on abortion, and therefore, the Court’s decision is also neutral. Justice Kavanaugh insists there is no threat to other fundamental rights, such as same-sex marriage, and he declares that states will not be able to bar residents from going out of state to receive care and states will not be able to bring charges for past actions.

Justice Thomas wrote separately to explicitly put Griswold, Lawrence, and Obergefell in doubt, claiming the Due Process Clause does not protect substantive rights and urging the Court to reject the Clause entirely.

The dissenting opinion, however, pushes against the majority’s characterization of leaving abortion to the states and disagrees with Kavanaugh’s description of the decision as “neutral.” The dissent, though, urged that Griswold, Lawrence, and Obergefell are made of the same constitutional fabric as Roe and warned that those landmark decisions are unsafe.

Women are already more likely to live in poverty because of the Pink Tax (and Tampon Tax) than men. This decision by the Supreme Court disproportionately affects women living in poverty and marginalized communities. Even though Dobbs does not make abortion illegal throughout the country, taking away the protection of Roe and Casey jeopardizes the health and stability of persons who are already vulnerable.

Many are concerned about how state legislation will affect the LGBTQ+ community and their rights. Suppose you are worried about North Carolina legislation. In that case, it is best to check the state website at www.ncleg.gov and the governor’s website home-page | NC Gov. Cooper, specifically Executive Order 263 open (nc.gov), which Governor Cooper protects reproductive rights in North Carolina. Right now, in the state of North Carolina, your rights have not changed, but that is not necessarily stuck in concrete. The most potent step anyone can take is to VOTE.

By: Caitlin Green

References:

Amy Howe, Supreme Court overturns constitutional right to abortion (June 24, 2022). See: Supreme Court overturns constitutional right to abortion – SCOTUSblog.

Yasmine Jumaa, Dobbs decision could harm the LGBTQ community, advocates say (June 24, 2022). See: Dobbs decision could harm the LGBTQ community, advocates say – NewsBreak.

Roy Cooper, Executive Order 263 (July 6, 2022). See: open (nc.gov).

Additional Resources:

Hajar L. Habbal, An Economic Analysis of the Pink Tax, Senior Thesis Lake Forest College Publications, 46 (2020).

Jennifer Bennet, The Tampon Tax, Menstrual Hygiene Products, and Necessity Exemptions, 1 Bus., Entrepreneurship & Tax Rev. 183, 183-215 (2017).

Mackenzi Lafferty, The Pink Tax: The Persistence of Gender Price Disparity, 11 Midwest Journal of Undergraduate Research, 56 (2019).

PLEASE feel free to reach out with any questions or concerns! Email us at: ggaster@wlactriad.com.

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