Now that the constitutional right to abortion has been eliminated, U.S. healthcare providers have to choose one of three options: give up abortion services, relocate, or wrangle with enforcement and unfriendly state legislatures.
I. Glenn Cohen, deputy dean and James A. Attwood and Leslie Williams Professor of Law at Harvard Law School, has these words of guidance for the perplexed:
“Hire a good lawyer. I think one of the biggest issues for people in the medical community—beyond what the rules actually are—will be the uncertainty around the rules.”
Physicians and pregnant women alike have no choice but to navigate the labyrinthine complexities generated by the Dobbs v. Jackson decision—including the risk of being accused of committing a crime.
“It’s bad to know that the answer is you can’t do it, but it’s also bad to be deeply uncertain about whether what you’re doing will expose you to criminal or civil liability,” Cohen, who is also faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School, said to The Cancer Letter. “Part of the question will be whether it be some of the statutes that speak to abortion, for example, there’s also the question about how they treat miscarriage. There’s the question about how they treat certain contraceptives.”
The end of Roe v. Wade has legal ramifications for fetal tissue research, in vitro fertilization, stem cell derivation, selective reduction of embryos, medical abortion, and interstate travel for abortion, Cohen said.
“I think we’re going to see really difficult questions faced by individuals, and by hospital systems, and by governments,” Cohen said. “So, the idea that this decision somehow resolves a lot, and now, it’s all clear, I think is facetious. Instead, it’s really going to be just more questions that we have.”
Cohen, who is the author and editor of more than 18 books on health law, bioethics, and reproductive technologies, said the Dobbs ruling may indicate that constitutional protections for contraception, same-sex intimacy, and same-sex marriage are also on the SCOTUS chopping block.
“Even though they disclaim that they’re not deciding anything other than abortion, nonetheless, the opinion’s exact same logic would seem to create problems for many other things,” Cohen said. “Justice [Clarence] Thomas wrote separately, and he basically said the quiet part out loud, if you will.
“He says they should be reexamined. We’re just not doing that today. So, it’s a little bit jarring to see him join Justice [Samuel] Alito’s opinion, who says, ‘Oh, no, no, this is just about abortion,’ but then say, ‘Oh, actually, you know what? It isn’t just about abortion. It’s about these other things.’”
As roughly half the country enacts antiabortion laws—including 13 states with “trigger bans”—physicians in some states practicing routine “good care” may find themselves at odds with criminal law interpretations of the Dobbs decision, Cohen said.
“One of the most challenging parts is, it may not be the right resolution to say, ‘There’s some legal risk here, so don’t do anything,’” Cohen said. “I think that that runs straight ahead into the fact that as medical providers who want to help their patients, they also have duties, ethical duties to try to do what they can. And that might, in some instances, require pushing the envelope legally a little bit.
“It’s time to refocus attention on state elections, state lobbying, and state legislative processes, and state law interpretation. Because I think that much of the action will now be state-by-state, which is a little unfortunate, because if you operate in multiple states—some providers do—you may be under different regimes in different places.”
Cohen spoke with Matthew Ong, associate editor of The Cancer Letter.
Matthew Ong: Ideologies aside, how far does the Supreme Court decision on Roe v. Wade set us back—from a scientific, medical, public health, and human rights perspective?
Glenn Cohen: For people who believe that abortion should be available in the United States, at least under some circumstances, we’re set back quite a lot in that, essentially now, states are free to ban abortion from literally the first day, post-fertilization. And some states will.
So, this is a huge setback for women’s rights and for human rights, I think, in that respect.
On the other hand, for people who believe that abortion is murder, who believe fetuses are persons and that their termination is equivalent to murder and can’t be justified by women’s rights to control of their bodies—from their view, it’s a huge human rights victory, and that we’ve protected the lives of large numbers of people.
I really do think that you can’t put politics to a side on this one in evaluating it—or perhaps more accurately, moral views about the fetus.
Beyond abortion, I think the decision itself has implications for in vitro fertilization, contraception, same-sex marriage, those kinds of issues. But these are a little less certain, in part because they were not squarely the holding of the case.
What are some takeaways that you think our audience should pay attention to?
GC: I think one is that we see a split between even the conservative justices.
Six justices voted for the results in the case—that the Mississippi 15-week ban should be upheld. But among those justices, Chief Justice [John] Roberts didn’t join the majority opinion.
He concurred in the judgment only, and basically said, “We should just leave it at that. And in the future, we can decide what happens before 15 weeks.”
The five justices that formed Justice Alito’s majority said, “No, Roe v. Wade is over.” And essentially, their rationale essentially connects it to what the state of the law was and the traditions of the nation at the time of the framing of the 14th Amendment—so, in the 1860s.
That’s a very conservative kind of perspective on how to understand due process and what the 14th Amendment means.
And, even though they disclaim that they’re not deciding anything other than abortion, nonetheless, the opinion’s exact same logic would seem to create problems for many other things, including rights for same-sex marriage or same-sex intimacy.
Justice Thomas wrote separately, and he basically said the quiet part out loud, if you will. In that, he essentially said that he believes the entire edifice of substantive due process—in which the rights of contraception, same-sex intimacy, same-sex marriage lie—are all problematic and are clearly erroneous, the way Roe was erroneous.
He says they should be reexamined. We’re just not doing that today.
So, it’s a little bit jarring to see [Thomas] join Justice Alito’s opinion, who says, “Oh, no, no, this is just about abortion,” but then say, “Oh, actually, you know what? It isn’t just about abortion. It’s about these other things.”
And that’s what the dissent says as well, that even if you believe Justice Alito sincerely thinks he’s just limiting this to abortion, in fact, the reality is that the logic of his opinion leans much further, and whatever he thinks about the matter, future judges and future courts can extend it in this way. I’ll just highlight one.
And then, lastly, I’ll just say Justice Kavanaugh wrote separately—even though he joined the five justices of Alito’s majority—to flag a couple of issues where he thinks he wanted to state the position that he thinks the law is clear.
One is about a right to interstate travel for abortion, that he thinks the Constitution clearly supports that. He’s just speaking for himself. He thinks it’s an easy case.
I’m not so sure it’s that easy.
The other was on retroactive criminalization of abortions before this point, where he thinks again, the Constitution clearly says you can’t retroactively criminalize or punish someone for an abortion they already had.
And maybe I’ll just say, one of the things that I think is particularly relevant to the science audiences—and I’m going to try and read this exactly verbatim, because I want to make sure I get this right.
It’s the passage where Justice Alito says that what makes this case different from Griswold and these other earlier cases is … he says, “Finally, the defense suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, Obergefell.” Those are cases about contraception, sterilization, and same-sex intimacy, and same-sex marriage.
“But we have stated equivocally that ‘[n]othing in the opinion should be understood to cast doubt on precedents that do not concern abortion.’ We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’”
So, what I just want to emphasize here is, even if you take him as his word, that’s his dividing line. That dividing line does implicate embryo destruction, which would be relevant both to in vitro fertilization as commonly it’s practiced in the United States (with a fair number of additional embryos created that are not ultimately implanted), but also stem cell derivation and many forms of research done by many scientific communities.
Speaking of research, what does this mean for fetal tissue research and translational discoveries that rely on fetal tissue? For instance, I see that the Pennsylvania Republicans are now pushing to end it in their state.
GC: This research has been a political football over the course of the last 30 years, with different administrations of the federal government taking different positions on it.
But essentially, what Justice Alito’s opinion is saying, or what I understand him to say, is that if the state were to want to ban this research entirely, to say, “Any research involving the destruction of an embryo is banned in X state,” there’s nothing in the Constitution that prohibits that.
That’s how I read his opinion, which is to say, because it involves the destruction of potential life, and there’s no right to destroy potential life. There’s a way, by the way, in which that result is even easier for him to reach than the abortion result, because notice there, there’s no woman who’s gestating a fetus whose rights we’re interfering with.
Instead, it’s merely this question of what scientists can do. And that’s important, but, certainly, you would think in terms of bodily autonomy versus scientific rights, actually, bodily autonomy would be the harder one to overrule or trump. And yet in this decision, a decision on abortion, he’s telling women, “You know what? We’re trumping that.”
Now, it’s a political question whether individual states adopt prohibitions on embryo destruction or not. There’s a lot of reasons and a lot of lobbying involved in the scientific community that will likely prevent that in many states.
But there’s probably some states where the balance between conservatives opposed to embryo destruction are strong enough. And I should emphasize that there’s actually a big gap, for example, between pro-life as to abortion versus being opposed to IVF with embryo destruction.
So, we know that, actually, people have very different attitudes towards this, even within these pro-life communities.
But that said, what Alito has suggested is that after this decision, it seems to me, a legislature that did pass this, if they tried to say, “Oh, it’s unconstitutional,” that’d be a very hard argument to make.
What recourse do women and their physicians have if they need to make a case for medically necessary abortions? What are their options and legal rights?
GC: It’s going to depend a lot on the state. The things to keep an eye on will be this question about interstate travel for abortion.
If your state prohibits abortion, can they also prohibit you to travel out of the state?
No state, as far as I know, has passed a law to that effect yet, but that doesn’t mean that they won’t.
A second matter, I think, to keep an eye on, will be medical abortion. In particular, the two-drug regimen of mifepristone and misoprostol, and here, they are FDA-approved. Mifepristone has an REMS, a set of restrictions around it. And there’s going to be a fight.
There’s already a lawsuit, but there’s likely going to be further fights about the question about whether the state wants to ban medical abortion.
That dividing line does implicate embryo destruction, which would be relevant both to in vitro fertilization as commonly it’s practiced in the United States (with a fair number of additional embryos created that are not ultimately implanted), but also stem cell derivation and many forms of research done by many scientific communities.
So, the use of these pills by pregnant women, not an abortion provider now, but merely the prescribing of these pills; can a state restrict that?
Or does the FDA’s approval plus its REMS around it preempt contrary state laws? That’s an issue to be faced by the courts.
There may be some questions about interpreting individual states’ laws there, if they have exceptions for the health of the mother or what that means, and what counts as that?
When we look across the world, we see actually great variations to what extent mental distress is considered and suicidality risk is considered as part of a health-of-the-mother kind of analysis.
So, I imagine we’ll see some fights about that.
There may be some fights in individual states, but even though the federal Constitution doesn’t guarantee a right to abortion after Dobbs, whether their state Constitution does so.
And then, we’re likely to see some legislation at the federal level. Though, what exactly it’ll look like, it’s hard to say.
The president doesn’t have a very strong majority in the House and Senate, and as a result he doesn’t necessarily have the votes for something very widespread. And if he does try something very widespread, there’s also a question about whether the Supreme Court will find the federal government has or lacks the power to do this.
I think the White House is trying to figure out what it is they can do and how much they want to take a chance and do something and have it struck down versus only doing things that they really believe will be sustained by the Supreme Court.
And along the same lines, up to one in 1,000 women have cancer during pregnancy, and treatments can cause miscarriage and abortion. Will they be exempt from prosecution? I think this goes back to what you just said about states that ban abortion.
GC: Exactly.
And again, part of the question will be whether it be some of the statutes that speak to abortion, for example, there’s also the question about how they treat miscarriage.
There’s the question about how they treat certain contraceptives.
And here, I think one of the biggest issues for people in the medical community—beyond what the rules actually are—will be the uncertainty around the rules.
How do you practice and how do you make decisions about whether to relocate your clinic or to offer something, if you just don’t know what’s going to happen?
And we have seen some letters from district attorneys, so, largely left-leaning district attorneys thus far, declaring that they won’t enforce these rules and stuff like that.
But if you have a conservative governor and a conservative state legislature, that’s possible that they can take the power to enforce this sort of stuff.
I just think there’s a lot of uncertainty.
It’s bad to know that the answer is you can’t do it, but it’s also bad to be deeply uncertain about whether what you’re doing will expose you to criminal or civil liability.
What are some other scenarios that you’re aware of in which lifesaving medical interventions also involve a high risk of spontaneous or therapeutic abortion?
GC: I’m not a clinician, I think that I probably would defer to others who are on this.
But I think one of the questions will be with IVF, for example, there’s a question about selective reduction. If you’ve had multiple embryos implanted that are developing, sometimes inadvertently, can you terminate one or more for the sake of a good outcome for the health of the others?
That’s going to be an issue that will raise the question about whether selective reduction is abortion. And I think probably it is, under most of these state statutes.
But it’s a real change in the way people who do reproductive technologies will practice, and what they can do and how they have to warn their patients, and what it means to be a patient.
There also will be interesting questions about whether there will be hubs that develop that people travel to.
For example, if you are a person who’s thinking about using one of these technologies, or you are a person with a particular set of medical needs, where as part of the course of your treatment, an abortion may be required on an emergency basis, and your home state is one that’s fairly restrictive on this, whether you decide to relocate your entire treatment to a state that’s more friendly.
And that’s going to be available to some people, but not to others—not for people with disabilities, for people who don’t have a lot of money, for people who are immunocompromised in a state where actually traveling somewhere is just not a great option for them.
I think we’re going to see really difficult questions faced by individuals, and by hospital systems, and by governments.
So, the idea that this decision somehow resolves a lot, and now, it’s all clear, I think is facetious.
Instead, it’s really going to be just more questions that we have.
Since so much is in flux right now, what would you say to hospitals and healthcare institutions that serve patients across state lines and across different abortion access laws?
GC: I think that it’s very difficult. I think there’s a lot of particularities.
Hire a good lawyer. But also, I think, one of the most challenging parts is, it may not be the right resolution to say, “There’s some legal risk here, so don’t do anything.”
I think that that runs straight ahead into the fact that as medical providers who want to help their patients, they also have duties, ethical duties, to try to do what they can.
And that might, in some instances, require pushing the envelope legally a little bit.
I think it’s a conversation that’s a little bit between ethical duties of beneficence, on the one hand, and assessments of legal risk.
But making those assessments of legal risk is quite hard, because we’re entering a period of uncertainty.
Maybe the one thing I will say, and this is more to non-lawyers, is to understand that while the decision in Dobbs has opened the floodgates to individual states to make decisions about all these sorts of things, that’s a decision for each state to make.
It’s time to refocus attention on state elections, state lobbying, and state legislative processes, and state law interpretation.
Because I think that much of the action will now be state-by-state, which is a little unfortunate, because if you operate in multiple states—some providers do—you may be under different regimes in different places.
And where bioethics is concerned, is there a bright line to be drawn anywhere on this issue, with regards to what a physician has a duty to do and what is deemed to be the practice of medicine?
GC: I think it’s a really interesting question. I think emergencies are a particular area where my sense is that bioethics tends to think that perhaps you ought to go a little bit further.
But that said, if you ask me, “Is a physician ethically obligated to subject themselves to criminal liability to basically risk being put in jail for a patient?” I think it would be a very strong stance to take that this is ethically required of physicians.
Now, maybe there’s instances of very low risk where people might feel differently.
I think physicians are heroes in many ways, but I don’t think we should think that we demand they be heroes in the sense of risking going to prison. I think it’s just a very difficult situation for a physician to face. But it’s one that they may soon be facing in some instances, and I think it is time for them to get a realistic sense of what the risks are.
I do think there are going to be physicians in some states who are going to be called upon to give patients good care, where that good care now will run afoul of the criminal law as it might be interpreted by some of those states.
Is there a precedent for the Supreme Court to change its mind twice? Meaning, the justices overturned a decision and then went back on it?
GC: Gosh, I’d have to think about a double change.
There have definitely been reversals, and Justice Alito kind of helpfully gives us a large number of them. But double reversals in a short period of time might be rare.
All that said, while stare decisis—which is the idea that we should follow precedent—is a general principle, it’s not always followed.
Justice Alito’s completely correct that it’s not always followed.
And sometimes, it’s not always followed in ways that progressives are happy about.
Lawrence v. Texas, which struck down the criminalization of same-sex sodomy in Texas, overruled an earlier case called Bowers v. Hardwick, which essentially had adopted the opposite perspective.
So, this is to say, things can change.
What I think is jarring for most people is when you have a precedent that’s 50 years-old that gives people a constitutional right, and you’re withdrawing it, the stare decisis analysis that was offered as to why overrule this case and why it’s okay in this instance to do it, I think that’s what didn’t sit so well with many people who are progressives, or even just people who believe in a continuity in legal decision-making.
The Supreme Court ultimately is only one institution in our democracy, but it’s an institution that has a lot of power. And in some ways, when you ask, what is the constitutional law on a particular subject?
Some would say the answer is it’s whatever these five people on the Court say it is at a particular moment in time.
So, if some or all of those five people change, it is possible the holding of Dobbs will be changed too.
We know pretty much where most academic institutions and public health leaders stand on this. What about the constitutional law community? Is there a consensus on this ruling?
GC: I think it’s tough, in that they’re a very heterogeneous group.
I would say, most American law professors tend to be left-leaning, and even self-identified as progressives.
For that reason, I would say the majority of individuals in constitutional law circles are dismayed by the results in Dobbs.
But there are certainly conservatives or pro-life individuals who are very happy about the result.
And there’s a group of people who are just skeptical about the process of constitutional lawmaking by the Supreme Court in general, and treat this as just an example of that problem.
While the court portrays itself as being jurists acting in a judicial function, these people would say this just shows that this is legislation by another name and by unelected individuals.
So, I think you’d find all three: largely people who are very upset, but believe in the project of constitutional law; a smaller subset of people who are actually happy and think this is the right result, in particular people who return to certain currents of views of originalism as a theory of constitutional interpretation; and then, the third group that just thinks that this just exposes how skeptical we should be about the Supreme Court and constitutional decision-making in general.
Thanks for taking the time to speak with me.
GC: Thank you.
