USC experts discuss impacts of Roe v. Wade overturn

JiWon Lee | Daily Trojan

Content warning: This article includes mentions of sexual assault. 

USC experts in social work, constitutional law and nursing are concerned about abortion access in restrictive states following the Supreme Court’s repeal of abortion rights case Roe v. Wade June 24, bringing to discussion the overturn’s impact on healthcare and various areas of law. 

The overturn returns authority to the states, said Nomi Stolzenberg, the Nathan and Lilly Shapell Chair in Law at the Gould School of Law, meaning that individual states can decide whether or not to regulate abortion, ban abortion entirely, insert protections of abortion as a right in their state constitution or create any exceptions — exceptions are decided by each state and can include or not include rape, incest or threat to a mother’s life. 

A vote on Proposition 1 in November will allow Californians to decide whether the right to an abortion and the right to contraception is included in the state’s constitution. Kansan voters rejected a proposed state constitutional amendment that would have banned the right to an abortion Tuesday, becoming the first state to decide on abortion rights since the repeal. Other states deciding these rights in November include Vermont, Kentucky and Montana. 

However, Stolzenberg said the Supreme Court’s opinion does not say abortion rights are entirely up to the states. The Court is instead delegating power to the people to vote for their elected representatives who enable Congress to pass legislation.

“The people have both state elected representatives and federal elected representatives so … essentially it is returning the authority to Congress to enact legislation, if it so chooses, every bit as much as it’s returning power to the States,” Stolzenberg said. “It’s basically saying this is a matter for the legislature, not the courts to decide, and that could be the federal legislature or Congress, or it could be the legislatures of individual states.”

Stolzenberg said one concern people have about the overturn of Roe v. Wade is that restrictive states may prohibit people from receiving an abortion in another state. Currently, the Court has not recognized the right to travel or right to privacy under the Constitution because they, like the right to abortion, are not enumerated rights — which are explicitly written in the Constitution — making these rights vulnerable, Stolzenberg said.

“Even if the court says there is a right to travel, that doesn’t necessarily mean it’s going to agree that making people criminally liable, or civilly liable for that matter, for doing something when they travel is an infringement on the right to travel,” Stolzenberg said. “These are completely novel, open questions.” 

Mark Haddad, an adjunct lecturer of law at the Gould School of Law, said the Supreme Court’s majority ruling indicates only enumerated rights as constitutionally protected under originalist views. Originalism, a theory of interpretation in law holding that rights should be interpreted as they were understood at the time of their adoption, says judges should consult frameworkers’ original meaning of the law to deliberate new cases. While the philosophy of originalism seeks to limit judicial bias, Haddad said the Court’s opinion was “not persuasive” because their reasoning references a time where many people were excluded from the law and barred from lawmaking. 

“Why would we look to a tradition in which women were completely subjugated as a matter of law, in which they could not vote and they could not hold office at the time of the founding of the Constitution?” Haddad said. “Why would we look to that tradition and ask about whether it’s a reasonable guide, in this century, to decide whether to recognize this right [to abortion]?”

Although unenumerated rights, such as the right to contraception, interracial marriage and same-sex relationships, are based on years of precedent from prior Courts, Haddad said the repeal leaves all unenumerated rights “vulnerable.” Haddad said he hopes to see the Court revisit Dobbs v. Jackson Women’s Health Organization, the case that repealed Roe, and constitute a right to bodily autonomy under equality based arguments. The Court did something similar in Skinner v. Oklahoma, when they decided Skinner, a male prisoner, couldn’t be sterilized under the Equal Protection Clause because there was interference with procreative autonomy, in turn establishing the right to procreation as fundamental.   

If unenumerated rights continue to be dismantled by the Court under originalist views, Haddad said, the Court’s logic sets the law back to the ages of American colonial society.

“The arguments for the right for women or other pregnant persons to decide whether to carry the pregnancy to term are not just liberty or privacy rights, the way Roe talked about them, but they’re also rights of equality [and] being an equal member of the society,” Haddad said. “If the courts are not prepared to do that … you may as well just think in terms of reestablishing the law of the agrarian republic that the United States was in, in the late 18th century.”

There is currently no explicit written right to privacy in the Constitution, which leaves this unenumerated right susceptible to amendment by judges — who will decide the cases dealing with the repeal’s aftermath — as more post-Roe cases emerge in the next few years. For example, if a state chooses to pass laws making it illegal to receive medications in the mail and if a state sets up any kind of enforcement apparatus that involves monitoring people’s online communications and mail, there will be controversy over what grounds states have to impose these rules, Stolzenberg said. 

“I think the concerns about privacy and the sense of being subject to surveillance for your online purchases, communications and purchases of medications is just one of numerous examples of new areas of legal dispute that are bound to open up in the wake of this decision,” Stolzenberg said.

The emerging legal controversy indicates that the majority opinion’s claims in Dobbs generated controversy, political divisiveness, social unrest and endless legal conflict, and the suggestion that the overturn of Roe will “calm the legal waters down” isn’t going to happen, Stolzenberg said. 

“I think the very opposite [of what the majority opinion claimed] is what’s going to happen,” Stolzenberg said. “[The country] is far from settling anything … there’s going to be far more litigation, far more legal disputation, far more uncertainty, far more chaos.”

Cynthia Sanchez, a clinical assistant professor of nursing and clinical placement director at the Suzanne Dworak-Peck School of Social Work, hypothesized that abortions will occur later in pregnancies because of the added obstacles of making appointments out of state, funding travel, taking time off work and more. Sanchez said it’s “scary,” to see the possibility of people resorting to various forms of illegal abortions and predicted that the overturn will increase the national maternal mortality rate. 

“Abortions, like any other aspect of health care, are regulated,” Sanchez said. “They have standards that they have to meet, [including] standards of equipment, standards of training of the providers, standards of how you’re going to get treated and how many people need to be in the room. If you go to another random person on the street … you’re just trusting that they’re going to do it right.” 

To travel and receive an abortion in a non-restrictive state is a privilege of wealth, Sanchez said, as wealthier individuals may have the financial resources to fly to another state and afford a few days away from work. Impoverished people seeking abortions — historically and predominantly people of color — are going to be disproportionately impacted by travel expenses, the expense of the procedure and the added task of asking to take time off work to attend an appointment. 

Residents of states with restrictive abortion laws — such as Texas and Alabama — who are capable of becoming pregnant will need to travel greater distances, Sanchez said, to seek legal, safe abortions in non-restrictive states, which will contribute to more late-term pregnancy terminations.

“For women [with money] that have a problem, they can fly and go to New York or California and get their procedure done,” Sanchez said. “But the other women, where it’s going to be a three-day trip [to drive] and … they have to ask for the time or for work, they have to do all these things, so now it’s going to take longer.”

The University makes available a variety of mental and physical supports for students who are survivors of gender-based harm and sexual violence, and who may be looking to obtain an abortion. Chief Student Health Officer Dr. Sarah Van Orman said the University has a “really important” role to play in preventing gender-based harm and supporting students who have experienced it through the Relationship and Sexual Violence Protection services, which provides an advocate team for confidential 24/7 response to situations including sexual assault, domestic violence and stalking through the line. 

The Engemann and Eric Cohen Student Health Centers also offer an array of ambulatory health care services, including via Telehealth for patients not presently in the state of California. Medication abortion services and the entirety of in-clinic care, including ultrasound, are included in the USC Student Health Fee, and Student Health also provides referrals for students to receive surgical services off-campus.

If you are in need of support, here are some resources you can contact:

USC Relationship and Sexual Violence Prevention and Services: Located at Engemann Student Health Center Suite 356. Individuals can call (213)-740-9355 and request to speak with an advocate or counselor. Services are confidential. 

Rape, Abuse & Incest National Network (RAINN): A free, confidential hotline that is active 24/7. Individuals can call (800)-656-4673.