FAQs on Dobbs v. Jackson Women’s Health
Posted July 12, 2022
The recent Supreme Court decision overturning Roe v. Wade upends decades of law supporting the right to choose and leaves us with many unanswered questions. In this FAQ I’ve tried to outline what we do know and to note where we will learn more in the future.
In Dobbs v. Jackson Women’s Health, the United States Supreme Court (SCOTUS) overruled Roe v. Wade, the 1973 opinion thatestablished the constitutional right to obtain an abortion and prohibited states from placing an undue burden on women who choose that form of reproductive health care. The Dobbs opinion overruling Roe doesn’t mean that abortion is now illegal everywhere. Instead, it returns the decision to the states, where each state legislature can now determine how to regulate—in other words, how to limit—abortion rights. In doing this, the court has taken away a fundamental constitutional right that has been protected for the last 50 years and, as the dissenting opinion states, “wrenched this choice from women and given it to the states.”
What Does this Mean for Pregnant People in States that Limit Abortion?
Abortion is still legal in California and in the majority of other states. However, 16 states have abortion bans that went into effect as soon as Dobbs was decided, and at least a half dozen other states are likely to implement a ban. In addition, a number of states have already set in motion laws to make it illegal to travel across state lines to obtain an abortion. It’s questionable whether this is constitutional, because the right to travel is generally protected and even Justice Kavanaugh stated in a concurring opinion that he believes the Dobbs opinion doesn’t change that. We will learn more about this as these restrictive laws are challenged and make their way to higher courts.
Does the Court’s Decision Threaten Access to Contraception?
It’s unclear whether anti-choice states will seek to limit access to contraception, or whether that would be permissible under Dobbs. The majority opinion claimed that contraception would not be affected and that Dobbs applies only to abortion because of the unique question of “potential human life” that it presents. However, Justice Thomas stated in his concurrence that he would welcome a challenge to the laws protecting the right to contraception. It isn’t a stretch to see lawmakers in some states claiming that contraception also affects potential life. For now, however, oral contraceptives and Plan B medication remain legal even in anti-choice states.
Will Access to Fertility Care and IVF Treatment be Affected?
Whether you can access fertility care, especially as a same-sex family, will continue to depend on where you live. The Dobbs opinion did not address how the ruling might affect assisted reproduction nor how it might restrict the disposition of unused embryos. In fact, the court explicitly stated that it was not using the opinion to define when personhood begins. However, many states are taking this opportunity to pass laws that prohibit abortion, and it is possible these laws may be written broadly enough to unintentionally encompass stored embryos and IVF treatment. It is also possible that some legislatures may make that choice intentionally. However, we expect California to continue to protect access to fertility care and IVF treatment.
Is My Marriage Safe?
If you entered into a marriage that was valid at the time in the place where you married, your marriage will remain valid. The Supreme Court has repeatedly held that changes to marriage laws are not retroactive, and valid marriages will always be upheld and protected. In California, the right to marry the person of your choice is protected by the state constitution, so it would not be affected by a Supreme Court ruling in any event.
Is Marriage Equality Safe?
This is a harder question to answer. The right to abortion that Dobbs overturned was based in substantive due process, a set of rights found in the 14th Amendment to the U.S. Constitution, which provides 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 a bundle of rights related to our private lives, including sexual practices, contraception, family planning (whether and when to have children and how to raise them), the right to marriage, and the right to an abortion. Dobbs holds that these due process rights must be interpreted in light of what was protected when the Constitution was written in 1789 and when the 14th Amendment was ratified in 1868, rather than in the context of our current lives.
Obviously, rights to marriage equality, contraception, and abortion were not protected when the Constitution was written and therefore the legal reasoning underlying the Dobbs opinion potentially puts all of these rights in peril, despite the majority opinion’s claims otherwise. Again, Justice Thomas’s concurrence stated his belief that the Constitution does not protect any substantive due process rights, and he suggested people bring cases to overturn rulings that protect access to contraception and marriage equality. It is possible that marriage equality will revert to being a state issue, as it was prior to the Obergefell ruling, and as abortion now is.
What Can We Do to Protect Our Family?
If you have children, make sure that the parental rights of any non-genetic and non-gestational parents are secured through an adoption or parentage judgment. This is essential even if you live in California, where there is a conclusive marital presumption of parentage, and even if you have a birth certificate that lists you both as parents! An adoption order or parentage judgment is entitled to recognition and respect in every other state in the U.S. (In a unanimous 2016 opinion, SCOTUS confirmed that the Full Faith and Credit Clause of the U.S. Constitution requires states to recognize adoption judgments from other states, regardless of their own public policy, as long as the state that issued the judgment did so properly.) These orders also protect and ensure your child’s eligibility for government benefits and inheritance, and allow your family to travel freely and to move to other parts of the country if you wish.
It’s also important to make sure that you have estate planning documents in place, including wills or trusts, advance health care directives, and nominations of guardianship.
What Can We Do to Protect Our Community?
Protest. Vote. Stay informed and updated on this fluid situation. Donate to abortion funds that assist pregnant people in states that limit the right to abortion, and to LGBTQ+ organizations that are fighting to protect our families every day. Support candidates who will fight to protect or restore choice. Support companies and employers that are protecting their employees by providing access to abortion. Contact your representatives in Congress and let them know you oppose the opinion and support reproductive rights and bodily autonomy. Make your voice heard and make the midterm elections count.
Where Can I Find More Information?
The Supreme Court’s opinion in Dobbs is here. The dissent begins on page 148 of the pdf.
A map of abortion laws in the U.S. is here.
Here’s an FAQ prepared by the National Center for Lesbian Rights, COLAGE, Family Equality, and GLAD; these organizations will update the document as new information is known. NCLR also presented a briefing immediately following the issuance of the opinion which you can watch here.
Please don’t hesitate to contact my office with any other questions you might have. These are difficult times and we are here to support you.
With gratitude for the contributions of Deborah Wald, Amira Hasenbush, William Singer, and the collaborative spirit of the Family Law Institute of the National Lesbian and Gay Bar Association.
Same-Sex Marriage is Legal Nationwide
Posted June 30, 2015
The United States Supreme Court finally ruled in the Obergefell case that same-sex couples must be allowed to marry in every state, and that to deny that right to any same-sex couple is unconstitutional. This landmark decision changed the legal landscape for same-sex partners everywhere, and in every realm–marriage, parenting, employment benefits, Social Security, veterans’ rights, retirement, and more. Because of the 2013 decisions in Windsor and Perry, all of these rights will be recognized on both the state and federal levels, and same-sex married couples have the same rights under federal law that opposite-sex couples have always enjoyed.
California registered domestic partners do not have the same federal rights as married couples, nor do we have any reason to believe that will change any time soon. If you are registered as domestic partners and are not married, consider going ahead with a legal marriage, which will protect your relationship while you are together and provide important advantages should you part ways.
Another critical note: it’s still very important for same-sex parents to complete stepparent adoptions or obtain parentage judgments to protect the rights of non-biological and non-legal parents. The California marital presumption establishes parentage in a non-biological parent for all California purposes, and the federal government will recognize parentage under the Windsor decision. However, parentage presumptions are not the same everywhere, and in some states the fact that a non-biological parent isn’t genetically related to a child can cause that state not to recognize a presumed parent. An adoption or parentage order can prevent this—either one is a court judgment that is entitled to respect under the Full Faith and Credit clause of the United States Constitution. Make sure you take steps to protect your family by seeking a judgment.
And don’t forget, marriage is not something to rush into! It’s not going to be taken away again, so take your time and get educated about what it means to you to get married. If you’re thinking about tying the knot, come in and learn about what marriage means to you from a legal perspective, talk about whether you might need a prenuptial agreement, and have your questions answered before you walk down the aisle.