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Dobbs decision creates uncertainty and battlefield across states, say constitutional law experts at UH Law Center

UH Law Center Professors Chandler and Berman discuss abortion law changes after Dobbs v. Jackson during a virtual CLE.

UH Law Center Professors Chandler and Berman discuss abortion law changes after Dobbs v. Jackson during a virtual CLE.

Oct. 17, 2022 — Professors Seth Chandler and Emily Berman examined the current U.S. legal landscape after Dobbs v. Jackson during a recent Supreme Court Update CLE hosted by the University of Houston Law Center.

With Dobbs, the Supreme Court overturned the constitutional right to an abortion granted in Roe v. Wade and shifted the power back to the states to regulate.

Chandler outlined that we have two systems of abortion regulation in the United States post-Dobbs. One system is for those who live in states where abortion is banned and cannot leave, and a second system is for those who either live in states where abortion is legal or have the means to travel to those states.

“Interstate travel is likely to be the next frontier of abortion law,” said Chandler citing Supreme Court Justice Brett Kavanaugh’s statement on the right to travel in his concurring opinion on Dobbs.

“The patchwork situation in which we find ourselves raises several questions,” said Berman, “fundamental rights, like bodily autonomy, are now dictated by geography.”

Several states such as California, Michigan, Vermont, Kentucky and Montana will include a measure to decide abortion access on the ballot in November. Kansas was the first state to vote on abortion after Dobbs.

Texas, on the other hand, has no abortion measure on the November ballot. The state has four key laws restricting abortion post-Dobbs including the Human Life Protection Act HB 1280, known as the Texas trigger law, which criminalizes abortion and makes it a felony in the first degree.

“The conflict between federal and state law puts our medical profession in an undesired conundrum,” said Chandler, who is also a faculty member with UH Law Center’s Health Law & Policy Institute.

“Most abortion providers and funders of abortion have responded to uncertainty by being risk averse and not providing services,” Berman added.

In addition to the checkerboard abortion regulations across the United States, the Dobbs decision may also have opened the door for a review of other fundamental rights.

Supreme Court Justice Clarence Thomas stated in his concurring opinion on Dobbs that “in future cases, we should reconsider all of this Court’s substantive due process precedents.”

Substantive due process is an area of the law that protects fundamental rights such as the right to contraception, same-sex intimacy, same-sex marriage, interracial marriage, and until Dobbs, the right to abortion.

“This is an invitation for future challenges to substantive due process rights that may be in disfavor,” Berman said, “if the Supreme Court follows the precedent it set out in Dobbs, the question for the court will be is the protection of these rights deeply rooted in this nation’s history and tradition.”

The “Abortion after Dobbs: The New Legal Battleground” CLE was the first in a series on the 2022 Supreme Court Update. The next CLE presentation on “Law and Religion” will be held on Tuesday, Oct. 25 at 5:30 p.m. CT. Click here for more information.

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