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Health Care & Hospital Law,

Dec. 6, 2022

When buying gifts, consider each state’s reproductive access laws

If you care about a woman’s dignity and reproductive autonomy, you must investigate whether the state to which you are traveling or moving to, or purchasing a product from, supports reproductive autonomy.

Julie A. Werner-Simon

Phone: (213) 894-5456


Julie A. Werner-Simon is a former federal prosecutor, former constitutional law fellow, and currently serves as a law professor (adjunct) at University of Southern California's Gould School of Law, Drexel University's Kline School of Law, and is also a legal analyst at Drexel's LeBow School of Business.

During the Thanksgiving weekend, I sat around the table with young children picking out items from catalogs to purchase for Christmas and Hanukkah. My older kids (those with driver's licenses) joined the selecting-stuff-fracas having combed the malls on Black Friday and returned with stuff-filled shopping bags. "Enough," I announced - "instead of buying more belongings - donate to support women's reproductive autonomy and dignity. Give to causes that provide and protect birth control, abortion, and education on pregnancy prevention."

My tableside declaration made sense to those assembled as I am a law professor, lecture often on reproductive access, and lead a volunteer group of law students from around the states who are trying to protect those who provide access to women seeking reproductive care in states that have banned abortion entirely or before most women even realize they are pregnant.

These total or close-to-full-banning of abortion states include: Alabama, Arkansas, Arizona, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas and West Virginia. (Georgia's six-week ban was reinstated by the Georgia Supreme Court just before Thanksgiving.)

For 189 years of American history, U.S. women were denied U.S. government-protected reproductive access. This changed with the U.S. Supreme Court decision, Griswold v. Connecticut in 1965. In Griswold, a 7-to-2 decision, the high court ruled that some women (specifically married women), had a constitutionally protected right to use contraceptives to protect against pregnancy.

Seven and half years later, in January 1973, a woman's constitutionally protected right to birth control blossomed into a woman having a constitutionally protected right to terminate a pregnancy. The case? The "seminal" U.S. Supreme Court decision, Roe v. Wade. Roe afforded American women with an unlimited and unfettered constitutional right to terminate a pregnancy in the first trimester, and also with a more limited right to choose abortion to end a pregnancy in the second trimester.

The Roe court reasoned that this right to reproductive decision making was anchored in the U.S. Constitution's 14th Amendment's due process and equal protection provisions. This was so even though the words "reproduction," a "woman's dignity" and "autonomy" were nowhere to be found in the Constitution.

The 14th Amendment's elasticity to adapt to changes as America broadened its understanding of those included in the term "we the people," did not start with reproductive rights. The 14th Amendment was also the constitutional grounding used by the U.S. Supreme Court for establishing, in 1954, "equal access to education" for all American children (Brown v. Board of Education) as well as for the right to marry a person of a different race (Loving v. Virginia, 1967) and also, the right of same-sex couples to marry (Obergefell v. Hodges, 2015) - even though the precise words "equal access to education" and "marriage" are nowhere in the Constitution.

Disturbingly, American women's federally protected right to terminate a pregnancy, in varying degrees, ended on June 24, when the high court, in Dobbs v. Jackson Women's Health Organization, jettisoned the almost 50-year-old constitutionally protected right of women in America to legally terminate a pregnancy in the first and second trimesters. The majority of the court in Dobbs, all jurists nominated by Republican presidents (to include the three President Trump appointees to the court, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), explicitly disowned and reversed its Roe reproductive autonomy precedent.

The 2022 Dobbs court intentionally disavowed the language in a 1992 case Planned Parenthood v. Casey, that upheld Roe by adding the "undue burden" standard on abortion rights. Under Casey, women still had a constitutionally protected right to end a pregnancy but the government could impose restrictions so long as they were not an "undue burden" on the woman's right to choose. The Casey plurality (the three-decision making justices) affirmed Roe, in part, because "an entire generation [of women] has come of age" relying on Roe "to make reproductive decisions" in their lives. Casey, 505 U.S. at 860 (1992). The June 2022 Dobbs decision, on a 6 to 3 vote, for the first time in American history, invalidated a constitutionally-founded right afforded to half of the nation's population: women.

As a consequence of the Dobbs decision, for now, reproductive access is the realm of the states. America has a new Mason-Dixon line. This time instead of delineating between states that permit slavery and free-soil (anti-slavery) states, as established in congressional debates leading up to the Missouri Compromise of 1820, and led to eleven states leaving the Union from Dec. 1860 through June 1861, we now have a new demarcation line in America. There are states that support women's dignity and autonomy and those that do not.

Curiously, if one were to overlay the maps, the pro-slavery states in existence at the time of the Civil War, are predominantly the same states that bar a woman's access to reproductive autonomy.

In the half a year since the Court "de-constitutionalized" a woman's right to reproductive access in Dobbs v. Jackson Women's Health Organization, a significant number of states (over a third) have erased or reversed women's rights to abortion. State legislatures, many heavily gerrymandered with anti-choice fundamentalists at the helm, have imposed abortion bans or almost total bans. These state legislatures are out of sync with the overwhelming majority of Americans who support a woman's right to choose in the first and second trimesters. In fact, in the November 2022 midterms, voters in Vermont, Michigan and California enshrined reproductive autonomy for women (to include abortion) in their state constitutions. Two states - Kentucky and Montana - voted against measures titled: No Right to Abortion and Born-Alive Infants Regulation respectively.

If you care about a woman's dignity and reproductive autonomy, you must investigate whether the state to which you are traveling or moving to, or purchasing a product from, supports reproductive autonomy. The information, updated regularly, is easily accessible on Planned Parenthood and Guttmacher Institute websites.

This holiday season, use your spending power not to accumulate more belongings, but to help women seek reproductive access in the ever-increasing number of states that have succeeded in denying it.

It still takes a village. Our extended village of children and grandchildren are counting on us. Hopefully, it will not take another 189 years to reclaim lost ground.


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