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ABSTRACT
Dobbs v. Jackson Women’s Health Organization took the unprecedented step of revoking a constitutional right that citizens had relied upon for half a century. The opinion created a legal chaos with no clear answers to medical crises. It also targets victims who are particularly vulnerable due to financial, medical, or legal constraints. This article examines what groups have become legal targets in the wake of Dobbs, including medically compromised patients, the intellectually disabled, immigrants, and doctors. Also discussed are those who cause abortion but have not been targeted by Dobbs (such as biological fathers and criminals who commit acts of rape or incest). A discussion of who is doing the targeting examines officials acting in a law enforcement capacity and “civilians” who have financial incentives to target vulnerable victims. Recommendations are made for effective abortion policy.
KEYWORDS:
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No potential conflict of interest was reported by the author(s).
Notes
1. Between the time of the leaked draft and the official opinion, US Senator Tammy Baldwin told the press she believed the Supreme Court had “never taken away a constitutional right” prior to the imminent abortion ruling. One reporter spoke with constitutional law professors and found two prior examples of court rulings that restricted previously-recognized constitutional rights. One of the interviewed professors added that this was uncommon, and he would be hard-pressed to find many more examples (Heim Citation2022).
2. While admittedly awkward, this term is chosen for its accuracy. There are persons who identify as male who are capable of becoming pregnant, and persons who identify as female who are capable of impregnating a partner. The reality is that gender labels do not change the legal outcome: persons who can become pregnant are targeted by Dobbs, while persons who do the impregnating are not.
3. While the lowest age of consent in the US is 16, 43 states require a victim to be at least 14 years of age in order for a defendant to successfully invoke a “close in age” exception to statutory rape charges as of 2004 (US Dept. of Health and Human Services Citation2004). This means that the sample of patients aged 10–13 are, by law, rape victims unless (1) they are in one of the seven states that allows a close-in-age exception for victims under the age of 14, and (2) the person who impregnated them was close enough to the victim’s own age to qualify for this exception
4. Of the seven states that allow “close in age” exceptions for victims under 14, six of these states set the minimum age at 13. Only Alabama allows “close in age” exceptions for victims as young as 12. (US Dept. of Health and Human Services Citation2004).
5. In 2020, the Supreme Court determined that criminal defendants in the United States have no constitutional right to an insanity defense (Chung and Hurley Citation2020). Four states – Idaho, Utah, Montana and Kansas – recognize no explicit insanity defense. Though evidence of insanity can be used for mitigation purposes, an insane defendant is still found guilty of a crime in these jurisdictions.
6. The case became so bizarrely politicized that a random citizen attempted to intervene in the case, despite his lack of connection to the incident. The man wanted to become a party to the case in order to establish that he was a citizen from the time of his conception. The motion was denied (Svehla Citation2023).
7. As usual, this case is more complex than it appears at first glance. The friends credibly accuse the plaintiff of abusing his ex-wife. Indeed, his entire case seems to be established by evidence he obtained through coercive and manipulative means: he went through his wife’s purse in order to find the abortion pill, which he then replaced so he could sue her friends for providing her with information about it. He also went through his wife’s phone without her consent to take screenshots of the text messages with her friends, which were then used as evidence in this wrongful death lawsuit. All of this was done at a time when his wife had announced her intention to divorce, but was still living with him (Associated Press Citation2023). Sadly, this is not the worst tactic an abuser has used on a victim after she had an abortion in Texas after Dobbs. In May 2023, a Dallas man shot and killed his girlfriend after learning she’d had an abortion (Olson Citation2023). Additionally, there are blatant political agendas being pursued in this lawsuit. The husband’s attorney is Jonathan Mitchell – the former Texas Solicitor General who created one of the state’s stringent abortion bans (State Bill 8). It was Mitchell’s idea that SB 8 should be enforced by private citizens who could sue anyone they suspected of providing a private abortion (McCammon Citation2023). This has become known as the “bounty hunter” law.
8. Worse still, the court preemptively chastises women who would criticize the opinion, noting they “are not without electoral or political power” (Dobbs at 65). This is immediately after the Court restricts women’s rights on the basis of legal precedent from a time when they had no electoral or political power.
9. While it is arguably arrogant for nine Supreme Court justices to enact policies that affect 340 million Americans, it is – for better or worse – their job. This does not mean that the Court should be immune from oversight or questions of judicial overreach.
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Pamela N. Sandberg
Pamela Sandberg is an attorney and psychological researcher. She studies psychological solutions to problems within the legal system, in order to develop effective policy solutions.