Miller Center Panel Discussion Explores Underpinnings of Dobbs Decision

Cahn ran through the timeline of significant court cases involving reproductive health, including Griswold v. Connecticut in 1965 (in which the Supreme Court ruled that the U.S. Constitution protects married couples purchasing and using contraceptives), Roe v. Wade in 1973 (the court recognizes abortion as a right protected under the 14th Amendment), Planned Parenthood v. Casey in 1992 (in which the court upheld Roe v. Wade with a narrow 5-4 vote) and Dobbs, which recently gave states power to regulate any aspect of abortion not preempted by federal law.

To illustrate the change in times, Perry took things back to 1971 when, during Lewis F. Powell Jr.’s Supreme Court confirmation hearings after being nominated by President Richard Nixon, Powell was not questioned about abortion.

“This is 1971, so just two years before Roe,” Perry said. “Roe is coming along (at this time), but no one asks a question of Justice Powell in 1971 at his confirmation hearings in the Senate.”

Why? Abortion simply wasn’t part of Nixon’s agenda.

“If you remember, leading up to the ’70s, in 1968, the issue for Richard Nixon running for president was his Southern strategy, which was about race and about civil rights and liberties as related to criminal rights in an attempt to overturn the liberal decisions in race and in civil rights and liberties from the Warren Court,” Perry said. “So abortion wasn’t on his agenda. It really wasn’t on his agenda for the appointments he made to the U.S. Supreme Court.”

Barbara Perry, the Miller Center’s director of presidential studies, is a SCOTUS expert. (Photo by Dan Addison, University Communications)

But as the years went by and presidents – and Supreme Court justices – changed, so did the level of scrutiny of the Roe v. Wade precedent.

Cahn said the outcome of Planned Parenthood v. Casey meant that “Roe survived, but the court put new limits on the right to an abortion. ... The court got rid of the trimester framework,” which allowed states to put in abortion restrictions during the first trimester of pregnancy.

Three decades later, the Dobbs ruling was issued by the court, now led by a conservative majority.

While Riley, who also has teaching roles in the School of Medicine and the Frank Batten School of Leadership and Public Policy, didn’t assign the crowd to read all 200-plus pages of the ruling, she did recommend reading parts of it because it’s “the most emotional opinion I’ve read, from both sides, on the Supreme Court in a long time. And I think it reflects some of the agony that we’re all feeling in a polarized America.”

Writing for the conservative majority, Justice Samuel Alito said, “The 14th Amendment does not protect the right to an abortion.

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

UVA law professor Naomi Cahn is an expert in family law, trusts and estates, feminist jurisprudence, reproductive technology, and aging and the law. (Photo by Dan Addison, University Communications)

Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett sided with Alito. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

According to The New York Times, most abortions are now effectively banned in 12 states. Cahn cited a Washington Post report that said “as of (Thursday), about one out of every three women in the U.S. has lost access to abortion.”

By returning the abortion issue to the states, Cahn said, there are still many unanswered questions, especially with future Supreme Court involvement.

She said, “You can see one state saying, ‘We protect doctors who perform abortions in our state,’ but what if that doctor flies to another state that doesn’t? You can just see the issue of interstate conflicts. You can see that the court might need to get involved. ... There’s a whole range of potential issues, even under a rational basis, which the court sets out for abortion restrictions. ‘Rational basis’ doesn’t necessarily mean that this statute will be upheld. There might still be some substantive review of the statutes themselves.”

As this issue continues to churn, Perry, a Supreme Court expert, questioned what this means for the rule of settled law.

“We don’t want to wake up each morning and say, ‘I wonder what the law is today,’” Perry said. “And moreover, we want to respect those who interpret the law, our judiciary, so we know what the law is.”

Watch the full replay of Thursday’s event.