recent events in texas It’s a test of how much control women actually have over their own bodies in a world where there is no constitutional right to abortion.
When the Supreme Court overturned Roe vs. Wade In 2022, majority of dobbs It was argued that the impact on pregnant women would be minimal.
The opinion pointed to protections against discrimination during pregnancy, the ability to put children up for adoption, widespread access to health care, and the fact that women have the right to vote on abortion. in agreementrecognizing that each state takes a different approach to abortion, Justice Kavanaugh asserted that there is a constitutional right to travel.
in contrast, be against “One of the consequences of today’s decision is certain: the curtailment of women’s rights and their status as free and equal citizens,” he predicted.
One point that the majority ignored and that opponents did not address directly was that Dobbs gave men (not just Congress but also their partners) control over women’s bodies.
In the Texas case, Colin Davis tried to stop his ex-partner from traveling out of state to get an abortion.the two dated for a while Several months When she found out she was pregnant. When she learned that she wanted her abortion, he found her a lawyer. Jonathan Mitchell, Architect of SB 8 in Texas Abortion of “bounty hunters” is prohibited.
Mitchell sent the woman a letter. threatening If she obtained an abortion, he said he would “pursue wrongful death claims against those involved in the killing of the unborn child.”
Abortions after six weeks are basically illegal in Texas, so she went to the next hospital. coloradowhere she underwent a legal abortion.
The case concerns not only questions about the right to travel, but also how much control a pregnant woman’s partner has over the decisions she makes about her body.
Until 2022, U.S. law clearly stated that a woman did not have to tell her partner that she wanted an abortion, much less get permission to do so. actual, Planned Parenthood vs. Casey; In the same law that affirmed the fundamental constitutional right to abortion in 1992, the court overturned a state law that required a woman to notify her spouse before undergoing an abortion.
The court reasoned that the United States had passed the era when “women had no legal existence apart from their husbands, and the husband was considered the head and representative of the social state.” Including subsequent incidents, Obergefell vs. HodgesThe law, which guaranteed same-sex couples the right to marry, also recognized the changing nature of women’s roles.
But Dobbs’ opinion calls all that into question. This law allows states to impose restrictions on abortion in the following circumstances: “reasonable basis” To do so. These restrictions could include allowing partners to veto abortion decisions on the theory that they are supporting the state’s legitimate policies. interested in showing “Respect and protect prenatal life at all stages of development.”
court mentioned earlier that the pregnant person’s husband has “deep and appropriate concern and interest”; . . To her wife’s pregnancy and the growth and development of the fetus she is carrying. ” State laws could, for example, require written consent from the male partner before prescribing abortion pills. Perhaps Congress could be generous enough to allow abortion without consent in cases of rape or incest.
Of course, Davis is only suing his ex-partner, and there is a distinction between state laws restricting women’s travel for abortions and partners trying to block them.
But in this case, Davis is using state actors to restrict her movements. expel ex-partner and file a complaint with the court The purpose was to force her to provide information about the alleged abortion and the people who may have assisted in the abortion. If the court upholds his efforts, it would be a form of state litigation that would give male partners the power to control not only abortion decisions but also women’s travel rights.
The second issue is whether a former partner can leave Texas to obtain an abortion in Colorado. The restrictions on her travel may not be constitutional based on some older cases and Judge Kavanaugh’s concurrence in Dobbs, but many in the anti-abortion movement are testing those theories.
for example, Model ban on “abortion trafficking” It is being promoted by Mark Lee Dixon, a conservative pastor who has worked with Mitchell. These laws prohibit helping people cross state lines to obtain abortions, on the theory that such abortions are human trafficking because “fetuses are always removed against their will.” I will do it.
The model method is Texas has several jurisdictions and depends on the same SB-8 Abortion ban strategies that seek to circumvent constitutional review by enforcing the ban through civil litigation rather than law enforcement.
Additionally, even if she were able to travel, the people who helped her travel could be held liable under the state’s wrongful death law. Under Texas law, “injury caused death of an individual. ” Statutory Definition of “individual” Includes “fetuses at all stages of pregnancy from fertilization to birth.”
Such laws are also at issue in another Texas case. In this case, a man sued three of his ex-wife’s friends for helping her get an abortion.
These lawsuits are in their early stages. But they show that in a post-Dobbs world, efforts to control women’s bodies in the name of protecting “prenatal life” are just beginning.
Even former President Donald Trump, the likely Republican nominee, Said States would be able to monitor women’s pregnancies to support abortion bans. If these efforts succeed, women may become second-class citizens not only to men but also to their unborn children and even their unborn children.
Sonia Souter is a professor of law at George Washington University School of Law and founding director of the Health Law Initiative.
Naomi Kahn is a professor of law at the University of Virginia School of Law and co-author of .fair shake” (Simon & Schuster, 2024).
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