Confronting the Dobbs Decision:
A Conversation About the Legality of Abortion
The Loyola Marymount Bioethics Institute presented the O'Malley Chair lecture on Wednesday, October 12 7-8:30
On October 12, students, faculty, and guests sat in the Ahmanson auditorium to listen to a conversation on the the legality of abortion surrounding the Dobbs decision handed down by the Supreme Court in June of this year. Professor Jennifer Gumer opened the discussion by walking through the legal history of abortion, touching on a series of court cases leading up to the Dobbs decision and explaining the legality of abortion under the new legal framework. Professor Brietta Clark spoke next, highlighting the health concerns within the new legal landscape. To conclude the discussion, Professor Roberto Dell'Oro examined the philosophical and moral premises on which the abortion discussion is predicated and offered his insights pertaining to the relationship between ethics and law. Following the individual presentations, the three speakers sat down for a Q&A with the audience, opening the floor to a diverse array of questions. This conversation was constructed to open the door to a larger discussion on ethics, law, and abortion, and the speakers hoped that this talk would serve as a model for future events to continue the discussion.
Watch the Recording
The Legal History of Abortion
The first case to establish a right to privacy, as Professor Gumer explicated, was Griswold v. Connecticut which, in 1965, granted the right for married couples to access contraception. This case was followed by Eisenstadt v. Baird which extended the right to contraception to unmarried couples in 1972. Professor Gumer described how this right to privacy is a penumbral right assumed, or inferred, from the enumerated rights which are explicitly stated in the Constitution and its amendments. This right to privacy evolved when, in 1973, the Supreme Court held that there was a right to abortion in the landmark case Roe v. Wade which laid out a trimester framework for state regulations on abortion. Professor Gumer explained how, under this framework, states were prohibited from regulating abortion until the end of the first trimester and could only do so to protect the health of the mother. Regulations regarding potential or pre-natal life would have to wait until the point of fetal viability. This trimester framework was overhauled in 1992 in Planned Parenthood v. Casey in which the court ruled that there was still a fundamental right to abortion; however, the state could pass regulations at any point during a pregnancy so long as the regulation did not impose an "undue burden" on the person seeking an abortion, as Professor Gumer explained. The Casey framework remained largely unchanged until June 2022 when the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, declaring that abortion was a not a fundamental right within the right to privacy and allowing states to regulate or ban abortion as they see fit.
Jennifer Gumer received her J.D. from New York University, School of Law, and her Master’s in Bioethics from Columbia University. Her interest lies at the intersection of policy and ethics, specifically concerning neuroscientific and genetic developments. Professor Gumer is also a founding partner at a mission-driven transactional law firm, working with med-tech and bio-tech startup companies, Read more about Professor Gumer here.
Dobbs v. Jackson: A New Era of Court Fights Over Abortion Action
July 22. 2022
SCOTUS Overturns Roe v. Wade in Dobbs Abortion Case (MSNBC’s Ali Velshi and Jeffrey Rosen)
National Constitution Center
July 05. 2022
Law and Health
Tracking the States where Abortion is now Banned
(New York Times)
For full article, click here.
Professor Clark earned her J.D. from the University of Southern California and her B.A. from the University of Chicago. Her research interests lie at the intersection of health care, law, and equity with emphasis on the role of government regulation in providing equitable access to care. Professor Clark is an expert in reproductive and sexual health barriers, mental health care, as well as the impact of Obamacare on Medicaid and private insurance access. Read more about Professor Clark here.
After Professor Gumer laid out the legal history and the new framework for abortion law under Dobbs, Professor Clark spoke on the implications this framework would have for health. While many are concerned about the immediate health of pregnant persons following Dobbs, Professor Clark described some of the far-reaching consequences of the court decision, including the undermining of the trust inherent to the physician-patient relationship and the chilling effect that the decision could have on healthcare providers. As Professor Clark noted, the laws being adopted by states following Dobbs are constantly evolving, leaving patients and providers in legal uncertainty and potentially vulnerable to litigation. Professor Clark mentioned three characteristics of abortion restriction that are concerning. First, the window for legal access to abortion is shrinking in some states, potentially culminating in a law whereby the time one knew they were pregnant, it would be too late to receive a legal abortion. Second, the punishments corresponding to these new laws are becoming harsher, potentially discouraging providers from providing abortion access for fear of litigation. Third, many of these same states are narrowing the exceptions being made with regard to the health of the pregnant person. Professor Clark called attention to the fact that health should be understood in broad terms. Even though a state may make an exception for the physical health of the pregnant person, these exceptions are often not clearly defined, as in the case of what constitutes an emergency. Moreover, mental health is often not included in these exceptions, even though physical health consequences may result from mental health decline.
Ethics and Law
What is the future of reproductive rights?
Harvard Kennedy School
September 14. 2022
Inside the Supreme Court decision that overturns abortion rights
June 24. 2022
Professor Dell'Oro concluded the talks by discussing the relationship of morality and law and offered his personal insights into the contemporary discussion of the Dobbs decision. To read Professor Dell'Oro's full comments, click here.
Roberto Dell’Oro studied philosophy and theology at the Catholic University of Milan (Italy), and the Hochschule für Philosophie in Munich (Germany). From 1993-1995, he was a postdoctoral fellow in bioethics at the Kennedy Institute of Ethics, Georgetown University. Dr. Dell'Oro is now the director of the Bioethics Institute at Loyola Marymount University and teaches in the areas of bioethics, fundamental moral theology, and ethical theories, with a special interest in anthropological themes at the crossroad of theology and philosophy. Read more about Professor Dell'Oro here.