Three professors call for overturning of Dobbs decision
David Cohen, Greer Donley, and Rachel Rebouche filed a brief in a Supreme Court case dealing with abortion rights in emergency rooms
Three leading legal minds in the abortion rights movement filed an amicus brief calling for the Dobbs decision to be overturned after two years of disastrous consequences to women’s health and freedom.
Professors David Cohen, Greer Donley, and Rachel Rebouche filed the arguments in Moyle v. United States. The case currently considers whether federal law trumps state abortion bans when it comes to providing care in emergencies.
Cohen spoke to me about the brief.
“It’s just putting judges in these positions to decide these unanswerable questions, both medical and legal questions,” Cohen said. “And with the sense that with Dobbs that it was going to be a simpler time, and (the supreme court is) gonna get the abortion judging business has just not been true.”
Issues of interstate travel, federalism, as well as what freedom and flexibility we permit medical practitioners and researchers, have abounded since abortion rights were stripped away as a constitutional protection.
According to the brief, many women have gone without prenatal care in the first trimester. A report from Louisiana stated that providers were reluctant to provide miscarriage management because they didn’t want to have it confused with abortions in a state where that’s a prosecutable offense.
“Providers are just so concerned about the risk that they would face if they get it wrong that they're figuring it's easier for us just to not provide the care,” Cohen said.
Doctors are also more likely to perform riskier operations like C-sections and hysterotomies instead of the more traditional methods of abortion.
“They don't want to appear like they're providing an abortion,” Cohen said.
Cohen said that describing abortions as “elective” or “therapeutic,” which are historical terms that pre-date Roe, has been adopted by the antiabortion movement to put doctors in a position to judge whether it’s ethical to perform one on a woman.
“That's not how doctors should talk about it,” Cohen said. “And it shouldn't be how the law talks about it.”
Insofar as the IVF precedent established in Alabama, which dictates that legal protections begin at conception, Cohen predicts an inability of its legislature to enact protections that permit infertility treatments.
“The legislature can't forget the state constitution if that's how they interpret it,” Cohen said. “And so there was definitely some language in that decision that made it seem like at least some of the justices thought that.”
Cohen predicts future conflicts between the Veterans Affairs Hospitals, which provide abortions, and state jurisdiction that forbids it.
The election is impending, and many people wonder how a Trump victory would affect reproductive rights. Cohen said we’d have a narrower interpretation of what’s permissible in emergencies. Trump might restrict the Food & Drug Administration and enforce the Comstock Act to eliminate medication abortion. He’d also appoint more antiabortion judges.
“It's important to continually put pressure on the courts and just generally make it known in society that people are out there pushing to overturn Dobbs,” Cohen said. “And so that was what this brief was a part of.”