“This is a Moment”: Dobbs and the Realities of the Post-Roe World

Below is my column in USA Today on misleading claims made about the recent abortion ruling in Dobbs v. Jackson Women’s Health Organization and the existing protections for women on issues ranging from travel to contraceptives. There are good-faith concerns over the reasoning and implications of the decision. There is no need to raise unfounded fears over issues like interstate travel or contraceptives. The President and the Court appear in agreement. The time is now for citizens to vote on the issue of abortion and any limitations placed on that state-based right.

Here is the column:

“Consider the challenge accepted, Court.” Those defiant words by President Joe Biden last week were meant to rally a possibly anemic political base to, in the words of the president, “vote, vote, vote, vote.”

Ironically, it was the only part of the president’s remarks that is consistent with what the court actually said in its decision in Dobbs v. Jackson Women’s Health Organization. In overturning Roe v. Wade, the court ruled that millions of citizens, not nine justices, must now decide the question of abortion.

In its decision, the court said that in 1973 “Roe abruptly ended [a] political process” of states dealing with the issue of abortion. It now has returned the matter to the states and said basically “have at it.” The court did not outlaw abortion or favor any particular outcome beyond telling people to “vote, vote, vote, vote.”

There are good-faith objections to the court’s interpretation of the Constitution. Many believe that the Constitution implicitly does protect this right. What is striking, however, is how the president and other Democratic politicians and pundits have attacked the decision for positions that it expressly rejected or clearly did not support. Indeed, parts of the president’s abortion response plan are based on nonexistent threats to rights not imperiled by the decision.

Take travel. The president, political allies and law professors have stressed the need to “protect the right of women to travel.” The right to travel for medical procedures is unambiguously protected.

While a few legislators have suggested such laws, restricting travel has been tried before with consistently ruinous results before the court. The court, for example, unanimously struck down a California law in Edward v. California that attempted to keep indigent people from entering the state. Discriminating against nonresidents of a state has repeatedly been held as unconstitutional under the Privileges and Immunities Clause.

The right to travel also can be based on cases under the dormant Commerce Clause, which prevents states from discriminating against or unduly burdening interstate commerce. The court has long defended the“right of free ingress into other states, and egress from them.”

More importantly, the majority of justices in the Dobbs decision rejected this claim. In his concurrence, Justice Brett Kavanaugh called this claim “not especially difficult as a constitutional matter” and said that any such ban would fail “based on the constitutional right to interstate travel.”

With Chief Justice John Roberts, that means that five justices clearly view laws that ban travel as unconstitutional and the expectation is that a decision on any such law could be unanimous or nearly unanimous. Making this a focus of the federal response is about as significant as expressly prohibiting indentured servitude. The court is likely to say “been there, done that.”

Biden also continued to raise the specter of bans on contraception, which was also expressly and repeatedly rejected by the court. The court stated that, “Abortion is fundamentally different, as both Roe and Casey acknowledged.”

Nevertheless, the majority of justices said that some critics of the Dobbs decision would make this claim and noted that “perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights.”

Even Justice Clarence Thomas, who called for a re-examination of the constitutional basis for rights like contraception, expressly stated, “I agree that ‘[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.’”

Biden is not alone in seeking to exploit a problem not created by the opinion. For example, Democratic politicians have claimed that the decision would make it difficult or impossible for women to get medical treatment for ectopic pregnancies.

Last week, Rep. Alexandria Ocasio-Cortez, D-N,Y., argued that a supposed ban on the procedure was justification for harassing Justice Kavanaugh at a Washington, D.C., restaurant. She tweeted: “Poor guy. He left before his soufflé because he decided half the country should risk death if they have an ectopic pregnancy within the wrong state lines.”

And professors like Harvard Professor Laurence Tribe also have given credence to this claim.

It is utterly untrue.

When a pregnancy implants in the fallopian tube, it is not a viable pregnancy and its treatment is not an abortion subject to these bans. The procedures and medication are entirely different. Moreover, laws in OklahomaTexasLouisiana and other states restricting abortions expressly exempt such procedures.

Nevertheless, Biden announced that he is contemplating declaring a “national health emergency.” If he does, he would extend the use of a public health emergency beyond any prior invocation and beyond what his administration states is a measure to be used when “1) a disease or disorder presents a PHE, or 2) a PHE, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists.”

Jennifer Klein, director of the White House Gender Policy Council, admitted to reporters  that they looked at this option and did not see any material benefit from taking the unprecedented step since there were only “tens of thousands of dollars” in the government’s public health emergency fund, and declaring an emergency “doesn’t release a significant amount of legal authority.”  It would also unleash potential legal challenges.

However, the value of declaring a public health emergency is primarily meant to address a political emergency for Biden. Recent polling shows Biden‘s approval rating as low as 30%.  And 64% of Democrats, according to a New York Times poll, want someone other than Biden as their party’s candidate for president in 2024.

The Dobbs decision offers Democrats a glimmer of hope for the midterms and some leaders in the party believe they must “scare the crap out of [voters] and get them to come out.”

The president doesn’t need to defend unthreatened rights or invoke unsupported powers to campaign on abortion rights. The right to choose remains a powerful constitutional question without undermining that campaign with a parade of supposed horribles that disperses on closer examination.

The president’s call to “vote, vote, vote, vote” is the same as the court’s call. However, the result may not be clear as the president suggests in a country where only 34% support abortion in the second trimester and only 19% in the third trimester.

As the president said, “this is a choice.  This is a moment.” In time, we will know what that choice will be and what this moment will mean for the country.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

155 thoughts on ““This is a Moment”: Dobbs and the Realities of the Post-Roe World”

  1. Yet the federal government and states restricted the right to interstate travel during the Great COVID Lockdowns of 2020, to great acclaim from the progressive left. How soon they would have us forget.

    1. You were prevented from driving, bicycling, or walking over the state line?

      News to me.

      1. Yes, it was illegal to cross the state line. Even to go to the grocery store. Absolutely draconian. Even more shocking is that the left denies that it happened.

  2. Perhaps the social service agency referred the rape of a child to the police but the police in both Ohio and Indiana say they have no record of any referral from social services. Some have offered the following link from NPR saying that the abortion doctor reported the rape but this link provides no information that either she or social services provided any information to the police. Here is the link. Read it for yourself to determine if law enforcement was contacted. If not why not. https://www.npr.org/2022/07/15/1111650228/doctor-told-the-state-she-performed-abortion-on-10-year-old-girl-document-shows. The spin has gone out of the story.

    1. Anonymous:

      Interesting. Why do you think those who created CHOP/CHAZ were not charged with domestic terrorism, sedition, and interfering with police and first responders? Why do you think BLM activists who threw bombs at federal buildings were not charged with terrorism?

      Also, if I recall correctly, wasn’t Reffitt the guy who had a gun in his car? The last time I reviewed the evidence, there were no firearms brought inside the Capitol building on Jan 6. Did new information come out?

      1. No, Karen, you do not recall correctly.

        Reffitt had the gun on him while he was on the Capitol Grounds. Perhaps you are unaware that the grounds are part of the Capitol Complex, and it is illegal to carry firearms there. You could easily have looked this up for yourself in his court case instead of relying on your faulty memory,

        As for your other questions, I’ll answer after you answer the abortion-related questions I’d previously asked you on other discussion threads. But you don’t get to ignore mine and then turn around and expect me to answer yours.

  3. Fox News crushes basic cable competition, outdraws CNN and MSNBC in ratings for 73rd straight week

    Americans turned to Fox News Channel for information and analysis last week as the network beat CNN and MSNBC viewership among both total day and primetime for the 73rd straight week, according to ratings provided by Nielsen Media Research.

    Fox News averaged 1.3 million viewers from July 4-10 to finish as the only basic cable network to surpass the one-million viewer benchmark. MSNBC finished second, averaging 666,000, and Hallmark, HGTV and CNN rounded out the top five.

    During the primetime hours of 8-11 p.m. ET, Fox News averaged a smidge under two-million viewers as the lineup of “Tucker Carlson Tonight,” “Hannity” and “The Ingraham Angle” nearly doubled Hallmark, which averaged 1.1 million to finish second. HGTV, MSNBC and TLC rounded out the top five during primetime.

    Fox News also surpassed all of cable news among the key demographic of adults age 25-54, averaging 198,000 total demo viewers and 288,000 during primetime. MSNBC continued to struggle in the all-important category, finishing 33rd during primetime behind a plethora of networks including Animal Planet, Travel Channel, BET, MTV, Freeform and Lifetime.

    Does anyone think these trends are going to change as we approach the midterms in November?

    Fox News

    Where are we going to go to get our daily dose of “we hate you scum right wing Trumpers”?

    Enter Res Ipsa loquitur with the Far Left bat schlick commenters trolls

  4. The terminally undisciplined Leftists are not capable of controlling their heinous more-is-never-enough abortion practices, so that now, without meaning to, the DNC has given itself a D&C.

  5. Anonymous:

    I am unclear on a few aspects of this NPR article you linked.

    The reason why the story about the 10 year old pregnant girl was questioned was because law enforcement had no record of it. The governors of both states couldn’t find it. Journalists are supposed to question stories. This is not a moral failing. In fact, these questions uncovered an illegal alien pedophile.

    The NPR article states the university investigated whether privacy laws had been followed, as when the doctor reported to the newspaper. It does not address whether with the original doctor or the abortion provider reported the assaults to law enforcement as required by law. The aborted fetus is evidence of a crime, and should have been preserved.

    The article referenced reports that were released, but said nothing if that report had been filed in a timely manner, or after the outcry.

    The first priority should be rescuing this child from an abusive situation, and prosecuting a pedophile. The mother defended the rapist and said her child was fine. All children should be removed from her care while the matter is investigated.

    1. Law enforcement DID have a record of it. The mother reported it on June 22nd. Governors don’t keep criminal records. You have no clue what a “journaist” is “supposed” to do because you are a disciple of Fox that does nothing but attack Democrats, ignore the crimes of ReTrumplicans and promote culture war blather to get disciples like you going. The aborted fetus was preserved in order to compare its DNA with that of the alleged perpetrator. The report WAS filed timely, both in Ohio and in Indiana. The man was in custody when Theodore Rokita appeared on Watters’ program and promised to go after Dr. Bernard. He produced NO evidence that Dr. Bernard, whom he attacked as an “abortion activist” ever failed to properly file reports. Fox LIED, pure and simple, and has never apologized or retracted its “too good to be true” comment or attack on Joe Biden.

  6. Although a a large majority of Americans oppose abortion in the third trimester, Democrats might pass federal legislation allowing abortion on demand through the ninth month by misrepresenting it as “codifying Roe v Wade.”

    That was their ploy with the failed Women’s Health Act. They claimed it codified Roe v Wade when in fact it was far more permissive, and would have allowed the return of gruesome partial birth abortions.

    Neither voters nor, sadly, Congress, appear to read what they vote on. “Codify Roe v Wade” is going to be used to misrepresent proposed legislation from here on out.

    1. As usual, you don’t know what the hell you’re blathering on about. Less than 1% of abortions are third trimester, and almost all of them are for very serious medical problems with the mother and/or the fetus. 93% of abortions are first-trimester. Democrats are NOT promoting “abortion on demand through the ninth month”. i find it ironic that a true Fox disciple like you who believes every lie Fox puts out thnks you are qualified to talk about Democrats or anyone else “misrepresenting” anything. You’ve proven what you are by your nonsensical defense of Hydroxychloroquine and the Fox lie about Dr. Barnard failing to report the rape even though the rapist was already in jail.

      1. You need to check Colorado for starters. In Colorado they give a woman the right to kill a nine month old baby that’s completely healthy and he’s struggling to come out because he wants to be born.

        But hey, Colorado became “Californicated”. So everything’s fine. Nothing to see here. Except how the state has gone downhill to the dogs 🐕 every since so many, “outsiders” with, “Low-Morality”.

        summation: Scum. Pure Scum. Never under-estimate how evil Democrat voters really are. When I think about how clean so many places would become, clean in all areas. Spiritually emotionally and Lord knows all the places around the cities how clean they would become. Because every place that these voters are in large majority right on their heels are all the dirty nasty homeless things are in droves.

  7. OT

    Shouldn’t the demographic: College-Educated Women, be “fundamentally transformed” into College-Indoctrinated Women?

  8. If any politician REALLY cared about womens health they’d view this as an opportunity for even “some” healing. Like making SCOTUS Confirmations not just about this issue? Or some attention to Project Rachel that helps post abortion women? The New Zealand study pointed the extremely high incidences of suicide, addiction, domestic abuse etc. But no! Watch the campaign ads. They honestly could care less about women. The issue is a political weapon.

    1. This is not an opportunity for healing. SCOTUS has ruled that with respect to pregnancy, women do not have bodily autonomy and can be made secondary to an embryo. This is a time to speak up for women’s rights. Forced birthers are the ones who don’t care about women’s rights.

        1. If you want to raise them, develop an artificial womb and a means of transplantation. You don’t get to use women’s bodies against their will. The millions of people who die while waiting for organ transplants can’t even use your organs after you die.

          1. There has to be a better way for birth control, which is how hundreds of thousands of women are using it for. Not every woman has been raped or used in incest or have medical reasons. Most do it as a convenience. PERIOD.

            1. All forms of birth control sometimes fail. All people — including you — are sometimes fallible. And your personal judgement about whether it’s OK should not trump the person’s control over her own body.

          2. Women have free will when they happily engage in the most popular indoor sport. Decisions have consequences.

            Or are females unable to make their own decisions? We need to go back 300 years when women were taken care of and they had no worries about making decisions?

            1. You can change your mind in the middle of donating blood. Consent to sex is not consent to brining a pregnancy to term.

              1. By your age you should realize that sex and giving birth are quite different from donating blood.

      1. “SCOTUS has ruled that with respect to pregnancy, women do not have bodily autonomy and can be made secondary to an embryo.”

        Totally wrong. They ruled on a Constitutional issue of law and said nothing about when a woman could have an abortion.

        You demonstrate an ignorance that proves nothing you say should be believed.

        1. You clearly haven’t read the ruling. Try it, and notice the number of times they use the word “abortion.”

          1. What a mental midget. The number of times a word is used or not used is worthless, just like you. The context of the word usage provides context.

              1. My insults and your stupidity coexist. Liars deserve to be insulted. Anonymous the Stupid deserves to be high-lighted. Just correcting your lies isn’t good enough. You need to be labelled.

  9. Hysteria and incoherence.

    Now you know why the American Founders/Framers restricted the vote through State legislatures and implemented the Constitution and Bill of Rights.

    Vote criteria in 1788 were male, European, 21, 50 lbs. Sterling/50 acres, state by state, generally.

    “One man, one vote democracy is untenable and always ends in dictatorship,” Alexander Tytler, Alexis de Tocqueville, et al.

    It’s not the vote.

    It’s not “interpretation.”

    It’s the “manifest tenor” of the Constitution.
    _________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

    1. ““One man, one vote democracy is untenable and always ends in dictatorship,” Where did de Tocqueville say that?

  10. While JT recognizes and says there are good faith objections to the constitutional reasoning underlying the Dobbs opinion, for some reason he does not appear to recognize there are good faith concerns about how these abortion restrictions will play out on a practical level and what the decision might mean for other substantive due process rights even though it’s often the same people that have both the good faith objections and the good faith concerns.

  11. Joke Biden: “vote, vote, vote, vote.”

    And the communists (liberals, progressives, socialists, democrats, RINOs) are dumping more and more “voters” on America through Mexico every minute.

    This is illegal and unconstitutional election fraud and vote tampering, and it is totally corrupt?

    The vote was intended to be restricted by States and relatively moot; dominion was to be of the Constitution and Bill of Rights.

    America was designed, engineered and intended to exist under the dominion of the Constitution, not the “vote.”

    The “vote” has been diluted, denuded of import, and corrupted which, in turn, has completely nullified the literal words of the Constitution which bear.

  12. Mespo proclaims:

    “We in the law, those in the military, those in public service and the police all swear an oath to preserve, protect and defend the constitution – not just the parts we like.”

    Exactly. It is just that sworn fidelity to constitutional law and order which will see to it that several hundred domestic terrorists who stormed the Capitol will get their just desserts, not the least of which will be Trump who incited the violent gang and sat on his hands despite the many pleas by those around him begging him to call it off.

    Yet, not one lying Trumpist here believes that Trump did anything wrong. Not a thing.

    1. 2000 Mules…… wisconsin and PA have ruled that those drop ballot boxes were illegal now and THEN. Nice try , but you fail at the coverup as bad as the J6 circus.

      1. #4/21. Alleged Bribery. The former state Supreme Court justice appointed by the Wisconsin Legislature to investigate the 2020 election concluded that millions of dollars in donations to election administrators in five Democrat-heavy municipalities from the Mark Zuckerberg-funded Center for Tech and Civic Life violated state anti-bribery laws and corrupted election practices by turning public election authorities into liberal get-out-the-vote activists. “The Zuckerberg-funded CTCL/ Zuckerberg 5 scheme would prove to be an effective way to accomplish the partisan effort to ‘turnout’ their desired voters and it was done with the active support of the very people and the governmental institution (WEC) that were supposed to be guarding the Wisconsin elections administrative process from the partisan activities they facilitated,” Justice Michael Gableman wrote.

        https://justthenews.com/politics-policy/elections/bombshells-belie-big-lie-21-confirmed-illegalities-irregularities-2020

      2. Phergus says:

        “you fail at the coverup as bad as the J6 circus.”

        Turley says:

        “The House Select Committee investigating the Jan. 6 riot is an equally impressive effort to painstakingly debunk election fraud claims and to show how former President Donald Trump refused to accept his electoral defeat.”

        “The hearings have created a lasting, damning record leading up to Jan. 6.”

        https://jonathanturley.org/2022/06/24/just-do-it-democrats-continue-to-struggle-to-find-a-crime-to-fit-the-offense/

        I’m siding with Turley who believes that the hearings are not a “circus.” Ok?

        1. You may not like election fraud claims, but they exist and are valid. To date, you have not been able to explain much of the lawlessness that occurred. Claims of ignorance are the only thing you have left to debate with. The link to the blog makes J6 look very much like a circus, democrats-continue-to-struggle-to-find-a-crime-to-fit-the-offense/. If you don’t like that interpretation think of the other, Lavrenty Beria.

          #8/21. 50,000 Arizona ballots called into question. An extensive audit by Arizona’s Senate officially called into question more than 50,000 ballots cast in the 2020 election, including voters who cast ballots from residences they had left. The tally in question is nearly five times the margin of Joe Biden’s victory in the state.

          https://justthenews.com/politics-policy/elections/bombshells-belie-big-lie-21-confirmed-illegalities-irregularities-2020

  13. Couldn’t even make it a few paragraphs into this slop. Let’s get to it…, states with trigger laws will do everything they can not to let their citizens vote on abortion referendums. The states rights canard is the highest form on nonsense re abortion rights.

  14. Whether it is abortion or other types of killing, that seems to be the left’s forte.

    SHOOT TO KILL
    Don’t employ the National Guard on J6 to keep order, obtain specialists with orders to shoot to kill.
    —-
    “Rosen made a unilateral decision to take the preparatory steps to deploy Justice Department and so-called ‘national’ forces,” Newsweek reporter William M. Arkin disclosed in a bombshell report earlier this year. “There was no formal request from the U.S. Capitol Police, the Secret Service, or the Metropolitan Police Department—in fact, no external request from any agency. The leadership in Justice and the FBI anticipated the worst and decided to act independently, the special operations forces lurking behind the scenes.”

    Those assets, according to Arkin, included “commandos” with shoot-to-kill authority. And among them were members of the military.

    https://amgreatness.com/2022/07/14/what-is-adam-schiff-hiding/
    https://www.newsweek.com/exclusive-secret-commandos-shoot-kill-authority-were-capitol-1661330

    Kelley on Twitter
    BREAKING: Schiff files amendment to NDAA that would conceal any info collected by the U.S. military for use in congressional investigations or court proceedings.

    Massive attempted coverup of enormous proportions and preemptive power grab to prevent GOP oversight next year:
    —–
    lying and concealment of information of illegal actions by Democrats in charge is what they are good at.

    Schiff’s amendment by a vote of 215-213 in the House is to prevent the release of information by Congress. Jan6 is a hoax looking for information while Democrats are blocking the release of essential information.

    1. it is not just abortion where the Left lies and uses fear as a stick to get people to submit

      U.S. Public Health Agencies Aren’t ‘Following the Science,’ Officials Say
      ‘People are getting bad advice and we can’t say anything.’
      https://www.commonsense.news/p/us-public-health-agencies-arent-following

      Health experts are quitting the NIH and CDC in droves because they’re embarrassed by ‘bad science’ – including vaccinating children under 5 to ‘make their advice palatable to the White House,’ doctors claim
      https://www.dailymail.co.uk/health/article-11015235/Health-experts-quitting-NIH-CDC-droves-embarrassed-bad-science.html

      Tracy Høeg, MD, PhD Retweeted
      Venk Murthy, MD, PhD
      @venkmurthy
      ·
      18h
      The irony is that the folks who labelled this misinformation are almost certainly less educated and less informed on this issue than @rfsquared
      .
      What’s sad is they also won’t be accountable in the slightest for this and many similar errors.
      Quote Tweet

      Ramin Farzaneh-Far MD
      @rfsquared
      · Jun 25
      We’ve come a long way since @CDCDirector *falsely* reassured the public in a press briefing in April 2021 that mRNA vaccines don’t cause myocarditis. This was obviously wrong, even at the time, as many of us pointed out. Clustering after dose 2 nailed causality from the get go.
      Show this thread

      1. Marxism is a revolutionary ideology, and revolutions require instability. The left will destabilize any position the country takes.

    2. S. Meyer,

      INSIDE THE FOUR CORNERS OF THE CONSTITUTION
      ____________________________________________

      “…I said I would prefer the law written in that fashion but such a law is not inside the 4 corners of the Constitution.”

      – S. Meyer
      ________

      The Constitution is not a dictionary; the Framers used large numbers of words which they did not take the occasion of the Constitution to define.

      You are beyond preposterous.

      Let me help you connect the dots, which you’re feigning having so much trouble with.

      Please find the definition of the phrase “natural born citizen” in the Law of Nations, Book 1, Chpt 19, Section 212, Citizens and Natives, which is referenced regarding “Offences against the Law of Nations;…” in Article 1, Section 8, Clause 10, one of the “four corners of the Constitution.”

      “Whoomp! There it is!”
      __________________

      The Annenberg Guide to the United States Constitution:

      United States Constitution

      Article 1, Section 8, Clause 10

      To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
      __________________________________________________________________________________________

      You’re not about law, you’re about supporting a particular candidate, no matter how demonstrably ineligible he is.

      Lest we forget, the proof is in the pudding: Every president before Barry Soetoro had two parents who were citizens at the time of the candidate’s birth, with the sole possible exception of Chester Arthur, who lied and covered-up his ineligible status knowing his father was not a U.S. citizen, or those who were “a Citizen of the United States, at the time of the Adoption of this Constitution,” per the constitutional waiver.

      1. George is repetition your only offensive weapon?

        “You’re not about law, you’re about supporting a particular candidate, no matter how demonstrably ineligible he is.“

        Which candidate did I support who was ineligible? Certainly not Obama who I fought against. Are you making things up?

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