It is hard to grasp the enormity of the Dobbs decision issued just one week ago.  I have experienced a variety of emotions in its aftermath including overwhelming sadness, despair, and a sense of real fear for my own safety and that of my daughter and granddaughters, as women’s rights have been dealt a devasting blow. My heart is broken and my mind cannot quite process the fact that the majority of people in this country no longer have a recognized constitutional right to govern our own bodies … and this may be just the beginning of a slide backwards that I previously considered unfathomable.

Forced pregnancy violates enumerated constitutional rights (the Thirteenth Amendment’s protection of bodily autonomy and the Fourteenth amendment’s defense of privacy and freedom) but five unelected justices just eviscerated these fundamental rights by declining to follow decades of precedent and substituting, in its place, their personal, selective and opportunistic interpretations.  The clear writing on the wall is that other fundamental civil liberties are at risk of being similarly gutted.   

The intended and unintended consequences of this decision are vast.  Let me be clear: abortion restrictions will not prevent abortions; they will only make them more dangerous and difficult, mostly for people who cannot afford to travel to a location where a safe and legal procedure is available.  There is no serious dispute that this will disproportionately impact women of color and women who live in rural areas, mostly in the Midwest and Southern states – they will be impacted the hardest and fastest both by inaccessibility and by virtue of being on the front lines of the wave of criminal prosecution that is coming for those who want or need to end pregnancies.  The devastating personal impact on those affected by state laws banning and restricting abortions cannot be overstated.  The following is a powerful and heart-opening story about the devastating impact abortion restrictions had on one family:  https://www.newyorker.com/magazine/2022/06/20/a-texas-teen-agers-abortion-odyssey

The legal consequences of the Dobbs decision stretch far into the legal unknown.  The complexity of the interjurisdictional conflicts arising from differing and conflicting state laws and federal preemption issues has already created chaos for abortion-seekers, health care providers, lawyers who wish to assist and others who are uncertain of how to navigate this new reality.  This need for coordinated pro bono legal services to advise and guide the many who become willingly or unwillingly ensnared in the quagmire of civil and criminal intricacies cannot be overstated.  

Most troubling perhaps is that the decision implicates the very foundation and principles of Federalism and tees up questions the U.S. Supreme Court will be forced to address in coming years.

We (and the “we” is beyond critical here, for each of us has a role to play) will have to think creatively, courageously and strategically if we are to have any chance of reversing this disturbing trend. What does this moment call for?  That is a question that so many of us are deeply pondering and there are no easy answers.  

To my mind, we must take a multi-tiered approach, beginning with a concerted effort to provide resources to women in restrictive states who seek abortions. Organizing and providing pro bono legal services for all who seek to navigate or defend themselves against the coming barrage of civil and criminal litigation will be critical, and WLALA is actively evaluating and discussing a plan of action with others in the legal community to identify the best way to orchestrate an effective legal alliance.  Finally, we absolutely must think outside the box about ways to preserve reproductive rights, something that will require a unified front at every step.  In doing so, white and other women with privilege must elevate the voices of women of color and underresourced communities, who will not only be disproportionally impacted by abortion restrictions but who also, by necessity, have years of experience fighting for equal rights.

The pendulum of reproductive freedom has swung to a horrific extreme I never expected to see in my lifetime and it is the result of a fifty-year effort by factions in our country I fail to fully understand.   Most troubling is the fact that 72% of Americans believe that Roe v. Wade should not have been overturned – and, despite the majority opinion,  it has been.  This is nothing less than a disintegration of democracy.  If we wish to start pushing this back, it will require persistence, resilience and calculated risks along the way. In short, we must play the long game. But women have been in training for this for decades – we are ready for battle.  There is no doubt in my mind that we have the capacity to preserve our reproductive freedom and that of our sisters, daughters, granddaughters, nieces and loved ones if we can find a path to unite, stay united and fight for it. 

This month’s WLALA newsletter contains a variety of resources, information and upcoming programming in support of reproductive freedom. Join us. At this moment, more than ever, we need to be stronger together.

Mary McKelvey
President, Women Lawyers Association of Los Angeles