Lead With Love: Our Bodies, Our Choice

Melissa Murray, a leading expert in family law, constitutional law, and reproductive rights and justice weighs in on the immediate ramifications of the overturn of Roe v. Wade, and what to expect in its aftermath.
Pro-choice voters must be mobilized to turn out in droves. Photography by Cathrine White

Photography and interview by Cathrine White

Melissa Murray’s award-winning research focuses on the legal regulation of intimate life and encompasses such topics as the regulation of sex and sexuality, marriage and its alternatives, the marriage equality debate, the legal recognition of caregiving, and reproductive rights and justice. Her articles have appeared in the California Law Review, Columbia Law Review, Harvard Law Review and Yale Law Journal, among others. She is an author of Cases on Reproductive Rights and Justice, the first casebook to cover the field of reproductive rights and justice, and a co-editor of Reproductive Rights and Justice Stories.

CATHRINE WHITE: Thank you for doing this with me during such a time of reckoning in our country. How has your professional life changed after the overturning of Roe v. Wade, and what will be your main focus navigating this complex political landscape?

MELISSA MURRAY: My main focus right now is explaining the decision and its consequences to nonlegal audiences. Many people have taken the Supreme Court at its word that this decision merely returns the abortion debate to the states for “democratic deliberation.” I want to make clear that this will not be an easy state-by-state resolution. “Red” states are already making it clear that they will try to thwart those who wish to leave their borders to seek an abortion. And those of us in “blue” states will see pressure on our existing reproductive rights infrastructure as folks come from other states seeking care. Further, the only way to enforce statewide bans on abortion and bans on leaving the state to seek abortion is to create a surveillance state that tracks those of reproductive age and capacity. Basically, this will not be like the world before Roe. It will be worse because we have the technology—and in some states, the desire—to create an effective surveillance state.

CW: Can this ruling be reversed if another case is brought before the court or is it done?

MM: This decision is the product of the 6-3 conservative supermajority at the Supreme Court. Pure and simple. Any new challenge would come before that 6-3 conservative supermajority and would likely be resolved in a similar fashion. That said, there is Congress—although meaningful Congressional action will depend on progressives widening their majorities in both houses—and state legislatures and state courts.

CW: Can families sue the state if their family member dies because of these forced birth laws and doctors hesitating to treat a pregnant woman?

MM: Hard to say. It depends on the law and its text, which will likely vary from state to state. But it is worth noting that the court insisted that this decision would “settle” conflict over abortion. That’s a pipe dream. We are going to see a raft of new legal challenges, all raising issues like that one presented in this question, as well as questions that will be issues of first impression.

CW: If a person is seeking a medication abortion, one thing they can do to facilitate that is to take pills [mifepristone and misoprostol]; the symptoms of taking those are cramping and bleeding—those are the same symptoms that occur during a miscarriage. What will this mean for women now, getting the care that they need, especially as the doctors can’t follow their best medical instincts because they are so fearful of lawsuits.

MM: The current landscape presents a real challenge to physicians, who, in the face of laws that limit abortion to “emergency” cases, must determine whether the circumstances in question are sufficiently exigent to meet the terms of the law. Some, worried about making the wrong call and risking their professional licenses, may simply avoid making the call at all. All of this cultivates a landscape of confusion and chaos that makes it hard for patients to understand what care they can expect and for physicians to understand what exercises of professional judgment the law will tolerate. And to be clear, that kind of confusion and chaos may be exactly the point. An environment in which patients are unsure of the extent of their rights and doctors are unsure of the weight of their professional judgment is as effective a deterrent to abortion as an outright ban.

CW: In states like Texas, where the law is prohibiting abortion after the detection of a fetal heartbeat, or about six weeks, one could ask: How is “six weeks” determined? How do they determine the six weeks from a legal perspective?

MM: That is a great question. Based on my understanding of the law, it’s six weeks after the last missed period (LMP), which is actually quite different from six weeks after conception.

CW: There has been a lot of discussions and finger-pointing in the media in regard to how the Republican legislators achieved such dominance in 2010. The abortion-rights advocates had support by Congress; they had a Democratic president in the White House. What was missed in 2010?

MM: Advocates and activists have been saying for years that the creeping conservative tilt of the Supreme Court and the lower federal courts is an existential threat to reproductive rights in general, and Roe v. Wade, in particular. When I testified against the nomination of Brett Kavanaugh to the Supreme Court in 2018, I said he would be a reliable vote to overrule Roe. And I was right. The truth of the matter is that Donald Trump vowed to appoint conservative judges and justices who would overrule Roe v. Wade, and he had the chance to stock the lower federal court with judges who were clear in their antipathy for reproductive rights. And, of course, he had the chance to seat three justices on the Supreme Court. Elections have consequences, and pro-choice advocates and activists warned us that the election of Trump and the growing conservative legal movement would threaten Roe. Rather than pointing fingers at advocates who have done their best in an increasingly hostile legal climate, perhaps we should think about how to stem this tide by turning out pro-choice voters in droves in subsequent elections.

CW: It doesn’t sound like the anti-abortion movement is holding off with just overturning Roe. What comes next?

MM: Although the Dobbs majority opinion insisted that the decision was confined to abortion, in fact, its logic and reasoning could easily be applied to other rights we hold dear. The majority held that there is no right to abortion because such a right is not expressly stated in the Constitution and because it is not “deeply rooted in the history and traditions” of the United States.

We could easily say the same of the right to use contraception, the right to interracial marriage, the right to sexual intimacy and the right to same-sex marriage. All of these rights proceed from the same vision of “liberty” identified in the 14th Amendment that underwrote Roe and the right to an abortion.