Reproductive Rights in the Post-Dobbs Era

Reproductive Rights in the Post-Dobbs Era

Podcast In the Public Interest

Episode Guests

  • Parker_Kimberly Kimberly A. Parker

    Partner

    Vice Chair, Litigation/Controversy Department

    +1 202 663 6987

    +1 202 663 6987

  • Krasnoff_Helene

    Helene Krasnoff

    Vice President of Public Policy Litigation & Law, Planned Parenthood

  • Tocce_Kristina

    Dr. Kristina Tocce

    Vice President and Medical Director, Planned Parenthood of the Rocky Mountains

In This Podcast Episode

In June 2022, the US Supreme Court issued a landmark decision in Dobbs v. Jackson Women’s Health Organization, reversing Roe v. Wade and holding that the US constitution no longer includes a right to abortion. The Court’s decision left states with full authority to regulate—or eliminate—abortion access. In Season Two of In the Public Interest, WilmerHale Partner Kim Parker spoke with Helene Krasnoff, Vice President of Public Policy, Litigation and Law at Planned Parenthood, to preview the potential outcomes in Dobbs and their potential impact on reproductive rights in the United States. Parker is vice chair of the firm’s Litigation and Controversy Department and has represented Planned Parenthood and other reproductive health providers in a number of legal challenges. She also serves as co-chair of WilmerHale’s Pro Bono and Community Service Committee.

In this follow-up episode, In the Public Interest co-host John Walsh welcomes back Parker and Krasnoff, along with Dr. Kristina Tocce from Planned Parenthood of the Rocky Mountains, to revisit the status of reproductive rights in the US, post-Dobbs. Parker, Krasnoff and Dr. Tocce discuss the legislation and litigation across the US that has resulted from the Court’s decision in Dobbs, including so-called “trigger bans” in place in a number of states. Krasnoff and Dr. Tocce share their perspectives on the burdens placed on patients seeking abortion care in states where abortion is now banned and how these burdens also impact other patients who live in states where abortion access is protected. And they discuss how a federal abortion ban, if enacted, would impact abortion access in the US.

Related Resources:

Hosts

Episode Transcript

Expand All Collapse All
  • Transcript

    +

    Speakers: Felicia Ellsworth, John Walsh, Kimberly Parker, Helene Krasnoff and Dr. Kristina Tocce

    Mr. Walsh: Welcome to In the Public Interest, a podcast from WilmerHale. I’m John Walsh.

    Ms. Ellsworth: And I’m Felicia Ellsworth. John and I are partners at WilmerHale, an international law firm that works at the intersection of government, technology, and business.

    Mr. Walsh: On June 24, 2022, the Supreme Court issued a landmark decision in Dobbs v. Jackson Women’s Health Organization and found that the U.S. constitution no longer confers a right to abortion. It gave states full authority to regulate the issue. The decision overturned longstanding precedents, including Roe v. Wade and Planned Parenthood vs. Casey, and led to an immediate wave of state bans, regulations, and legal challenges around the country. In light of the Dobbs decision, we are following up on our Season Two Episode of In the Public Interest, where we previewed the decision in Dobbs and its potential impacts for reproductive rights and care in America. Today, we are again joined by Helene Krasnoff, the Vice President of Public Policy, Litigation and Law at Planned Parenthood, as well as Dr. Kristina Tocce from Planned Parenthood of the Rocky Mountains.

    Ms. Ellsworth: Planned Parenthood is a non-profit organization that provides reproductive health care services in the United States. The organization has also been a key player in challenging laws that restrict abortion rights and access in the United States.

    Mr. Walsh: To lead our discussion, we welcome back our colleague, Kim Parker, a WilmerHale partner who is vice chair of the firm’s Litigation and Controversy Department as well as the co-chair of the firm’s Pro Bono and Community Service Committee. Kim has represented Planned Parenthood and other reproductive health providers in numerous legal challenges over the past twenty years, and with that onto the episode.

    Ms. Parker: Thank you, Helene, and Dr. Tocce for joining us on this episode of In the Public Interest. We hope you will help our listeners to understand where things currently stand for reproductive rights in this country in light of the very consequential Supreme Court case last term.

    Ms. Krasnoff: Thanks for having us.

    Dr. Tocce: Thanks so much.

    Ms. Parker: Before we dive in, Dr. Tocce, can you tell our listeners a little bit about your role with Planned Parenthood of the Rocky Mountains and what brought you to this work.

    Dr. Tocce: I am vice president and medical director of Planned Parenthood of the Rocky Mountains and we provide abortion services in Colorado, New Mexico, and Southern Nevada. I was drawn to work in abortion care by a pivotal moment in medical school. My supervisor sent me to work with a physician who provided abortion care. And he made abortion provision his career. When I asked him why abortion care, he told me that he would save more lives providing abortion than he would in any other aspect of medicine. This statement was based on his experience as a physician in training pre-Roe v. Wade. His stories of what patients went through to obtain abortion and the serious medical complications they suffered, including death because of unsafe illegal abortion—those stories stunned me. I knew then in 2001 that I would also offer abortion care as part of my obstetrics and gynecology practice. I had no idea at the time that I would be practicing in a post-Roe society during my own career. I am incredibly sad that this mentor of mine passed in 2005. However, I’m thankful that he did not see the fall of Roe. He would have been absolutely devastated that we have taken such senseless and backward steps in medical care.

    Ms. Parker: That is incredibly moving story and I’m looking forward today to hearing more about what you’re really seeing on the front lines in this post-Roe world that none of us ever thought we would see. To set the stage for that, I want to turn to Helene, and really come back to a topic that we covered on our last episode. You gave us a preview of what we might expect from the Supreme Court, particularly regarding the two key cases, Dobbs v. Jackson Women’s Health Organization, and Whole Women’s Health v. Jackson, we didn’t know where we would end up. We had some concerns and some fears and unfortunately, they were realized. And I thought you could just step back and give us a sense of what happened with those two cases and where we are in the legal landscape.

    Ms. Krasnoff: Sure, I’m sure that most of your listeners know this, but really, stepping back—in 1973, the US Supreme Court in Roe v. Wade held that the substantive due process clause of the 14th Amendment protected our right to choose abortion. For nearly five decades, the court affirmed that holding again and again and again. But last June, five justices overturned all of that precedent. The opinion was authored by Justice Alito. It was joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett. And that opinion relies largely on what has been called textualism or originalism. So, first the analysis starts with is the word abortion in the Constitution and they say, aha, it is not. Well, they do want some things to be included in constitutional rights that are not in the Constitution. So, then the next question they ask is, is the right at stake deeply rooted in our nation’s understanding of ordered liberty? And Alito goes on to find it cannot be deeply rooted because when the 14th Amendment was adopted in 1868, most states did not allow abortion. There’s been a lot written after the original leak and after the opinion about whether or not Alito got the history right, and I think there’s a lot of evidence that he did not. But to me, that really misses the mark about the opinion. Why should 1868 be the touchstone for our liberties today? We know that so many of us were not free, let alone equal. The three of us talking today are all women, so why should our rights be frozen at this point in time as what is meant by our liberties, let alone ordered liberty today? As your listeners probably know, before precedent is overruled, there’s an analysis, stare decisis, about whether or not you should overrule that precedent. And, the court ignores that analysis almost entirely and says that analysis begins and ends on whether or not the opinion was egregiously wrong. They really just don’t try and justify it. They just say we think Roe was egregiously wrong, and, therefore, that’s the end of the analysis. I think it’s worth talking about the dissent a little bit. The dissent is actually a joint dissent. Justices Breyer, Sotomayor, and Kagan wrote one dissent, which is pretty uncommon that they all speak in one voice, rather than one writing and the others joining. And they explained the stare decisis analysis like this: the majority has overruled Roe and Casey for one, and only one reason, because it has always despised them and now it has the votes to discard it. The majority thereby substitutes a rule by judges for the rule of law. And what I find most upsetting, which I think isn’t talked about enough about the Dobbs decision, is that the court, the majority, just ignores both the role abortion has had on people’s lives, to what Dr. Tocce was talking about, how it was explained to her by her mentor. The dissenters wrote that “after today, young women will come of age with fewer rights than their mothers and grandmothers had. The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away. The majority’s refusal, even to consider the life-altering consequences of reversing Roe and Casey, is a stunning indictment of its decision.”

    Ms. Parker: I paused on that as well. When the opinion came out and the dissent came out, I just had to take some time with it to even absorb what I was reading, even though I knew it was coming. We had the leak of the opinion. We had the argument. As we discussed on our prior podcast on this, it was something we knew and anticipated, but just reading the words was so difficult. I hear the emotion in your voice now, and I know what it felt like and I know we all are continuing to feel that emotion because we’ve lived for our whole lives with this right. All of us have been fighting on the frontlines of reproductive rights for decades. So, it’s not as if it was settled and taken for granted by us. We knew it was something we had to fight for every day because there were so many restrictions. There were so many states that even in the world where Roe existed were encroaching on reproductive rights on a day-to-day basis, so it was never something we took for granted, yet to read those words and see the majority, seem to just ignore the real lived experiences of women in this country for decades. It’s hard to even fathom, even though we’ve been living with it for many months now.

    Ms. Krasnoff: I always say it’s not surprising, but yet it’s shocking, having done this for so long.

    Ms. Parker: That’s well said.

    Ms. Krasnoff: I do think that as much as we knew this was going to happen and we had the leak, I think it was really hard to get people to appreciate the risk of this. If you look back at when the state started banning abortion, they started banning abortion in 2019. And what happened in 2019 is that Justice Kennedy—who supported access to abortion—retired and was replaced by Justice Kavanaugh. And really from that moment on, this was really what we knew the result would be, and to some extent people just did not believe us. And now here we are.

    Ms. Parker: Let’s take a second to talk about the Texas case because that’s something we talked about on the prior discussion, and I want to make sure our listeners are up-to-date on where that stands.

    Ms. Krasnoff: Sure. Well, that Texas law, that was a 2021 law. We called it the bounty hunting law because, as you will remember, rather than having state officials enforce it, if you provide an abortion after approximately six weeks, or you help somebody get an abortion – you drive them to the clinic, you help them pay for it, you schedule the appointment – then you can be sued in a civil action with a minimum of $10,000 damages assessed against you. At the time that that was enacted, there was actually no question that that law—banning abortion at approximately six weeks—was unconstitutional because Roe was still the law of the land. But the court let the law take effect on September 1st, 2021, and then in December 2021, it found that there was no one to sue to block the law. That was the trick of the law, right? If anyone can sue you but not a state official, then there’s no one to sue. The practical result, of course, was that providers couldn’t go forward knowing that anybody could bring a lawsuit, multiple lawsuits about each abortion—as long as there were different plaintiffs. When I think back on the fact that the court let this bounty hunting stand, on the one hand, I feel like it was obviously the writing on the wall. They did not care about the bounty hunting, or its unconstitutionality. They let it take effect. But, on the other hand, if they were just going to completely overrule Roe 10 months later, why did they let this bounty hunting system stand? And I just, I don’t know the answer to that today, even. They just couldn’t wait 10 months to let Texas ban abortion. And now, of course, that is what has happened. Texas is enforcing not only SB-8, but also its trigger ban—a complete ban on abortion—and its pre-Roe complete ban on abortion. The law that was struck down in Roe is Texas’s pre-Roe abortion ban. Roe v. Wade originated from Texas. So, now there are at least three overlapping bans on abortion that have been in effect since last summer in Texas.

    Ms. Parker: Just for our listeners, let me explain what it what we mean by a trigger ban. There are a number of different kinds of abortion bans that are now in effect in the various states, and a trigger ban is a law that effectively says if Roe is ever overturned, this law will go into effect. It will be triggered, some form of abortion ban. So many states had these laws on their books, they were effectively unenforceable, they were nullified during the time that Roe was in effect. But as soon as Roe was overturned, they effectively spring into life. There are also certain pre-Roe bans that, as Helene mentioned, were on the books before Roe was decided. They were bans on abortion that effectively went dormant because they could not be enforced and once Roe was overturned, since those laws were still on the books, those bans come back to life as well.

    Ms. Krasnoff: And that’s important, again, to go back to the 2019 point because there were also a number of bans that were held back by the courts because Roe was the law of the land, and so, that was something people failed to appreciate as well. I think that people thought that Roe would fall and then states would come in and ban abortion. And, in fact, they didn’t need to come in and ban abortion because those dominoes were all lined up because of the trigger laws, because of the pre-Roe laws, because of the slew of bans that had been enacted prior to Dobbs. And so, it really was the push that set the dominoes down. In fact, right now there are 18 states today enforcing abortion bans that ban some or all abortion. Thirteen of those are complete bans and, of those, only one of them was enacted post-Dobbs. In total, two bans have been enacted post post-Dobbs, West Virginia and Indiana, and Indiana’s is blocked by the courts. So, of the 18 bans that are being enforced today, six months after the opinion, 17 of those bans predated Dobbs. And again, I think that’s something people really failed to understand, that it wasn’t like Roe would be overturned and then something would happen. That was all in place, and ready to happen virtually immediately.

    Ms. Parker: Dr. Tocce, I want to talk about what you’re seeing on the front lines in terms of patient care in the states that you serve, which I understand are Colorado, New Mexico and Nevada. What are you seeing in terms of who is seeking care? What changes have you observed in just the six months since the Dobbs decision?

    Dr. Tocce: Well, Colorado, New Mexico and Nevada are extremely impacted because we are surrounded by a sea of red and so, our states are being overwhelmed by patient demand from all of the surrounding states that now have bans in effect. Since the Texas bounty hunting law in September of 2021, our affiliate has been flooded with patients coming from Texas. And subsequently, other states that then enacted their trigger bans after Roe fell. So, this has really been a time in medicine that none of us have ever lived through before. And, as we try to expand access and accommodate as many patients as possible, resources are being reallocated, and this has the potential to ultimately lead to a decrease in non-abortion related health care that we provide, if we cannot react fast enough to expand services, hire more individuals to take care of patients, et cetera. Other health cares have partnered with us to start filling in some of the gaps that they can fill with non-abortion related services. However, this is all in flux and just in the beginning stages of being worked out, and infrastructures put in place, and patients are left scrambling trying to find a location where they can access abortion care in a timely manner.

    Ms. Parker: One thing I hear a lot, especially from individuals who live in so-called blue states is well, this isn’t going to affect me. I’m not in one of the 18 states that Helene mentioned, and I’m going to be able to access abortion care. I’m not sure if that’s really true, and I’m wondering, Dr. Tocce, if you can comment on that, in terms of what you’re seeing.

    Dr. Tocce: Absolutely. A lot of people I speak with are stunned when I say that these bans affect every single person of reproductive age in our country. It doesn’t matter if you’re living in a blue or a red state, because, as you can imagine, the influx in patients impacts wait time and that impacts all patients, no matter if they are traveling to access care, or if they live right down the street from an abortion providing center. More people are seeking the same appointments for limited services. The increased wait times also have medical implications because abortion care is time sensitive. And patients may have to pursue a procedure instead of a medication abortion, due to gestational age at the time of their appointment when they finally get that appointment. They also may need to undergo a longer procedural process, resulting in more time away from home. This is something that affects every single individual. The other thing that I want to highlight in terms of patient care is that for those needing abortion for their own health indications, these wait times are particularly taxing. I’ve seen patients who need an abortion prior to accessing their life-saving cancer treatments, and having to personally process a cancer diagnosis, and then be faced with independently coordinating every aspect of their abortion care, then waiting for their appointment, and then traveling tremendous distances. This is just horrific. It is an unnecessary burden for our patients, and it’s just cruel and medically inappropriate.

    Ms. Parker: Another issue I wanted to get your views on, Dr. Tocce, is we’ve seen news reports and commentary on the issue of patients who are pregnant, who need life-saving care, who may need an abortion to protect their health, to save their life, being put in very difficult and dire situations in states that have abortion bans. What I wanted to get your take on is many of these states do have exceptions to their bans to supposedly save the life of the pregnant patient. What are you seeing in terms of how those exceptions work in practice?

    Dr. Tocce: You know, we hear so much from lawmakers attacking abortion rights that exceptions will protect patients. This is simply not true. To protect the patient’s health is the phrase that is usually used, and this is ambiguous. Many physicians interpret this to mean that a patient must be acutely dying in order to access abortion care. But what about the cancer patients we talked about? Their providers did not feel comfortable providing or coordinating abortion care because they were not close to death at that moment. Patients that are survivors of incest, where there are states that don’t have those exceptions. Patients that are very young teenagers who face a higher rate of serious complications with pregnancy. There are not exceptions for those cases in a lot of states, and these patients are not protected. So, all of this creates a tremendously confusing environment for the patients and for the providers. And that’s not a safe situation in medicine. It clouds medical decision making. Physicians are scared that they’re going to be sued, lose their licenses, et cetera.

    Ms. Parker: you have a patient who is incredibly sick, whose condition may be worsening and you want your doctor to be thinking solely about care and what care is best when they are instead having to consult with lawyers, having to speak with committees or boards within their hospital to understand the risks for themselves and for others that are assisting in that care for the hospital, for the healthcare center. And that’s really not what you want when you are focusing on a dire situation for a patient.

    Dr. Tocce: Absolutely. These decisions need to be made between the patients, their support systems, and their physician and medical providers.

    Ms. Parker: Can you comment also on how this is affecting even care for miscarriages. Because we’re seeing lawmakers say well, this won’t affect miscarriage care.

    Dr. Tocce: We have seen a lot of confusion about this as well from, again, the medical professionals and from patients. Some providers are so nervous that they are going to be misinterpreted as providing inappropriate care under the legal constraints of their geographical area. It extends to other aspects of pregnancy care, and that is not safe. I know of colleagues that have seen patients drive from another state with an ectopic pregnancy. An ectopic pregnancy is a life threatening condition. It is not a pregnancy that is compatible with being delivered and resulting in a baby. These pregnancies must be treated either medically or surgically immediately to prevent catastrophic outcomes to the patient’s health. Right now, in Texas, when a patient presents with that to the hospital, if they are well at that moment, those patients are told come back when you are sick. That’s not appropriate. If the patient desires to have that pregnancy evacuated from their uterus because of the risk of infection, sepsis and death, they are being denied that. Once they are sick enough, they will be able to access an abortion procedure. That’s an absolutely ridiculous way to practice medicine, and puts patient’s lives at risk. I have seen patients in that situation who have flown to Colorado to have their abortion procedure. In ordinary circumstances, you would never tell a patient who has pre-term premature rupture of membrane to take a plane flight. The fact that they travel tremendous distances while they have a condition that could cause internal hemorrhage at any moment is so unsafe. And, it’s all a result of this confusion and fear that has been created by these laws.

    Ms. Parker: Helene, let’s talk about the aftermath legally. We’ve heard a lot about what’s happening on the front lines medically, that’s very disturbing and alarming. Legally, the majority opinion suggests that overturning Roe will settle everything once and for all. We know that hasn’t happened. So, what has been the strategy legally? What’s been happening from a court perspective? Could you enlighten us on that?

    Ms. Krasnoff: Sure. Well, as I mentioned and we talked about, there were a lot of bans there that were in litigation, or as you talked about, trigger bans that were poised to take effect, and you won’t be surprised that we didn’t just let those bans take effect. Along with our coalition partners and with the private bar, there were efforts launched in state courts in 19 different states to block bans from taking effect. And, in fact, WilmerHale has represented Planned Parenthood affiliates in three of those states, in Idaho and Indiana, and in Ohio. These cases were brought in state court under the state constitution, so the state constitution is a source of independent rights for citizens of the state. So, you may no longer have a right to abortion under the US Constitution, but maybe the Colorado Constitution protects your constitutional rights. There are right now eight states where abortion is allowed despite bans due to these court efforts. In Arizona, in Indiana, Michigan, North Dakota, Ohio, Utah, South Carolina and Wyoming, the laws are blocked. So, it is definitely not the same as having Roe be a floor for the whole country. As you said before, the ending of the constitutional right to abortion has taken away that floor. But as a result of litigation in eight states right now that otherwise would have abortion bans and six of those states there are total bans and two are bans on abortion at approximately 6 weeks of pregnancy, before many people even know they are pregnant. These cases are in flux, they are not final. Winning is far from certain, and in fact, even if we win, we expect some of those states will come back and try and ban abortion again. So, these cannot erase, you know, what Dr. Tocce is talking about, the effect on the ground with the 18 states that are enforcing abortion bans has been nothing short of devastating, but we have seen some success in some places, and that is very meaningful. In fact, just yesterday the South Carolina Supreme Court, in a vote of three to two, found that their constitution, which includes a provision that protects its citizens from unreasonable invasions of privacy, means that their six week abortion ban cannot stand, and it struck down that law. So, in South Carolina today, those citizens are protected without the efforts of the litigation, would not be the case.

    Ms. Parker: We’ve had the good fortune to partner with you, Helene, on a number of these litigations and, I think, we have been pleasantly surprised that a number of courts in states that we did not necessarily think would be particularly hospitable to some of our arguments have been open to them, have seen the necessity of having a right to privacy in their constitutions that protects reproductive healthcare, and we’ve had some successes. Have there been other successes, not necessarily in the courts, but in the political process that you’ve seen?

    Ms. Krasnoff: Absolutely. So, since Dobbs abortion has been directly on the ballot in six states with ballot measures in California, Kansas, Kentucky, Michigan, Montana and Vermont, and in every single one of those, voters came out definitively for reproductive freedom in all six States. We have said banning abortion is not popular in any state, and no one believed us, so I actually do not think this is a surprise. People do not want abortion banned. I believe that the polling was as high as 80% of people did not want to see Roe v. Wade overturned. So, in that sense, these ballot outcomes were exactly what we expected. And this is in states like Kentucky and Montana. These are not all what you would consider the blue states.

    Ms. Parker: I also want to ask, given that there has been quite a bit of pushback a number of states, as we’ve said, have concluded that their state constitutions protect the right to abortion. What could we see going forward in terms of a potential federal ban on abortion if there were to be a president who is anti-choice in some future administration and both houses of Congress. Would that be something in your view, Helene, that would be permissible to have the federal government step in and take away, what some of these states have done?

    Ms. Krasnoff: I think it’s important to step back and hit on something you said earlier. Which is that this was never about sending it back to the states, it was never really about originalism or what the text of the Constitution said or whether or not abortion was banned in the 1800s. This was about banning abortion and very soon after Roe was overturned, the anti-abortion movement made it very clear that their end goal is a federal ban on abortion. We talked with Dr. Tocce about some of the ways this affects people in blue states now when it’s a patchwork, but if there’s a federal ban, I want to make clear for that New York or Maryland where I live or Colorado, where Dr. Tocce is, cannot save you from a federal ban. So, it’s a very real issue. I have no doubt that if a federal ban were enacted, that it would be challenged in the courts. But, of course, the same court that overruled Roe would be the one to ultimately decide whether or not Congress has that power to ban abortion and so, it is really hard to say what that outcome would be.

    Ms. Parker: Dr. Tocce, I want to circle back to what you said about your mentor when we started this conversation. If we were to see a federal ban on abortion, that would be applicable across the country in every state, red or blue, what do you think the effect would be on healthcare, on patients, on the real lives of pregnant women?

    Dr. Tocce: I am just thinking about my mentor and that pivotal event in medical school so many years ago, and in such disbelief that this is where we are today. With so many patients needing to travel, any state that currently has abortion access is indirectly or directly taking care of patients around the country and providing healthcare for any individual of reproductive age in our country. And with that in mind, I can’t adequately convey the absolute terror and outrage that the words “federal ban” elicit within me. Everything we have discussed so far regarding bans, highlight how detrimental and devastating this is to patients. A federal ban prohibiting certain states from serving as many patients as possible is simply incomprehensible to me at this moment in time, the ramifications and the health outcomes for our country will be grim.

    Ms. Krasnoff: I’d like to add how many people are already living that reality today, because the idea that they can make the kind of travel that is needed, especially in the Southeast region of this country and get to providers, the amount of distances are staggering that people have to travel today. If you look at a map, Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Oklahoma, Texas and West Virginia are all enforcing complete bans. Those are a group of the 13 states that are enforcing complete bans and you look at that on a map, the kind of distances you’re talking about that you have to travel to get to Colorado, to get to Illinois, you can only think about how many can’t make that trip at all and that never get seen.

    Dr. Tocce: Thanks for making that point so clearly. It is not lost on abortion providers that we are so fortunate to see the patients who can get to us, and knowing that for every patient we see that can get to our state, there are countless patients that are not able to make that journey, and that is something that I have to compartmentalize as a human being and a provider because those thoughts are so overwhelming. It’s stunning and, again, I have to compartmentalize that every day to be able to focus on the individuals that have been fortunate enough to be able to make that journey and are sitting in a health center with me.

    Ms. Parker: I think it’s a really good point and I know, Helene, from some of the litigation we at WilmerHale have done with you that we have witness statements, we have affidavits that we file in court, that lay out that the people who are most likely to be unable to travel are the most vulnerable. Whether they are young, whether they are low income, whether they are in communities of color that have been traditionally underserved, those are the ones who are most affected by these very lengthy travel requirements in leaving their state. I do want to bring us as we come to the end to a question, Helene, about a question about the Dobbs decision. There are certain aspects of the majority opinion, but also the concurring opinions that suggest abortion may not be the end of this and there may be other rights at stake, and I wanted to get your thoughts on that.

    Ms. Krasnoff: That is a super important question, and in fact, as you alluded to, Justice Thomas said the quiet part out loud in his concurrence. He wrote separately, and it seemed specifically to make this point, that he thinks the court should revisit the entire doctrine of substantive due process and that it should overrule cases about contraception, about consensual sexual behavior between same sex adults, and marriage equality as well. And, of course, this has to be the case because as we talked about at the beginning, they are all part of the same liberty right. They do not appear as words in the Constitution, nor were they rights that we had in the 1800s. You cannot pull on that thread of constitutional law that establish our right to decide who we are, who we love, how we establish our families without unraveling that whole sweater. There is no question this decision will embolden attacks on birth control, on IVF, on gender affirming healthcare. Well those rights, again, about who we love, how we live in the world, those are all the same liberty interest that was found in Roe. How we control our bodies, how we form our relationships, they are no different from the right to abortion. And so, I do feel confident that abortion was first, but it is far from last.

    Ms. Parker: Let me close by turning to Dr. Tocce, and just asking if there were to be a focus on banning contraception or some of these other areas of care, how do you think that would affect your patients?

    Dr. Tocce: Devastation is the word that comes to mind. The irony of saying you can’t access abortion care and then saying you can’t prevent pregnancy is just so stunning. Additional bans on any aspect of reproductive healthcare, there is no medical indication for this and it makes no medical sense.

    Ms. Parker: Thank you. This has been a sobering conversation, as much as I’m someone who’s very active in this area, as soon as I start talking about it and hearing directly from doctors treating patients, I’m always even more stunned. So, we want to thank you both for joining us. This has been a really important discussion.

    Mr. Walsh: Yes, thank you, everyone, for this important and informative discussion. That’s it for this episode. To our listeners, thank you so much for tuning into In the Public Interest and we hope you will join us next time. If you enjoyed this podcast and found it interesting, please take a moment to share it with a friend and also to subscribe, rate and review us wherever you get your podcast. Until next time, bye.

More from this series