SCOTUS Overturned Roe v Wade: The Impact On Criminal Justice

Last night, the United States Supreme Court effectively overturned Roe v Wade. SCOTUS did so by allowing a remarkable Texas law to take effect. The law prohibits abortions at six weeks. In many cases, this means that women must get an abortion before they even know they’re pregnant. This is obviously at odds with Roe v Wade’s holding that, at a minimum, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician” “[f]or the stage prior to approximately the end of the first trimester[.]” SCOTUS’s decision to let the Texas law take effect—which essentially overturned Roe v Wade in the process—is remarkable by itself.

What’s even more remarkable about the law is its enforcement measures. The law doesn’t allow the government to fine or penalize women seeking abortions or doctors performing them. It also doesn’t create other procedural obstacles like waiting periods, fees or counseling requirements before abortions can take place. Rather, it authorizes anyone to file a civil lawsuit against someone who “aids or abets” an abortion after six weeks. Some have likened this authorization to a new form of “bounty hunting” in Texas.

The new Texas law will certainly impact abortions. But it will impact the criminal justice system, too.

What the Texas law looks like in reality remains to be seen. Based on its statutory language, it appears that literally anyone who someone believes played a role in an abortion can face a lawsuit. This could be the woman herself. It could also be the physician or other healthcare workers involved. Or it could be any counselor or clergy member who provides guidance. And it could even be the Uber driver who takes the woman to the appointment. So long as someone, i.e., the “bounty hunter,” wants $10,000, they have an incentive to do whatever they can to find people they believe might have played a role in an abortion.

But SCOTUS’s decision to let Roe v Wade become outdated law doesn’t just impact abortions. It also impacts your privacy rights. In Roe v Wade, the United States Supreme Court held that it was the right of privacy, not some other right, that protected a woman’s decision whether to get an abortion. “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Your constitutional right to privacy could shrink. And so could your reliance on decades-old precedent.

If that right of privacy no longer exists, what other rights of privacy disappeared with it? If a state like Texas passes a law allowing its citizens to “hunt” down people involved in abortions, it’s not hard to imagine a state passing a law allowing its citizens to “hunt” down people involved in criminal activity as well. Sure, your Fourth Amendment rights protect you from unreasonable searches and seizures by the government. But that constitutional prohibition doesn’t apply to ordinary citizens.

And then, even if you don’t worry about your privacy rights, what about SCOTUS’s decision in general? The current SCOTUS has demonstrated a willingness to overturn longstanding precedent. After all, Roe v Wade has been the law of the land for nearly 50 years. It’s rare to see half-century-old precedent uprooted by the Supreme Court. But it’s even more rare for the Supreme Court to uproot decades-only precedent in the dark of night without so much as an order. Eventually, SCOTUS will likely use its “shadow docket” to overturn Roe v Wade. But it let the consequences of that decision fall into place without so much as a peep.