Supreme Court Commentaries
Abortion, Dobbs, Human Rights
Constitutional Law | Law
Even in the era before Dobbs, wherein the Supreme Court repeatedly classified abortion as a "fundamental right," the ability to have an abortion was inaccessible in many parts of the United States. The irony that a "fundamental right" was so difficult to exercise results from how Constitutional rights are understood, which left many open-ended avenues for states to bring restrictions. International Human Rights law, however, offers a more optimistic and accountable approach to steps forward in increasing abortion access—illustrating a need to bring a human rights-based approach home. Dobbs has eviscerated any concept of federal protections for abortion, severely worsening the situation. But, a lack of abortion rights was already a lived reality for many before Dobbs. In the wake of Dobbs, advocates must demand more of lawmakers by expanding the rhetoric and law surrounding abortion beyond our Roe-regime understanding. Moving forward, overturning Dobbs and going back to Roe is not good enough. This Note therefore calls attention to the shortcomings of the pre-Dobbs regime, lest they be lost in a sea of calls to "codify Roe." In the meantime, this Note provides a framework for effective human rights advocacy in the abortion context. It also documents the benefits and shortcomings of self-managed abortion care, a practice that will remain relevant in Dobbs' aftermath.
Part I of this Note will first examine the evolution of United States case law and policy regarding abortion, noting the previous federal right and Dobbs' elimination of such protections. Part II will explain the flaws of the previous negative rights regime under Roe and Casey that created access gaps, permitted harmful restrictions, and failed to hold states accountable. Part III will compare the United States' pre-Dobbs approach to abortion protections to International Human Rights law and highlight the United States' express failure to ratify international treaties and adopt the positive rights approach to abortion. Highlighting the difference between a "fundamental right" before Dobbs and a "human right" under International Human Rights law, this Part will use this comparison to point out additional flaws and gaps created by the negative rights approach. Finally, Part IV will explain and analyze how self-managed abortion presents a potential solution to the issues posed by federal legal doctrine. This Part will include an examination of various self-managed abortion efforts already underway, in light of human rights advocacy goals, and demonstrate the need for governmental accountability for solutions beyond what self-managed advocacy efforts may be able to achieve.
Kelly Keglovits, A Way Forward After Dobbs: Human Rights Advocacy and Self-Managed Abortion in the United States, 18 Duke Journal of Constitutional Law & Public Policy Sidebar 73-102 (2022)