UConn law professor says Connecticut is 'somewhat insulated' from Roe v. Wade's repeal
Before the Supreme Court overturned Roe v. Wade, saying that there is no constitutional right to abortion, Connecticut lawmakers who support abortion rights took steps they say will ensure that women in the state will still be able to obtain the procedure.
A law passed in the last General Assembly session broadened the categories of medical providers who are allowed to perform some abortions.
That same law banned public agencies in Connecticut from cooperating with abortion-related criminal investigations or lawsuits from other states.
Connecticut law specifies that the decision to terminate before viability is that of the patient, in consultation with a doctor or other medical provider.
UConn Law Professor Anne Dailey joined All Things Considered to talk about how safe these Connecticut laws are from being federally superseded going forward.
She also talks about how the repeal of Roe v. Wade affects young Connecticut women who attend college in states set to ban abortion.
Dailey also discusses what's next for state anti-abortion supporters as well as Connecticut's important role in the history of abortion rights in this country.
What are the legal ramifications of the Supreme Court ruling as it pertains to Connecticut law?
Dailey: I think the residents of Connecticut are not going to see a major change in the laws governing abortion in the state. Because Connecticut already has very liberal abortion laws. Abortion is available, pre-viability, there's really no restrictions on a person's ability to access abortion care, pre-viability.
After viability, there's abortions allowed, if the life or health of the pregnant person is endangered.
And so that's not going to change.
There will be a couple of issues that will come up. One is having the states that are going to be protecting abortion rights, absorb people coming from other states seeking abortions in their states.
It's not going to be dramatic for Connecticut because we're in the Northeast and the states surrounding us all protect abortion rights, but that's still possibly going to be something of an issue -- the increased demand.
And then there's the issue of the extent to which other states can reach into Connecticut to enforce their bans on abortion. So can they either criminalize a doctor or abortion provider in Connecticut who provides abortion care to one of their residents or provide for cause of action against that abortion provider? Those sort of conflict of laws issues are going to arise and could have an effect in Connecticut.
Connecticut lawmakers passed a law earlier this year that aims to create a legal safe harbor for abortion providers and patients. To what degree would Connecticut laws be superseded by the Supreme Court ruling?
Dailey: The ruling doesn't really bear on that. And I believe the governor has signed the law and that it will be going into effect on July 1. This safe haven law … if it's upheld by the Supreme Court, it's an important step to protecting providers in Connecticut and those seeking abortions from outside the state coming to the state.
But it's a law that provides for a cause of action by the person, by the provider in the state who's being sued in another state. So it's going to essentially protect that person from being sued; they can now sue the person who sued them. It's a complicated statute.
I would hope that the courts would be sympathetic to a statute of this sort, allowing a state — really in the name of federalism, allowing a state’s rights — a state to protect the integrity of its legal regime. But this is one of the many questions that are going to arise in the aftermath of the Dobbs case.
The majority … defended their case, their opinion, their decision, on the grounds that they wanted to send it back to the states, send the issue of abortion back to the states. They want to get away from the kind of instability that they claim, Roe vs. Wade, instituted over the past 50 years.
But the fact is that their this decision is going to engender a huge amount of instability in the … legal regime covering abortion. It's not even going to be just at the state level. The Supreme Court is going to have to decide a host of questions now, new questions arising having to do with ... whether the Dobbs ruling extends to contraception, to IUDs, the morning-after pill. What kind of requirements for exceptions might have to be made for the life of the mother or the health of the mother or rape or incest or age, for example.
Then the interstate conflicts – they're going to be very complicated. But what about mail-order drugs: Can a state prohibit those? Can it criminalize the woman's conduct? Could it pass a law to ... empower citizens to sue citizens of other states who are helping to or are assisting their residents in obtaining an abortion?
The idea that this decision settles anything is really quite laughable. It’s actually going to create a great deal of chaos.
It sounds like what you were just referring to was a series of legal slippery slopes. If we do this, then what does that lead to down the road? Specifically in Connecticut, what slippery slopes does it create here? And with regards to things like same-sex marriage, with regards to race equity issues, or even something like Title IX that just celebrated its 50 year anniversary?
Dailey: Again, I think Connecticut is somewhat insulated, because it has strong statutory and state constitutional protections for many of these rights. But if you take something like same-sex marriage. In his opinion, Justice Alito reassured all of us that the Dobbs case was not going to affect the court's rulings on other rights, other fundamental rights, like the right to same-sex marriage or the right to intimate sexual behavior, in particular, among same-sex couples.
But there's really no way to read that opinion – and the dissent mentions this – that there's no other way to read his opinion, but putting those rights into jeopardy as well.
So what does that mean for a state like Connecticut? I think we should feel pretty good about where we are in terms of our protection for fundamental rights. I think we have to worry about the rest of the country and the effects of this case on the rest of the country.
And also, I'll just take one example. If you think about something like the ways in which the rights could be eroded in Connecticut, right now under the prior Roe v. Wade framework, minors had a right to obtain an abortion without parental consent to notification. They had the right to go to a court and obtain a go through a procedure of judicial bypass. Without a fundamental right to an abortion, that's no longer the case. So in a state like Connecticut, if the legislature was interested, they could pass a law requiring parental notification or consent.
So there may be ways in which, in smaller ways, even though the general right to choose to obtain an abortion would still be intact in Connecticut, there may be ways in which it will be weakened or eroded with respect to particular applications.
This conversation has been edited for clarity.