UT professor speaks on abortion rulings; Ridgers question

Abortion issues dominated conversation at a recent virtual League of Women Voters of Oak Ridge meeting.

University of Tennessee College of Law professor Valorie K. Vojdik, the guest speaker, explained that the reasoning behind both the original Roe v. Wade decision and it being overturned in a possible Dobbs v. Jackson Women's Health Organization decision revolved around debate over an implied right to privacy.

Vojdik's talk was to have been about women and gender equality issues in general. Those topics were still part of her talk, but news broke in May of a leaked draft decision indicating the U.S. Supreme Court might overturn the Roe v. Wade decision that grants women the right to have abortions.

“It’s 94 pages. I’ve only read half of it, I’ll admit,” Vojdik said of the leaked draft decision, reportedly written by Justice Samuel Alito regarding the case Dobbs v. Jackson (Miss.) Women's Health Organization. She said it had been published the night before her League talk and that statements by Chief Justice John Roberts seemed to indicate the document to be genuine. Vojdik pointed out the decision was not final, but a draft document.

Vojdik has since spoke to the newspaper via email, replying to questions and clarifying some of the points she made at the meeting, since she has now read the draft document in full. This story reflects those changes.

In regards to Alito's arguments in the statement on overturning Roe v. Wade, she said, “Who knows whether Alito will prevail in his reasons?”

What Oak Ridge residents asked

Political rhetoric regarding abortion often focuses on questions of women's equality or at what point a fetus is a human being. Some people at the online League luncheon meeting asked questions regarding whether the court's future decision would impact those issues.

In a chat comment, Oak Ridge resident Kowetha Mack asked, “Does overturning Roe v. Wade mean that the equal protection clause does not apply to women as to men, and will this mean that women will not own their own bodies, but they are subjected to state control?”

Resident Peter Scheffler asked, “If abortion is declared illegal, does (that) mean that the fetus is determined to be a person? Does this mean ... like it has to be counted in the census? Could miscarriage caused by exposure to toxic materials be determined to be murder? Or smoking and drinking during pregnancy be considered child abuse?”

Vojdik explained that the Roe v. Wade decision did not deal with the equal protection clause.

“It really hasn’t been interpreted as (being) about gender equality,” she said.

Regarding Scheffler's questions, Vojdik said the court "doesn't have to address" the question of whether a fetus is legally a person in order to overturn Roe v. Wade and the also-relevant to abortion Casey v. Planned Parenthood ruling.

"That's not to say states can't address that question or that the courts ultimately could address that question," she said.

"We have to really wait and see," she said with regard to what the decision's effect would be.

The right to privacy

Instead, the law professor said, the argument for the Roe v. Wade decision is based around the idea that the U.S. Constitution includes other rights beyond just the stated ones, including a right to privacy.

Vojdik said the Constitution's Fourth Amendment has led courts to rule citizens have an implied right to privacy, even if the stated right just involves searches and seizures.

Vojdik said historically the concept that the government has to respect the right to privacy has led to other limits on the government, not just with regard to abortion. For example, she said, parents have the right to raise their children “as they see fit without the interference of the state.” The right of an individual to decide whether to have a child, Vojdik said, also falls under this right to privacy under the original Roe v. Wade decision.

In Griswold v. Connecticut, a decision cited by Vojdik, the Supreme Court invalidated a law that forbade the use of contraception, finding the Bill of Rights created "zones of privacy" for married couples, based around this right to privacy.

In addition, the Constitution's 14th Amendment establishes the right to due process at the state level, Vojdik stated. Due process has been used by the Supreme Court to strike down state legislation that restricts personal liberties and interests not explicitly mentioned in the Constitution, like the right to privacy. Vojdik referred to this as "substantive due process" and said some Supreme Court justices were "hostile" to the idea.

Alito, in the leaked draft opinion, noted that "the Constitution makes no reference to abortion" and "no such right is implicitly protected by any constitutional provision." The 14th Amendment has been the justification for "some rights that are not mentioned in the Constitution," he wrote, but such implied rights must be "deeply rooted" in the nation's history. He contrasted it to other rulings regarding marriage and contraception.

"Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception and marriage, but abortion is fundamentally different," Alito wrote, "because it destroys what those decisions called 'fetal life' and what the law now before us describes as an 'unborn human being.'"

Vojdik, however, said it was an "open question" whether the Supreme Court could overturn the right to contraception on similar grounds to its possible overturning of Roe v. Wade. She said it would depend not just on the final decision, but its specific rationale and whether it involved substantive due process. She said the rationale behind the decision will affect how far it can "sweep."

State laws

Vojdik said some states, including Tennessee, are likely to ban abortion with trigger laws that would go into effect after a decision overturning the Roe v. Wade decision. She said 26 states are either certain or likely to ban abortions.

She also spoke with regard to a 2021 Texas law. The law makes it illegal to terminate a pregnancy after a fetal heartbeat is detected, but the only way to enforce this law is for citizens to sue if they believe the law has been violated. Police cannot enforce it.

“I don’t see any difference between this and bounty hunting in the Wild West,” Vojdik said regarding this Texas law.

Ben Pounds is a staff reporter for The Oak Ridger. Call him at (865) 441-2317, email him at bpounds@oakridger.com and follow him on Twitter @Bpoundsjournal. Orlando Mayorkin John Fritze and Jim Sergent with USA TODAY also contributed to this story, 

This article originally appeared on Oakridger: UT Professor talks about abortion ruling at virtual meeting