Elizabeth Tobin-Tyler, an associate professor at the School of Public Health and the Warren Alpert Medical School, spoke about the legal future of reproductive rights and women’s healthcare at a Watson Institute for International and Public Affairs event on Tuesday.
In the talk, Tobin-Tyler, whose research focuses on health policy and justice, defined reproductive justice as not just access to abortion, but as the “human right to maintain personal bodily autonomy.”
She framed the legal saga over reproductive rights around the historical context of sexism and mistreatment of women while noting that transgender women and non-binary people also experience disproportionate health risks related to reproductive justice.
Tobin-Tyler attributed the country’s shift on abortion legislation to former president Donald Trump’s three appointments to the U.S. Supreme Court, as well as to the growth of conservative legal movements which support overturning Roe v. Wade — a landmark case that gave federal protection to the right to abortion.
Since Roe v. Wade, the court has placed more restrictions on abortion, before overturning the ruling in the Dobbs v. Jackson Women’s Health Organization in 2022. Tobin-Tyler explained that the decision “very clearly applied this originalism and textualism approach, saying that the Constitution does not mention abortion.”
Originalism is the idea that the U.S. Constitution should be interpreted now as it would have been when it was written in 1787. “Abortion is not a fundamental constitutional right, because such a right has no basis in the Constitution’s history,” she said, summarizing the decision.
The Court turned the decision about whether to legalize abortion to state legislatures, arguing that this would allow it to uphold judicial neutrality.
“It’s clear that the Court, or at least (Associate Justice Brett Kavanaugh), did not really understand how complex it would be to leave abortion rights to the states,” Tobin-Tyler said, referencing recent legal cases that have emerged as a result of the Dobbs decision.
One ongoing legal debate is over the prescription and distribution of Mifepristone, a drug used for abortions and to treat women who suffered miscarriages. In 2021, the Food and Drug Administration allowed for Mifepristone to be dispensed at pharmacies and through the mail due to the COVID-19 pandemic. Previously, it was only available in clinical settings.
As a result, organizations such as the Alliance for Hippocratic Medicine raised challenges about whether the FDA had exceeded its powers, claiming that the decision hurt doctors with anti-abortion beliefs who may have to treat patients with complications from taking Mifepristone.
The Court ruled that the AHM and affiliated doctors did not have enough of a stake in the case to sue, but this has not prevented other states from filing similar claims.
“It’s clear that this case — even though it was decided on this idea of standing, or the individual plaintiffs who brought the case not being injured — is going to come around again,” Tobin-Tyler said.
Another question related to reproductive rights is whether the Dobbs decision is harming patients.
According to Tobin-Tyler, many doctors “have said that they think that the current landscape is not only making it harder to manage pregnancy emergencies, but affecting things like racial and ethnic inequities.” She pointed to the disproportionate rate of pregnancy mortality among women of color in the country.
Others are invoking previous federal health policies to protect abortion rights.
The Emergency Medical Treatment and Labor Act of 1986, or EMTALA, prevents doctors from refusing to treat patients based on their ability to pay. Recently, President Joe Biden used this law to argue that if a pregnant person needs to undergo an abortion to stabilize their health, doctors must perform one.
This application of EMTALA caused friction, since some states with abortion bans do not have provisions which allow for abortions necessary to the health of the pregnant person.
For Tobin-Tyler, gun control is also linked to reproductive justice.
“Homicide is a leading cause of death during pregnancy” she said. Rates of “intimate partner violence and homicide increase during the period of pregnancy,” and among “pregnancy related homicides, 68% of them involve a firearm.”
She discussed how originalism is often invoked in legal battles concerning both gun control and reproductive rights.
As legal battles over abortion access play out across the nation, Tobin-Tyler also highlighted other issues, ranging from travel restrictions for abortion to privacy laws about health information.
Kate Butts is a senior staff writer covering University Hall. Outside of The Herald, she loves running, board games and Trader Joe's snacks.
