Environmental Law in a Post-Dobbs World

By Milca Altamirano & Mia Petrucci

Published September 26, 2022

On June 24th, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization. In America, the Court declared, there is no constitutional right to abortion.[1] In doing so, the Supreme Court keeps its tradition of steadily weakening the Fourteenth Amendment’s Due Process Clause.[2] Central to the Court’s analysis was (1) whether the right to abortion is deeply rooted in the U.S.’s history and tradition and (2) whether it is essential to the country’s “scheme of ordered liberty.”[3]

While emphasizing the importance of history, the Court stressed that the right to abortion was non-existent before the latter part of the 20th century.[4] If the ratifiers—all of whom were men—did not understand people with uteruses’ autonomy to be protected by the Fourteenth Amendment at its adoption, then the Court’s analysis need not go further. The Fourteenth Amendment does not protect that which was not explicitly written in the Constitution or a part of antiquated U.S. history and tradition. The Court looked so far into history that it cited 13th century English texts to support its argument.[5] Thus, Dobbs calls into question similar rights of bodily integrity that were recognized by the Court after the 20th century, such as the right to contraception, same sex intimacy, and same sex marriages.[6]

The Dobbs decision has already had immediate consequences, with at least 13 states’ trigger bans prohibiting abortion within 30 days of the ruling, as well as multiple states that have pre-Roe bans that will come back into effect.[7] Furthermore, it will inevitably heighten state surveillance of people with uteruses’ bodies. The House of Representatives passed a bill on July 15, 2022—the Women’s Health and Protection Act—as an effort to protect reproductive rights in light of current state actions.[8] Additionally, several states have codified or begun the process of codifying the constitutional right to abortion within their state constitutions.[9]

The relationship between the Dobbs decision and environmental law may be unclear at first, but nothing happens in a vacuum. Environmental laws that are in place, repealed, or enacted have a direct impact on people who have uteruses in a post-Dobbs world. Consider the Supreme Court’s decision in West Virginia v. EPA.[10] There, the Court ruled that the EPA had no authority to regulate greenhouse gas emissions emitted by power plants.[11] The implications of such a decision have dire consequences for people who are pregnant.[12] Unregulated greenhouse gas emissions will worsen global warming and directly increase pollution levels, leading to fetal abnormalities.[13] Importantly, the effects of global warming will not be felt proportionately; lower-class people of color have been, and will be, disproportionately affected by climate change.[14] These same communities will face the biggest hurdles to reproductive justice because of the Dobbs decision. For example, “black women seek abortions at higher rates, partly because of lower contraceptive access and partly because, their pregnancies are more likely to have more dangerous complications.”[15]

Reproductive rights and environmental law are interconnected. And both are critical to protecting people with uteruses' health, autonomy, and futures. To further demonstrate the interconnectedness between reproductive rights and environmental law, an assortment of sources are provided for further reading.

Ancuta E. Frant’s, The Link Between Environmental Factors and Abortion.[16] Frant recognizes that environmental factors can influence the evolution of a pregnancy as well as influence the decision of the pregnant person to decide whether to terminate the pregnancy.[17] Environmental toxins that create birth defects or fetal anomalies are “mainly created because of the people’s influence over the environment, and are not effects created solely by natural environment.”[18] Frank explores the aftermath of human created disasters, namely nuclear experiments and meltdowns, on pregnancy, concluding that humans need to change the way they interact with the environment to protect the future of humanity.[19] “[T]he toxicity of the environment is an important factor which, combined with other circumstances, may have an influence on the evolution of a pregnancy and sometimes it may lead to spontaneous abortion.”[20]

Khiara M. Bridges’s, The Dysgenic State: Environmental Injustice and Disability-Selective Abortion Bans.[21] Bridges recognizes the reality that environmental harms disproportionately impact people of color and low income communities, and that many environmental toxins cause fetal abnormalities.[22] Disability-selective abortion bans—which prohibit individuals from terminating a pregnancy because of a health impairment—solidify the failure of the state to protect its citizens and force those citizens and their successors to bear those consequences.[23] “This Article proposes that the dysgenic state is a state that compels its citizens to give birth to children whose health has been impaired by environmental toxins from which the state has not protected them. Thus, in order for a state to be dysgenic, it must not only compel the birth of health-impaired infants, but it must also be the site of environmental harms that the state has not seen fit to prevent or correct.”[24]

Steven Bader’s, The Perceived Conflict Between Human Rights and Environmental Protection.[25] The Supreme Court, in Roe v. Wade, recognized that“population growth…[and] pollution…tend to complicate the [abortion] problem.”[26] Bader argues that environmental groups should use abortion as part of their environmental policy, as it serves to protect the environment from the ever growing strain of a swelling human population.[27]“[I]t now behooves environmental groups to follow up on [the] connection [between abortion policies, population, and the environment] and lobby for policies that ensure that the rights of women to plan their families are important, not only in forestalling the cruel Malthusian consequences of 45,000 daily deaths of starving children, but in protecting the environment as well.”[28]

Baharat H. Desai & Moumita Mandal’s, Role of Climate Change in Exacerbating Sexual and Gender Based Violence Against Women.[29] Desai and Mandal discuss the ramifications of climate change on women and children, due to their traditional roles in society, and how this has lead to an increase of sexual and gender based violence (SGBV).[30] SGBV spikes during disaster and conflict, which can result from extreme weather events caused by climate change, and additionally “climate extremes exacerbate existing inequalities, vulnerabilities and negative gender norms.”[31] Desai and Mandal call for international and national legal and institutional mechanisms to address these disproportionate impacts.[32]“A close study of four main areas of international law does not yield any international legal instrument that deals with SGBV against women during and after the climate change induced disasters. This is more ominous when growing evidence suggests [the] role of climate change in exacerbation of SGBV against women and girls.”[33]

For additional reading we recommend these articles:

Valerie Baron, Dobbs is Dangerous, Especially in an Era of Climate Change, NRDC (July 6, 2022), https://www.nrdc.org/experts/valerie-baron/dobbs-dangerous-especially-era-climate-change.

Sarah Graham, Air Pollution Can Affect Fetal Development, Scientists Say, Scientific Am. (Feb. 16, 2005), https://www.scientificamerican.com/article/air-pollution-can-affect/#:~:text=Exposure%20to%20urban%20air%20pollution,whose%20mothers%20breathed%20cleaner%20air.

Adam B. Lerner, What Does Abortion Have to do with Climate Change?, Politico (June 18, 2022, 10:56 PM), https://www.politico.com/story/2015/06/what-does-abortion-have-to-do-with-climate-change-119192.

Sujatha Jesudason & Julia Epstein, The Paradox of Disability in Abortion Debates, 84 Contraception: Editorial 541 (2011), https://www.law.berkeley.edu/php-programs/centers/crrj/zotero/loadfile.php?entity_key=42XGUTP7.

Michael R. Parker, Two Sides of the Same Coin: Considering Human Rights When Designing Environmental Policy, 25 J. of Land Use & Env’t L. 109 (2009).

Alexandria Herr, The Climate Reality of Roe v. Wade, Atmos (May 9, 2022), https://atmos.earth/roe-v-wade-climate-change-abortion/.

[1] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022). [2] See Slaughter-House cases. [3] Id. at 2235 (quoting Timbs v. Indiana, 139 S.Ct. 682 (2019)). [4] Id. at 2254. [5] Id. at 2249. [6] Id. at 2301 (Thomas, J., concurring). [7] Caroline Kitchener et al., Abortion is Now Banned in these States. See Where Laws Have Changed., Wash. Post. (July 22, 2022, 4:30 PM), https://www.washingtonpost.com/politics/2022/06/24/abortion-state-laws-criminalization-roe/. [8] Amy B. Wang & Eugene Scott, House Passed Bills to Codify Abortion Rights and Ensures Access, Wash. Post. (July 15, 2022), https://www.washingtonpost.com/politics/2022/07/15/house-abortion-roe-v-wade/. [9] State Constitutions and Abortion Rights, Ctr. for Reproductive Rights, https://reproductiverights.org/state-constitutions-abortion-rights/. [10] West Virginia v. EPA, 142 S. Ct. 2587 (2022). [11] Id. at 2610. [12] See Ancuta E. Frant, The Link Between Environmental Factors and Abortion, J. of Pub. Admin., Fin., & L. 158 (2015), https://www.jopafl.com/uploads/issue7/THE_LINK_BETWEEN_ENVIRONMENTAL_FACTORS_AND_ABORTION.pdf. [13] Sarah Graham, Air Pollution Can Affect Fetal Development, Scientists Say, Scientific Am. (Feb. 16, 2005), https://www.scientificamerican.com/article/air-pollution-can-affect/. [14] See Press Release, EPA, EPA Report Shows Disproportionate Impacts of Climate Change on Socially Vulnerable Populations in the United States (Sep. 2, 2012), https://www.epa.gov/newsreleases/epa-report-shows-disproportionate-impacts-climate-change-socially-vulnerable; Balgis Osman-Elasha, Women…In The Shadow of Climate Change, UN, https://www.un.org/en/chronicle/article/womenin-shadow-climate-change (last visited Aug. 31, 2022). [15] Christine M. Slaughter & Chelsea N. Jones, How Black Women will be Especially Affected by the Loss of Roe, Wash. Post. (June 25, 2022, 7:00 AM), https://www.washingtonpost.com/politics/2022/06/25/dobbs-roe-black-racism-disparate-maternal-health/. [16] Ancuta E. Frant, The Link Between Environmental Factors and Abortion, J. of Pub. Admin., Fin., & L. 158 (2015), https://www.jopafl.com/uploads/issue7/THE_LINK_BETWEEN_ENVIRONMENTAL_FACTORS_AND_ABORTION.pdf. [17] Id. at 159. [18] Id. [19] Id. at 162. [20] Id. at 160. [21] 110 Cal. L. Rev. 297 (2022). [22] Id. at 297. [23] Id. at 329. [24] Id. [25] 13 Gonzaga J. of Int’l L. 3 (2009). [26] Id. at 10 (citing Roe v. Wade, 410 U.S. 113, 116 (1973)). [27] Id. at 11. [28] Id. [29] 51 Env’t Pol’y & L. 137 (2021). [30] Id. at 137. [31] Id. at 139 (citing CARE Int’l, Suffering in Silence: The 10 Most Under-Reported Humanitarian Cries of 2019 (2020), care-international.org.). [32] Id. at 151. [33] Id. at 137.

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