Lisa Ikemoto on the Ripple Effects of the Supreme Court’s Dobbs Decision

The consequences of the Supreme Court’s reversal of Roe v. Wade go far beyond the immediate right to terminate a pregnancy.  Some of the ramifications are only now being realized, months after the court’s landmark abortion ruling.

In this episode, Lisa Ikemoto, professor at the UC Davis School of Law, details some of the far-reaching ramifications of the Court’s Dobbs decision, which touch on issues of privacy, equality, eugenics, disability rights and medical research.

Lisa Ikemoto The biggest impact of these laws right now is all the uncertainty it's creating and the sort of pulling back from fear of the criminal consequences of a lot of activity that's probably legitimate legal activity. But because you don't know for sure, you're afraid.

Soterios Johnson The consequences of the Supreme Court's reversal of Roe v Wade go far beyond the immediate right to terminate a pregnancy. Some of the ramifications are only now being realized months after the court's landmark Dobbs ruling. In addition to affecting privacy rights and equality, the ruling also touches on issues of eugenics, disability rights and medical research. This is The Backdrop, a UC Davis podcast exploring the world of ideas. I'm Soterios Johnson. Lisa Ikemoto is a professor at the UC Davis School of Law, where she teaches bioethics, reproductive rights, law and policy and healthcare law. Her research focuses on how race, gender, disability and wealth affect access to healthcare and medical technology. She joins me now to talk about some of the far-reaching ramifications of the court's decision. Thanks for coming on to The Backdrop, Lisa.

Lisa Ikemoto I'm happy to be here. Thanks.

Soterios Johnson So immediately after the Supreme Court decision, many states moved to ban or limit abortions. Others moved to guarantee access. But you say beyond that, the anti-abortion movement has tapped into and revised aspects of reproductive control to its own purposes. How so?

Lisa Ikemoto Well, I have a number of examples. So it's been going on for a while. It didn't originate in response to Dobbs. So, for example, a few years ago, maybe 10 to 12 years ago, anti-abortion advocates ran billboard campaigns in neighborhoods including Oakland, California and Atlanta, Georgia. And those billboards asserted that there was a racist eugenics campaign aimed at Black women. And supported by a Planned Parenthood. So the billboards basically equated abortion with slavery or genocide. They had slogans on them or statements on them that said, for example, "Black children are an endangered species." Or another example, "The most dangerous place for an African-American is in the womb." So that's one example.

Soterios Johnson So they're implying that that the proponents of abortion are trying to use that to suppress the African-American population mostly. But but in reality, that has not been proven to be --there's no evidence supporting that those statements, right?

Lisa Ikemoto Correct. Yes. So those kinds of claims, again, they they argue that abortion advocates or abortion rights advocates are actually targeting communities of color in some sort of eugenics campaign. And then, as you indicated, the reality is much different. So going back to the late 1970s, Congress passed a law called the Hyde Amendment, which prevents the use of or prohibits the use of federal Medicaid dollars to be used for abortion, except when necessary to protect the health or life of a woman. So while the Constitution said until this year that everyone has a right to decide whether or not to terminate a pregnancy, it meant that for poor women or low income women, they couldn't actually exercise that right because of the Hyde Amendment. And disproportionately, it's women of color, including lack women who are enrolled in Medicaid and therefore prohibited through the Hyde Amendment from accessing abortion. So that's one example.

Soterios Johnson Right. Right. Is there another?

Lisa Ikemoto Yeah. I mean, in the past few years, several states have passed abortion restrictions that were effectively bans based on the reason for abortion. So they would, for example, criminalize abortion when abortion was provided to someone whose reason was the sex, race or disability of the fetus. And so that was, again, the sort of put into the eugenics framework, claiming that abortion was a tool of eugenicists. And in fact, eugenics from the early 20th century, when eugenics thinking was very prevalent, used forced sterilization or coerced sterilization as its primary tool, not abortion. Abortion bans are, in fact, much more like coerced sterilization. They take away the decision-making authority of the person who's trying to decide what to do about their pregnancy or whether or not to use a  fertility to have a children. 

Soterios Johnson So, yes, when you bring up the issue of disability rights, you also have said that public discourse about abortion has made it more difficult to raise concerns around disability rights. In what way is that, is that happening?

Lisa Ikemoto I think so. I think considering the perspective of people advocating for people with disabilities, it's it's a really complicated issue. And the abortion debate is taking place in very simple terms. It's, you know, in the mainstream discourse, there's only two positions. And that makes it difficult to raise any sort of complex analysis or conduct any kind of complex analysis. So, for example, for people from the from the perspective of some people with disabilities or disabilities rights advocates, abortion and the way that it's conducted and practiced in the United States can be troubling. It is common, for example, there's so much prenatal genetic testing, and in the process of that, people are encouraged either by just prevailing social norms that are discriminatory or by genetic counseling that they received or encouragement from their doctors or their family to terminate pregnancies when a risk for disability is identified through genetic testing. And on the one hand, that sends all kinds of messages that devalue the lives of people with disabilities. On the other hand, it also indicates that people who are considering having children face a very difficult prospect if they if they're going to need extra resources to raise a child with disabilities. Not every person who's born with disabilities needs a great deal of resources or any more resources than it takes other children to raise, but some do. And in the United States, there's relatively little social services for those families.

Soterios Johnson It's not so much that abortion itself, the the the procedure conflicts with disability rights. It's more about the genetic testing that comes beforehand and the social norms and the the lack of social support for children who may be born with with a disability.

Lisa Ikemoto And I think, like I said, it's a complicated issue, and that's maybe just two aspects of it. I mean, to some extent, if the restriction on access to abortion will impact some people with disabilities harder than it impacts other people, people without disabilities, because it might for certain types of disabilities, it might mean that it would be safer for that for them to undergo an abortion in a hospital setting, whereas the substantial majority of people obtain abortions in a clinic setting or at home using medication abortion. And hospitals are now becoming inaccessible in many states as places to receive abortion services. So there is some disproportionate effect just through the banning of abortion on some parts of the disabilities communities.

Soterios Johnson Now, the Dobbs decision also has implications when it comes to biomedical research. What are some of the potential impacts there?

Lisa Ikemoto So there's I think there's a wide range of them. As I think more about it, I'm coming up with more examples. So the most obvious or at least obvious to me, given the areas of my research impacts, are on research that use in vitro embryos. So this isn't true for all abortion laws, but some of the abortion laws include language that says life begins at conception or life begins at fertilization. And so that creates the possibility that an embryo, whether it's in vitro or in the body, could be characterized as a person and therefore protected by state law. And if that's true, then some of the research that's conducted for improving in vitro fertilization or for developing therapies through human embryonic stem cell research might put the researchers at risk because sometimes the embryos are destroyed in the process of research. So those are two examples. It's also possible that some research that's, for example, trying to discover the cause of miscarriage, they're tracking the menstrual cycles of women and they're using menstrual cycle tracking apps that are available widely right now. And those apps are collecting data. And so there is concern that the data could be used against the people whose, you know, maybe the app shows that they missed a period or they haven't had a period for several months. And that might raise suspicion that they were pregnant and maybe terminated the pregnancy and that might lead to an investigation.

Soterios Johnson And so people might be less willing to be using those apps. And then the data is not there for research.

Lisa Ikemoto And I think the researchers themselves have real concerns that they might be putting the participants and their research at risk for the legal consequences.

Soterios Johnson Right. So so many far reaching implications, ripple effects that this is having on on so many different aspects of life. What about the willingness of women to participate in clinical trials in general?

Lisa Ikemoto Yeah, that's a really good question. I mean, we certainly saw have seen during the pandemic very recently that it's really important to include women, including pregnant women in clinical trials to determine the efficacy and safety of vaccines, of therapies for things like COVID as certain as well as, you know, all the other things that we need therapy for. And historically, there's been a reluctance to include both women and especially pregnant women. And certainly one of the concerns has been even pre-Dobbs that if a pregnancy ends during a clinical trial of a not yet approved drug, that the researchers will be found or the drug company that's testing the drug will be found liable for causing the miscarriage that occurred, or even if it you can't prove causation that the suspicion itself will damage the prospects of the drug. And that becomes much more fraught now that you have laws that potentially criminalize or make civilly liable anybody who contributes to the end of a pregnancy.

Soterios Johnson So researchers and companies   will just be more fearful of conducting any kind of research that could lead to, you know, the accidental termination of a pregnancy or anything like that.

Lisa Ikemoto Well, I think, yeah, that's a concern. I don't know for certain that that's true, but I mean, that's a risk. And it means that. The, you know, the drugs that have been FDA approved without sufficient inclusion of people who are capable of becoming pregnant or people who are actually are pregnant during the course of the clinical trial, it means we don't have data on the safety and efficacy of the drugs on those populations. So when the drug is launched and distributed for use, it's you're a guinea pig, right? If you fall into those categories.

Soterios Johnson Are there any solutions or workarounds, you know, to address any of these these kind of issues that we've been talking about?

Lisa Ikemoto Yeah. Well, the solution would be protecting the access to abortion services. That would be one. I mean, that's sort of like, as I mentioned before, for research and the sort of longstanding problem of encouraging the inclusion of women or anybody who's capable of becoming pregnant, including pregnant people themselves in the clinical trials. That's a longstanding one. Again, it becomes more fraught for them. So I guess if it is turns out to be an actual problem, it means research is going to be much safer if it's conducted in states that don't criminalize abortion or put people at legal risk for  contributing to the end of a pregnancy or putting a pregnancy at jeopardy.

Soterios Johnson Right. I mean, again, the Dobbs decision basically says there is no right to abortion in the U.S. Constitution so each state can decide its own laws on the matter.

Lisa Ikemoto Exactly.  Yeah. And there's still a great number of states in which abortion is still accessible.

Soterios Johnson Right. But I was going to ask how other than Congress passing a law legalizing abortion nationwide, are there other ways to ensure access?

Lisa Ikemoto I don't think there's a quick fix. I don't think that there's a single fix. I think it's going to take a combination of political activism, including active participation in elections. So that includes things like standing up for the right to vote. And ensuring that as many people as possible have the ability to vote. So I think it's a multipronged issue. The other -- some of the complications are being created by states who are passing laws, trying to extend the reach of their restrictions and bans on abortion beyond their own state borders.

Soterios Johnson So what does that mean? Is that like banning their citizens, their state citizens, from going to another state to have the procedure?

Lisa Ikemoto Yeah, I think they take play. They they're taking they seem to be taking different forms. So some of them is the prohibition on travel and the Biden administration. Merrick Garland, who's the U.S. attorney general, for example, has said that the right to travel would make those kinds of prohibitions on travel unconstitutional. That might still have to be worked out in the courts to make that clear. But there are also laws, for example, like the Texas bounty law -- that that's a that's what it's being called in the media -- which authorizes private citizens and residents of Texas to sue anybody who provides an abortion in violation of the abortion ban or anyone who aids and abets an abortion in violation of Texas law to sue someone. And there's a penalty of $10,000 or damages of $10,000. So the question is, to what extent can a Texas citizen,for example, sue an out-of-state provider or the Uber driver who transported the person to New Mexico to receive the abortion services?

Soterios Johnson Right. So it would definitely have a chilling effect. Before any of this is kind of worked out in the courts at least.

Lisa Ikemoto Yes. Yeah. It's creating I think the biggest impact of these laws right now is all the uncertainty it's creating and the sort of pulling back from fear of the criminal consequences of a lot of activity. That's probably legitimate legal activity. But because you don't know for sure, you're afraid.

Soterios Johnson Right. So where do you see the status of abortion rights in the U.S. heading in the next few years?

Lisa Ikemoto Oh, that's a really good question. I tend to be an optimist. And so, you know, I think we're starting to see the realities of the effects of these laws. Many people thought before the decision was passed that a decision by the Supreme Court that said abortion is a states rights issue, that that would simplify everything. And in reality, it's turning out to be much more complicated. And the other very hard reality is that the impacts on abortion bans are very, very harmful. And the majority of people in poll after poll say they don't want complete abortion bans. They might agree with some abortion restrictions, but they don't want complete abortion bans. And so my hope is that that will prompt people to advocate in different ways, including through voting, on-the-ground activity, through policy organizations to open up the door again to abortion in the states that have in the meantime passed bans. So the states themselves will retract.

Soterios Johnson I kind of feel like, you know, elections on the state level and the more local levels, a lot of people just didn't really take them all that seriously compared to, you know, voting for your congressperson or for president.

Lisa Ikemoto Yeah.

Soterios Johnson And now we're realizing, like, well, that's the level that a lot of these decisions are being made at. And so if people take those more local elections more seriously, maybe the representatives elected might actually reflect the popular position on these on these things.

Lisa Ikemoto Yeah, I think that's exactly right. When I talk to students, they say you have to vote all the way down the ticket because the person who you're voting for, for city council might then run for state office. Right? And eventually maybe they end up in the state senate or the state legislature. Or the person that you're voting for as a judge, right, might get elevated to a court of appeals where their decision becomes precedent and maybe it's an abortion decision. So all those little elections add up.

Soterios Johnson Yeah, they absolutely do. And kind of a whole other topic is I feel like civics education in this country needs to be supported better at the younger level, too, because that's how you get people to realize how important it is to participate in a democracy for it to work.

Lisa Ikemoto Yeah, yeah, I agree with that.

Soterios Johnson That's a whole other conversation, though.

Lisa Ikemoto Right?

Soterios Johnson Well, Lisa, thanks so much for coming on today.

Lisa Ikemoto Yeah, it was a pleasure to talk with you. I hope I get to see you in person sometime.

Soterios Johnson Absolutely. Yeah. We'll have to make it happen.

Lisa Ikemoto Thanks, Soterios.

Soterios Johnson Sure. Thank you. Lisa Ikemoto is a professor at the UC Davis School of Law. You can find more about her work on our website, ucdavis.edu/podcast. If you like this podcast, check out another UC Davis podcast, Unfold. Season 4 explores the most cutting edge technologies and treatments that help advance the health of both people and animals. Join Public Radio veterans and Unfold hosts Amy Quinton and Marianne Russ Sharp as they unfold stories about the people and animals affected the most by this research. I'm Soterios Johnson and this is The Backdrop a UC Davis Podcast exploring the world of ideas.

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