My colleague Jessie Hill has posted the second and third installments on "Overruling Roe over at PrawfsBlawg. I noted her first installment here.
In Part II, she briefly explored the landscape of abortion law in a post-Roe environment.
One possibility . . . is that the post-Roe legislation regulating abortion in ways inconsistent with earlier bans would be understood as impliedly repealing the prior legislation. Another possibility is that the eponymous doctrine of desuetude, or some version thereof, might prevent their enforcement, especially given that such pre-Roe laws in many cases would not garner a majority of the present-day legislatures in the states where they exist.In Part III, she raises the more interesting issue of the implications of a challenge to Roe — or, more likely in the immediate future, the overturning of Stenberg v. Carhhart — to a constitutional right to protect one's own health. Jessie argues that the Court's abortion decisions, particularly their insistence on a women's health exception to abortion restrictions, suggest a constitutional right to protect one's health that has not, as of yet, been relied upon in other contexts. The question, then, is whether this right would survive an overturning of Roe, and how it would play out in other health contexts.
Relatedly, our own Eugene Volokh explores a right to "medical self-defense" here. Jessie's discussion also brings to mind the D.C. Circuit's recent discovery of a right to potentially life-saving drugs, which we blogged about here and here.
UPDATE: For more on the D.C. Circuit's Abigail Alliance case, see here.