On June 24, 2022, the Supreme Court of the United States (“SCOTUS”) overturned Roe v. Wade, holding that there is no constitutional right to choose an abortion. Under the Court’s rationale, the States now are free to delimit via legislation the scope of abortion rights within their jurisdictions.
In his majority opinion, Justice Alito, joined by four other Justices, held that Roe and Planned Parenthood v. Casey were incorrectly decided and that their premise that the right to choose an abortion is part of the concept of “liberty” protected by the Fourteenth Amendment’s Due Process Clause was erroneous. Holding that the right to have an abortion is not expressly preserved in the Constitution nor is it deeply rooted in the Nation’s history and tradition, the majority opinion determined that states were free to prohibit or limit abortion at their discretion.
Although joining the majority opinion, Justice Thomas also wrote separately to invite the Court to revisit (and similarly overrule) all cases grounded on an expansive interpretation of the concept of “liberty” in the Fourteenth Amendment, and indeed all cases grounded on the doctrine of substantive due process, including cases that currently guarantee the right to contraception, same-sex consensual sexual relations, and same-sex marriage. It will be interesting to see if future Court decisions in fact follow the path laid out by Justice Thomas. Such a result seems entirely plausible given the current composition of the Court, and as cited by Justice Thomas, would impact numerous other individual rights that had been recognized in the Court’s jurisprudence over the last few decades.
Notably, Chief Justice Roberts did not join the majority opinion and instead wrote separately, concurring only in the judgment of the Court. In his view, the Court should have only decided the narrow question before it regarding the constitutionality of Mississippi’s statute prohibiting certain abortions and should have stopped short of overruling Roe and doing away with the previously recognized limited constitutional right to choose an abortion.
As a result of the Dobbs decision, the power to regulate or legislate with respect to abortion rights is now in the hands of the States and territories. In Puerto Rico, competing bills have already been filed (although one has been temporarily withdrawn) to legislate on the issue in response to the SCOTUS opinion. One bill filed before the Puerto Rico House and later withdrawn, PC 1407, sought among other things to criminalize abortions, establishing a 99-year jail term for a woman who commits or consents to an abortion. In contrast, PC 1403 seeks among other things to characterize the termination of a pregnancy as an essential healthcare service, part of the sexual and reproductive rights of women in Puerto Rico and protects doctors and other health professionals who perform or assist in such services. An earlier bill which has been approved in the Senate and is currently pending approval in the House, PS 693, would prohibit most abortions after 22 weeks except in the case of a medical emergency to prevent the death or disability of the mother.
Any legislation must conform to the strictures of the Puerto Rico Constitution, as interpreted by our Supreme Court. In Pueblo v. Duarte, our Supreme Court reversed the conviction of a doctor duly licensed to practice medicine in Puerto Rico who was convicted for terminating a pregnancy. At that time, our penal code prohibited abortions except where there was a “therapeutic indication” and to preserve the health of the pregnant woman. Still today, our current penal code broadly prohibits abortions except as therapeutically indicated by a duly licensed physician to protect the health or life of the woman. The Duarte majority based its holding not on the Puerto Rico Constitution but rather on the right to choose afforded under the U.S. Constitution as then-recently held in Roe. And importantly, even though the Puerto Rico Constitution includes an express right to privacy which is lacking in the U.S. Constitution, it also noted that the right to choose an abortion afforded under Puerto Rico’s Constitution was coextensive with, and not broader, than the right recognized at that time under the U.S. Constitution. This limitation has been expressly acknowledged and reiterated in at least one subsequent opinion of our Supreme Court. In fact, even while Roe was still the law of the land, shortly after Duarte the Puerto Rico Supreme Court upheld the conviction of a doctor who performed an abortion, in the absence of a therapeutic indication to protect the health or life of the woman. SCOTUS having now overruled Roe, the obvious question now becomes whether the rationale of Duarte should be similarly discarded, and in such event, what is the effect on a woman’s right to choose in Puerto Rico?
In response to instant public debate on this particular issue following Dobbs, the Puerto Rico Department of Justice released a statement reiterating Duarte as the “prevailing” rule of law in Puerto Rico, and in accordance therewith, stating that Article 98 of Puerto Rico’s Penal Code does continue to allow for the right to choose an abortion under “therapeutic indication” diagnosed or recommended by a duly licensed doctor in Puerto Rico for the protection of the woman’s physical and mental health. That said, the Secretary of Justice recognized that because of Dobbs it is now up to the Puerto Rico Legislature to regulate over this issue.
It is evident that the decision in Dobbs has already had a direct and profound effect in public opinion. Regardless of the Puerto Rico Department of Justice’s assurances, there are legitimate doubts as to Duarte’s continuing applicability as a limit on legislative power. And if PC 1407 is any indication, there will be a push by certain groups to completely ban or criminalize abortions with fewer exceptions than currently recognized in our penal code. Given the current uncertain state of our constitutional precedent, it is likely that the Puerto Rico legislature will have the last say on the future of a woman’s right to choose.
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