Even before the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was leaked in May 2022, advocates for reproductive rights were planning for a future without federal constitutional protection for abortion. That future would depend on robust protections in states that intended to ensure that residents and visitors would keep control over their bodies and decisions about pregnancy.
The New York Civil Liberties Union (NYCLU) was especially concerned about whether minors would continue to be able to consent to confidential contraception and abortion services if Roe v. Wade were overruled. On the NYCLU’s behalf, Lowenstein researched and analyzed long-standing New York laws regarding minors’ rights to consent on their own to a range of health services, such as mental health care, testing and treatment for sexually transmitted diseases, addiction recovery, contraception, and abortion.
These laws tended to show that minors would retain their rights, and a more recent statute, the New York Reproductive Health Act, reinforced this conclusion by guaranteeing to “every individual,” without reference to age, “the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion.”
The NYCLU shared Lowenstein’s legal memo with the New York Attorney General’s Office and Department of Health, both of which responded by issuing guidance documents making clear that New York law would continue to protect minors’ independent and confidential access to reproductive health care regardless of the deterioration of federal constitutional protection.
More than 60 Lowenstein volunteers did research to create FAQs designed to help people in or traveling to New Jersey understand the protections they enjoy and the legal risks they face in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Three of the FAQs are posted on the firm’s website: one for reproductive health patients, one for those who assist such patients, and one for employers. A fourth, for health care providers, has guided a series of webinars offering education on the relevant law for the members of various professional health care associations. The firm undertook this work in collaboration with the ACLU of New Jersey and the statewide reproductive rights coalition.
In addition, the firm has presented on the shifting reproductive rights landscape to interested legal organizations, including the Women in Law Section of the New York State Bar Association and a Bench and Bar Conference hosted by the Association of Black Women Lawyers of New Jersey and the Garden State Bar Association.
Both New York and New Jersey are considering amending their state constitutions to protect decision-making about pregnancy. The firm is working with the ACLU affiliates in both states as they consider what positions and approaches to take and what language should be included in any such amendments.
The loss of federal constitutional protection for reproductive rights and the rapidly changing landscape of state-level restrictions and protections have created uncertainty for organizations that fund abortion services and practical support for abortion patients. The firm has stepped in to represent such organizations and guide them through decisions that require them to balance the mitigation of risk against the effectiveness and reach of their programs.