Under Hawaii law the state cannot deny or interfere with a woman’s right to choose or obtain an abortion of a nonviable fetus or an abortion “that is necessary” to protect the life or health of the female.

The law ensures that a woman’s access to abortion remains in effect, even though the U.S. Supreme Court on Friday overturned Roe v. Wade when it determined in a 5-3-1 decision that abortion is no longer a federal constitutional right.

However, the Dobbs v. Jackson Women’s Health Organization decision, widely expected since a draft was leaked to the media in May, still upends a right that has existed for nearly 50 years.

Its historic impact and possible repercussions are underscored by the view of Justice Clarence Thomas, who argued in a concurring opinion Friday that the Supreme Court should reconsider past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage.

Those rulings are, respectively, Griswold v. Connecticut (1965), Lawrence v. Texas (2003) and Obergefell v. Hodges (2015). A fourth related decision, Eisenstadt v. Baird (1972), allows unmarried couples to obtain contraception just as married couples can.

“It’s bad,” said Jeff Portnoy, a partner with Honolulu law firm Cades Schutte who has also served as a per diem judge and adjunct professor at the University of Hawaii Manoa. “Yes, the court has questioned where the right to privacy is in the constitution. But it is in the Hawaii constitution, so abortion will still be legal as it is now a state issue.”

Washington D.C., USA - January 22, 2015; A Pro-Life woman clashes with a group of Pro-Choice demonstrators at the U.S. Supreme Court.
Demonstrators last year at the U.S. Supreme Court. Getty Images/2021

Portnoy says the same goes for gay marriage and contraception, explaining that these are now state rather than federal issues.

“The federal right is on the ropes with this court,” he said.

“It means nothing legally for Hawaii,” agreed Dan Foley, a retired state judge and civil rights attorney. “All the decision said, ultimately, is that abortion is a decision for the states to decide.”

Hawaii became the first state in the country to legalize abortions in 1970, three years before the Supreme Court’s landmark Roe v. Wade ruling.

Foley, who represented the plaintiffs in Baehr v. Lewin — the 1990 case that would prove instrumental in eventually making gay marriage the law of the land — said the one possible impact from the court’s overturning Roe is that Hawaii may become a destination for people to fly here to have an abortion.

“Canada and Mexico may be impacted too,” said Foley, who noted that Associate Justice Brett Kavanaugh raised the issue of travel in a concurring opinion. While some states are looking to constrain the right to travel to obtain an abortion, Foley said that Kavanaugh rightly pointed out any such restrictions would violate the federal Interstate Commerce Clause in the Constitution.

“So there may be more demand for abortion here from people coming from other states,” said Foley.

Sixteen states including Hawaii and the District of Columbia have laws that protect abortion laws. But it’s estimated that as many as 26 of all U.S. states could now ban abortion.

NPR reported Friday that 13 states have trigger bans, laws that take effect “either immediately, by state official certification or after a 30-day waiting period.”

Besides the legal arena, it is in politics and government where the fallout from the Dobbs v. Jackson ruling was most immediate.

Within minutes of the decision’s announcement President Joe Biden, a Democrat, blamed the appointment by Donald Trump, the former Republican president, of three of the associate justices (including Kavanaugh) that sided with the conservative majority in Dobbs.

Trump’s vice president, Mike Pence, meanwhile, praised the ruling, stating that the court gave the American people “a new beginning for life” and commended the justices in the majority “having the courage of their convictions.”

Closer to home, U.S. Sen. Mazie Hirono called Dobbs “one of the worst decisions” in the history of the court and called for action: “We must rally together and elect more Democrats in November to protect our Democracy and our civil rights.”

And Jill Tokuda, a Democrat and former state senator now running for Hawaii’s 2nd Congressional District seat, tweeted, “We need to codify access to abortion care, fully fund Planned Parenthood, Title X and repeal the Hyde Amendment.”

“Despite the ruling, I can assure you that women in Hawaii will continue to have access to the healthcare they need, and that includes abortion.” — Gov. David Ige

Title X is a federal program providing family planning and related preventive health services, while the Hyde Amendment is a legislative provision barring the use of federal funds to pay for abortion except to save the life of the woman and in cases of incest or rape.

Tokuda, who has been endorsed by the pro-choice political action committee EMILY’S List, included the hashtags #RoeVsWade #ReproJustice in her tweet Friday.

Gov. David Ige, a Democrat, called the court’s action “extreme,” “outrageous” and “a huge step backward for women’s rights.”

“Despite the ruling, I can assure you that women in Hawaii will continue to have access to the healthcare they need, and that includes abortion,” he said in a statement. “Hawaii law already protects the right of individuals to make their own deeply personal reproductive health decisions, including the right to seek abortion care. I will do everything in my power to ensure that women retain control over their own reproductive choices.”

On the other side of the political divide, however, Eva Andrade, president of the conservative Hawaii Family Forum, said in a statement that the fight over abortion “is not over for us.”

Andrade called for churches and their flocks to offer help and hope “to abortion-vulnerable women and men” and to encourage donations to pregnancy resource and medical centers “that offer resources to pregnant women who choose to keep their babies, give directly to mothers in need, or simply walk with those that are hurting by providing the resources they need the most.”

Gary Cordery, a Republican candidate for governor, said he was “overjoyed” by the Dobbs decision.

“This decision will allow the people of Hawaii to decide what works for them and, as scientific knowledge of this issue continues to expand, the power is now back in the hands of the voters, where it should be,” he said in a statement.

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