When the Supreme Court ruled in Dobbs v. Jackson Women's Health Organization, everyone knew the fallout—for women, for doctors, for U.S. politics—would be profound. "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision," wrote Justice Samuel Alito in the majority opinion. With that, nearly 50 years of status quo surrounding abortion was ended. Dobbs torched the legal paradigm that had governed access across the nation since the Court's infamous 1973 ruling in Roe v. Wade and its 1992 decision in Planned Parenthood v. Casey.
Unsurprisingly, American abortion laws and access have been radically transformed since the Dobbs decision was released. As of September, in more U.S. states than not, abortion access is now reduced, threatened, or barely existent.
In the wake of the Dobbs decision, some red states rushed to pass new restrictions on abortion while others revived long-dormant statutes from a pre-Roe era or "trigger laws" passed more recently but only effective after Roe's demise. As a result, abortion is now banned or severely restricted at all stages of pregnancy in 15 states. In addition, four states now ban abortion at some point within the first trimester, and three states ban it at some point between 15 and 18 weeks of pregnancy.
None of these bans would have been constitutional under Roe, which said abortion must be allowed until the point of fetal viability (around 24 weeks).
Other states have attempted abortion bans but have been thwarted by legal challenges. New or additional bans have been enacted but blocked—at least temporarily—in seven states.
Abortion remains legal until at least the point of fetal viability—and sometimes after—in 23 states, largely in the Northeast, mid-Atlantic, and West.
But the new restrictions have meant some women have had to travel out-of-state—sometimes quite far—to get an abortion. Some who would previously have gotten an abortion did not do so. An analysis by the Society of Family Planning suggests that between July 2022 and March 2023 alone, "there were 25,640 cumulative fewer abortions" than there would have been otherwise.
In addition, new restrictions have made obstetric care more difficult for doctors and women dealing with nonviable pregnancies or health-threatening pregnancy complications. While all bans so far contain exceptions for cases where a mother's life is at risk, these exceptions don't always encompass cases where continuing a pregnancy is incredibly risky. That means some women who may eventually need to terminate a pregnancy are being told they can't do so until their condition gets worse.
Risk aversion by medical professionals here is understandable. Most of the laws banning abortion carry criminal penalties for doctors or other medical professionals who perform them. This may include jail time—life in prison is on the table in Alabama and Texas—as well as fines or the loss of a medical license. Some states also permit authorities to seek civil penalties for violations. In Texas, the attorney general can seek a civil penalty of $100,000 per illegal abortion.
Some bans can be enforced not by the state but through lawsuits filed by private citizens. Texas started this trend in 2021 with S.B. 8, a law allowing "any person" to sue someone who performs an abortion after fetal cardiac activity is detected and authorizing at least $10,000 payouts for successful plaintiffs in such suits. Opponents dubbed it the abortion "bounty hunter" law, and since then, similar laws have been introduced and sometimes passed in other states.
Meanwhile, conservative lawmakers continue to push new restrictions on reproductive freedom—including banning the procedure even earlier in pregnancy, limiting the methods that can be used, and restricting the types of facilities where abortions can be performed. Some show interest in adding more rules around advertising, record keeping, or patient notices—for instance, mandating that women prescribed abortion pills be told the procedure can be "reversed" after the first pill (a claim many medical professionals say is unfounded). Other proposals seek to expand categories of criminal liability, creating new crimes like aiding and abetting abortion, facilitating an unlawful death from abortion (a law meant to be used against abortion pill manufacturers and distributors), and "abortion trafficking" (helping a minor obtain an abortion without parental permission). Some would even establish that personhood starts at fertilization—opening up abortion-seeking women to attempted murder or homicide charges.
Suffice it to say, the legal status of abortion in many states has shifted—and continues to shift—quickly. For many Americans, things seem to be changing too fast and going too far. For others, however, the Dobbs world is proving frustratingly resistant to change.
But one thing is certain: Dobbs' effect on U.S. policy and politics is going way beyond shaping where abortion is and isn't legal. It's wreaking electoral havoc, shifting partisan calculations, and calling into question balances of federal and state power. It's also ushering in a new level of representative democracy in determining the limits of reproductive freedom—along with a backlash to the process that could reach far past policies surrounding abortion.
In many ways, the Roe and Casey era was simpler. But the new world could better reflect the underlying political reality that American opinions about abortion are complex, nuanced, and not terribly extreme.
The Moderate Majority Strikes Back
During the Roe era, it could be easy to forget most Americans are abortion moderates and don't fall easily into a "pro-choice" or "pro-life" binary. Now this fact could be swaying elections—and causing major problems for Republicans.
Poll after poll has shown that relatively few people think abortion should always or never be legal. For most, it matters when and under what circumstances—and they want laws and policies to reflect that.
For decades, politicians could pretend this wasn't the case. Abortion was a convenient frame for criticizing opponents, demonizing them as either killers who wanted to abort babies even as they were being born or troglodytes who wanted to keep all women barefoot, pregnant, and under men's control. But because of Roe and the way courts continually interpreted it, abortion was not something where there was room for a radical departure from existing policies or risk of fallout from taking a stand at odds with popular opinion.
This gave Republicans little to lose by pandering to the more extreme anti-abortion constituents among their base. The policies they pushed—and sometimes passed—wouldn't actually take effect, and no one had to live with the personal, political, or criminal consequences. If conservatives or conservative-leaning independents had some qualms about them, they could rest assured—and still vote GOP—knowing there was the Republican rhetoric, and then there was the Roe-mandated reality. Meanwhile, pro-choice folks could be somewhat complacent, knowing that courts would keep striking down any extreme restrictions on abortion access.
In short, abortion just wasn't something most people needed to have extremely specific views on or considered a political priority. But without Roe, abortion actually matters to voters in a way it didn't before. There are signs this won't work out well for Republicans stuck in the old paradigm.
A wealth of polling since the Dobbs decision suggests Americans are increasingly in favor of at least some legal abortion. "FiveThirtyEight gathered every poll that asked a standard question about abortion — whether it should be legal in all cases, legal in some cases, illegal in some cases, or illegal in all cases — since September 2021, and found that the share of American adults who want abortion to be legal in at least some cases is rising, and the share of Americans who want abortion to be illegal in all cases is falling," the polling analysis website reported in June.
This makes abortion a political boon for Democrats. There's strong evidence that the issue of abortion swayed some results in the 2022 midterms. Democrats credit it with helping them stanch losses in the U.S. House and keep control of the Senate. And Democrats are counting on the issue to give them another boost in 2024 too.
It's a much thornier issue for Republicans, caught between trying to appease constituents and donors who still expect them to take an aggressive anti-abortion stance and the large swath of more moderate conservatives and swing voters with less radical abortion views.
Evidence of this conundrum can be seen in all sorts of places, from the way former president and 2024 candidate Donald Trump has handled the issue to the way some Republicans have reacted to national ban legislation. Far from taking a big victory lap for appointing the judges that struck down Roe, Trump has focused relatively little on the issue and privately opined that Republicans are "getting killed on abortion." When Sen. Lindsey Graham (R–S.C.) introduced a bill in September 2022 that would have made performing an abortion after 15 weeks of pregnancy a federal crime, a number of prominent GOP strategists and lawmakers made it clear they wished he wasn't pushing it near election time.
As questions like the issue of a national ban become more salient—it was a big point of contention between candidates in the first 2024 GOP presidential debate—and state laws continue to come into focus, abortion will likely only become more important in upcoming elections. It could continue to drive Republican electoral losses unless GOP candidates start changing their tune.
A Republican Party in which pro-life politics are less of a focus may have to adapt in other ways too, adopting new strategies to drive religious conservative voter turnout or to appeal to moderates and independents. This could ultimately reshape the conservative coalition and/or conservative priorities.
But whether the GOP can get away with refocusing is another question. Even if some want to avoid talking about abortion, it will be difficult, since Democrats have every incentive to keep focus on the issue. "We should put the right to choose on every ballot across the country in 2024—not just with the candidates we choose, but with referendum efforts to enshrine reproductive rights in states where right-wing politicians are stripping those rights away," Illinois Gov. J.B. Pritzker, a Democrat, told CNN in April.
Putting Abortion Up for a Vote
Asking voters to weigh in directly on questions surrounding reproductive freedom helps reveal what Americans really want and will really stand for when it comes to abortion. The result could be the start of a much more democratic abortion paradigm than we've seen in decades—and the ticket to protecting at least some modicum of abortion access in many states.
"Deep in the American DNA is the belief that we should have as little government and as much liberty as possible," writes Elaine Kamarck at the Brookings Institution. "The law's intrusion into the complex medical and moral issues surrounding as personal a decision as abortion strikes at the heart of American's [sic] desires to control their own destiny. All indications are that by the end of the decade the Supreme Court's decision to return abortion rights to states will reinstate abortion across the land."
That may overstate the case a bit. But ballot initiatives related to reproductive freedom have been up for votes in six states since Dobbs was decided in June 2022, and all have come back with positive results for the pro-choice side. Notably, a number of these votes have taken place in largely red states, including Montana, Kentucky, and Kansas.
After the Dobbs decision, Kansas was the first state to vote on an abortion ballot initiative, in summer 2022. Voters resoundingly rejected a proposed amendment stating that the state constitution did "not create or secure a right to abortion," with 59 percent against. Conservatives had put the issue up for a vote as part of a primary election, which trend toward smaller and more Republican voter turnout in Kansas. But voters across the board turned out in droves, with around 47 percent of registered voters casting ballots, compared to 20 percent to 34 percent in primaries generally since 2010.
The 2022 midterm elections saw five states voting on abortion. The more pro-choice position won in all five.
In November 2023, Ohioans will vote on a proposed constitutional amendment to protect abortion access. Measures protecting abortion are already slated for New York and Maryland ballots in 2024, while activists in a number of other states have been preparing or circulating petitions to get measures on their 2024 ballots.
Many of these are being pushed as efforts to "restore Roe." They would institute a similar scheme to what was previously allowed nationwide, with abortion broadly legal in early to mid-pregnancy and bans allowed after a certain point. For instance, the proposed Ohio amendment states: "Abortion may be prohibited after fetal viability."
Pro-lifers in some states, including Colorado, are also working on getting initiatives on ballots. But with the way ballot measures—and abortion poll results—have been trending, the strategy is seen as much more friendly to the pro-abortion side.
The pro-choice tenor of public opinion so far is creating a backlash from conservatives. If this backlash succeeds, it could thwart not just the flourishing of ballot initiatives about abortion but also broader by-the-people lawmaking.
Ballot Backlash
A certain strain of Republicans long insisted that without Roe, abortion could become what it was meant to be: a state-by-state issue. But it's becoming clear—if it wasn't already—that many in the pro-life movement won't be satisfied with this arrangement if it doesn't lead to abortion being outlawed, or at least severely restricted, in their own states and perhaps nationwide. Some are even willing to make democratic processes more exclusionary if it will help get us there.
Whether conservatives were never serious about actually leaving abortion up to individual states or were only serious about it because they imagined that most Americans would support bans is unclear. But in light of the fact that voters keep embracing abortion rights and rejecting restrictions on reproductive freedom, some GOP politicians are responding with attempts to make it more difficult for voters to have a direct say in the issue.
Some of these attempts target the process for getting initiatives on the ballot in the first place, by requiring more signatures, restricting who can collect signatures, requiring a broader geographic distribution for signatories, or raising filing fees. In Arkansas, lawmakers passed a bill that requires signatures from 50 counties instead of 15 to get an initiative on the ballot.
Others target the vote threshold required to amend the state constitution. For instance, Ohio Issue 1 would have raised the threshold for passing constitutional amendments from a simple majority to 60 percent.
After enacting a law earlier this year to end special August elections, Ohio Republicans turned around and approved one for Issue 1—ensuring that if it passed, it would take effect before November's vote on an abortion initiative. But voters flocked to the polls and issued Issue 1 a resounding defeat, with 57 percent opposed—even some counties that went for Trump in 2020 voted against.
More battles like this are likely coming. According to the Ballot Initiative Strategy Center, 14 states have been considering "measures that would impact or weaken the ballot initiative process." And while stopping abortion amendments may not be the sole motivation behind such attempts, it's definitely one, and sometimes the main, driver.
In Mississippi, where a court order froze all ballot initiatives in 2021, a (now-dead) GOP-led bill would have again allowed them—except for abortion-related measures. "The state of Mississippi is pro-life," asserted Mississippi state Rep. Nick Bain on the House floor, while arguing against giving residents the chance to prove it at the polls.
Ohio Secretary of State Frank LaRose publicly denied that Issue 1 was about thwarting a reproductive rights amendment. He was later caught on video admitting this was his calculation. "Some people say this is all about abortion. Well, you know what? It's 100 percent about keeping a radical pro-abortion amendment out of our constitution," he said in a video shared by News 5 Cleveland and the Ohio Capital Journal.
Pro-life politicians are also finding other tactics to keep abortion initiatives off the ballot or stack the deck against them. For instance, LaRose's office has loaded Ohio's ballot language about the abortion amendment with biased phrasing, substituting "unborn child" for "fetus" and describing post-viability exceptions for a mother's life or health as "always allow[ing] an unborn child to be aborted at any stage of pregnancy" if a doctor signs off on it.
Missouri Attorney General Andrew Bailey tried to substitute his own fiscal analysis for that of State Auditor Scott Fitzpatrick's fiscal note summaries for 11 reproductive rights initiatives, saying the auditor had failed to take into account the lost revenue from Medicaid funding and future taxpayers being aborted. This left the petitions in limbo, with the secretary of state unable to certify ballot language and groups unable to start collecting signatures. In July, the Missouri Supreme Court ordered Bailey to approve Fitzpatrick's fiscal notes, writing that the matter is "not about the substance of…proposed initiatives petitions" but rather about the limits of the attorney general's authority. State Rep. Hannah Kelly (R–Mountain Grove) and state Sen. Mary Elizabeth Coleman (R–Arnold) then filed a lawsuit challenging the auditor's cost analysis.
The ballot process may not be the only thing under attack in order to stave off pro-choice policies. Some state officials—including those in Oklahoma and West Virginia—have started amending religious freedom statutes to prevent them from being used in legal challenges against abortion bans.
Abortion and the Administrative State
Republican lawmakers and officials aren't the only ones trying to buck the trend of more direct democratic influence and state-by-state differences on abortion policies. We're also seeing some intervention—and overreach—from the federal government, along with attempts to expand or curb abortion access by challenging administrative procedure.
At the heart of these actions is the issue of how much control the feds should have over abortion policy and how much should be left up to the states.
In July 2022, the Department of Health and Human Services (HHS) said that the federal Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals that accept Medicare patients to provide "stabilizing treatment" that may at times include abortion. "If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person — or draws the exception more narrowly than EMTALA's emergency medical condition definition — that state law is preempted," HHS advised. As part of this standoff, the Biden administration is investigating a pair of hospitals that refused to perform an abortion on a Missouri woman with pregnancy complications.
The Department of Justice told Postal Service workers last December they should continue delivering abortion pills even to people in states where abortion is banned.
But by far the biggest legal drama surrounding federal agencies and reproductive rights involves the abortion-inducing drug mifepristone (and its generic equivalents). Interestingly, the matter is playing out as a debate about the Food and Drug Administration (FDA) approval and regulatory process, not individual rights.
So far, one federal court has preliminarily enjoined the federal government from taking any action to make mifepristone less available in states that brought a lawsuit about its status. The case is about mifepristone being singled out "for excessive regulation," said the office of the Oregon attorney general. "Despite evidence that the drug is safer than Tylenol, burdensome restrictions on prescribing and dispensing mifepristone…expose patients to needless anguish and confusion" and "subject providers to bureaucratic oversight that makes providing care much more complicated than necessary."
Meanwhile, another federal court decision would suspend mifepristone approval entirely. That decision comes in a case brought by the Alliance for Hippocratic Medicine, which challenged the FDA's 2000 approval of mifepristone along with its later generic approval and loosening of restrictions on abortion pill prescriptions. In April 2023, U.S. District Judge Matthew J. Kacsmaryk held that the FDA erred in approving mifepristone originally and erred in its later challenged actions too; he ordered access to the drug suspended. The Biden administration appealed Kacsmaryk's ruling, and that same month, the U.S. Supreme Court granted the government's request for a stay "pending disposition of the appeal."
In August, the 5th Circuit held 2–1 that parts of Kacsmaryk's ruling should stand and parts should not. "We vacate the component of the order that stayed the effective date of the 2000 Approval and the 2019 Generic Approval," wrote Judge Jennifer Walker Elrod for the majority. However, the court upheld the parts of Kacsmaryk's ruling related to later FDA directives (including the FDA's actions allowing abortion pills to be prescribed virtually and shipped by mail and its 2016 guidance saying lower doses could be prescribed).
For now, nothing will change as the Supreme Court reviews the matter and decides whether to take up the case. The Biden administration and pharmaceutical company Danco Laboratories have both asked the Court to hear the case.
Even as the battle over abortion pill approval and prescribing plays out in the courts, the FDA has continued to loosen prescribing restrictions around abortion drugs and around birth control—proving that the Dobbs world will spur some opportunities for federal deregulation too.
In January, the FDA paved the way for retail pharmacies to dispense abortion pills. (Until 2021, they had to be prescribed and dispensed at a specially certified doctor's office and after that, only through mail-order pharmacies, since the FDA had failed to put in place a system for certifying retail pharmacies to dispense them.) The FDA also recently approved the first hormonal birth control pill for over-the-counter sale.
New Laws, New Lawsuits
While some challenges to abortion laws are playing out at the federal level, more of them are taking place in state courts. Lawsuits out of at least eight states have challenged abortion bans on religious freedom grounds. Another common tack is arguing that abortion bans violate privacy rights enshrined in state constitutions. Still others have asserted that bans violate women's right to self-preservation.
These challenges highlight one way the Dobbs landscape around abortion looks much like the pre-Dobbs landscape: It involves a lot of bills—of varying degrees of constitutionality—being introduced by state legislatures and, when passed, swiftly battled out in state courts.
But while lawsuits over abortion laws have long been common, the legal onus is now different, with more burden on abortion access advocates to prove that laws should not be allowed than on anti-abortion advocates to prove that they should be. Even as some of these laws are challenged in court and put on hold by judges, they can create a chilling effect on the provision of abortion in states that enact them.
So far, state supreme court rulings on abortion bans have been mixed. North Dakota's Supreme Court ruled in March that the state constitution implicitly protects the "right to obtain an abortion to preserve the woman's life or health." Oklahoma's Supreme Court struck down its bounty hunter laws in May, holding that they were unconstitutional because they conflicted with a decision saying that the state constitution protects an "inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life." Meanwhile, the Idaho Supreme Court said in January that its state constitution does not protect abortion. And in Indiana—the first state to pass tighter restrictions on abortion after the Dobbs decision was handed down—the state Supreme Court said in June that its constitution permitted a law banning abortion in almost all cases.
In South Carolina, Supreme Court rulings have been mixed. In January, the court struck down a six-week abortion ban, saying it placed an "unreasonable restriction upon a woman's right to privacy." But the state's legislature tried again in May, passing a similar ban with small tweaks. That measure returned to a South Carolina Supreme Court in which the author of the January ruling—Justice Kaye Hearn, previously the only woman on the court—had since retired. This time around, the court upheld the ban.
A lot of legal battles have been playing out over so-called "heartbeat laws," which ban abortion as soon as fetal cardiac activity can be detected (around six weeks of pregnancy—which means four weeks after conception and about two weeks after a woman would miss her first period). The vast majority of U.S. abortions take place within the first trimester—under 8 percent occur after 13 weeks of gestation, according to the Centers for Disease Control and Prevention (CDC)—but most of these do take place after six weeks. CDC data show that between 2010 and 2019, some 62.5 percent to 66 percent of abortions took place after six weeks.
State court rulings on heartbeat laws so far have been varied, with some allowed to take effect as legal challenges play out and others halted for the time being.
For instance, Florida Gov. Ron DeSantis signed a six-week ban into law in his state in April. But it will only take effect if a 15-week ban currently being challenged is upheld. That case turns on whether the Florida Constitution's privacy clause protects the right to an abortion.
An Opportunity in Disguise
In the Dobbs world, the future of abortion will almost certainly continue as a multifront battle—playing out in statehouses and courthouses, electoral politics, citizen-led initiatives, backlash to these initiatives, and attempts by federal agencies to set nationwide policy by novel means. Which of these avenues becomes the most influential remains to be seen.
For now, however, it's a world in which voters are starting to gain unprecedented power to determine abortion policy, both through the candidates they vote for and via direct referendums on questions related to reproductive rights.
Dissatisfaction with how voters use this power threatens to undermine it—along with democratic processes more broadly.
But if that can be avoided, we might start to see American abortion politics and policies better reflect the reality that most people in the U.S. aren't extremely pro-life or extremely pro-choice. They recognize the moral questions surrounding abortion aren't one and the same with the legal questions. They overwhelmingly differentiate between abortions that occur early and later in pregnancy. They support limits but also want to avoid substituting the judgment of politicians for the judgment of doctors and families in tough situations. They're wary of giving the state too much power to pry into people's reproductive lives.
The paradigm laid out in the Roe ruling attempted to grapple with some of this. But it also left citizens and their elected officials with little control over what is, no matter where you come down on it, a very serious and salient issue. In many ways, the Roe regime was simpler than where we find ourselves now. It was also less democratic.
The Dobbs decision was widely portrayed as a death knell for reproductive freedom in this country, and the past year has certainly offered up all sorts of incursions on this freedom. But it's also opening up new opportunities for supporters of legal abortion—who make up the majority of Americans—to turn their policy preferences and moral intuitions into political reality. This new reality has the chance to more accurately reflect American beliefs—if officials let it.
The post <em>Dobbs</em> Is Reshaping American Politics appeared first on Reason.com.
