Three years ago, Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade and returned the abortion issue to the democratic process. Following the Dobbs decision, there was a drastic shift in abortion law and policy, especially within the states. Clarke D. Forsythe, Senior Counsel, and Carolyn McDonnell, Litigation Counsel, explore these changes in the two years following the Dobbs decision in their article, The States’ Response to Dobbs v. Jackson Women’s Health Organization, published in the Notre Dame Journal of Law, Ethics & Public Policy.
The article explores the necessity and clarity of the Dobbs decision, which had an immediate constitutional impact. As a result of Dobbs, federal courts dismissed lawsuits, vacated injunctions, or ruled in favor of pro-life laws in at least thirty-five abortion cases. The Dobbs decision prevented future constitutional challenges asserting a federal “right” to abortion, and reaffirmed states’ police power to protect mothers and unborn children from abortion violence. Although some scholars criticized Dobbs for not going far enough to protect the unborn child, the decision restored our country’s legal history and tradition of protecting human life.
Most post-Dobbs changes have occurred at the state level. However, federal law had long limited abortion, including through the Hyde Amendment, the Partial-Birth Abortion Ban Act, and the Born-Alive Infants Protection Act. Yet, under the Biden Administration, federal agencies promulgated rules and guidance devising protections for elective abortion.
Before the Supreme Court issued Dobbs, states had a variety of laws regulating abortion clinics, protecting mothers’ informed consent, ensuring parental involvement, requiring public health data reporting, and prohibiting the public funding of abortion. Following the Dobbs decision, over fifteen states implemented or enacted a variety of gestational limits and issued state guidance clarifying these limits. But states uniformly excluded women from prosecution for abortion, and ensured medical professionals could intervene to save the mother’s life.
Some states expanded Medicaid for pregnant and/or post-partum women and established or increased funding for abortion alternatives. On the other hand, many states established statutory protections for abortion or amended their state constitutions through ballot initiatives to create a right to abortion.
Litigation in state courts has examined whether state constitutions contain a right to abortion and determined the validity of pre-Roe laws and conditional laws. With some limited exceptions, most of these cases affirmed the continued application of pre-Roe legal protections or declined to find a Roe-like “right to abortion” in state constitutions.
In this post-Roe world, considering that (1) many states acted immediately to enforce their pro-life laws, (2) years of Gallup polling data showed that a majority of Americans supported abortion rights before twelve weeks, while a majority supported legal limits after twelve weeks, and (3) nineteen states are now enforcing early gestational limits (at twelve weeks or less), the cause for life was as ready as public sentiment permitted, and more ready than most understood following the Dobbs decision. In the upcoming years, the pro-life movement must continue to battle for law and public sentiment that fosters authentic women’s healthcare and respects human life from conception until natural death.
Read the full policy paper here.
