The Supreme Court rules; the states legislate; the President orders; the Congress vote; the people talk. And the story surrounding the topic of abortion in the United States evolves every day.
On June 24th, 2022, the Supreme Court held in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to abortion. This decision overturned the Court’s 1973 decision in Roe v. Wade, which previously held that a woman’s fundamental “right to privacy” made it unconstitutional for states to prohibit abortion before the unborn child reached a gestational age where it could survive outside of the womb. The abortion issue came before the Court anew because of a law passed in Mississippi four years earlier.
In 2018, Mississippi passed a law banning nearly all abortions after 15 weeks gestational age. In response, Jackson Women’s Health, an abortion facility in Mississippi, challenged the law in federal district court. The court ruled in favor of the abortion clinic, finding that the Mississippi law violated the precedent set in the case of Roe v. Wade. The state of Mississippi appealed to the U.S. Court of Appeals, and that court also pointed back to Roe as the binding authority when it affirmed the lower court’s ruling against the Mississippi law. Next, the Mississippi law came before the Supreme Court, the only court that can overturn past Supreme Court precedent.
In the Dobbs majority opinion, Justice Alito wrote that the Court’s past decision in Roe was “egregiously wrong” and “on a collision course with the Constitution from the day it was decided.” The Court’s foremost reasons for overturning Roe were that the decision had “short-circuited the democratic process,” and it lacked grounding in the Constitution’s text, the nation’s history or the substance of earlier precedent. With Roe overruled, “the authority to regulate abortion is returned to the people and their elected representatives.”
State legislatures across the U.S. have reacted differently to their new regulatory authority. Seventeen states have passed abortion bans; eight are already in effect, and the others are either taking effect soon or temporarily blocked in state courts. The most stringent prohibitions—effective in Alabama, Arkansas, Missouri, South Dakota and Texas—provide an exception for instances where the mother’s life is at risk. Seven other states have passed gestational age abortion restrictions, while others say they will address the subject in their next legislative sessions.
On July 8th, President Biden signed an Executive Order titled “Protecting Access to Reproductive Healthcare Services.” The order directs three federal agencies to respond to what he called a “health crisis.” The Department of Health and Human Services must report to the President on what actions it might take to guard and expand abortion access. The Justice Department shall identify areas it may act under existing law and coordinate relevant legal resources. The Federal Trade Commission will consider additional steps to protect consumer data. This Executive Order is part of the President’s stated aim to “defend reproductive rights and protect access to safe and legal” abortion; however, he pointed to Congress as the authority capable of making new federal laws on abortion.
On July 15th, the House of Representatives passed two bills that would bring massive change to abortion law if they became law. First, the “Women’s Health Protection Act” would prevent states from putting any limitation or requirement that impedes access to abortion before the point of fetal viability. If the Act became federal law, it would reinstate and add to Roe‘srestrictions on state ability to restrict abortion. Second, the “Ensuring Women’s Right to Reproductive Freedom Act” would ensure that no state laws prevent women from traveling to another state to receive an abortion and that FDA-approved abortion pills will move in interstate commerce unhindered. However, the current Senate is not expected to pass either of these bills.
American sentiment on abortion is far from unified. Pro-life advocates and organizations responded to the Dobbs verdict with celebration. Many abortion supporters derided the decision as one that suppresses women’s rights. Speaking from the Pro-abortion perspective, President Biden said, “We need two additional pro-choice senators and a pro-choice House to codify Roe as federal law” and added, “Your vote can make that a reality.” In the congressional midterm elections, the country will cast votes for representatives who will either codify federal abortion law or leave regulatory decisions to the states. In the meantime, the public continues to discuss the issue and the national situation evolves.
On the surface, it might seem there is nothing Pro-life and Pro-abortion Americans can agree on related to the topic. But in the face of rapidly shifting policy, newly filed lawsuits and the midterm elections right around the corner, people on either side of the issue might agree that things are changing rapidly, and it is a little hard to keep up.