Life After Dobbs: The Changing Framework of Reproductive Rights in the United States
By Layla Brendle ‘27
A constitutional foundation altered, shaken, and dismantled. Since the decision of Roe v. Wade in 1973, the United States has recognized abortion as a constitutional right. This was then reaffirmed in Planned Parenthood v. Casey in 1992, which upheld Roe while allowing some state-level regulations. In 2022, the Supreme Court issued a monumental decision in Dobbs v. Jackson Women’s Health Organization, this decision removed the federal protection for abortion rights and returned the authority to regulate abortion to the individual states. This decision led to a wide variety of patchwork laws that vary across the country, leading to the limitation of access to abortion and reproductive care. This decision not only reshaped the legal framework of reproductive rights but also raises questions as to how accessible reproductive care is and will become. Dobbs' decision fundamentally reshaped reproductive rights in the United States by dismantling the foundation of federal protection for abortion and reproductive care, shifting legal authority to the states, and prompting pressing legal, social, and ethical debates for the future of reproductive healthcare.
In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court recognized that a woman’s decision to terminate a pregnancy fell within the right to privacy, which is highlighted in the Due Process Clauses of the Fourteenth Amendment. Justice Harry Blackmun wrote for the majority and declared that the “right to privacy” is broad enough to encompass a woman’s decision to terminate her pregnancy. However, this was challenged by the state's interest in protecting maternal health and potential fetal life. To balance these competing ideas, the Supreme Court’s decision in Roe established the renowned trimester framework. This highlighted that, within the first trimester, the decision to terminate a pregnancy was left to the discretion of the woman and her physician. As pregnancy approaches the second trimester, states could regulate abortion procedures. However, it was only to protect the life of the mother. In the third trimester, states could regulate and even proscribe abortion, except when it is necessary to preserve the life of the mother. This framework effectively nationalized abortion access and protected the mother's decision as it falls within the right to privacy highlighted in the Due Process Clause in the Fourteenth Amendment. However, this framework faced heavy criticism from scholars and politicians who argued that this decision lacked a constitutional foundation and that the decision was a judicial overreach.
Almost 20 years later, Roe v. Wade's decision was revisited in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). This case ultimately reaffirmed the central holding of Roe, stating that women have a constitutional right to choose abortion before fetal viability. However, the trimester framework was rejected and replaced with the “undue burden” standard. This ultimately allowed states to have more regulatory authority while still protecting the fundamental right to abortion. These implemented policies, such as wait period, informed consent requirements, and parental consent, were placed as long as they did not act as a substantial obstacle in the path of a woman seeking abortion access. This case served as a balancing test between state regulation and an individual's right to privacy to seek abortion in the pre-viability state.
Following Planned Parenthood v. Casey, the state of Mississippi passed the Gestational Age Act, ultimately banning abortions after fifteen weeks. Jackson Women’s Health Organization, the only abortion clinic in the state, challenged this act as it challenged the law and violated the precedent set in place in Roe v. Wade. When brought to the Supreme Court, Justices Breyer, Sotomayor, and Kagan warned that overturning Roe v. Wade threatens a woman’s personality, liberty, and reproductive autonomy. These justices highlighted that many individuals structured their lives around the protection implemented in Roe v. Wade, and overturning it risked public trust in the Court. The majority decision overturned Roe and Casey, holding that the Constitution did not confer a right to abortion. These justices highlighted that abortion is not explicitly mentioned in the Constitution, and the authority to regulate abortion should be returned to the elected representatives in each state. The decision made in Dobbs represented a dramatic change in the United States' Constitutional law. By eliminating federal protection for abortion and returning the authority entirely to the states, the question now is how individual states will regulate abortion access and what disparities this will create for women across the country regarding reproductive rights.
In anticipation of Dobbs, approximately thirteen states, such as Alabama, Texas, and Arkansas, enacted “trigger laws” to ban abortion automatically upon the reversal of Roe v. Wade. These states currently enforce near-total abortion bans with limited exceptions such as saving the life of the pregnant person, rape, or incest. While many states implemented these prohibitions, other states California, New York, and Illinois, expanded funding and protections for reproductive healthcare. This divergence created a prominent reproductive rights divide across the nation. These states have also implemented "shield laws” enacted to protect individuals seeking reproductive care and those professionals who assist them. This post-Dobbs division amongst the states has resulted in interstate legal conflicts. Texas, for example, has “bounty laws” which permit private enforcement of abortion restrictions against those seeking abortion care across state lines, directly conflicting with “shield laws” that have been implemented in other states across the nation. These disputes are evoking questions about jurisdiction, enforcement, and limits of state authority, which leaves the future of state divergence unsettling.
Healthcare providers in states restricting abortion also face significant uncertainty in their profession in the legal atmosphere. States under total prohibition of abortion access not only highlight the threat of prosecution for women seeking abortion access, but also highlight that physicians involved with abortion care can face legal prosecution. Physicians across the nation share their hesitations in treating miscarriages, ectopic pregnancies, and other complications in fear of this. With these laws, even life-saving care can be challenging, as state statutes are creating legal complications and ultimately interfering with emergency treatment. This legal patchwork primarily affects low-income individuals and communities of color. Many patients in these states where abortion is illegal travel across state lines for abortion care, creating unrealistic and financial barriers. Experts warn that these disparities contribute to higher maternal mortality rates in the future. Medication abortions such as mifepristone and misoprostol now make up half of all abortions in the United States. Telemedicine has enabled individuals seeking abortion access in illegal states, and they can now receive medication through the mail. This has created a legal grey area, enticing tensions and threats to further prohibit access to this care as well.
Dobbs narrows the scope of the right to privacy and protected liberty under the Fourteenth Amendment Due Process Clause. This decision has prompted Supreme Court Justices to suggest revisiting precedent in areas such as contraception (Griswold v. Connecticut), same-sex intimacy (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges). This decision, made in Dobbs, proposes significant questions about the future of right-to-privacy-based decisions in the United States. Abortion restrictions have been profoundly known for the implications of uncertainty in the area of women’s social and economic equality. Advocates are currently exploring strategies to protect reproductive rights under the Equal Protection Clause rather than the Due Process Clause. The future of these decisions in relation to the Equal Protection Clause remains uncertain.
The Dobbs decision has revamped political engagement and public debate around reproductive rights in the United States. Protests and campaigns remain prominent to reflect the attention on reproductive rights and the uncertainty of the future. Supporters frame the ruling to be a return of power, while critics view it as a rollback in constitutional fundamental rights. The decision has intensified the uncertainty surrounding the legitimacy of the Supreme Court and the perceived notion of constitutional rights. Ultimately, Dobbs has reshaped U.S. reproductive law, producing a legal landscape in which abortion access depends heavily on state law and political context. Beyond immediate healthcare impacts, the ruling raises profound questions about the scope of the right to privacy and the Due Process Clause under the Constitution. As states continue to implement restrictions, new legal challenges are embraced. The post-Dobbs era will remain contested, and the ongoing legal debate over reproductive rights will continue to influence American law, politics, and access to safe reproductive care.
Layla Brendle is a junior majoring in international business.
Sources
Baden, K., Dreweke, J., & Gibson, C. (2024, May 29). Clear and Growing Evidence That Dobbs Is Harming Reproductive Health and Freedom | Guttmacher Institute. Www.guttmacher.org. https://www.guttmacher.org/2024/05/clear-and-growing-evidence-dobbs-harming-reproductive-health-and-freedom
Gender+ Justice Initiative. (2022, August 5). After Dobbs: the Assault on Reproductive Justice and Equality. Gender+ Justice Initiative. https://genderjustice.georgetown.edu/event-announcements/gji-events/lectures/after-dobbs/
Kaufman, R., Brown, R., Martínez Coral, C., Jacob, J., Onyango, M., & Thomasen, K. (2022). Global impacts of Dobbs v. Jackson Women’s Health Organization and abortion regression in the United States. Sexual and Reproductive Health Matters, 30(1). https://doi.org/10.1080/26410397.2022.2135574
Nash, E., & Guarnieri, I. (2022, June 6). 13 States Have Abortion Trigger Bans—Here’s What Happens When Roe Is Overturned. Guttmacher Institute. https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned
Sobol, V. (2024, June 26). Interstate Shield Laws. Center for Reproductive Rights. https://reproductiverights.org/interstate-shield-laws/
