Dobbs v. Jackson: How the Courts reshaped abortion access
Nearly a year has passed since the Supreme Court made its decision in the Dobbs v. Jackson case; the effects have been devastating for abortion access across the United States. Bans, criminalization, invasion of privacy, and an increase in the number of people forced to travel for essential abortion care - the impact of this case is far-reaching and continues to grow.
But what is Dobbs v. Jackson, and how did it trigger the chain of events that has led us to where we are today?
Dobbs v. Jackson Women’s Health Organization
In 2021, the Supreme Court agreed to hear an abortion case from Mississippi. The state was attempting to ban abortion after 15 weeks and Dobbs - an officer of the Mississippi Department of Health - was being challenged by an abortion clinic, Jackson Women’s Health*. The law had been blocked by both federal and district courts because on its face, the ban was unconstitutional. It went in defiance of the precedent the Supreme Court had already ruled - in 1973, Roe v. Wade created a federal protection of abortion access before fetal viability (when a fetus is able to live outside of the womb, generally around week 23) and in 1992, Planned Parenthood v. Casey upheld Roe but also introduced the "undue burden" standard, allowing states to impose certain restrictions on abortion as long as they don't pose an undue burden on the individual seeking abortion.
Mississippi’s law both ignored the viability standard and, in doing so, caused an undue burden.
As soon as the Court announced that it would hear the case, abortion access workers were on high alert - the case was clearly unconstitutional, the only reason to hear it would be to make some strong public statement about abortion in this country. With the appointment of three new conservative judges between 2017-2022, we know that they now had a 6-3 majority that would allow them to overturn Roe.
Overturning precedent is something the courts rarely do - before Roe, there are only 7 times the Courts have overruled something they had previously decided, mostly notably the overturning of “separate but equal” laws that allowed segregation, child labor allowances, and the right to gay marriage. Because of this, we hoped that the courts would not take such drastic action - but, of course, on June 24, 2022, they did. Specifically, the Court ruled that there is no constitutional protection to abortion and therefore it must be handed to the states to decide for themselves.
Trigger Laws
Trigger laws are abortion bans that states had in their books - either from before the Roe decision and never removed or passed since but weren’t enforceable. Thirteen states had trigger laws - for example, in 2021 Texas put a trigger law in place which made performing an abortion a felony, with exceptions for a "life-threatening physical condition" or "a serious risk of substantial impairment of a major bodily function."
The Dobbs decision allowed these laws to go into effect, which some did immediately.
Targeted Regulation of Abortion Providers (TRAP) Laws
Since the first Roe ruling, states have been looking for ways to regulate abortion access, despite federal protection. This often came in the form of targeted regulation of abortion providers (TRAP) laws. TRAP laws single out abortion facilities and physicians who provide abortion care with medically useless restrictions that are more burdensome than laws imposed on physicians who provide comparable types of care.
Common TRAP laws include:
Requiring admitting privileges at local hospitals
Regulating how big rooms and corridors can be
Regulating how far a clinic can be from a hospital
Requiring reporting of patient information to state governments
These regulations set standards that are intended to be difficult, if not impossible, for providers to meet, resulting in clinics closing or facing legal penalties.
The Dobbs decision removed the undue burden precedent, so there is no limiting the number or types of TRAP laws that can be put into effect.
Other Restrictions
The other primary ways that states have - and still do - put restrictions around abortion access has to do with how providers can interact with their patients and adding additional steps to access care.
These often include:
Prohibiting state healthcare programs from covering abortion
Waiting periods between an initial consultation and the procedure itself (sometimes 24 and as much as 72 hours required between the two appointments)
Parental notification regulations for people under 18
State-mandated counseling dictating what a provider can and cannot say to their patient about abortion care
These are also no longer regulated by the undue burden principle.
Protections
The inverse to the lack of regulation of what types of restrictions a state can put on abortion is also the freedom to determine new protections. Some states are working to put shield laws in place that protect providers working across state lines from punishment. There is a push for the removal of viability - or any gestational limits - from abortion policy. States are codifying their pro-abortion policies much in the way that antis have and building a new precedent for what care can look like.
Our Post-Dobbs World
The Dobbs case will continue to shape the future of abortion access and impact the lives of countless people. It's crucial to stay informed, advocate for reproductive rights, and support organizations that work tirelessly to ensure access to safe and legal abortion remains a reality for all.
Remember, the fight for reproductive rights is ongoing, and it is our collective responsibility to protect and defend the right to choose. Together, we can strive for a future where everyone has autonomy over their own bodies and reproductive healthcare is accessible to all who need it.
*In July 2022, Jackson Women’s Health, affectionately known as the Pink House, officially closed. The Pink House opened in 1995 and was Mississippi’s only abortion clinic since 2004. We all continue to mourn its loss.