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What We Have Learned Since Dobbs

On June 24, 2022, the Supreme Court overturned Roe v. Wade. Some of what has happened since then was predictable. Some was not. Here are 10 developments since then:

  1. SCOTUS thought it was finished: The Supreme Court thought that it would leave the matter to each state, then it was out of the loop. That didn't happen at all and won't going forward. One judge in Texas banned mifepristone and bingo, the case landed in the Supreme Court. Another pending case is about a federal program for family planning that requires health care providers to discuss all options, including abortion. Yet another is about teenagers getting abortions and not telling their parents. The docket will be full of abortion cases next session. Nice try, Sam, but it will soon be back on your plate.

  2. The right is fragmented now: Like the dog that caught the car, the anti-abortion movement doesn't know what to do next. Some want every state to ban the procedure in all cases. Others want to have one or two exceptions. Still others want a national law banning it everywhere. Some want to ban it starting at conception, but others want to ban it at 6, 13, or 15 weeks. It is far from clear what happens next.

  3. So is the left: Many progressive groups want a federal law allowing abortion everywhere. Others want to enshrine the right to an abortion in as many state constitutions as possible. There are also fights over the latest time it should be available. How about 24 weeks? How about 36 weeks? What about up until birth?

  4. Abortion rights are a political winner: There were six abortion-related ballot issues last year. The pro-choice side won all of them. Some progressive groups are trying to get them on the ballot in more states in 2024 (but see below about the group trying to get rid of those pesky citizen initiatives).

  5. Republicans are struggling: Republicans are caught between an unyielding base that wants to ban all abortions and a general-election electorate that wants to allow them at least up to 24 weeks. If Republican office-seekers are strongly anti-choice, they can win primaries but not general elections. If they are pro-choice, they can't win primaries. Many are trying to have it both ways, but that is a tough sell.

  6. Some state Constitutions protect abortion rights: The South Carolina Supreme Court ruled that a 6-week ban violated the state Constitution's right to privacy. What will happen if the legislature comes up with a 9-week ban or a 12-week ban or a 39-week ban? Does the state Constitution protect any of those? On the other hand, Idaho's Supreme Court upheld a ban. There have been 40 cases filed since the Dobbs decision and many will eventually reach the state Supreme Courts.

  7. Most doctors won't break the law: Civil disobedience works sometimes, but doctors won't do it. They have too much at stake. In fact, some are so afraid that they won't even perform abortions that are probably legal. Some won't even treat miscarriages and will let a woman bleed to death rather than risk loss of their medical license and prison. On the other hand, doctors and medical students are fleeing states with strict bans and many people in those states will have trouble getting certain kinds of medical care in the future.

  8. Abortion is difficult to separate from other healthcare: Pharmacists have refused to fill all kinds of prescriptions of drugs for other conditions that might be used to terminate a pregnancy. They have also refused to dispense certain birth control methods. Some pharmaceutical companies are dropping research on reproductive health for fear of lawsuits and violating state laws.

  9. Religion cuts both ways: Lawsuits from Jewish, Muslim and Satanic groups are trying to overturn abortion laws on the grounds that their religions permit abortions and state laws banning it are an unconstitutional establishment of the Christian religion in state law. This is an area that is certainly going to hit the Supreme Court sooner or later and not one they are probably enthusiastic about addressing. Up until now all the bakers, florists, Web designers, etc. who think they are exempt from state law due to their religion have been Christians. What happens when they belong to other religions?

  10. States haven't prosecuted out-of-state providers: States that ban abortion make it illegal to perform one or enable someone to perform one. But what happens when the abortion is "performed" by an out-of-state doctor mailing abortion pills? Can an out-of-state doctor be prosecuted? What if the doctor's state has a law expressly banning out-of-state prosecutions and banning extraditing anyone for enabling an abortion?

And this is just a brief summary. There are many more cases in the works, with no end in sight. If the Supreme Court thought it was done with the issue, boy was it wrong. (V)

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