In Dobbs v Jackson Women’s Health Organization the US Supreme Court upheld a Mississippi law banning most abortions after 15 weeks of pregnancy. In doing so, the Court held that the Constitution of the United States “does not confer a right to abortion”, overturning its previous decision affirming such a right in Roe v Wade (1973). The result is that individual states can now regulate access to abortion unfettered by a national constitutional right of this kind, making as much or as little provision for abortion care as they wish, likely permitting even absolute bans.
Dobbs is the culmination of five decades of anti-abortion activism. Law has always been a critical part of that activism: as it was Roe that prevented individual states from banning abortion, overturning Roe was quickly identified as a necessary condition to ‘ending’ abortion in the United States. Since 1973 anti-abortion groups have undertaken extensive legal experimentalism to try to bring about this outcome.
Among other things, they set up ‘legal defence funds’ to develop arguments and interventions in federal and state-level court cases, and developed laws proposed and implemented at the state level to restrict access to abortion based on gestational age, to require pregnant people to undertake ultrasounds or receive (often inaccurate) information about the ‘dangers’ of abortion, and to impose restrictions on who may provide abortion care and where that bore no relation to the clinical complexity or established evidence-based protocols for quality abortion care.
Dobbs does not constitute the end of these efforts to restrict access to legal abortion. We can now expect to see campaigns for state-level laws that would significantly limit access to abortion even in very early pregnancy.
Fiona de Londras - Professor of Global Legal Studies, Birmingham Law School
This legal experimentalism extended also to seeking to shape the composition of the US Supreme Court, with prospective justices’ purported positions on abortion, on Roe v Wade, and on the doctrine of precedent becoming increasingly prominent in confirmation hearings from Reagan’s nomination of Sandra Day O’Connor onwards. Abortion similarly became a critical benchmark for anti-abortion activists’ willingness to support candidates for election to everything from district school boards to the Presidency.
Dobbs does not constitute the end of these efforts to restrict access to legal abortion. We can now expect to see campaigns for state-level laws that would significantly limit access to abortion even in very early pregnancy. But legislative efforts will not end there. Rather, further experimentalism will be evident in attempts to limit access to accurate abortion information, restrict access to insurance or public funding for abortion-related care, prohibit assistance to abortion seekers, and seek to prevent people from inter-state abortion travel. As someone who grew up in Ireland when abortion was almost completely prohibited, these are familiar techniques. So too are their harms predictable.
Restrictive abortion law neither stops abortion nor alleviates women’s need for it; rather it stigmatises abortion care, undermines clinical best practice, devalues pregnant people’s capacity to make decisions about their reproductive lives, and exposes people to dangers associated with seeking unlawful abortion. These include reluctance to avail of post-abortion care and vulnerability to exploitation and assault by persons—money lenders, transport providers, suppliers of (safe but illegal) abortion medications—on whom abortion seekers are forced to depend.
A right to avail of abortion protects more than reproductive autonomy; it is a critical part of our ability to exercise rights that are vital scaffolds to human flourishing such as the right to privacy, the right to health, and the right to decide on the number and spacing of children. Within US law the right to abortion lay on constitutional foundations that also protect access to contraception, protections from ‘anti-sodomy’ laws, and the right to marry a person of the same sex. There is a real risk that anti-abortion activists will see within Dobbs the germs of future regression in sexual and reproductive rights, and the case itself proves their ability to invest in long-term legal experimentalism to achieve it.
Fiona de Londras is Professor of Global Legal Studies in Birmingham Law School. She undertakes research on rights-based approaches to abortion regulation, and was lead author of an amicus brief to the US Supreme Court in the Dobbs case.
