60 Days After Dobbs: State Legal Developments on Abortion

On June 24, the Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and holding that there is no constitutional right to an abortion. The decision returned the question to the states, which hold differing views on abortion, time constraints and conditions under which they can be obtained, and criminal standards and means of enforcement.

The contested statute at the center of the Dobbs decision was Mississippi’s Gestational Age Act, which banned abortions after the 15th week of pregnancy with few exceptions. The Court had previously allowed Texas’s Heartbeat Act to stand, signaling its desire to give states more latitude on abortion policy that ultimately prevailed in Dobbs.

Now the fight over abortion is underway anew in numerous states, with state legislatures and courts taking access to abortion and broader questions about reproductive autonomy into their own hands. State lawmakers have mobilized to restrict or protect abortion access. And in state courts, judges are considering challenges to pre-Roe trigger bans, often having the final word on whether, when, and how such bans will take effect.

In the two months since Dobbs was decided, several state-level actions have transformed the nation’s legislative and judicial landscape, creating a patchwork of abortion access policies.

Actions in State Legislatures

Restrictive legislation

Several states were ready for Roe to fall, having included trigger bans in their state constitutions that would immediately take effect. Mississippi, Arkansas, Oklahoma, Missouri, and South Dakota are now enforcing trigger bans that prohibit abortion in most circumstances, though some exceptions remain. For example, in Mississippi, the state’s trigger ban grants exceptions to save the life of the pregnant person or in cases of rape or incest that have been reported to law enforcement. Some states, like Georgia and South Carolina, are enforcing gestational bans that prohibit abortions after six weeks from the last missed period. However, gestational bans can effectively function as total bans since people may not know they are pregnant at that point.

The Center for Reproductive Rights created an interactive map, as did the New York Times, that displays where abortion bans, restrictions, and protections, are and are not in effect. Legal challenges to many of these bills, bans, and restrictions are already underway.

Aside from trigger bans already on the books, over 100 bills restricting access to abortion have been introduced in 2022 alone. Most of these bills aim to ban all or most abortions in states across the country, including Maryland, South Carolina, and Wyoming, while 22 of these bills introduced in states like Arizona, Florida, Iowa, and New Jersey, aim to restrict abortion after 12 weeks.

Other bills seek to restrict abortion by establishing that the fetus is a legal person (and therefore tax deductible), banning particular abortion methods, regulating abortion providers and clinics, funding crisis pregnancy centers, allowing medical providers to refuse care, restricting insurance coverage, mandating counseling and waiting periods, or restricting access to telehealth services for medication abortion.

On August 5, Indiana became the first state to pass new legislation restricting access to abortion since Roe was overturned.

Expansive legislation

Just as many lawmakers rushed to ban abortion in their states after Roe was overturned, other lawmakers mobilized to ensure access to abortion in their states. Two dozen bills have been introduced this year to expand abortion coverage in Medicaid, and several states like California, Oregon, and Maryland have already enacted them. Other bills that have been introduced would expand abortion coverage in private plans, improve access to medication abortion, expand access to abortion training and provision, or prohibit interference in medical care and decision-making.

Moreover, 85 bills have been introduced in state legislatures to protect abortion access, while 40 bills have been introduced to repeal abortion restrictions, including in states where an abortion ban is currently in effect like Florida and Mississippi. In Nevada, the governor has signed an executive order to expand reproductive rights by prohibiting state employees from partaking in investigations against people seeking reproductive health services, outlawing disciplinary action against abortion providers, and refusing to assist with other states’ extradition requests.

Notably, in Kansas, voters rejected a proposed state constitutional amendment that would have made abortion illegal in the state. And there’s belief that other states will protect abortion in similar ballot measures, such as in Michigan, California, Kentucky, Montana, and Vermont.

Sixteen states, including Hawaii, Illinois, Nevada, and Maine, have passed legislation to protect access to abortion before and in response to Dobbs. 

Since abortion pills now account for more than half of U.S. abortions, the fight over medication abortion’s legality is in the spotlight. Providing someone pills to induce an abortion has been a felony in South Carolina, whereas soliciting or procuring them has been a misdemeanor in other states, like Oklahoma, before Roe was overturned. The Ensuring Access to Abortion Act, passed in the U.S. House, includes protections for medication abortions, on the grounds that abortion pills have been approved by the Food and Drug Administration and banning them would interfere with interstate commerce.

State and Federal Courts 

Lawsuits have been filed in numerous states challenging trigger bans and other abortion restrictions, including in Georgia, Florida, Idaho, Texas, Arizona, Louisiana, Oklahoma, North Dakota, and South Carolina. In Minnesota, a state court permanently blocked a law imposing numerous medically unnecessary abortion restrictions. In Mississippi, a state trigger ban was allowed by a state court to go into effect, meaning that abortion is barred in Mississippi in nearly all situations. And in Nebraska, a young woman and her mother are being charged with two felonies and other criminal charges for violating pre-Dobbs state laws. Highest courts in 10 states have recognized state constitutional protections for abortion rights.

The situation in Idaho demonstrates the complexity of abortion policy in many states. There, the state supreme court ruled on August 12 that a six-week ban modeled on Texas’s Senate Bill 8 and a state trigger ban that goes into effect on August 25, 2022, could be enforced while legal challenges wind their way through court. At the same time, the Department of Justice is suing the state in federal court to ensure patients who go to a hospital during a medical emergency can receive abortion care. The lawsuit argues that the Emergency Medical Treatment and Labor Act preempts Idaho’s abortion ban when an abortion is necessary stabilizing treatment during an emergency. A federal judge has said he will issue a ruling in the case by Wednesday, August 24.

In summary, the Dobbs decision has sparked state-level responses across all branches of government that immediately produced discordant policies on abortion. The right to an abortion is now dictated by geography and, in a few instances, traveling to a different state to obtain an abortion is now criminalized. Two months after Dobbs, the medley of state-level abortion laws and regulations has created an uncertain policy environment that is sure to have dire health, legal, and political consequences.