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The Practical Impact of Dobbs v. Jackson Women’s Health

By FindLaw Staff on June 24, 2022 1:54 PM

In the most anticipated case of the 2021-22 term, and one of the most impactful in decades, the U.S. Supreme Court ended the constitutional right to an abortion in Dobbs v. Jackson Women’s Health. This decision explicitly overturns Roe v. Wade and Casey v. Planned Parenthood and hands the issue to states to regulate.

While 68% of Americans believe that abortion should remain legal nationwide, at least 26 states are likely to implement total or near-total bans on abortion in the wake of the decision. Others may loosen restrictions as states with legal abortions are expected to experience an influx of out-of-state abortion seekers.

The Dobbs Decision

The 6-3 decision in Dobbs, authored by Justice Samuel Alito, largely followed the draft opinion leaked to the public in early May. The conservative block of justices held that the Constitution does not guarantee the right to an abortion, instead finding that while substantive due process under the Fourteenth Amendment may protect some unenumerated rights, it does not protect a woman’s right to choose whether to continue her pregnancy.  

Justices Brett Kavanaugh, Amy Coney Barret, Clarence Thomas, and Neil Gorsuch joined Justice Alito’s majority opinion in full. Chief Justice John Roberts concurred in the judgment – that the "viability" standard set out in Casey v. Planned Parenthood was unworkable – but would have chosen a different approach, one that gave women a “reasonable opportunity to choose”. Justice Thomas joined the majority opinion in full but wrote separately to note his support for ending all unenumerated rights under the Fourteenth Amendment, including the right to birth control, private sexual acts, and interracial marriage.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

What's to Come?

With the overturn of Roe, over 40 million people will be directly impacted in states where abortion is expected to be banned or criminalized. Existing “trigger” laws, passed in anticipation of the Court’s overturning of Roe, will take effect immediately in states like Texas and South Dakota and ban abortion.

Further legislation in states without trigger bills are also expected. It is yet to be determined whether some or all of those states will completely ban abortion or choose instead to implement harsher restrictions. State laws already vary. Florida, for example, will implement a 15-week abortion ban in July. This will have no exceptions for rape or incest. An abortion could be permitted if the parent's life is in danger.

Similar anti-abortion legislation is expected from many other U.S. states. Sixteen states and the District of Columbia have protected abortion in state law.

Dobbs Still Leaves Some Questions Unanswered

There remains some uncertainty in the law even after the Court’s decision in Dobbs. For example, it's still unclear if it will be difficult, or perhaps even impossible, for pregnant women to get an out-of-state abortion. In Kavanaugh’s concurring opinion, he expressed the view that states choosing to implement abortion bans or restrictions would not be able to prohibit pregnant women from traveling out of state to get an abortion “based on the constitutional right to travel.” However, as a concurring opinion, Justice Kavanaugh’s view does not carry the force of law and the ultimate answer to that question may still need to be resolved in the courts.

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