Series: Life After Roe: Grappling with the New Abortion Rights Reality

Introduction by Teddy Rube, Senior Online Editor

January 26, 2023

On June 24, 2022, the Supreme Court issued Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and held the U.S. Constitution does not protect a right to abortion. In eliminating a right that individuals and the American legal system had relied upon as “fundamental” for nearly 50 years, Dobbs has upended legal regimes and personal lives.

Dobbs returned abortion regulation to the 50 states (and the District of Columbia). In doing so, the Supreme Court re-opened reproductive rights as a matter of debate into a politically polarized and legally balkanized environment. The pieces in this series reckon with the complexity and dangers that Dobbs unleashed for individuals and our legal and political system. They also offer possible paths forward for those interested in protecting reproductive rights.

Even though the Constitution no longer provides a right to abortion in Due Process Clause, Dobbs has only made federal and constitutional law more complex. As Isabel Gutenplan points out, Dobbs’ stare decisis reasoning could be applied to overturn other cases, actually paving a path for recognition of reproductive justice rights under other constitutional provisions. Dessie Otachliska explains how after Roe’s demise, First Amendment law governing abortion-related information will become complex and contingent, allowing states to regulate who says what about abortion depending on the circumstance. Also, as Rebecca Saber examines, Congress and other federal entities’ continuing power to regulate—within constitutional boundaries— states’ activities complicates Dobbs’ clean “returned to the states” narrative.

The post-Dobbs world also implicates crucial questions of horizontal federalism and inter-state relationships between the 51 jurisdictions that now control reproductive rights. As Otachliska explains, whether a state might properly restrict abortion-related advertisements raises complex questions of inter-jurisdictional law. Saber’s piece explores how the criminalization of abortion has previously strong relationships between state law enforcement entities, as abortion-friendly states resist informational requests from anti-abortion jurisdictions.

Finally, and most importantly, these pieces explore the harm Dobbs will wreak on individuals’ lives. Otchaliska documents how state restrictions have already chilled the sharing of life-saving abortion-related information. Saber’s piece provides clear—and sobering—advice on how people seeking reproductive care must be wary of electronic devices, lest their digital activity expose them to criminal prosecution. Gutenplan’s examination of how erroneous constitutional interpretations warp health policies and expose pregnant people to injury and death serves as a cogent call for change.

This page will be updated as the series continues. You can find our existing posts below.

Free Speech Post-Dobbs: The Constitutionality of State and Federal Restrictions on the Dissemination of Abortion-Related Information
Dessie Otachliska
February 5, 2023
In the wake of the overturn of Roe v. Wade and the rise of restrictions on abortion-related speech, Dessie Otachliska explores what level of First Amendment protection such speech might receive, and whether laws restricting abortion-related would survive constitutional scrutiny.

Pregnancy Classifications are Sex-Based Classifications: A Proposal to Overrule Geduldig
Isabel Gutenplan
March 21, 2023
Isabel Gutenplan argues that Geduldig v. Aiello, a controversial Supreme Court precedent that enables discrimination against pregnant people, should be overturned based on the stare decisis logic in Dobbs v. Jackson Women’s Health Organization.

The Impact of the Post-Dobbs Criminalization of Abortion on the Cybersecurity Ecosystem in the United States
Rebecca Saber
March 27, 2023
Rebecca Saber explores how law enforcement officials in states that criminalize abortion are using digital data to prosecute pregnant people, examines attempts to protect data privacy at the federal and state levels, and offers a sobering assessment of best practices to protect reproductive health data.