September 6, 2022

Abortion in a Post-Roe World

How the U.S. Supreme Court upended nearly 50 years of precedent and what that means for reproductive rights

The U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women's Health Organization held that the U.S. Constitution does not confer a right to pre-viability abortion. The decision has created significant confusion and uncertainty with respect to reproductive rights. As a result, individuals and businesses, who may be bound by a patchwork of different state abortion laws, face a challenging road ahead. 

This article will examine the state of the law before Dobbs, what the Dobbs decision says and means, how the Court came to its decision, and how it will affect those who may wish to seek an abortion or assist others in doing so (including through the provision of employee benefits). 

Before Dobbs: balancing individual rights and state interests

At the time the Supreme Court considered Dobbs, the federal constitutional landscape had been established principally by two cases: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). In evaluating constitutional abortion protections, these cases examined two competing sets of interests.

On the one hand, the Court said, women have constitutionally recognized rights to liberty and equality. As Roe and Casey understood it, those constitutional guarantees include a woman’s ability to make decisions that relate to family and marriage in a way that ensures she can participate fully and equally in society. Family planning, the Court recognized, is a critical part of exercising those constitutional rights. Supreme Court precedents had also made clear that the Constitution protects the rights to bodily integrity and bodily autonomy, and Roe and Casey recognized that those rights are clearly implicated by forced pregnancy and childbirth, given the physical risks and life-altering consequences involved. 

On the other hand, the Court also understood that states have a valid interest in protecting maternal health and safeguarding what it referred to as “potential life.”

In Roe and Casey, the Court balanced those interests and established a framework for evaluating state abortion regulations. Before fetal viability (about 24 weeks), the Court determined that the balance tips more towards the pregnant woman’s rights and interests. States therefore could not prohibit pre-viability abortion but could regulate the provision of abortion so long as those regulations didn’t place a substantial obstacle in the path of someone seeking an abortion. After viability, however, the Court said that the balance tipped more towards the state’s interests. Thus, after 24 weeks, states could prohibit abortion. 

The Dobbs decision: overturning Roe and Casey

The framework outlined above was the law of the land in 2018 when Mississippi’s legislature enacted the Mississippi Gestational Age Act.

This Mississippi law banned abortions after 15 weeks, except in cases of medical emergency and severe fetal abnormality. The law includes no exceptions for pregnancies resulting from rape or incest. After lower courts declared this law unconstitutional—which was no surprise, as it was clearly foreclosed by Roe and Casey—Mississippi asked the Supreme Court to step in. 

The State filed its cert petition in 2020, when Justice Ginsburg was still alive, and expressly told the Court that it did not need to overrule Roe or Casey; instead, it asked the Court to more narrowly review  whether all pre-viability prohibitions on elective abortions are necessarily unconstitutional. The Court sat on the petition for nearly a year, finally granting it after Justice Ginsburg had passed away and Justice Barrett had replaced her on the Court. The State then changed its argument during its briefing and argument on the merits, telling the Court that Roe and Casey had poisoned the law and had to be overturned.

In a 5-4 majority led by Justice Alito, the Court did just that—holding that Mississippi’s 15-week abortion ban was constitutional and overruling Roe, Casey, and about a dozen other Supreme Court abortion decisions in the process. The Court held that the Constitution does not protect a woman’s right to decide whether to remain pregnant before viability. In doing so, the Court did not merely reject the balance struck in Roe and Casey in favor of a different balance based on new facts or new considerations—it rejected the entire mode of analysis that had been applied in Roe, Casey, and many other cases involving fundamental constitutional rights.

To determine whether the Constitution’s protections extend to abortion, the Court applied what is known as a Glucksberg analysis, which hinged on whether the right to abortion was well recognized at the time the Fourteenth Amendment was ratified in the mid-1800s. This method of analysis comes from a 1997 Supreme Court case, Washington v. Glucksberg, which was about physician-assisted suicide. Notably, the Court’s post-Glucksberg cases specifically rejected the Glucksberg test as a valid method of analyzing the fundamental rights of people who essentially had no rights at the time of ratification as a result of norms and biases that we have since come to understand were an odious part of our nation’s history. 

Obergefell v. Hodges, the Court’s 2015 decision recognizing a constitutional right to same-sex marriage, explained that the Glucksberg test could not justly apply in these circumstances: “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”  Nevertheless, the Court used the Glucksberg analysis in the Dobbs decision, considering whether women had a well-recognized right to control their pregnancies in the 1700s and 1800s, leading up to the ratification of the Fourteenth Amendment in 1868. 

At that time, women could not vote (that right would not come for another 50 years). In many states, they could not own property. They could not practice law (the first woman was admitted to a state bar in 1869), and none had yet held political office. Rape within the context of marriage was not even considered a crime until the 1970s. In short, women in 1868 were effectively treated as the property of men, either their husband or their father. So it is not surprising that the majority in Dobbs found no historical evidence that women had a well-recognized right to control their pregnancies in the period leading up to the ratification of the Fourteenth Amendment. To the contrary, in many states abortion was criminalized at that time. 

The majority’s constitutional analysis in Dobbs ended with its determination that women had no well-recognized rights related to reproduction in 1868. The Court had no cause to balance the state’s legitimate interests in safeguarding maternal health and potential life against a pregnant woman’s right to control her pre-viability pregnancy, because it concluded that women had no such constitutionally protected right to balance. 

The majority therefore replaced the framework established by Roe and Casey with a simple rational-basis test, the lowest level of constitutional scrutiny. Under rational-basis review, so long as a state’s abortion restriction has a conceivable rational basis, it will be found constitutional—an easily satisfied standard. 

Finally, the Court considered whether stare decisis—the principle that once the Supreme Court decides an issue, it should not reverse course absent really compelling reasons—justified retaining Roe and Casey despite the majority’s disagreement with the reasoning of those cases. The Court rejected that proposition, concluding that those cases were “egregiously wrong,” created an “unworkable” standard, and did not create any concrete reliance interests that could justify retaining their holdings. 

The dissent

In a rare joint dissent, Justices Breyer, Sotomayor, and Kagan explained why, in their view, the majority’s method of analysis was flawed, and how the decision will affect women and society more broadly in the years to come. 

The dissent observed that under the majority’s analysis, states would be able to completely ban abortion altogether—from the moment of conception—without providing exceptions for rape or incest. The dissent also predicted that states would be able to compel a pregnant person to carry a pregnancy to term even it had no realistic chance of survival due to severe defects in utero. 

According to the dissent, States would not only criminalize the conduct of physicians performing abortions, but also of women seeking abortions, advocates providing guidance about abortion access, and even those—such as employers—who provided reproductive healthcare benefits that allow women to obtain access to abortion services in other states. As a result, women who go to the hospital seeking medical treatment during a miscarriage could become the subject of a criminal investigation rather than receiving the empathy that would be expected during an incredibly painful physical and emotional experience.

The dissent also recognized the incredible amount of uncertainty that the majority’s decision would create. For example, the dissent asked, if a state abortion ban includes (or is deemed constitutionally required to include) an exception for the life or health of the pregnant person, “How much risk to a woman’s life can a State force her to incur, before the Fourteenth Amendment’s protection of life kicks in? Suppose a patient with pulmonary hypertension has a 30-to-50 percent risk of dying with ongoing pregnancy; is that enough?” The status of medication abortions, the morning-after pill, and medical procedures identical to abortion used for miscarriage management had also become equally uncertain.

The uncertainty concerns flagged by the dissenting Justices is particularly notable because workability is one reason the majority gave for overturning Roe and Casey. As the majority explained it, Roe and Casey had created a vague, confusing, and unworkable standard, and returning the issue to the states would alleviate that problem. 

As we have already begun to see in the few short months since Dobbs came down, however, the Court’s decision is only the start of what will surely be a period of increased confusion. Individuals who are or could become pregnant, physicians trying to determine how abortion restrictions map onto critical issues of medical judgment, business and employers whose benefit systems have been thrown into disarray, advocates who have focused their careers on reproductive rights, and the state and federal courts that will be embroiled in civil and criminal abortion cases for years to come are only beginning to grapple with what the post-Roe world looks like. The enforceability of state laws and how those laws will map onto the long-existing federal and state regimes—criminal law, insurance law, healthcare regulations, medical standards of care, and more—are all entirely an open question.  The only certainty that likely exists now is that these questions will almost surely not be answered uniformly, which means that Dobbs will be anything but the last word that we will hear from the Supreme Court on abortion.

Jaime A. Santos is a partner in Goodwin’s Supreme Court and Appellate Litigation practice and a member of the firm’s Dobbs Task Force. Her work focuses on appellate matters and complex civil litigation in federal courts. She has authored or co-authored dozens of briefs filed in the U.S. Supreme Court and regularly speaks about matters affecting the Court. She previously co-hosted the Supreme Court podcast Strict Scrutiny and has been a guest on numerous podcasts and programs, including NPR’s All Things Considered, the National Constitution Center’s podcast We the People, and Bloomberg’s podcast Cases and Controversies.