Updated August 4, 2022
In June 2022, the United States Supreme Court released its opinion in Dobbs v. Jackson Women's Health Organization. The Dobbs opinion, most of which was leaked in May, overturned Roe v. Wade, eliminating the constitutional right to abortion that had been established nearly 50 years earlier.
Roe prevented states from banning abortions before the point that a fetus could be "viable" outside of the uterus. Dobbs returns the issue of how to regulate abortion—and whether to allow it at all—to the states.
Now that Roe is overturned, legal access to abortion is likely to end for millions of Americans.
Here's what you need to know:
Roe v. Wade is one of a handful of landmark Supreme Court decisions. The case was decided in 1973 and has become shorthand for abortion access in the United States. But what was the case about? And what's happened in the decades since Roe was decided?
Roe was a challenge to a Texas statute that made it a crime to perform an abortion unless a woman's life was at stake. The case was brought by "Jane Roe," an unmarried woman who wanted to legally end her pregnancy. The Supreme Court sided with Roe and struck down the Texas law. The Court ruled that the United States Constitution provides a fundamental "right to privacy" that includes a woman's right to choose to have an abortion. But, the Court said, the right to an abortion isn't absolute. The Roe decision allowed states to limit the right after fetal viability, except when abortion would be necessary to preserve the life or health of the mother.
Almost immediately after Roe was decided, state and federal lawmakers started passing laws designed to test and chip away at Roe. In 1992, the Supreme Court revisited Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey.
With the Casey case, abortion opponents hoped that the Court would overturn Roe. Instead, the Justices affirmed that states could not ban abortions before fetal viability, but replaced Roe's "strict scrutiny" standard of review for abortion regulations with a more relaxed "undue burden" standard, paving the way for more restrictions on abortion access.
Examples of state abortion restrictions that were upheld after Casey include:
By 2022, even before Roe was overturned, six states had imposed so many restrictions on abortion that only one abortion provider was left in each state.
Dobbs is the U.S. Supreme Court decision that overturned Roe. The case was about a Mississippi law passed in 2018 that banned nearly all abortions after 15 weeks of pregnancy, significantly before fetal viability, which is around 23 weeks. The law was in direct conflict with Roe and Casey, which prevented states from banning pre-viability abortions.
All states typically have to follow Supreme Court decisions. And courts, even the Supreme Court, typically must stand by previous decisions (a legal principle called "stare decisis"). The idea behind stare decisis is that courts shouldn't revisit issues that have been decided, so that rulings are predictable, consistent, and reliable.
When Casey was decided in 1992, the Court emphasized the importance of stare decisis and said that overturning Roe would come at too great of a cost to people who had relied on the decision for two decades.
But three decades after Casey, the Supreme Court reversed course in Dobbs, saying that Roe had to be overruled because it was "egregiously wrong and deeply damaging."
So, what changed between Roe and Casey on the one hand and Dobbs on the other? Many say the makeup of the Supreme Court. While campaigning, eventual President Donald Trump vowed to appoint justices who would overrule Roe. And three of the five justices who reversed 50 years of settled law (called "precedent") on the issue of abortion were his appointees.
The Dobbs decision will have a significant and immediate impact on tens of millions of people. Although a poll before the final Dobbs decision suggested that 64% of Americans didn't want Roe to be overturned, at least 26 states are certain or likely to impose near-total abortion bans.
Here's a breakdown of the different ways states have acted to either ban, restrict, or protect abortion rights in the days following Dobbs.
Several states, including Alabama, Wisconsin, and West Virginia, have abortion bans on the books from before Roe was decided in 1973. Some states will likely try to enforce these old laws or ask courts to reinstate them. Officials in other states, like Michigan, have already said that they will not enforce pre-Roe bans.
Over a dozen states have "trigger bans." Trigger bans are laws that have already or will soon ban abortion following Dobbs.
States with trigger bans include:
Legal advocates for abortion rights and family planning clinics are challenging trigger bans in state and federal courts across the country. It will likely take months—years even—for the legal dust to settle and reveal a clear picture of where abortion is legal after Dobbs.
Over the years, many states intentionally passed laws that conflicted with Roe's viability standard. For example, the Mississippi law at issue in Dobbs was passed in 2018, long after Roe v. Wade. Most of these kinds of post-Roe laws were blocked by judges before but could be enforced now.
Even before Dobbs eliminated the constitutional right to abortion, Texas's so-called "heartbeat law" (SB 8) went into effect in September 2021, banning nearly all abortions in the state after about six weeks. The law makes no exceptions for rape or incest, and allows termination only when a mother's life or "major bodily function" is endangered.
Texas's abortion ban was designed to be difficult to challenge in court, because it bars state officials from enforcing it. Instead, private citizens enforce the law by suing anyone who performs an abortion or "aids and abets" a procedure. For example, an aunt who gives her niece a ride to an abortion clinic could be sued under the law. Citizen enforcers of the law ("plaintiffs") get $10,000 and legal fees if they win.
Idaho became the first state to adopt a copycat of Texas's law in March 2022. Idaho's law bans abortions after about six weeks, and allows family members of a "preborn child" to sue abortion providers. Citizen enforcers of the Idaho law will get at least $20,000 plus legal fees if they win. The Idaho Supreme Court temporarily blocked the law in April 2022 while deciding whether the law is constitutional.
On May 3, 2022, Oklahoma's governor signed a Texas-style abortion ban that prohibits abortions after about six weeks of pregnancy. The law, which took effect immediately, makes no exceptions for rape or incest. Like the Texas and Idaho laws, this law allows private citizens to sue abortion providers or anyone who helps a person get an abortion for up to $10,000.
The U.S. Constitution applies to all of us, but individual states have their own constitutions and laws. States aren't allowed to take away any protections that the U.S. Constitution provides. They can, however, give people more protections than the federal constitution does. When it comes to abortion, that means that states can provide the right to an abortion even though the Dobbs decision says the federal constitution offers no such right.
Four states—Alabama, Louisiana, Tennessee, and West Virginia—have passed constitutional amendments that say that their state constitution doesn't secure or protect the right to abortion.
Voters in California and Vermont will decide in November 2022 whether to guarantee the right to abortion in their constitutions.
Again, Dobbs allows states to set their own abortion policies. While some states are working to ban or restrict abortions, 20 or so states are expected to maintain—or even expand—abortion rights in the absence of Roe.
For example, lawmakers in California, are considering news laws designed to ease access to abortion, reduce costs, and protect people from law enforcement actions if they have an abortion or help provide one.
California is also considering making itself a "sanctuary" for people from other states seeking abortion access, including by setting aside money to pay for travel, lodging, and child care costs.
Most of the recent advocacy and media attention surrounding reproductive rights has focused on Dobbs and SB 8 in Texas. But, in December 2021, the FDA made a decision that allows more people to get abortion pills when they need them.
Medication abortion, or abortion with pills, is a pregnancy termination method that involves taking two different drugs to end a pregnancy (up to 10 weeks from the last menstrual period). According to the Centers for Disease Control and Prevention, medication abortion accounted for 42% of all abortions—and 54% of all abortions before 10 weeks—in 2019.
The FDA used to strictly limit where abortion pills can be given and who can prescribe them. But in April 2021, in response to the coronavirus pandemic, the FDA temporarily lifted the requirement that patients get the pills in person. In December 2021, the FDA made the temporary change permanent. Now patients can have telemedicine appointments with health care providers who can prescribe abortion pills and mail them to patients.
In anticipation of the FDA's decision, a handful of states have already passed laws banning the mailing of pills. For example, in the fall of 2021, the governor of South Dakota banned telehealth appointments for medication abortion and prohibited the pills from being delivered by mail or courier. More states are likely to follow in the wake of Dobbs.
But states like California and New York are expected to increase the availability of abortion pills and take steps to help women in states with abortion bans and restrictions access medication abortions.
In a statement released in response to Dobbs, President Biden announced that he directed the Secretary of Health and Human Services to identify ways to ensure abortion pills remain as widely accessible as possible, including when prescribed through telehealth and sent by mail. The question of whether federal regulation of medication abortions can override a state abortion ban is likely to be tested in courts in the next few years.
Now that some members of the current Supreme Court have demonstrated a willingness to take away a long-held constitutional right, many people are wondering if other constitutional rights could be next.
Roe said that a woman's right to choose to have an abortion is based on a constitutional "right to privacy." The majority opinion in Dobbs says that nothing in the opinion "should be understood to cast doubt on precedents that do not concern abortion." But Justice Clarence Thomas, in his concurring opinion, wrote that the Court should reconsider other decisions involving constitutional rights rooted in privacy, including the right to contraception (Griswold v. Connecticut), gay intimacy (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges).
Many experts say that Dobbs doesn't mean that the abortion debate is even close to over. They predict that battles over abortion laws and regulations will continue to play out in state legislatures, courts, and elections all over the country for years to come.
Voters and donors are likely to put intense pressure on Congress and the executive branch to pass federal laws and regulations that either restrict or protect abortion rights. In fact, before Dobbs, in February 2022, Democrats tried and failed to pass the Women's Health Protection Act, which would have barred abortion bans prior to fetal viability.
Under pressure to respond to Dobbs, President Biden signed an executive order on abortion in early July 2022. The order directs the Department of Health and Human Services (HHS) to protect access to medication abortion, ensure emergency medical care for pregnant women and women experiencing pregnancy loss, protect access to contraception, and increase outreach and public education efforts regarding access to reproductive health care services, including abortion. But details of how HHS will accomplish the goals of the order are unclear.
In an effort to prepare for legal challenges from abortion opponents, President Biden's order also directs the Attorney General and the White House Counsel to organize "private pro bono attorneys, bar associations, and public interest organizations" to represent patients, providers, and others seeking or offering reproductive health care services throughout the country.
Lawmakers will surely continue to fight over whether states can:
If you have questions about abortion laws in your state, the Center for Reproductive Rights updates the legal status of abortion in real time. The Guttmacher Institute also tracks state abortion laws and policies.