Abortion Law After Dobbs: Federal and State Legal Landscape

For nearly 50 years, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) established a constitutional framework for abortion rights under the Fourteenth Amendment's Due Process Clause. Roe recognized a right to abortion grounded in privacy, while Casey replaced Roe's trimester framework with an "undue burden" standard under which states could regulate abortion so long as regulations did not impose a substantial obstacle to obtaining an abortion before viability. During this period, states enacted hundreds of regulations including waiting periods, informed consent requirements, parental involvement laws, and facility regulations.

The Dobbs decision in June 2022 fundamentally altered this landscape, holding that the Constitution does not confer a right to abortion and that the authority to regulate abortion returns to "the people and their elected representatives." The decision triggered a series of pre-existing "trigger laws" designed to ban abortion immediately upon the reversal of Roe, while other states moved to protect or codify abortion access. The resulting legal landscape varies dramatically by state, creating significant interstate disparities in access to abortion services.

Federal law intersects with abortion regulation in several key areas. The Hyde Amendment restricts federal funding of abortion through Medicaid and other federal health programs. The Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals with emergency departments to provide stabilizing treatment for emergency medical conditions, which the Biden administration interpreted to include emergency abortion care even in states with abortion bans. The Supreme Court heard arguments on this interpretation in Moyle v. United States (2024), returning the case to the lower courts without resolving the underlying question.

The Comstock Act (18 U.S.C. Section 1461), a 19th-century statute prohibiting the mailing of "obscene" materials, has been invoked in debates over whether it prohibits the mailing of abortion-related drugs or materials. The FDA regulates mifepristone under a Risk Evaluation and Mitigation Strategy (REMS), and legal challenges to the FDA's approval and loosened distribution requirements reached the Supreme Court in FDA v. Alliance for Hippocratic Medicine (2024), where the Court dismissed the challenge on standing grounds without addressing the merits.

Federal legislative proposals include bills to codify a right to abortion nationwide (the Women's Health Protection Act), bills to impose a national abortion ban after a specified gestational age, legislation to protect interstate travel for abortion services, bills addressing the application of the Comstock Act to abortion medications, and proposals to overturn or modify the Hyde Amendment to allow federal funding of abortion services.

States continue to serve as the primary arena for abortion policy, with legislative and ballot initiative activity across the political spectrum. Policy considerations include the legal treatment of out-of-state abortion travel, the regulation of telehealth prescribing of abortion medications, the enforcement of state abortion laws against healthcare providers, the impact of abortion restrictions on maternal health outcomes and healthcare workforce availability, and the application of conscience protections for healthcare providers who object to performing abortions.

Abortion has become a defining issue in state and federal elections, with ballot measures protecting abortion access succeeding in multiple states including Ohio, Michigan, California, Vermont, and Kansas. Ongoing litigation continues to shape the post-Dobbs landscape, including cases involving EMTALA preemption, medication abortion regulation, and the scope of state abortion ban exceptions. Data indicate that the number of abortions nationally has not declined substantially post-Dobbs, as increased access in some states, expanded telehealth prescribing, and interstate travel have partially offset reductions in states with bans.