After Dobbs

The Settlement That Was Reversed

Roe v. Wade, decided January 22, 1973, established a constitutional right to abortion as part of the broader privacy framework the Griswold v. Connecticut (1965) line of decisions had developed.¹ Roe’s specific holding — that the constitutional right protected abortion access through the first trimester without significant state regulation, allowed reasonable state regulation in the second trimester, and permitted state prohibition after fetal viability with health-of-the-mother exceptions — was the operational framework that organized American abortion law for nearly fifty years.

Planned Parenthood v. Casey, decided June 29, 1992, modified the Roe trimester framework but preserved the underlying right.² Casey substituted the “undue burden” standard for the trimester framework, allowing states to regulate abortion access throughout pregnancy so long as the regulations did not place an “undue burden” on access. The Casey framework permitted substantial state-level regulation that the trimester framework had not — waiting periods, parental notification, informed-consent requirements, certain provider restrictions — while preserving the constitutional core that the Roe decision had established.

Dobbs v. Jackson Women’s Health Organization, decided June 24, 2022, overruled both Roe and Casey in a 6-3 decision authored by Justice Samuel Alito.³ The decision held that the Constitution does not protect a right to abortion and that abortion regulation is therefore a question of state-level democratic decision-making. The decision was the principal substantive Supreme Court reversal of the post-Warren-Court individual-rights jurisprudence and was the consequential outcome of the post-2018 conservative Supreme Court majority that the Trump-administration appointments had produced.

The post-Dobbs state-level response was substantially the response the contemporary policy literature had predicted in advance of the decision.⁴ Approximately fourteen states enacted near-total or substantial-restriction abortion bans in the months following Dobbs, principally through “trigger laws” that had been enacted in advance of the decision and that became operative on Dobbs’s effective date. Approximately twenty-one states preserved or expanded abortion access, principally through state-level legislation or state constitutional amendments enacted in the post-Dobbs period. The remaining states adopted intermediate restrictions — fifteen-week limits, twelve-week limits, six-week limits — that the Dobbs decision had made constitutionally permissible.

The cumulative effect across the post-Dobbs period has been the patchwork access landscape that the contemporary American reproductive-rights framework operates under. American women’s access to abortion services depends, in operational terms, on the state of residence; the structural feature is that the access varies substantially across state lines, with the most-restrictive states operating in adjacency to the most-permissive states and with substantial interstate travel for abortion services emerging as the principal mechanism through which residents of restrictive states access services in permissive states. The structural feature has been the subject of substantial post-Dobbs litigation, including the Idaho-Texas-Tennessee abortion-shield-law disputes and the broader interstate-travel question.⁵

The Empirical Record

The post-Dobbs empirical record across the implementing states has, across two and a half years of operation, produced outcomes substantially aligned with the public-health literature’s pre-Dobbs predictions.

Maternal mortality in the most-restrictive states has risen substantially.⁶ The pre-existing American maternal mortality rate, which is the highest of any major developed country, has risen further in the post-Dobbs period, with the rise concentrated in the states that have implemented near-total bans. The mechanism includes: the structural difficulty of providing emergency obstetric care in the legal context where any abortion-adjacent procedure carries criminal-prosecution risk for the provider; the practical effect of the ban on maternity-care provision in rural areas where the post-Dobbs legal context has accelerated the closure of OB-GYN practices; and the broader effect of the post-Dobbs legal climate on the recruitment and retention of OB-GYN providers in the affected states.

OB-GYN training has been substantially disrupted. The medical-education literature has documented that OB-GYN residency programs in the most-restrictive states have, across the post-Dobbs period, lost applicants and have struggled to provide the comprehensive abortion-care training that the Accreditation Council for Graduate Medical Education requires.⁷ The downstream effect across the next decade is the structural shortage of OB-GYN providers in the most-restrictive states that the trained-elsewhere replacement candidates will be substantially constrained from filling.

The in-vitro fertilization access question has emerged as the contemporary post-Dobbs development that the pre-Dobbs literature had not consistently anticipated. The Alabama Supreme Court’s February 2024 decision in LePage v. Center for Reproductive Medicine held that frozen embryos created in IVF treatment qualified as “children” under Alabama wrongful-death law, with the operational consequence that IVF providers faced substantial liability exposure for the embryo loss that is structurally inherent in the IVF process.⁸ The decision substantially disrupted IVF access in Alabama in the months following; subsequent Alabama legislation provided partial protection. The structural question — whether the pro-life framework that animates the post-Dobbs state-level legislation is, in operational terms, compatible with the IVF treatment that approximately half of all American couples experiencing infertility eventually use — has not been resolved at the national level. The post-Dobbs reproductive-rights debate, in this respect, has expanded beyond abortion to the broader category of reproductive-medical-care provision that the Dobbs framework has, in operational terms, structurally affected.

The Federal Codification That Won’t Come

The Democratic-coalition position on federal abortion legislation has been, across the post-2010 period, substantially in favor of federal codification of the Roe-Casey framework. The Women’s Health Protection Act, advanced repeatedly across the post-2017 Congresses, would establish federal protection for pre-viability abortion access and would preempt state-level prohibitions within that window.⁹ The Act has been advanced in multiple Congresses; it has not been enacted.

The structural reasons for the non-enactment follow the pattern the broader series has described. The Democratic-coalition has not, across the post-Dobbs period, controlled the legislative coalition required to enact the WHPA against the Senate filibuster. The coalition has held the presidency and the House through portions of the post-Dobbs period; it has not held the sixty-vote Senate supermajority required for the WHPA’s passage. The Manchin-Sinema position on the filibuster carve-out, which constrained the For the People Act and the Freedom to Vote Act in the previous essays, also constrained the WHPA: the Manchin-Sinema framework opposed the carve-out for democracy reform and would have opposed the equivalent carve-out for reproductive-rights reform.

The Republican-coalition position on federal abortion legislation has been internally inconsistent across the post-Dobbs period. The pre-Dobbs Republican-coalition framework had treated the question as principally a question of state-level regulation; the post-Dobbs Republican-coalition framework has been split on whether to advance federal restrictions (a sixteen-week or twelve-week federal ban has been advanced by some Republican-coalition senators and presidential candidates) or to maintain the state-level framework that the Dobbs decision substantially established. The structural pattern has been the absence of any unified Republican-coalition federal-abortion framework, with the coalition’s operational position varying substantially across specific senators and presidential candidates.

The convergent failure of the two parties has been the absence of any federal legislative resolution of the post-Dobbs patchwork access landscape. The structural reasons for the absence are the structural reasons that operate against every fourth-settlement reform in the broader series.

What’s at Stake

The Intelligent Party’s policy framework on reproductive rights, articulated in the platform’s reproductive-rights position, is the structural framework that addresses the post-Dobbs landscape on the basis the platform identifies as both substantively defensible and politically achievable.¹⁰ The framework establishes federal codification of pre-viability abortion access (approximately twenty-four weeks) as the national floor below which no state may regulate, while preserving state-level discretion for post-viability regulation within constitutional constraints; preserves contraception access as basic public health, including over-the-counter hormonal contraception and expanded Title X funding; and acknowledges the moral complexity of the question while maintaining the structural commitment to access.

The framework’s structural distinctiveness is the explicit acknowledgment of moral complexity that the contemporary debate has, in operational terms, substantially obscured. The platform’s framework treats the question as a substantive policy question with substantive moral content, rather than as a category of identity-political mobilization that cannot accommodate substantive disagreement. The framework’s specific commitment to the federal floor that preserves access through the first viability window, combined with the state-level discretion for post-viability regulation, is the operational compromise that the pre-Dobbs American consensus had substantially produced and that the post-Dobbs polarization has substantially obscured.

The political coalition required to enact the framework does not currently exist in operationally effective form. The conditions under which it might assemble are the conditions the broader fourth-settlement framework requires. The framework’s principal political asset is the consistent post-Dobbs polling support for federal codification, which has run in the range of sixty to seventy percent across multiple polling waves and which has been substantially bipartisan; the framework’s principal political constraint is the structural feature that the operative legislative coalition has not assembled despite the polling support, in the manner the broader series has described.¹¹

The realism the previous essays have called for, applied to reproductive rights, is the realism that the structural reform is achievable on the specific architecture the platform has proposed; that the architecture has been designed to accommodate the substantive disagreement the contemporary debate has, in operational terms, refused to accommodate; that the principal obstacles to its enactment are the structural features the broader fourth-settlement framework would address. The conditions under which the obstacles break are the conditions the broader settlement requires.

The structural reform is the federal codification of the pre-Dobbs consensus that approximately seventy percent of Americans had supported and that the Dobbs decision overturned. The non-enactment has been the operational outcome of the post-Dobbs polarization that the contemporary political-mobilization environment has institutionalized, that the broader fourth-settlement framework would, in its electoral and campaign-finance components, structurally constrain.

Notes