The Post-Roe Reality

It’s been four years since the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and revoking the federal right to abortion. This is the post-Roe reality.

Four years after the Supreme Court took away the federal right to abortion, where do we stand?

20 U.S. states severely restrict or totally ban abortion.

62.7 million Women and girls live in states with abortion bans.

2X Women in states with abortion bans are twice as likely to die during pregnancy.

60% Of the American public believes abortion should be legal in all or most cases.

On June 24, 2022, the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health, taking away the federal constitutional right to abortion. The Court’s decision overturned its 1973 ruling in Roe v. Wade, which had stood as legal precedent for almost 50 years.

Dobbs, filed on behalf of what was then Mississippi’s last abortion clinic, challenged a 2018 state law banning abortion after 15 weeks. The Court’s ruling allowed that law to stand—and opened the door for other states to follow suit and ban or severely restrict abortion.

Just as Roe profoundly changed American lives five decades earlier, Dobbs has reshaped the U.S. legal, social, and political landscape. Four years out, the harm is clear: a growing national health care crisis and widespread legal chaos.

Today, the future of U.S. abortion rights remains unsettled. As hostile states move to restrict and ban abortion, others are passing state constitutional amendments guaranteeing broad reproductive freedoms. The widespread availability of medication abortion is contributing to an overall increase in the U.S. abortion rate, even as multiple federal lawsuits are threatening that access nationwide.

Since Roe fell, the Center for Reproductive Rights has been leading the fight to restore abortion rights and access. Pioneering new legal strategies, litigating dozens of cases in state and federal court, and tracking legal developments in courts across the country, the Center is laying the groundwork to rebuild abortion rights in the post-Roe U.S.

Reproductive Rights Litigation Since Roe Fell: Four Years of Chaos, Defending Against Attacks, and Building New Rights in the Courts.

This first-of-its-kind report explores the litigation landscape of the past four years, examining the legal reality of the post-Roe era, persisting threats to abortion, and key factors for building a new right to reproductive autonomy.

Primary Issue: Abortion

Reproductive Rights Litigation Since Roe Fell

Publication

At the heart of both Roe and Dobbs was the question of whether the U.S. Constitution protects the right to abortion. In Roe, the Court held that this right is part of the Fourteenth Amendment’s liberty guarantee, which safeguards the right to make intimate personal decisions free from government interference. In reaching the opposite conclusion, Dobbs upended this deeply rooted recognition of liberty rights.

This is an issue that goes beyond abortion. Other rights like contraception, gay marriage, and physical intimacy are also encompassed by the Fourteenth Amendment’s liberty guarantee—and the flawed constitutional reasoning adopted in Dobbs puts them at risk.

In 1970, two lawyers brought a lawsuit on behalf of a pregnant Texas woman using the pseudonym “Jane Roe.” The suit challenged Texas’s abortion ban, which banned abortion in all cases except to save the pregnant person’s life. The lawyers argued the ban was unconstitutional. The case eventually made its way to the U.S. Supreme Court.

In 1973, the U.S. Supreme Court ruled in favor of Roe, striking down Texas’ ban and making abortion legal everywhere in the U.S. The landmark ruling recognized that the decision to continue or end a pregnancy belongs to the individual, not the government. The Court held that the specific guarantee of “liberty” in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability.

For the first time, Roe placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion. In recognizing the right to abortion, Roe was consistent with earlier Supreme Court rulings recognizing a right of privacy that protects intimate and personal decisions—including those affecting child-rearing, marriage, procreation, and the use of contraception—from governmental interference.

Dobbs v. Jackson Women’s Health Organization challenged a 2018 Mississippi law banning abortion after 15 weeks. At the time of its passage, the law violated the federal constitutional right to abortion established in Roe v. Wade.

On March 19, 2018, the Center for Reproductive Rights sued Mississippi officials on behalf of Jackson Women’s Health Organization, the only remaining abortion clinic in the state. A federal district court granted a permanent injunction against the ban, which the state appealed. After the Fifth Circuit Court of Appeals upheld the district court’s ruling, Mississippi appealed to the U.S. Supreme Court.

The U.S. Supreme Court issued its decision on June 24, 2022, overturning Roe and ruling there is no federal constitutional right to abortion. Discarding nearly 50 years of precedent, the Dobbs decision not only allowed Mississippi’s ban to take effect but also paved the way for other states to follow.

Adopting an unprincipled and strikingly narrow view of liberty rights, the Court held that the liberty guarantee in the Fourteenth Amendment does not encompass the right to abortion because abortion would not have been considered a fundamental right when the amendment was ratified in 1868. In doing so, it tied modern-day rights to a deeply unjust past, cherry-picked from history, ignored the Fourteenth Amendment’s purpose, and brushed aside the real-world impact of its decision.

After today, young women will come of age with fewer rights than their mothers and grandmothers had.
Supreme Court Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, in the Dobbs dissent