Introduction

In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overturned almost 50 years of jurisprudence to take away federal constitutional protections for abortion. Dobbs was a radical and unprecedented ruling; it was wrongly decided and poorly reasoned. In the four years since, the legal landscape has been completely transformed by the enactment of state level constitutional amendments enshrining abortion protections, new efforts by anti-abortion extremists to restrict abortion nationwide, and plaintiffs raising novel legal claims. State courts have been hearing cases that assert rights to abortion under state constitutions with mixed results. Federal litigation impacting abortion access has not stopped, with three cases already reaching the Supreme Court and others in the pipeline. And Dobbs’ flawed reasoning has made its way into litigation around transgender rights, threatening to further retract constitutional protections for personal liberty. Looking ahead, the legal chaos that Dobbs unleashed is likely to continue into the foreseeable future.

Since Dobbs, the Center for Reproductive Rights (the Center) has pioneered new strategies and novel state constitutional claims, litigating dozens of cases in state and federal court and filing amicus briefs to inform and influence key legal decisions. The Center has also been tracking, analyzing, and advising on legal developments in courts across the country in order to understand the current landscape and inform the public about what’s at stake. This resource provides a snapshot of key trends that have emerged in the post-Roe legal vacuum. It shows how steps toward building a new right to reproductive autonomy are emerging, even while litigation in hostile courts poses limitations, and legal threats to abortion access persist.

Key legal trends shaping reproductive rights in post-Roe America:

1. Much litigation over reproductive rights has moved from federal to state courts, with the Center alone challenging abortion bans in 10 states (Arizona, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Oklahoma, South Carolina, Tennessee, and Texas), many with multiple overlapping bans.
2. State supreme courts have delivered mixed results, with some high courts recognizing state constitutional protections for the first time (North Dakota, Oklahoma, and Wyoming), while others have rejected these claims (Florida, Idaho, Indiana, Iowa, and South Carolina).
3. People harmed by abortion bans are challenging flawed life and health exceptions in state courts around the country.
4. Litigation to determine the reach of new state constitutional amendments has been an area of significant progress on abortion rights since Dobbs, with voters in 10 states amending their state constitutions to protect reproductive freedom.
5. Litigation relying on long-standing state constitutional protections recognized prior to Dobbs has preserved and expanded abortion access in the face of ongoing restrictive efforts.
6. In federal courts, the Supreme Court has heard three abortion-related cases since Dobbs that have deepened the legal chaos around reproductive health care in the absence of a federal right to abortion. And multiple cases to expand and restrict access to mifepristone, a key component of medication abortion, are making their way through the federal system back toward the Supreme Court
7. Dobbs’ retrograde constitutional analysis has made its way into cases on trans rights, student privacy, and contraception, threatening to further limit equality and liberty rights.
8. The Center and partners will continue to advance cases across the country asking courts to recognize, expand, and apply protections for reproductive autonomy—laying the groundwork to rebuild rights in the post-Roe U.S.

State courts

State courts

In the four years since Dobbs, legal challenges to state abortion bans have been testing state constitutions, with state courts deciding whether existing guarantees of liberty, privacy, equality, and other rights protect reproductive autonomy. And in states where voters have passed constitutional amendments that explicitly protect either the right to abortion or reproductive rights more broadly, litigation is helping make these new rights a reality. Lawsuits are also challenging health and life exceptions to abortion bans—undermining anti-abortion legislation by repeatedly showing that these exceptions don’t work.

Federal courts

Federal courts

Since Dobbs, federal litigation impacting abortion access has continued, with the Supreme Court already deciding three cases and multiple cases involving medication abortion working their way through the court system. The Supreme Court has heard three abortion-related cases since Dobbs that have deepened the legal chaos around reproductive health care in the absence of a federal right to abortion, in a landscape where 20 states are enforcing total bans or severe restrictions, while 25 states have at least some constitutional or state-law protections for abortion. Federal courts will continue grappling with efforts to impose nationwide restrictions on abortion access for the foreseeable future.

Wider legal impact

Impact on other areas of law

Dobbs adopted a retrograde constitutional test for determining the scope of liberty rights protected under the federal constitution, and went even farther to address sex equality issues that were not even part of the case. A key question after Dobbs was how this extremist version of constitutional analysis would impact other civil liberties, including contraception, marriage, student privacy, and gender-affirming care. Four years later, Dobbs’ analysis is distorting other areas of law, and some federal and state courts are relying on Dobbs to reject sex-discrimination claims in cases that involve health care beyond abortion.

Looking ahead

Looking ahead

What’s next? States hostile to abortion are likely to renew their attacks on the ability to access legal abortion in another state, fueling a new wave of litigation that may test the limits of states’ ability to serve people in large tracts of the country living under abortion bans. Meanwhile, state courts retain the power to recognize robust reproductive autonomy rights, and can overturn decisions erroneously denying rights in the face of overwhelming and growing evidence that abortion bans and restrictions harm life, health, liberty, and equality.    

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