Deconstructing Dobbs

A good way of understanding the right-to-life landscape in America after the overturning of the Roe regime in 2022 is that the question of abortion regulation was largely returned to the states. In the Dobbs decision, the Supreme Court found that there is no constitutional “right” to abortion, and that the states have primary responsibility for regulating abortion procedures and practices. As Notre Dame law professor Sherif Girgis put it in a Constitution Day lecture that year, in the Roe decision the “judiciary was politicized and our politics were judicialized.” Dobbs de-judicialized abortion, so to speak, by returning the issue to the legislative arena, at the federal as well as the state level.

In the wake of that decision, however, the pro-life cause has faced setback after setback at the state level. One explanation is that the movement was insufficiently prepared for the re-politicizing of abortion. It is also true that the moral and cultural assumptions surrounding life issues are of significance as well, and that focusing so much on winning arguments at the Supreme Court potentially crowded out, to some extent, more comprehensive efforts to promote a culture of life in other arenas.

But another dimension of the post-Roe regime that we currently occupy is that even in states where abortion has been restricted through legislative or more broadly political means, the advent of abortion chemicals made available through the internet and the mail has undermined the ability of pro-life states to regulate and limit abortion. In this way the political victories of the pro-life movement at the state level have been hollowed out by the practical access to abortion made possible by prescribers and providers located in other states.

In a recent episode of their “Natural Law Moment” podcast, Hadley Arkes and Gerry Bradley of the James Wilson Institute provide a comprehensive overview of the pro-life cause in the wake of the Dobbs decision, and Bradley in particular notes the challenge that mail-order abortion drugs pose to state sovereignty. In this new context “it’s actually practically impossible to return the issue to the state,” observes Bradley. States with pro-life protections “are unable to prevent abortions in their jurisdictions” and “are almost defenseless against an invasion of abortion pills,” he says, “without federal help.”

Indeed, the ability of states to regulate abortion depends on the practical ability to limit access to abortion drugs sent across state lines. Nearly two-thirds of all abortions in this country are now executed by means of such drugs, and some estimates claim that one-quarter of all abortions are made via telehealth prescriptions.

The rise of such abortions is even more concerning because of the risks that such drugs pose not only to the unborn child, but also to the mothers. Complications for women arising from such drugs has been consistently under-reported and under-acknowledged. Earlier this year the Ethics and Public Policy Center published a report that exposed these risks, noting that “serious adverse events from mifepristone are approximately 22 times more frequent than the Food and Drug Administration (FDA) currently recognizes.”

States need to be able to act to protect their citizens, both the unborn and their mothers. Shield-laws in pro-abortion states and the lack of federal regulation prohibiting the transfer of abortion drugs across state lines undermines the sovereignty of states to take such action and practically deconstructs the pro-life gains promised in the Dobbs decision.

This situation has led faith leaders, including the Southern Baptist Convention, to strongly argue for new protections for states to act effectively to protect their citizens. As the SBC convention put it in a resolution this summer: “Women are often denied full, truthful, and compassionate information about chemical abortion, which is increasingly administered through impersonal and unsafe means like telehealth and mail-order services—methods that can easily be misused or abused—while shield laws in some states enable the mailing of these drugs into states with abortion restrictions, undermining both the rule of law and the protection of unborn life.”

The nineteenth-century Comstock Act seems to be an insufficient safeguard for states’ rights, and so new federal action is needed to clarify the ability of states to regulate abortion in their jurisdictions. Otherwise, the practical availability of mail-order abortion drugs will continue to undermine the gains of the pro-life movement in the courts and allow pro-abortion states to supplant the sovereignty of pro-life states. Such injustice cannot stand, if only because it has the practical consequence of continuing the advance of the scourge of abortion in America.