The promise of Dobbs
The legal landscape one year after Roe’s reversal
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It has been one year since the Supreme Court overruled Roe v. Wade, holding that the Constitution does not contain a right to abortion. We should see that decision as nothing short of miraculous, and it was the result of decades of prayer and perseverance. One year later, thousands upon thousands of lives have been saved, and yet the work of creating a culture of life is just beginning.
One year after Dobbs, almost one-third of the states (14) prohibit abortions except to preserve the life of the mother and in other limited circumstances like rape and incest. Two additional states, Georgia and Nebraska, prohibit abortion at six weeks and twelve weeks, respectively. And an additional nine states impose a gestational limit that applies prior to a baby’s viability, sometime between 15 and 22 weeks. These state laws represent a tremendous victory for the pro-life movement as many protect life in circumstances that would have been impossible under Roe. An April study found, for example, that in the 13 states with protective laws triggered by Dobbs, abortions decreased by nearly 96 percent.
Yet in 25 states and the District of Columbia abortion remains legal under circumstances broader than those required by Roe. In much of the country abortion is still legal past viability—a line that is more liberal than every country in the European Union. And in many states, abortions are available for any reason up until the moment before birth—a policy that only a handful of countries, such as China and North Korea, endorse.
The Biden administration has also worked relentlessly to undermine the promise of Dobbs in states that have chosen to protect life. On the same day as Dobbs, President Biden told his administration to make chemical abortion “as widely accessible as possible.” The president has also directed his administration to ensure access to chemical abortion drugs no matter where women live. And his FDA stripped away the requirement of any in-person visit for chemical abortion, removing a crucial safeguard that gave medical professionals the chance to detect ectopic pregnancies and other life-threatening conditions. The Biden FDA also allowed chemical abortion drugs to be dispensed by mail, allowing for abortion drugs to be shipped across state lines—again without a woman ever seeing a doctor or any other medical professional. Chemical abortion drugs can be dangerous. The current medication label, for example, says that between 2.9 percent and 4.6 percent of women who take the drug will end up in the emergency room.
The purveyors of chemical abortion drugs have instituted their own lawsuits against state laws protecting life. In West Virginia and North Carolina, the generic manufacturer of the chemical abortion drug says that the FDA’s approval of the drug for use through ten weeks gestation means that a state cannot prohibit or regulate abortion before then. The argument that all states must allow abortion until ten weeks would come as a surprise to the Dobbs Supreme Court, which held that states have the power to protect life. It would also come as a surprise to Congress, which has repeatedly declined to enact a national law that legalizes abortion.
In the struggle against chemical abortion pills, there is hope on the horizon. A suit brought by the law firm for which I work, Alliance Defending Freedom, on behalf of pro-life doctors and medical organizations, claims that the FDA’s approval of mifepristone was invalid. Further, the agency stripped away safety requirements, violating federal law. Two federal courts have already agreed in large measure, finding that the FDA was wrong to remove crucial safeguards like doctor’s visits and in-person dispensing. The case is currently pending before the Court of Appeals for the Fifth Circuit.
Studies show that many women who obtain an abortion say they would choose life were their circumstances different. Post-Dobbs, too many women continue to believe that their only option is to make the heartbreaking decision to end the life of their child. Help is available. In 2019, for instance, approximately 2,700 pregnancy care centers provided nearly $270 million worth of free resources. But we must work until each of these women believes she has the support she needs to choose life for her child.
One year after Dobbs, the legal landscape is mixed, but we should be hopeful. The promise of Dobbs—that the people can protect life through their legislatures—is being lived out in about one half of the states and unborn lives are being saved every single day. That is a cause for celebration and thankfulness. Yet the fact that many states still allow elective abortions under a regime more extreme than Roe underscores the need to change hearts and minds. We must not only make abortion unlawful—but also unthinkable. Let’s proclaim and live out the American promise that every child is valuable and deserves the right to life.
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