Is Abortion Law in the US Changed Forever?

by | Oct 4, 2023 | Fall/Winter 2023-24, Health, The Big Question

Late June marked the one-year anniversary of Dobbs v. Jackson Woman’s Health Organization, the Supreme Court decision reversing Roe v. Wade. The court’s decision has opened a new chapter in conflicts around reproductive rights and justice, explained Mary Ziegler, Martin Luther King Professor of Law at the UC Davis School of Law. Ziegler, a 2023-24 Guggenheim fellow, researches the legal history of struggles around abortion and other reproductive health issues. Since last year, there have already been six ballot initiative struggles, more than half a dozen state Supreme Court challenges and additional fights in federal court aimed at limiting or even ending access to abortion nationwide.

“A common thread in all this chaos is the tension between voters’ support for legal abortion and new state and federal efforts to take the issue away from voters,” Ziegler said.

Ziegler explained that while the Supreme Court promised that the abortion conflict would be returned to the states, it hasn’t been that simple. Action at the state level has included restrictive legislation across parts of the South and Midwest. More strikingly, Ziegler said, when voters have a chance to separate their preferences about abortion from their partisan affiliation, abortion rights supporters have scored stunning victories, winning six of six ballot initiative fights in states as different as California, Michigan and Kentucky.

The response from those opposed to abortion has been to fight on different terrain: raising the threshold for voters to initiate a ballot measure, for example, or returning to the federal courts.

“The appeal of the federal courts is that they might deliver what voters would never endorse,” Ziegler said. “That’s certainly the case when it comes to passage of a nationwide ban on abortion.”

On the other side, Dobbs sparked hope that Congress might pass a federal law codifying access to abortion and other forms of reproductive health care. Democrats promoted a bill, the Women’s Health Protection Act, that promised to do just that. Others looked for new constitutional arguments based on equality rather than privacy. Eventually, Ziegler said, it’s right to hope that abortion rights — and perhaps other reproductive liberties — will win recognition from the courts. But in the shorter term, struggles over abortion law will more likely turn on whether the status quo remains — where people in states with bans can travel or buy pills online — or whether access to abortion falls away, and with it, access to contraception or even in vitro fertilization.

Additional concerns

In 2022, Ziegler said, states mostly stayed away from the most divisive issues, like bans on birth control or laws that applied abortion bans in other states. But that is no reason for complacency for those that support reproductive rights, even in states like California. Ziegler said that conservative lawmakers recognize how easy it is to circumvent existing bans. That’s the reason some groups opposed to abortion are championing laws that allow lawsuits against anyone who helps a person seeking abortion from a state where the procedure is prohibited.

Ziegler said that the same concern was behind new lawsuits that revive 19th-century law. Courts have not applied the Comstock Act to abortion for decades, Ziegler said, but lawyers opposed to abortion argue that the text of the statute seems to criminalize mailing anything intended or adapted for abortion. “If a federal court agreed with this interpretation, the implications would be stunning,” Ziegler said. “The courts would then be signing off on a ban on all abortions, since every procedure across the country uses drugs or devices sent in the mail.”

The sweep of the Comstock Act would be hard to predict because the interpretation championed by abortion opponents includes items “adapted” for abortion. That could raise new questions about what drugs cause abortion — an issue because some abortion opponents believe birth control pills, IUDs and emergency contraceptives to be abortion drugs. And it might have consequences for drugs that could be “adapted” for abortion, like chemotherapy drugs or even Advil.

Another major case turns on whether the Food and Drug Administration had the authority to approve the abortion pill mifepristone. This case could have far-reaching consequences too, Ziegler explained. “The case would not only change the delivery of abortion services across the country,” Ziegler said. “It would also set a precedent that movements could challenge the approval of drugs they don’t like, even decades after the fact.”

The role of voters and companies

Whatever the federal courts decide, voters, medical organizations and companies have an important role to play, said Ziegler.

For doctors and businesses, expressing a view can sway key decision-makers. Historically, businesses and even leading medical organizations tended to see the abortion issue as politically toxic. That’s starting to change, Ziegler argued, and if business leaders and medical professionals put a thumb on the scale, it might make a difference in both state and federal struggles.

As for voters, abortion will be part of key ballot initiatives in states like Ohio, but it will affect elections to Congress — and the White House in 2024. Ziegler argued that the stakes of elections are now much higher when it comes to abortion. Presidents will not only select new judges but also decide how to interpret the Comstock Act and whether to enforce it. Congress will decide whether to repeal the Comstock Act or even pass protection for reproductive rights.

“The law and politics of reproduction are more inextricably linked than ever,” Ziegler explained. “It will be up to voters to shape what comes next.”

This interview was excerpted from a longer Q&A.