Due to a patchwork of lawsuits in state courts and urgent court orders, the status of abortion rights across the nation remains uncertain six months after the U.S. Supreme Court reversed its 1973 Roe v. Wade decision.
According to experts, the situation will remain uncertain in the upcoming year as legal battles play out and state legislatures consider new restrictions that could redraw the boundaries of the abortion rights debate.
After the Supreme Court’s decision in Dobbs v. Jackson Women’s Health in June, it is anticipated that roughly half of all states will enact new abortion restrictions.
According to a Guttmacher Institute report from October, more than 20 million women of childbearing age no longer have access to abortions since the Dobbs decision.
According to those involved in the lawsuits and legal professionals, the litigation has caused chaos for abortion providers and patients. State after state has seen emergency orders issued by courts to halt the new bans while lawsuits are pending, only to have those orders later overturned on appeal a few weeks or even days later.
Kimberly Mutcherson, a professor and co-dean at Rutgers Law School who specializes in reproductive rights issues, said that “on a day-to-day basis it can be very complex for people who are trying to provide abortions and people who are trying to get abortions.”
Eight of the 18 states where new or recently enforceable abortion bans have been contested since Dobbs have had the restrictions halted pending further review, including some of the most conservative states like South Carolina and Indiana.
Nobody anticipates that everything will become clear in 2023. But the battle over abortion in each state will enter a new stage, opening up new fronts in some conflicts while bringing about long-needed clarity in others.
First, many of the ongoing lawsuits will pass their initial, emergency stage and proceed to final resolution in state’s highest courts, bringing clarity, at least in some states.
While the emergency orders preventing some states’ bans could be a “good sign” for abortion providers, according to Mutcherson, it does not guarantee that they will ultimately prevail. She added that courts might just be being cautious as they deal with novel legal issues.
States must “think more carefully” about what their constitutions say about abortion, which they haven’t had to do before because of this federal right (under Roe), she said.
At the emergency order stage, the majority of successful challenges to date have relied on explicit language in state constitutions that guarantees a right to privacy or equal rights for women in particular, both of which are absent from the federal constitution.
For the first time since Dobbs, several conservative state legislatures will convene in 2023. Not only could they enact new laws outlawing abortion, but they could also pass other kinds of laws meant to punish people or organizations that assist women in obtaining abortions, such as by providing money or assistance for women to travel to states where the procedure is permitted or by disseminating information online.
According to Katie Glenn, state policy director for the pro-life organization Susan B. Anthony Pro-Life America, “I think we will see a lot of new and creative kinds of legislation, things I have not even contemplated.”
Anti-abortion organizations have already entered the fray by suing to have one of the drugs used in the procedure removed from the market, turning medication abortion into a battleground.
In the upcoming year, it is likely that the debate over medication abortion, which is the cause of more than half of all abortions in the US, will intensify. After Dobbs, there was an increase in demand for shipments of abortion pills coming from abroad, and conservative states were able to pass legislation to stop them.
There are indications that abortion politics have changed since Dobbs. Democrats embraced the issue prior to their unexpectedly strong performance in November’s midterm elections, portraying their opponents’ abortion measures as extreme, whereas Republicans have historically campaigned on it.
Voters in Kansas and Kentucky also this year voted down anti-abortion ballot measures, and South Carolina’s legislature failed to pass a near-total abortion ban in a special session last month – all suggesting that the most stringent abortion measures may face political headwinds even in conservative states.
