Abortion is one of the most contentious and polarizing issues in contemporary American politics. Both federal and state abortion laws have changed rapidly, some would say cataclysmically, in the past two years. In 2022, the Supreme Court reversed nearly 50 years of precedent with its decision in Dobbs v. Jackson Women’s Health Organization. The Court ended the constitutional right to abortion at the federal level. Overnight, state governments enacted severe restrictions on abortion. These restrictive policies were previously unconstitutional under Roe v. Wade. Since then, fourteen states have made abortion illegal.
Since 2022, state-level abortion policy has been extremely diverse. Stark policy differences exist between Democratic and Republican controlled states. In liberal states, legislatures have maintained or even expanded access to abortion care. Meanwhile, conservative states have imposed various restrictions, from outright bans to gestational limits.
The History of Abortion Policy
Roe v. Wade protected abortion access as a constitutional right. It curtailed states’ ability to regulate or limit access to the procedure. In Roe, the justices argued that abortion was a personal, medical decision protected by the constitutional right to privacy. Any regulations on abortion access had to be justified by a compelling state interest until the fetus reached viability. After viability, states could prohibit abortion except when necessary to protect life or health.
Yet, despite the protections ensured by Roe, many state legislatures continued to pass abortion restrictions in an effort to test the decision’s boundaries in federal courts. Conservatives, particularly the Christian Right, remained strongly opposed to abortion and wished to see Roe overturned. With the Dobbs decision, the anti-choice lobby achieved a decades-long project.
The case that ended Roe originated in Mississippi. In 2018, the Mississippi legislature passed a law that effectively banned abortion after 15 weeks of gestation. The law was an intentional challenge to the Supreme Court’s precedent. Mississippi legislators knew it would result in litigation.
Mississippi’s sole abortion provider, the Jackson Women’s Health Organization, challenged the ban in court. This case, known as Dobbs v. Jackson Women’s Health Clinic, traveled through the lower and appellate court system before reaching the Supreme Court in 2022. There, the Justices voted 5-4 in favor of the State of Mississippi. The decision allowed the 15-week ban to take effect, reversing the Roe decision.
The Court’s decision in Dobbs is all but unprecedented. It’s arguably the first time in U.S. history that the Court reversed a previously guaranteed constitutional right. As such, it raised the possibility of other contested or controversial Supreme Court decisions being overturned. Many Americans share concerns that precedent protecting other reproductive rights, including contraception, could be next.
Current Abortion Laws in the United States
Dobbs was a major turning point in American history. As mentioned, it has unleashed a flurry of abortion policy changes at the state level. A few states have enacted new policies protecting abortion access and reproductive rights. However, most policy change has occurred in conservative states to restrict abortion access. Overall, abortion access has been severely curtailed.
Protecting Abortion Access at the State Level
Since Dobbs, there have been several state-level policy victories for abortion rights advocates. First, in a 2022 special election, Kansas voters rejected a ballot measure that would have paved the way for a total abortion ban. Over 59% of voters voted against the measure. The initiative drove increased turnout in an off-cycle election in a right-leaning state.
Backlash continued in the 2022 midterm elections. Across party lines, Americans voted in favor of abortion rights in statewide ballot measures. Voters in California, Michigan, and Vermont supported measures that explicitly preserved abortion access. In conservative Kentucky, voters rejected a constitutional amendment that would remove abortion protections from the state constitution. Ohio voters followed suit in 2023, approving a ballot measure that explicitly protected reproductive rights.
Overall, a trend is clear. Not one state has passed an abortion restriction via ballot measure since Dobbs. Most Americans are in favor of abortion access, even in conservative-leaning states.
Total Abortion Bans
Since the Dobbs decision, fourteen states have enacted total abortion bans. These laws offer no exceptions, or incredibly narrow exceptions, in the case of rape, incest, extreme fetal abnormalities, and so on. Many of these states have also enacted criminal penalties for women that seek abortions, or for doctors that perform them.
Three states have passed a six-week gestational limit on abortion. In practice, six-week abortion bans function as total bans, because so few women even know that they are pregnant at the six-week mark.
In states with total abortion bans, pregnancy is increasingly dangerous. Women seeking reproductive healthcare for medical emergencies, including ectopic pregnancy or miscarriage, are being denied care. Healthcare providers fear facing criminal penalties for defying abortion bans.
Limiting, But Not Banning, Abortions
While most states have passed measures that are explicitly in favor of or against reproductive rights, few currently operate in the gray area between legality and illegality. Arizona and Utah have passed “moderate” gestational limits since Dobbs. Those seeking or needing abortions in these states are subject to fifteen and eighteen week bans, respectively. While these measures are less restrictive than outright or six-week bans, advocacy groups such as Planned Parenthood still claim that these limits are needlessly burdensome and restrictive.
The Controversy Over Abortion Policy & Its Impact on Elections
Since Roe v. Wade was overturned, political controversy over abortion policy has escalated. Abortion access has driven polarization and drastically influenced voter behavior. Elections have become referendums on the future of abortion policy in America. The issue has profoundly impacted campaigns and elections across all levels of government. With abortion rights no longer federally protected, the issue has become a focal point in state and local campaigns.
Generally speaking, conservatives prioritize abortion opposition. They’ve made a “pro-life” position and identity a litmus test for candidates seeking party support. This has resulted in the rise of anti-abortion politicians. Restrictive abortion measures have become intrinsically integrated into Republican Party platforms. Conversely, liberals view reproductive rights as fundamental to gender equality and bodily autonomy. Democrats have campaigned on restoring abortion access in recent elections.
Over the past two years, candidates have made reproductive rights a central campaign issue. On the whole, pro-choice candidates are winning those races. Despite heightened polarization, a majority of Americans support abortion access and oppose the Dobbs decision. Many Republicans, particularly those in toss-up states, have subsequently de-emphasized abortion rights as a campaign issue. With Roe gone, abortion is largely losing issue for Republicans. Conservatives must move towards the middle or risk alienating moderate voters and women.
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