June 24, 2024, 6 p.m.
Two years on, the legal and medical chaos unleashed by the Supreme Court’s decision to overturn Roe v. Wade remains far from settled.
The landmark 1973 decision had enshrined abortion as a constitutional right for nearly 50 years, until June 24, 2022. Justice Samuel Alito wrote on that date in the majority opinion in the Dobbs decision that the “Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
The impact was almost immediate. Conservative states moved quickly to restrict or outright ban abortion services, while liberal states worked to protect access. Lawsuits over various aspects of abortion law and practices, including the abortion pill mifepristone and emergency care, have piled up. And the issue continues to have ripple effects in elections.
“With one more pro-choice Democratic senator, a pro-choice Democratic House majority, and Joe Biden in the White House, we can restore abortion rights for every woman in America,” Sen. Patty Murray said in a statement Monday. “The American people are with us: every time voters have a say—abortion rights win.”
Here is what has changed, hasn’t changed, and remains unsettled two years after the justices' seismic decision:
Abortion is now effectively banned in 14 states
Reversing Roe v. Wade has left the regulation of abortion up to the states, leading to a patchwork of laws and regulations.
Fourteen states have banned nearly all abortions: Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia.
Other states have set strict gestational limits at six, 12, and 15 weeks.
All of the bans have an exception to prevent the death of the mother, and some include other exceptions for the health of the pregnant person, for victims of rape or incest, and where there is a lethal fetal anomaly, according to a review by KFF.
But in practice, the KFF analysis found that health and life exceptions are often unworkable and have kept doctors from using best practices. The bans and restrictions have caused delays in care for miscarriages.
State ballot initiatives
This map may continue to change as advocates continue to try to get abortion on the ballot in November.
Ballot measures in Colorado, Florida, Maryland, and South Dakota to enshrine the right to an abortion will be considered this November. Similar ballot measures are in the works in six other states.
These ballot measures could motivate Democratic women in those states to vote this fall. A recent KFF poll found that 53 percent of Democratic women in these states are more motivated to vote, compared to 43 percent of Democratic women in states without these initiatives.
In Arizona, where advocates are currently gathering signatures to get the issue on the ballot, around 60 percent of Democratic women said they will be more motivated to vote if the issue is added, according to KFF.
The abortion pill
As of 2023, abortions induced by medications accounted for 63 percent of all abortions in the U.S., according to the Guttmacher Institute.
The widespread utilization of pills to end pregnancies has made the abortion drug mifepristone a target of antiabortion groups. Mifepristone is taken with the drug misoprostol to end pregnancies through 10 weeks gestation.
Over the years, the Food and Drug Administration has eased restrictions around the drug to allow patients to access the pill through mail-order and to expand the types of providers who can prescribe it, among other changes.
The Alliance for Hippocratic Medicine and conservative doctors brought a case in Texas last year challenging the FDA’s decision to relax the regulation of the drug. The case eventually ended up in front of the Supreme Court. Earlier this month, the justices decided to dismiss the case based on standing, meaning access to mifepristone on the federal level remains unchanged.
But experts and advocates on both sides of the debate don’t think challenges to the abortion pill will end here. Some think that under a conservative administration, the FDA could reinstate old restrictions and the Justice Department could move to enforce an old anti-vice law to prohibit the mailing of mifepristone. Conservative states could also continue to challenge the regulation of mifepristone in the courts.
Abortions during emergencies
The Supreme Court is expected to make another momentous decision around abortion, this time over use of the procedure in emergency situations.
Shortly after Roe v. Wade was struck down in 2022, the federal government issued guidance to hospitals participating in Medicare clarifying that they must provide stabilizing care to a pregnant patient in an emergency, even if it means terminating the pregnancy.
The federal government then sued the state of Idaho, arguing that its abortion ban conflicts with federal requirements and that federal law preempts the restriction. The Supreme Court heard the case in April, and the justices appeared split. They asked questions about preemption, what emergency cases are covered under Idaho’s law, and how the federal statute treats unborn children.
Advocates have warned that Idaho’s strict ban has caused physicians to flee the state. A February report from the Idaho Physician Well-Being Action Collaborative found that 22 percent of obstetricians had left Idaho in the 15 months after the abortion ban was enacted.
Fetal personhood and in-vitro fertilization
Guaranteeing access to fertility treatments, including in-vitro fertilization, has become front and center of the reproductive-rights battle in the U.S.
The Alabama Supreme Court ruled earlier this year that a set of frozen embryos that were dropped by an individual who gained access to a storage facility should be considered “children” in a wrongful-death suit. In response, IVF services in the state were halted due to concerns of criminal liability. The state has since passed liability protections for providers and patients using IVF.
But the case catapulted the issue of fertility treatments, and how the fetal-personhood movement could impact access, into the spotlight. Fetal-personhood policies provide fetuses and embryos the same rights and protections provided to living people.
Currently, 19 states have fetal-personhood language either in their law, in their criminal code, or in case law, according to the offices of Sen. Murray and Sen. Tammy Duckworth. The two Democrats have been highly critical of the fetal-personhood movement.
Their offices said state lawmakers introduced 13 other fetal-personhood measures during the last legislative session.
Democrats have jammed Republicans on the issue, forcing votes on the floor over measures that would guarantee a right to fertility treatments and that would give patients control over their embryos.
The issue has become complicated for congressional Republicans. Some conservatives argue that embryos can be protected without outlawing the practice of IVF.
“My position is that we do everything we can to avoid terminating embryos, but at the same time I personally think that for many, many people, IVF provides an opportunity for them to have a family,” Republican Sen. Mike Rounds of South Dakota said to National Journal earlier this month. “I want to see us move to not having the need for embryos to be lost in that process, and we should work towards that.”
