One Year After Dobbs, We’re Still Fighting for the Future We Deserve
By Jen Kukucka
On June 24, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, confirming fears that the Court would overturn protections afforded by Roe v. Wade. One year later, The Leadership Conference on Civil and Human Rights is shining a light on how we got here, the continued impact of the Dobbs decision, and our coalition’s efforts to strengthen and protect access to abortion and reproductive health care.
How did we get here?
More than 50 years ago, the Supreme Court recognized an individual’s constitutional right to obtain an abortion in Roe v. Wade. But even before Roe, the Court recognized the fundamental right to bodily autonomy. One of the first cases to do so was Griswold v. Connecticut in 1965, in which the Court held that a Connecticut law banning any means of contraception was unconstitutional — recognizing the fundamental right to privacy in one’s personal life. Decisions that fell under the zone of privacy protections included the right to procreate (Buck v. Bell); the right to purchase and use contraceptives (Eisenstadt v. Baird); the right to structure one’s own living arrangements (Moore v. City of East Cleveland); autonomy in sexuality (Lawrence v. Texas); the right to interracial marriage (Loving v. Virginia); the right to same-sex marriage (Obergefell v. Hodges); and, until Dobbs, the right to obtain an abortion under set conditions (Roe v. Wade).
The Roe decision in 1973 was a monumental win, recognizing an individual’s right to decide whether to terminate a pregnancy. Justice Blackmun, in his landmark majority opinion, stated that the right to privacy is broad enough to encompass a person’s decision to terminate a pregnancy and is implicit in the concept of liberty in the Fourteenth Amendment’s Due Process Clause. The decision also imposed restrictions on abortion, including a distinction between pre- and post-viability of a fetus, which triggered legal battles for decades after. In its decision in Planned Parenthood v. Casey in 1992, the Court reaffirmed its holding in Roe and introduced a new “undue burden” standard of review for abortion restrictions. In the years post-Casey, states attempted to chip away at abortion rights and protections, and subsequent legal challenges continued to reach the Court. Additionally, throughout this period, federal legislative restrictions on funding for abortion and reproductive health care made the right first recognized in Roe wholly inaccessible for people with low incomes.
Our coalition members have been at the forefront of the fight for reproductive rights since the very beginning and continue to have a strong hand in leading policy toward progress. In 1948, Planned Parenthood awarded a small grant for developing a birth control pill, which was headed and funded by the leader of the League of Women Voters, Katharine McCormick. Since the 1970s, the National Women’s Law Center has fought to expand access to abortion and contraception, and has also worked to address intersectional issues, including in coalition with The Leadership Conference and other partners to advocate for the recent passage of the Pregnant Workers Fairness Act. The National Partnership for Women & Families, a longtime leader in this space, released an analysis highlighting the harmful impact of state abortion bans on people of color, and works to improve maternal health outcomes. Numerous other coalition members have made invaluable contributions to the movement and continue to lead the way forward.
Reproductive justice organizations have been a leading voice in this work throughout the years, ensuring that the experiences and voices of historically marginalized communities are represented in this fight. In Our Own Voice: National Black Women’s Reproductive Justice Agenda is a partner that joined eight Black women’s reproductive justice organizations under one effort. Similarly, the National Latina Institute for Reproductive Justice was founded to support Latina communities and empower them to make informed decisions about their bodies. The reproductive justice movement has long recognized the systems of historic oppression that create daily barriers for people of color and low-income people in accessing abortion and reproductive health care, and they continue to use their collective power to push for change.
The current state-of-play
On June 24, 2022, five extremist justices took away the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, overturning the decisions in Roe v. Wade and Planned Parenthood v. Casey, and giving each individual state the power to ban or effectively eliminate access to abortion. In an amicus brief filed by The Leadership Conference, the Lawyers’ Committee for Civil Rights Under Law, and 16 civil rights organizations, we urged the Supreme Court to uphold the right to abortion as protected under Roe and Casey, rather than overturn those cases. Justice Breyer cited our amicus brief twice in his dissent, noting the considerable civil and human rights concerns the decision would trigger.
A handful of states were ready for Roe to fall and passed trigger bans. Mississippi, Arkansas, Oklahoma, Missouri, and South Dakota were among the states that almost immediately prohibited abortion in most circumstances. Georgia, Florida, Idaho, Texas, Arizona, Louisiana, and North Dakota were quick to follow by passing legislative bans soon after the decision.
An interactive map by the Center for Reproductive Rights highlights the wide range of state reactions to the Dobbs decision. A number of states took steps to either protect the right to an abortion or expand access to them. California, for example, passed Prop 1, which added the right to an abortion and personal reproductive decisions to its state constitution. In contrast, 35 states either do not protect the right to an abortion, are hostile toward abortion access, or have banned abortions completely. New Mexico, for example, allows access to abortions within the state but has put no other legislative protections in place. Texas, however, has enforced a total ban and is prosecuting people for obtaining abortions. A #WeCount report by the Society of Family Planning looked at the average estimated change in the number of abortions per month after Dobbs, compared to before the decision. The report showed significant decreases in the monthly average number of abortions, confirming that the Dobbs decision made it more difficult for pregnant people to access the health care they need. This is particularly true for people who live in states that put extreme restrictions and bans on abortion in place after the decision, who are now forced to attempt to travel to states with increased access and find resources in other ways. The data demonstrate that by banning abortion, state lawmakers are really removing access to safe abortions and putting pregnant people’s lives at tremendous risk.
The communities most at risk after Dobbs are those who are disproportionately impacted by inequities, including people of color, LGBTQIA+ people, people with disabilities, veterans, and people with low incomes. A new analysis from the National Partnership for Women & Families shows that more than 36 million women of reproductive age live in states that have or are likely to ban abortion, including 15.4 million women of color, 2.9 million women with disabilities, and 12.5 million women who are economically insecure. Approximately three-fourths of abortions in the United States are sought by patients who have low incomes. People who live in states with abortion bans are forced to travel long distances for the procedure. This exacerbates physical and financial hardship to a point that is insurmountable for many. Additionally, states with the toughest abortion laws often have the highest infant and maternal death rates. These states also report some of the worst racial disparities in maternal mortality in the nation. The impact of abortion bans and restrictions is borne most heavily by the communities our coalition represents, and the effects will be experienced by generations to come.
Looking forward
The Leadership Conference coalition is committed to working across communities to fight for abortion access and reproductive health care, rights, and justice, and to protect those who are most vulnerable. Our coalition not only advocates for local, state, and federal abortion and reproductive health protections, but also uplifts intersectional efforts, like appointing federal judges who are committed to civil and human rights and passing comprehensive data privacy laws.
Codifying a federal right to abortion is a critical step in protecting access. The Leadership Conference, along with more than 100 civil and human rights organizations, continues to urge Congress to pass H.R. 12, the Women’s Health Protection Act (WHPA). The legislation would codify the right to obtain an abortion across the nation, despite the Supreme Court’s decision in Dobbs. WHPA would protect abortion access and remove some of the barriers preventing pregnant people from accessing health care, including the right to travel for abortion care. Codifying this right through WHPA is a necessity post-Dobbs.
Additionally, we must recognize that the Hyde Amendment has magnified financial barriers to abortion for far too long by preventing the use of public funding to pay for abortion and other reproductive health care. Congress must pass the EACH Act, which would reverse the Hyde Amendment and require federal health care programs to provide coverage for abortion services. Currently, 55 percent of reproductive-age women are enrolled in a Medicaid program within states that withhold coverage for abortions. According to the American Public Health Association, when a person is forced to carry their baby to term, they are more likely to fall into poverty than those who have access to an abortion. The EACH Act is a commonsense solution to the harmful financial burdens the Hyde Amendment imposes on people with low incomes.
New issues have come to the forefront in the fight for abortion access. Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (FDA) is a case currently making its way through the U.S. Court of Appeals for the Fifth Circuit. Anti-abortion activists have sued the FDA over its approval of mifepristone, one of the two medications commonly used in medication abortion, in order to remove it from the market. Mifepristone is safe, effective, and was approved by the FDA more than 20 years ago. The case is a prime example of the drastic lengths anti-abortion activists will go to in order to deny people the freedom to make their own health care decisions.
Our coalition is closely following a number of other intersectional issues implicated by the Dobbs decision, including AI and data privacy rights, court reform, election misinformation, and voting rights. Our partners at the Center for Democracy and Technology (CDT) are mobilizing advocates and policymakers to protect health data privacy while states are using the information to prosecute abortion-seekers and censor online resources related to abortion access.
Additionally, we are working in coalition to advocate for a federal judiciary that better serves all people in America. As we have seen through the Dobbs case and other attacks on abortion through the legal system, such as the Alliance for Hippocratic Medicine v. FDA,, the makeup of our judiciary has considerable ramifications on abortion and reproductive health care access. On June 20, the Senate confirmed Julie Rikelman to the U.S. Court of Appeals for the First Circuit. Rikelman’s vast legal experience includes her time as litigation director at the Center for Reproductive Rights, where she litigated landmark abortion cases, including Dobbs. Rikelman’s legal acumen is just what we need on our federal courts, and our coalition has long supported her confirmation. More judges like Julie Rikelman are needed to ensure a fair federal judiciary that reflects and represents the vast and rich diversity of our nation.
These efforts would not be possible, however, without a working democracy. Your voice matters in this fight. It is imperative that we elect local, state, and federal leaders who support the right to abortion. State ballot measures across the nation have helped to codify abortion rights in state constitutions, but it is not enough until each individual in each state is able to safely access abortion and reproductive health care.
Join our coalition members in this fight for abortion and reproductive rights and justice. We encourage you to make your voice heard by calling on your representatives to pass legislation that protects and expands access to abortion and reproductive health care, donating to local abortion funds, and supporting those who need resources the most in this new post-Dobbs landscape. Together, we will continue to work toward a future where abortion and reproductive health care is a reality for all people.
Jen Kukucka is a summer 2023 legal intern at The Leadership Conference on Civil and Human Rights.