Erin Sutton, Richard H. Hughes, IV, Virginia Wilson, and Kathryn Finerty, attorneys in the Health Care & Life Sciences practice, co-authored an article in Health Affairs, titled “The 2023 State Legislative Sessions: The Next Abortion Battleground.”
Following is an excerpt:
On June 24, 2022, the Supreme Court of the Unites States released its opinion in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and Planned Parenthood v. Casey and upending nearly 50 years of precedent recognizing the constitutional right to abortion. The reversal of a multi-generational constitutional precedent did not happen overnight, but rather was the final straw in a long-haul legislative push to set up a direct challenge to Roe at the Supreme Court. According to the Guttmacher Institute, 479 abortion restrictions were enacted in 33 states between January 2011 and May 2019, accounting for more than a third of all abortion restrictions enacted since the 1973 Roe decision.
After the Supreme Court gained a conservative majority with the 2018 appointment of Justice Kavanaugh, fifteen state legislatures rushed attempts to enact 6-week abortion bans during the 2019 legislative session, with nine states ultimately enacting new gestational age bans more restrictive than permitted under Roe and Casey. After passing a 20-week ban in 2014, Mississippi passed its 15-week ban in 2018, setting up a direct conflict with Roe that resulted in the Dobbs decision.
The Dobbs majority argued that Roe and Casey had “enflamed debate and deepened division,” and held that “the authority to regulate abortion is returned to the people and their elected representatives.” Yet far from settling questions about abortion law, the Dobbs decision resulted in increasing volatility. Over the past six months, the legal status of abortion has changed hour-by-hour in some states. In each of the six states with abortion-related ballot initiatives after the Dobbs decision, the people voted in favor of more expansive abortion access. Even in Kentucky, which has enacted some of the most restrictive abortion laws in the country, voters chose to expand – rather than limit – access to abortion. A recent Wall Street Journal poll found that support for abortion increased five percentage points, from 55% in March to 60% in August among all likely voters. Further, more than half of voters said the issue made them more likely to cast ballots in the midterm elections.
Despite popular consensus in favor of restoring abortion rights and reversing restrictions on abortion care, there is no sign of the battle subsiding. Indeed, the 2023 state legislative sessions mark the start of a new era in efforts to limit abortion rights – one that will bring a variety of new state laws, myriad challenges in the interpretation and application of those laws, and a continuing flood of litigation in state courts.
