Dobbs and the New Wild West: Surveying a Fluid Legal Landscape
On June 24, 2022, the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade and its baseline federal protections, which immediately impacted Americans nationwide. Dobbs facilitated broad legislative action to regulate abortion access, only to be met with litigation. Consequently, abortion regulation became more varied than it had been under Roe’s regime. Moreover, given the ongoing legal battles in its wake, countless uncertainties and legal questions remain unanswered, forestalling practical guidance for healthcare providers, policymakers, and women across the U.S.
In the immediate aftermath, Dobbs was the catalyst for enacting Mississippi’s “trigger ban,” a response since witnessed in several states. The Mississippi Center for Justice, representing the Jackson Women’s Health Organization, sued to enjoin the ban. However, MCJ voluntarily dismissed the case upon denial of injunctive relief in the Hinds County Chancery Court and an unsuccessful emergency appeal to the Mississippi Supreme Court. Shortly after, Mississippi’s sole abortion clinic closed its doors and relocated to New Mexico. Since Dobbs, Mississippi is one of 14 states that have banned abortion; 11 other states have varying degrees of regulation, and 25 states plus Washington D.C. have laws protecting access to abortion.
Focusing on Mississippi, the state’s high infant and maternal mortality rates were addressed post-Dobbs with legislative action led by Governor Tate Reeves and Attorney General Lynn Fitch, focused on supporting mothers and promoting pro-life measures through expanded postpartum Medicaid coverage and adoption measures. One such program is Mississippi Access to Maternal Assistance (“MAMA”), which connects pregnant women and mothers to various public and private resources across the state. These efforts, coupled with an increase in childcare enrollment, demonstrate Dobbs’ effect on Mississippi and the efficacy of the state’s follow-through on its commitment to supporting life.
On a national level, whether or not one agrees with Dobbs’ rationale, it is clear that, based on what continues to transpire in today’s chaotic and fluid legal landscape, abortion is not an isolated issue containable within individual states’ borders. The concept of state-by-state abortion regulation faces challenges in implementation. American society’s intense political polarization and inherent interstate design preclude the simplicity that Dobbs sought to achieve, as fifty individual laboratories of democracy balance divergent political considerations and views on abortion regulation, but also the potential applications of Dobbs beyond abortion regulation.
As a result, emerging concerns raise broad questions of health data privacy, uncertain standards and lower quality of care, expansive criminal and civil liability, and the scope of states’ authority within and beyond their borders to enforce abortion restrictions and, on the opposite spectrum, abortion access shield laws. This state of play provides no concrete answers, as many of these questions face ongoing litigation and unforeseeable applications. Furthermore, these issues’ novelty, primarily created by Dobbs, lack legal precedent and have fallen victim to political weaponization on both sides of the aisle. Among many hot-button issues for debate, the ramifications of Dobbs will likely be significant as the 2024 presidential election nears.
Not only has state action been called into question post-Dobbs, but private efforts have brought novel lawsuits, too. For instance, the American Association of Pro-Life Obstetricians and Gynecologists (“AAPLOG”) sued Mississippi’s State Board of Medical Licensure, wielding Dobbs to overturn Mississippi Supreme Court precedent. Interestingly, the AG’s office and MCJ, who joined as an intervening party, seek to dismiss the case, each with opposing reasoning. In late 2022, the Alliance Defending Freedom, a robust advocacy group representing several medical associations and individual physicians, sued the U.S. Food and Drug Administration (“FDA”) in Texas federal court, seeking to upend the federal agency’s regulatory authority over mifepristone. Recently, the Fifth Circuit Court of Appeals rendered a largely symbolic decision concerning the drug’s safety protocols; however, the U.S. Supreme Court will ultimately decide the case, and the ramifications will likely alter the balance of federal drug regulatory authority.
While in-depth discussions concerning the above issues and ongoing litigation are beyond the scope of this cursory survey, it is essential to reflect on Dobbs’ new legal, ethical, and healthcare-related frontiers. Whether intentional, the decision’s ramifications have influenced all corners of law, not just in the United States but globally, as the trend towards liberalizing abortion access continues worldwide. Here, Mississippians will test maternal support policies and programs like MAMA, hoping that, despite a lack of abortion access, pregnant women and mothers can be supported and experience positive health outcomes.
The views and opinions express in this blog post are solely those of the author and do not necessarily reflect the official policy or position of Mississippi College, Mississippi College School of Law, or the Law Review. The author is solely responsible for the content of this post. The information provided in this post is for general informational purposes only and should not be construed as legal advice.
