Health Care

Analysis: After Dobbs, abortion debate takes on new angles

What was once a debate over the definition of fetal viability has broadened.
Abortion rights supporters display banners as they gather in the Wisconsin state Capitol in Madison, Wis., on Sunday, Jan. 22, 2023. Women’s marches were organized across the country on Sunday but the main rally was held in Madison, drawing thousands of people from Wisconsin and neighboring states to protest the state’s abortion ban, which is being challenged in court. (AP Photo/Harm Venhuizen)

For decades, supporters and opponents of abortion rights have waged the political equivalent of trench warfare, fighting and scraping over the same worn turf for the narrowest advantage.

But the trenches have cleared in the months since the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, which left abortion rights and restrictions to the states. What was once a debate over the definition of fetal viability has now broadened to include exemptions, medication, the role of doctors and even technological privacy.

Lawmakers on both sides are now contending with new elements and angles of the once-stagnant debate over whether and how a woman has the right to end a pregnancy.

“Now that the action has moved to the states and to a lesser extent to Congress, the issues we’re confronting are different,” said Mary Ziegler, a law professor at the University of California-Davis and author of four books on the legal fight over abortion.

Freed from the strictures of the Roe v. Wade precedent, Republican lawmakers in conservative states have limited or banned abortions earlier in pregnancies than ever. Legislators in nine states totally controlled by the GOP have introduced bills banning all or most abortions.

Some states are going even further: Republicans in Iowa and Wyoming have filed legislation criminalizing the manufacture or prescription of abortion pills, the most common method by which modern abortions are performed; those pills are already outlawed in Missouri. Alabama’s attorney general has suggested women who use abortion pills may be prosecuted.

In Montana, where women can receive abortion care in cases of medical necessity, Gov. Greg Gianforte (R) has pushed the Department of Public Health to issue new rules limiting the scope of what qualifies as medically necessary. Idaho’s state Senate advanced a bill to change the definition of an abortion.

Ziegler said some of the changes Republican states are pursuing are necessary to clear up confusion caused by imprecise language included in laws that were blocked while the Roe precedent was in effect. In several states, doctors have sought clarity to understand what they can and cannot do in the operating room.

“State legislators may think they’re writing laws that are clear enough, but they’re writing them to apply in settings that are very different,” Ziegler said. “There’s both the ambiguity of the law and the fact that you’re putting consequences so onerous out there that you can’t expect doctors to push it.”

Blue states are confronting an entirely different set of issues.

In Michigan and Minnesota, where Democrats made gains in the midterm elections last year, lawmakers moved quickly to expand or codify abortion rights. Minnesota Gov. Tim Walz (D) signed a bill this week formally adding abortion rights to state law.

In blue states where abortion is already legal, the end of Roe has pushed legislators to think more creatively about extending the right to an abortion to those who live outside their borders.

Democratic legislators and governors in Washington, Massachusetts and New York have approached abortion access from a technological angle: Those states are all considering bills that would create new privacy protections for patients and providers who might be targeted by law enforcement in other states — beginning with internet searches for abortion or reproductive health options.

“We’re going to take a look at how to protect those searches, take a look at geofencing, take a look at all that to ensure that their information cannot be used against them,” Washington State Sen. Manka Dhingra (D) said.

Political scientists and historians who have studied the abortion rights debate over the decades say the Roe precedent put some policy changes off limits to lawmakers, even as technology improved and advanced. The medication that now accounts for more than half of all abortions in the United States, for instance, was not available when Roe was decided half a century ago.

“When abortion became legal in 1973, a lot of the ways in which we now make use of abortion care just didn’t exist,” said Johanna Schoen, a historian at Rutgers and author of the 2017 book Abortion After Roe. “These are issues we never really talked about publicly.”

While some of the technologies are new — Justice Harry Blackmun didn’t have to consider geofencing when he wrote the majority opinion — some issues lawmakers are now considering are recycled from the pre-Roe era.

Then, legislators debated whether abortion restrictions allowed exceptions for rape, incest or fetal deformity, said Leslie Reagan, a historian at the University of Illinois Urbana-Champaign and author of When Abortion Was A Crime. Those exceptions were brought up by doctors in the 1960s who feared harassment or prosecution if they provided abortion care.

“Doctors themselves are pointing out — again — that they are at risk of legal jeopardy and don’t know what will count as ‘legal’ under the new laws,” Reagan wrote in an email.