There is a real possibility of abortion lawmaking in the U.S. “returning to the states” this year should the Supreme Court overrule Roe v. Wade in its Dobbs v. Jackson Women’s Health Organization decision. But what does this phrase mean? And what might such a future look like when states can (once again) decide if, when, and under what circumstances legal abortion is permissible — if at all?
The first thing to understand is the interplay of state and federal abortion law. Before 1973, when Roe was issued, every state could determine its own abortion law. But the U.S. Supreme Court held that the U.S. Constitution’s 14th Amendment included a woman’s right to seek abortion throughout nine months of pregnancy. Even in the last three months, states have since been compelled to permit “health abortions,” which can invoke a woman’s physical, emotional, psychological, or familial well-being — even her age.