The Problem with Dobbs

By Beth Parker

In his majority opinion in Dobbs, Justice Samuel Alioto repeatedly asserts that it is time to return the authority to regulate abortion to the people and their elected representatives. He suggests that this will end the contentious litigation over abortion restrictions that has plagued the courts since Roe and Casey were decided. In reality, Dobbs promises to open the floodgates to protracted litigation between states over whose rights will prevail.

Since Dobbs was decided in June 2022, eighteen states have banned abortion, either in whole or in part. Twelve have enacted a near-total ban, four have gestational bans and, in two, abortion is unavailable because enforcement is unclear. At least 66 clinics across 15 states have ceased offering services since the ruling, forcing patients to travel long distances to access care. These laws disproportionately impact the most vulnerable among us: people of color and low-income women. The states with total bans and no remaining clinics are primarily clustered in the South, states with a larger proportion of both populations compared to the U.S. as a whole. These patients are the least likely to be able to travel due to cost, lack of health care benefits, paid time-off or available childcare.

increased travel creates greater outof-pocket costs, higher likelihood of follow-up care in an emergency room, negative mental health outcomes, delayed care and decreased use of medical services. Also troublesome is that this dynamic almost guarantees additional litigation.

The potential legal risks for abortion providers are immense. What if a woman from a ban state travels to an access state for an abortion and travels home with mifepristone, the second pill used in a medication abortion, which typically is taken at home 24-48 hours after visiting a clinic? What if she ends up having excessive bleeding and goes to her local emergency room? What if she needs a follow-up aspiration abortion, a known complication when medications are used to end a pregnancy after 10 weeks? Will the provider in the access state, that performed a legal procedure, be accused of “aiding and abetting” the abortion? Will the provider be extradited to the ban state to face criminal prosecution? Will the provider lose their license or be barred from treating Medicaid patients? Will fear surrounding this uncertainty dissuade them from providing much-needed legal health care?

California, as well as other states that respect their residents’ rights to make personal healthcare decisions, have passed legislation designed to protect providers for performing services that are legal in their home states. But many of these laws are untested. The case law on extradition and long-arm jurisdiction is decades

Despite the new state restrictions, Dobbs has witnessed only a marginal decrease in the number of abortions. What the Guttmacher Institute found when it studied the issue is that women traveled, often long distances, to other states to find an abortion provider. Of course, Continued on page 28