Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.
A top issue this election cycle is abortion. It’s been at the center of debates since the Supreme Court ruled in 2022 that the Constitution does not protect the right to abortion. That overturned nearly fifty years of abortion protection established in the landmark 1973 case, Roe v. Wade.
Civics 101 Senior Producer Christina Phillips joins Julia this week to talk about where the right to abortion access stands in the United States, two years later.
Transcript
Roe v. Wade is remembered as the decision that established the constitutional right to an abortion. So what did that actually look like?
So Roe v. Wade said that the decision about whether to terminate a pregnancy belongs to a pregnant person, not the government, and specifically really state governments, as a right to privacy under the 14th Amendment. Now, Roe v. Wade did say that that extends up to a certain point in a pregnancy and that states did have some power to regulate abortion access or in late pregnancy, outlaw it. So, this is where we get the trimester system, which is where we use the system of breaking a pregnancy into three sections. [In] most states across the country, [during the] first trimester, you had access to abortion. And then it was sort of dependent on the state after that.
How did Roe v. Wade affect the public debate around abortion?
So Roe v. Wade was really controversial. And essentially after it was passed, a lot of states started pushing these limits. You know, what does this actually mean? How can we impose restrictions?
Over time, the Supreme Court sort of loosened these restrictions, most notably in 1992’s Planned Parenthood v. Casey, which upheld abortion as a right but eliminated the trimester system and instead allowed states to restrict abortion based on “fetal viability.” I put that in air quotes because there's not a broad political consensus on what that means. The Supreme Court also said that abortion restrictions couldn't place undue burden on a pregnant person, which is also pretty vague. The outcome of Planned Parenthood v. Casey is that more states passed laws requiring things like a mandatory delay period or required counseling for the person seeking an abortion. It allowed states to prohibit Medicaid funding for abortion, and it also allowed states to place a lot more regulations and restrictions on medical facilities that provided abortion, which limited how many facilities would perform it in the first place.
So before Dobbs v. Jackson, 19 states had abortion restrictions based on this idea of fetal viability, some as early as six weeks since the last menstruation cycle.
So what changed after Dobbs v. Jackson? What kinds of laws are states allowed to pass to restrict abortion now?
Dobbs v. Jackson basically said that Roe v. Wade was wrong and that the right to abortion was not a fundamental right, and that states have the power to regulate any aspect of abortion that's not protected under federal law, because federal law always outweighs state law. And right now, what that means is that there are really no meaningful federal laws that protect the right to abortion, even though politicians continue to try to pass those laws.
As a result, 14 states have essentially banned abortion access, with limited exceptions, usually when the pregnant person is at imminent risk of death. And an additional 27 states have abortion restrictions of some kind. This means that in some states it's virtually impossible to get an abortion, including in cases of rape or incest. Some states have introduced laws that would further criminalize abortions, both for abortion seekers and medical providers.
What's interesting about this is because the majority of Americans believe that there should be some access to abortion, there have been voter-driven ballot initiatives and candidates have been forced to talk about their stances on abortion a lot post-Dobbs. So this has moved a lot more to voter action versus decisions in the court.
