Abortion After Dobbs

Law & Courts Newsletter 32 no. 2: 18-41 (2022).

24 Pages Posted: 18 Jan 2023

Date Written: December 31, 2022

Abstract

As of June 24, 2022, there was no longer a constitutional right to abortion. In overturning Roe v. Wade (1973) in its Dobbs (2022) decision, the Supreme Court turned the issue of abortion over to the political process. What are the likely results?

In The Hollow Hope I argued that there was partial implementation of Roe for two main reasons.
First, there was a demand for the service and public and elite support for it. Second, by allowing market forces to meet that demand, that is by allowing clinics to perform abortions, the obstacle presented by the unwillingness of most hospitals to provide abortion services was largely overcome.

What does this argument suggest will occur now that there is no longer a constitutional right to abortion? It suggests that in the short run abortion will be banned or severely limited in many states. However, it also suggests that in the long run access to abortion will be roughly similar to, or perhaps better than, it was by the end of 2021. The overturning of Roe has not reduced demand for the service. Nor has it dampened public and elite support for it. Indeed, if anything, the effect of Dobbs has been to increase support for abortion access. Over the long run overturning the constitutional right to abortion may have less of an effect on abortion access and the number of abortions than anti-abortion activists hope for and pro-choice activists fear. However, as with too many policies, poor women and many women of color will bear the brunt of abortion restrictions, at least in the short run.

Overall, the analysis suggests that while constitutional rights as announced by the Court matter, they matter less than public demand for abortion access and support for that access from the public at large and business and political elites.

Keywords: Abortion, Roe, Dobbs, Constitutional Rights, Implementation

Suggested Citation

Rosenberg, Gerald N., Abortion After Dobbs (December 31, 2022). Law & Courts Newsletter 32 no. 2: 18-41 (2022)., Available at SSRN: https://ssrn.com/abstract=4323249 or http://dx.doi.org/10.2139/ssrn.4323249

Gerald N. Rosenberg (Contact Author)

University of Chicago ( email )

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