Two years since Dobbs: states are more important than ever
A special guest post by Gaby Goldstein, co-founder of Sister District
After the fall of Roe, state legislatures have been ground zero for both life-threatening attacks on reproductive rights AND the battle to preserve and expand reproductive freedoms. And while 2024 is a crucial presidential election year, the importance of this year’s state legislative elections and what they mean for the future of abortion policy regardless of who’s president cannot be overstated.
June 24th marked the somber two-year anniversary of the Dobbs decision, which overturned Roe v. Wade and shifted the authority over safe and legal abortion access back to the states. Although the decision surprised many on the left, the reality is that Roe’s protections had been eroding for decades due to a lack of consistent, long-term investment in progressive state policies, legislators, and infrastructure. The downfall of Roe was a long time in the making, bought and paid for by a conservative movement that has been steadily building power in our courts and our states for decades.
Just this term, the Supreme Court is poised to deal additional blows to abortion access and deliver more power to states. While it rejected a challenge to the abortion medication mifepristone, the holding was technical – plaintiffs lacked standing to bring the suit. Though the medication, which accounted for 63% of all US abortions in 2023, is allowed to stay on the market for now, red state attorneys general have intervened as plaintiffs in a new case. The issue will likely find its way back before the Court soon.
SCOTUS also kicked the can in Moyle v. United States, a case brought by Idaho officials asking whether the state’s near-total abortion ban supersedes the federal Emergency Medical Treatment and Labor Act (EMTALA). Idaho asked the Court to hold that it has the right to allow pregnant people to die in emergency rooms, rather than administer life-saving care. The Court declined to rule on the substance of the case, declaring it had been “improvidently granted,” delaying the issue–a notably losing issue for Republicans–until after the 2024 election.
The Supreme Court might soon revisit the issue raised in the Idaho case, as an appeal from Texas is already pending on its docket. This Texas case challenges the same federal law and has gained attention because lower courts have ruled against the Biden administration's efforts to mandate abortions when the pregnant woman's health is at risk.
It’s been two years since Dobbs and one thing is crystal clear. As the courts fail to protect reproductive freedom and the federal government remains unable to enact comprehensive legislation, state legislatures are more important than ever. Our very lives are in the hands of our state legislators.
Just like other areas of policy that the revanchist Supreme Court has returned to the states, like voting rights and environmental protection, we are witnessing red and blue states adopting drastically different approaches regarding reproductive rights and health policy.
In red states, we’re seeing the implementation of abortion restrictions that diverge significantly from scientific consensus and public opinion. Such restrictions include laws to preempt blue cities’ abortion access programs, travel restrictions, and laws prohibiting medically-necessary abortions even when it constitutes life-saving care. Additionally, red states are increasingly restricting medication abortion, with Louisiana becoming the first state classifying mifepristone and misoprostol as controlled substances. Generations of legislation built on systemic racism mean that these restrictions disproportionately affect communities of color, particularly Black women. And we know that IVF and contraception are next on the chopping block. Abortion restrictions are a “gateway drug” to other anti-autonomy measures that advance a Christian nationalist worldview through our statehouses.
Meanwhile, blue states are taking decisive action to expand abortion access and funding. A coalition of 23 pro-choice governors has formed to develop strategies that strengthen reproductive rights and healthcare access across states. Lawmakers in Oregon passed the Reproductive Health Equity Act, thereby ensuring that abortion services are covered by insurance, including Medicaid, making it more accessible for low-income individuals. New York enacted the Reproductive Health Act, which codifies Roe and eliminates outdated barriers to care. California established The Abortion Practical Support Fund, to assist out-of-state individuals in traveling for abortions. And at least thirteen states have enacted innovative shield laws, safeguarding abortion seekers and providers from legal attacks initiated by anti-abortion states.
In this wild election year, it is important to remember that across the political spectrum, people support abortion access and reproductive health services, including IVF and contraception. Indeed, it’s no coincidence that states pursuing the harshest restrictions are often those where conservative legislators are insulated from public opinion by gerrymandering and voter suppression. But since Dobbs, voters in many states have made their voices heard. Voters in California, Michigan, Ohio and Vermont have enshrined reproductive rights in their state constitutions. Kansas and Kentucky rejected anti-abortion constitutional amendments proposed by Republican-controlled legislatures. And the 2022 election was a remarkable deviation from historical midterm trends, where the president’s party typically loses ground up and down the ballot. Galvanized by Dobbs, Democrats re-elected every incumbent senator, added a seat to their Senate majority, won most competitive gubernatorial elections, narrowly lost the U.S. House by just 6,675 votes, and actually picked up multiple state legislative chambers.
Abortion access and reproductive rights are kitchen-table issues, intersectional with economic well-being, educational opportunities, environmental justice and more. We must push progressives to invest in states and vote all the way down the ballot – this year, and every year. As states grow ever more powerful, we must commit permanently to building state power. A little activism goes a long way in state legislative races, where seats and entire chambers are decided by handfuls of votes. By electing strong state leaders, we can ensure our states become resilient, creative, and permanent bastions of reproductive freedom.
Gaby Goldstein is co-founder at Sister District, which builds progressive power in state legislatures. She is an attorney and researcher who focuses on the growing importance of state politics and policy.