Three years after the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, the battle over abortion access has splintered into a new era of legal, legislative, and political fights, proving that the end of Roe was only the beginning of a broader policy war. This Washington Examiner series, Aftershocks of Dobbs, examines how activists, lawmakers, and courts are driving the next phase of that fight. Part 1 is on the pending legal battles.
The Supreme Court‘s landmark 2022 decision in Dobbs v. Jackson Women’s Health Organization was a massive legal victory for anti-abortion activists, but three years later, the legal challenges continue for activists on both sides of the matter.
While Roe v. Wade was struck down with the high court’s decision in Dobbs, anti-abortion activists have waged legal battles in courts across the country.
Both sides of the debate have fought over several matters, including funding for abortion providers and access to a popular abortion pill, as voter-backed ballot measure continue to change the landscape for abortion battles.
Abortion cases at the Supreme Court
One of the latest legal battlegrounds is the fight over Medicaid funds going to abortion providers. In the coming days, the Supreme Court is expected to release its decision in Medina v. South Atlantic Planned Parenthood, a case over whether Medicaid patients can sue states over not allowing access to certain providers, which could have wider implications for funding abortion providers.
The lawsuit originated when Gov. Henry McMaster (R-SC) signed an order disqualifying abortion providers, such as Planned Parenthood, from Medicaid reimbursements, even for non-abortion services. While the question at the center of the case is not directly tied to abortion, it could affect the ability of abortion providers to receive Medicaid funds in anti-abortion states.
Anti-abortion activists have said that abortion providers getting Medicaid reimbursements for non-abortion services allows them to free up resources to fund abortion. The Hyde Amendment bans direct federal funding of abortion.
During oral arguments in April, the debate centered significantly on whether a patient had legal standing to sue the state over its decision to exclude abortion providers from Medicaid reimbursements. Justice Brett Kavanaugh emphasized the importance of issuing clear guidance on the matter, even as it appeared to be difficult for the justices to come to a clear standard.
“This court has failed to give guidance,” Kavanaugh said. “One of my goals coming out of this will be to provide that clarity.”
Any of the 10 remaining Supreme Court decisions, including in Medina, could be released as early as Thursday, when the high court has its next scheduled opinion day.
If the high court rules in favor of South Carolina, it could provide a blueprint for anti-abortion activists looking to stop federal funds from going to abortion providers.
“If we get a win in Medina, all the pro-life states can enact this policy at the state level as well,” Katie Glenn Daniel, director of legal affairs and policy counsel for Susan B. Anthony Pro-Life America, told the Washington Examiner.
Another case where anti-abortion activists are hoping to get the Supreme Court to hear a challenge is in Montana v. Planned Parenthood of Montana, where the state Supreme Court struck down state laws requiring parental notification and consent for minors to receive abortions. Montana officials have argued it is a key parental rights matter. The Supreme Court has yet to decide if it will hear the appeal.
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Renewed effort to challenge mifepristone
The legal battle over mifepristone gained national attention in 2023 after Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas ruled the Food and Drug Administration’s approval of the abortion drug should be suspended.
The Supreme Court ruled in June 2024 that the plaintiffs lacked standing to challenge the approval of the drug, reversing Kacsmaryk’s ruling, but states are still aiming to challenge the approval of the controversial abortion pill.
A lawsuit led by several GOP states has challenged the FDA’s decision to allow abortion pills to be sold online and shipped to patients via mail, but it, too, could also be dismissed over a lack of standing.
The Trump Justice Department has taken no stance on the merits of the case, which again challenges the FDA’s approval of mifepristone. It has argued that the states of Idaho, Kansas, and Missouri, which brought the lawsuit, have “no connection to the Northern District of Texas” and therefore no standing.
While the standing matter could doom this lawsuit, the filing from the DOJ did open the door for states to refile their claims in a “proper” federal judicial district.
Anti-abortion activists have pushed back on claims that mifepristone is as safe as regulators and abortion-rights activists have insisted, as they seek to have restrictions and regulations that were initially approved by the FDA in 2000 put back on the pills. While anti-abortion states challenge the FDA’s approval of the abortion pill, abortion-rights states have also called on the FDA to ease regulations on the pill.
Daniel believes the coalition of Democratic states wants “a court to say that these drugs should be over the counter.”
“Different groups of states [are] criticizing the way the FDA has made its decisions, just from opposite angles,” Daniel said.
She has also pointed to lawsuits in a different state challenging the difference between federal and state regulations over the abortion pill.
Earlier this month, FDA Commissioner Marty Makary said the agency would conduct a safety review of mifepristone, but Daniel said she believes the review will not end the legal questions about the pill’s availability.
“I think some of those questions of how FDA guidelines interact with state laws post-Dobbs will continue, and some of those cases are likely to be stayed pending the outcome of the FDA review,” Daniel said.
Cross-border enforcement fights
Another front in the legal battle that emerged in the aftermath of Dobbs is fights between states regarding their respective abortion laws, a matter that could ultimately make its way to the Supreme Court.
Earlier this year, a fight between Louisiana and New York, states on opposite sides of the abortion fight, made headlines. In Louisiana, a grand jury indicted a New York doctor for allegedly shipping abortion pills to the Pelican State, where abortion is largely illegal, in a first-of-its-kind case following the 2022 Dobbs decision.
Gov. Kathy Hochul (D-NY) denied Louisiana Attorney General Liz Murrill’s extradition request for the New York doctor, pointing to its state laws shielding abortion providers from prosecution. Murrill has said Hochul’s actions were akin to shielding a drug dealer.
A judge in Texas also fined the same New York doctor, Dr. Margaret Daley Carpenter, for prescribing abortion pills in the state unlawfully via mail.
As states continue to pursue similar cases, the looming battle between states with different abortion laws could become similar to the fight between states’ rights seen when enforcing the Fugitive Slave Act in the 1800s. The battle could spill into a wider fight over states’ ability to deny or accept extradition requests to other states.
Daniel believes the matter of shield laws for abortion providers will “undoubtedly” end up in federal court and could make its way to the Supreme Court in one of the coming terms.
Neither Texas nor Louisiana has filed a lawsuit in federal court, but at least one of the states is expected to push the legal matter over New York’s shield laws.
Pushback on sweeping ballot measures
One of the most effective avenues for abortion-rights activists to legalize abortion in states since the Dobbs decision has been via ballot measures.
From after the Dobbs decision until the 2024 election, all of the ballot measures went favorably for abortion-rights activists, but a trio of ballot measures last November in Florida, South Dakota, and Nebraska ended with anti-abortion victories.
Even as states adopt sweeping abortion ballot measures, the legal battle for anti-abortion advocates does not end there, as some anti-abortion advocates aim to uphold regulations on the abortion industry or regarding matters such as parental notification. Daniel likened the legal battles to “fighting over a mini Roe” in every state.
“By enacting these ballot questions at the state level, we’ve got a bunch of mini Roes all over the country, and so we do have to continuously go back into court. And if you look at just the breadth and scope of litigation in the past three years, it’s clear that the court is where the pro-abortion law firms have a comfort level,” Daniel told the Washington Examiner, pointing to the various lawsuits over the scope of abortion measures.
Daniel also pointed to fights in Michigan, where abortion-rights activists have attempted to use a successful 2022 ballot measure to overturn a ban on using state Medicaid funds for abortions, as well as attempts to strip away regulations regarding abortion pills.
She said abortion-rights activists push forward the measures as a “continuation of Roe,” but then, after victory, “file lawsuits to get rid of every single law that was upheld under Roe, including regulating the industry, not forcing taxpayers to pay for abortions, and parental consent.”
In Missouri, abortion-rights activists were victorious on election night in 2024, but officials in the state still sought to uphold many of its restrictions around abortion. The measure, which passed in November, allows for abortion through fetal viability, but Missouri Attorney General Andrew Bailey fought efforts by abortion-rights activists to strike down nearly all of the state’s laws regulating abortion and abortion clinics.
Last month, Missouri’s Supreme Court halted a lower state court’s orders blocking various state regulations on abortion, including facility cleanliness standards, credential requirements for abortionists, and the right for a woman to hear an ultrasound of the fetus before she gets an abortion.
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“Unqualified medical practitioners, moldy equipment, and a lack of approved complication plans are just some of the many terrible things we predicted would follow in the wake of Amendment 3,” Bailey said last month.
“Given Planned Parenthood’s sordid history of subverting state law, I will continue to ensure their compliance with basic health and safety requirements. I’m proud of the work our office has done to hold the line, making Missouri the safest state in the nation for women and families,” Bailey added.
While Daniel said the victory was more of a procedural victory than a “full win,” she argued it is still a win “because babies lives are being saved in Missouri.”