On a recent episode of the Stanford Law School podcast, Stanford Legal, co-host Pam Karlan discussed the national abortion rights landscape after Dobbs v. Jackson Women’s Health Organization, the 2022 case that overturned Roe v. Wade. Karlan is the Kenneth and Harle Montgomery professor of public interest law, co-director of the Supreme Court Litigation Clinic, and an expert on constitutional law, including reproductive rights.

Women, doctors, advocates, and others are now navigating a deeply divided country with a patchwork of reproductive rights laws–and some surprising post-Dobbs consequences, Karlan explains in the recent interview with her podcast co-host, Richard Thompson Ford, the George E. Osborne Professor of Law. The following is an edited excerpt of the full interview, which can be found here.

We should begin by going back to when the Supreme Court changed the legal landscape with respect to abortion. Could you tell us a bit about what happened in the Dobbs case? 

Since 1973, when the Supreme Court decided Roe v. Wade, there had been a constitutional prohibition on undue restrictions on women’s ability to get pre- viability abortions. In Roe, the Court said that the Due Process Clause of the Fourteenth Amendment protected a woman’s right to decide whether to carry a pregnancy to term. The Supreme Court had reaffirmed that in 1992 in the Planned Parenthood v. Casey decision. But in 2022, in the Dobbs case, the Supreme Court held that the Constitution provides no protection for a woman’s right to decide whether or not to terminate a pregnancy, as long as the state has some rational reason for adopting the restriction that’s being challenged. 

The Court said that one of the rational bases on which a court could restrict a woman’s right to choose to have an abortion was respect for fetal life at all stages of fetal development. This wiped out the Roe and Casey rule. The upshot of that has been a great deal of confusion. Some states have laws that have been on the books from the 1800s, but that had not been enforceable after 1973 because of the Roe decision. There is now a question as to whether those laws spring back into place. Those issues are being litigated in some state courts. 

Then a number of states passed new restrictions on abortion, restrictions that previously would clearly have been unconstitutional–for example, bans on all abortions after the so-called fetal heartbeat is detected. Calling what’s detected at six weeks a “fetal heartbeat” is a bit of a misnomer, because what’s actually being detected is electrical activity from some of the embryonic cells, not the opening and closing of heart valves, which doesn’t occur until at least a month later. At six weeks, many women may not even know they’re pregnant.  So if abortion is banned after six weeks’ gestation, it will foreclose them from having an abortion altogether. Conversely, other states have beefed up their protections of abortion, and we’ve seen some really interesting developments in the political process. It’s going to be a huge issue in the 2024 election.

Texas is one of the states that has passed new, restrictive laws and it has been in the news recently for a high-profile controversy involving a woman seeking to obtain an abortion who has been denied the ability to do that, despite what might look like a pretty strong case for an exception, even in the face of Texas’ strict anti-abortion laws. Could you tell us a little bit about that case? 

This is the Kate Cox case. Texas has several different abortion laws on the books right now because they passed them one on top of the next. They have a law that forbids abortion after fetal heartbeat, but they have another law that seems to forbid all abortions except in cases where the life of the woman is threatened. The law is written in a very confusing way. The woman here is a 31-year-old mother of two who had a very wanted pregnancy. But it was subsequently discovered, midway into the pregnancy, that the fetus has trisomy 18, which means it has three of the 18th chromosomes, and this leads to horrific damage. With most fetuses that have trisomy 18, there’s a miscarriage. Of the ones who are born alive, 95 percent of them die within the first year, and the others can be severely disabled. 

When a woman is pregnant and the fetus has trisomy 18, she can suffer a variety of health conditions and the woman in this case had been to the emergency room four times, where the doctors told her that the fetus was unlikely to survive long if it was born alive and that continuing the pregnancy posed some substantial dangers to her future fertility. She wants to have more children. So, she and her doctor agreed that she should terminate the pregnancy. But in Texas, doctors face criminal liability under the general prohibition and they face the possibility of being sued by any one of a huge variety of other actors if they continue. So she sought a declaratory judgment from the court allowing this abortion and protecting her and the doctor from liability.   

A Texas state trial court judge agreed with her and issued an order saying she could have the abortion without legal consequences, but then the Attorney General of Texas, Ken Paxton, entered the case, and appealed to the Texas Supreme Court. Recently, the Texas Supreme Court unanimously held that she did not fall within the exception of the Texas statute, and therefore, it would be illegal for her to have an abortion in Texas. While this was all going on, she left Texas to go someplace where she could legally terminate the pregnancy.

This is the scenario that pro-choice advocates had talked about in the wake of Roe v. Wade being overturned, and one which some pro-life advocates had said would not happen because anti-abortion laws would have reasonable exceptions. And yet, here we are.  

The point that you make, Rich, is a really important one to emphasize: It  was a mistaken assumption to think that returning abortion laws to the states would dampen the controversy. Justice Kavanaugh, for example, in his concurrence in the Dobbs case, said, don’t worry about this, people will still be able to travel to other states and get abortions. That’s actually turned out to be very problematic. For example, there is another set of cases in Texas where a bunch of anti-abortion jurisdictions want to pass laws forbidding people to drive through their town in order to travel out of state to get an abortion. Now, I think those laws are pretty clearly unconstitutional, but there’s going to be a lot of litigation. It’s unclear whether Ken Paxton or some other attorney general is going to start prosecuting people for aiding and abetting a woman who leaves the state to have an abortion.

Then we have South Carolina Senator Lindsey Graham who wants to pass a federal 15-week abortion ban and use the Commerce Clause to get there. The Commerce Clause allows Congress to regulate interstate commerce, and abortion involves interstate commerce activity because the medical tools that are used in abortions travel interstate to get to clinics. Pills are manufactured and move interstate for medical abortions and huge numbers of women travel interstate to get abortions. And that was true even before the Dobbs decision. 

So a federal ban is not inconceivable if the political situation were such?

I think that’s correct. If a president, a majority of the House, and a filibuster-proof majority in the Senate wanted to pass an abortion regulation, current doctrine would seem to allow that. 

Another set of issues that this raises about the federal law has to do with nonsurgical abortions. There’s also a big controversy surrounding that and the approval of some of the drugs necessary to allow for these medical abortions.

Once again, we’re turning to Texas. Over 90 percent of abortions in the United States occur in the first trimester of pregnancy (before 13 weeks). A substantial and growing percentage of those–in 2021, more than half of all abortions–are what are called medication abortions rather than surgical abortions. The pills used for medication abortions  have been approved for use by the federal Food and Drug Administration for decades. Initially women were required to go to the doctor’s office to receive the pills and return to the doctor’s office afterwards. But now a woman can get the pills without physically going to a doctor’s office.

An anti-abortion doctors’ group was created in Texas for the purpose of bringing a lawsuit against the FDA and against the makers of the generic version of one of the drugs used in medical abortions, Mifepristone. The argument is that when the FDA approved Mifepristone, that decision didn’t follow the Administrative Procedure Act properly. They filed the lawsuit in a way that enabled them to get the lawsuit in front of a single, conservative judge. He issued a nationwide injunction telling the government that it should withdraw the approval for Mifepristone. Among other things, he used the Comstock Act from the 1870s  to suggest that mailing any drug that causes abortion across state lines would violate federal law. That case went up to the conservative Fifth Circuit, which changed the district court’s injunction in some ways, but left it in place in others. It allowed the drugs to remain on the market, but it enjoined the approval the FDA had given for remote prescription of the drugs, which means essentially that a woman who wants to use Mifepristone would have to go to a doctor’s office to receive it.

Obviously you can see what the effect of that is. If you’re in a state where it’s illegal for doctors to be involved in providing abortions or assisting their patients to get abortions, this makes it really difficult, in some cases impossible, to get those drugs. The Supreme Court stayed that injunction and agreed recently to hear the case. Again, you can see the effect of all this on the law surrounding abortion: we now have a patchwork of laws. It is something that’s going to lead to litigation for the foreseeable future.

What are some of the things that are happening in state politics around abortion? Particular states, even red states that have moved to protect a woman’s right to have an abortion.

In the 2022 election, California had a proposition on the ballot which amended the California Constitution to affirmatively put the right of a woman to decide whether to terminate a pregnancy into the California Constitution. It passed overwhelmingly. In the recent November elections in Ohio, which is generally a red state in presidential elections, voters went to the polls there and 57 percent of the voters voted to approve a referendum that created a constitutional right to an abortion in Ohio. And just to give you a sense of just how tumultuous this landscape is, as soon as they did this, a group of anti-abortion state legislators announced plans to enact legislation that will prevent the judiciary in the state from interpreting or enforcing this amendment.

It turns out that a lot of the anti-abortion groups don’t want each state to decide for itself what the rules are. What they really want is to ban it nationwide regardless of what the voters in that state want. 

The Democrats seem to believe that abortion is an issue that will help them, not only in state elections, but also in nationwide elections. 

I think that’s right. When Roe was the law of the land, the focus of the pro-life, anti-abortion movement was generally on late-term abortions, second trimester abortions and the like. There wasn’t much discussion in the political process of first-trimester abortions.  But now, the political process is more attuned to the fact that there’s widespread public support for access to early abortions. That’s playing out in politics and not just on the Democratic side. Donald Trump has criticized some of the more draconian state laws as being bad laws–I think because he recognizes that politically, a nationwide ban on all abortions, including first trimester abortions, and including abortions like the one that was at issue in Texas for women who are pregnant with fetuses that have severe abnormalities, is just not a winning political issue. 

You talked earlier about the ways it could be possible that we could have a nationwide abortion ban, but given the political landscape with respect to abortion, is it also possible that we could have a nationwide legislation that would protect the right of a woman to have an abortion?

The federal government has the authority to regulate commerce between the states and to tell a state that it can’t interfere with that commerce. And so, for example, if the federal government were to pass a statute saying no state can interfere with the interstate transportation and use of Mifepristone, that law would arguably be upheld under the commerce clause. I think as a realistic matter, we’re not going to see federal legislation.  If it were legislation to ban abortion nationwide, the Democrats in the Senate would filibuster it. If it were a law to protect a nationwide right to abortion, I think it highly likely the Republicans in the Senate would filibuster it, or at least enough of them would, so that I don’t think we’re going to get a national political solution on this issue.

Contrary to what the Supreme Court thought–which is by getting rid of abortion as a federal constitutional issue, it would no longer be a central issue in our political process–the Dobbs decision has had exactly the opposite effect. 

There’s another example that highlights just how far this can go in various ways. For months, Senator Tommy Tuberville from Alabama was preventing promotions in the military on the grounds that he objected to the fact that the Department of Defense was willing to pay the transportation costs for soldiers and family members of service members who lived in states where they couldn’t get abortions to go out of state to get abortions. He was blocking hundreds of promotions of high-level military officials on these grounds. The Senate overcame that block, but it gives you a sense of just how many levers there are for inserting this issue into all sorts of matters that, at least on their face, don’t seem to have anything to do with abortion and yet they are now connected.

Listen to Pam Karlan on the Stanford Legal Podcast

Pamela S. Karlan is co-director of the school’s Supreme Court Litigation Clinic, where students litigate live cases before the Court. One of the nation’s leading experts on voting and the political process, she has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund, and (twice) as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice (where she received the Attorney General’s Award for Exceptional Service – the department’s highest award for employee performance – as part of the team responsible for implementing the Supreme Court’s decision in United States v. Windsor). Karlan is the co-author of leading casebooks on constitutional law, constitutional litigation, and the law of democracy, as well as numerous scholarly articles. She is co-reporter on the American Law Institute’s forthcoming Restatement on Constitutional Torts.