December 8, 2022
Regulating Reproductive Health Services After Dobbs v. Jackson
Women’s Health Organization
Introduction
from the rights recognized in those decisions because of the
In Dobbs v. Jackson Women’s Health Organization, a five-
“critical moral question posed by abortion.”
Justice majority overruled the Court’s prior decisions in
Roe v. Wade and Planned Parenthood of Southeastern
In addition to determining that the Constitution does not
Pennsylvania v. Casey, holding that the U.S. Constitution
confer a right to an abortion, the Court also considered
does not confer a right to an abortion. By overruling Roe
whether the doctrine of stare decisis should guide it to
and Casey, the Court maintained that it was returning the
uphold Roe and Casey. After evaluating five traditional
regulation of abortion to the people and their elected
stare decisis factors, including the quality of the Court’s
representatives.
reasoning in those decisions, the Court determined that
continued adherence to Roe and Casey was inappropriate.
Following Dobbs, bills that would establish a statutory right
to abortion and protect access to the procedure were passed
In overruling Roe and Casey, the Court not only held that
by the House in the 117th Congress, but, at this writing, not
the Constitution does not guarantee a right to abortion but
considered in the Senate. At the same time, legislation that
also determined that abortion regulations will no longer be
would impose a gestational age limit on the procedure’s
subject to the viability and undue burden standards
availability was also introduced in both chambers. Bills that
established by those decisions. The Court held that, if
would promote abortion access, as well as those that would
challenged, abortion regulations will now be evaluated
restrict its availability, may be introduced in the 118th
under rational basis review, a judicial review standard that
Congress. This In Focus reviews the Court’s Dobbs
is generally deferential to lawmakers. The Court explained
decision, discusses Congress’s authority to regulate
that under rational basis review, a law regulating abortion
reproductive health services, and examines the regulation of
“must be sustained if there is a rational basis on which the
medication abortion, which represents a sizable portion of
legislature could have thought it would serve legitimate
all abortions in the United States.
state interests.” These interests, the Court continued, may
include protecting prenatal life, the mitigation of fetal pain,
Dobbs v. Jackson Women’s Health
and preserving the medical profession’s integrity.
Organization
In overruling Roe and Casey, the Dobbs Court reconsidered
Congress’s Constitutional Authority to
whether the Constitution guarantees a right to an abortion.
Regulate Reproductive Health Services
Noting the absence of any reference to abortion in the
Dobbs has led to renewed interest in Congress’s authority
Constitution, the Court nevertheless acknowledged that the
to set federal standards to protect or limit access to
Fourteenth Amendment’s Due Process Clause could
abortion. The Constitution establishes a system of dual
guarantee some rights that are not explicitly mentioned. The
sovereignty between the states and the federal government.
Court indicated, however, that substantive due process
The federal government cannot force the states to enact or
rights such as a right to abortion may be found only when
enforce federal policies, but under the Supremacy Clause,
they are “deeply rooted in [the] Nation’s history and
Congress can preempt state laws and thus prevent the states
tradition” and are “implicit in the concept of ordered
from undermining federal policy. States generally have
liberty.” Reviewing common law and statutory restrictions
broad authority to enact legislation on matters related to the
on abortion before and after the Fourteenth Amendment’s
health and welfare of its citizens, while Congress may enact
ratification, the Court concluded that the “a right to abortion
legislation only pursuant to specified powers enumerated in
is not deeply rooted in the Nation’s history and traditions.”
the Constitution. Congress’s powers under the Commerce
The Court emphasized, for example, that abortion was
Clause (U.S. Const. art. I § 8, cl. 3), Spending Clause (U.S.
prohibited in three-quarters of the states when the
Const. art. I, § 8, cl. 1), and Section 5 of the Fourteenth
Fourteenth Amendment was adopted, and 30 states still
Amendment are three potentially relevant enumerated
prohibited the procedure when Roe was decided in 1973.
powers that Congress might rely on should it choose to
legislate on reproductive-health-related matters.
Although the Court found no historical support for a right to
an abortion, it considered whether a right to the procedure
Under the Commerce Clause, Congress may regulate the
was nevertheless part of a broader entrenched right that was
channels and instrumentalities of interstate commerce, along
supported by the Court’s other precedents, particularly
with activities that substantially affect interstate commerce.
those involving the right to privacy. Citing its prior privacy
In determining whether an activity substantially affects
decisions concerning activities such as marriage and
interstate commerce, courts consider factors such as whether
obtaining contraceptives, the Court distinguished abortion
the regulated activity is economic in nature, whether the
statute contains a jurisdictional element requiring a link to
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Regulating Reproductive Health Services After Dobbs v. Jackson Women’s Health Organization
interstate commerce, and whether congressional findings
including bans on medication abortion drugs under
demonstrate the activity’s effect on interstate commerce.
particular circumstances. Before Dobbs, such restrictions
may have been mainly subject to legal challenge based on
In past legislation, Congress has relied on the Commerce
Roe and Casey. Now that those decisions have been
Clause to enact the Freedom of Access to Clinic Entrances
overruled, a state’s ability to restrict or prohibit access to
Act of 1994 (which created a federal remedy for certain
these drugs may depend on the interplay between state and
interferences with people seeking reproductive health
federal law.
services) and the Partial-Birth Abortion Ban Act of 2003
(which criminalized the performance of partial-birth
Like other prescription drugs available on the market, FDA
abortions). In upholding these laws, lower federal courts
evaluated and approved medication abortion drugs in
concluded that providing reproductive health services is
accordance with FD&C Act requirements. As a condition of
commercial activity that Congress may regulate under the
mifepristone’s approval, FDA required compliance with a
Commerce Clause. The Supreme Court has not directly ruled
risk evaluation and mitigation strategy, or REMS. In
on the issue, although Justice Thomas’s concurrence in
general, a REMS is an FDA-imposed drug safety plan
Gonzales v. Carhart (which involved the Partial-Birth
designed to ensure that the benefits of a drug with serious
Abortion Ban Act) questioned whether the Commerce
potential safety concerns outweigh its risks.
Clause could support general federal abortion regulation.
While the mifepristone REMS has been modified over time,
Under the Spending Clause, Congress may influence state
the 2019 version requires health care professionals who
policy by attaching conditions to the receipt of federal
prescribe the drug to be certified, meet particular
funds. In South Dakota v. Dole, for example, the Supreme
qualifications, and ensure that a patient receive and sign an
Court has upheld legislation that denied a percentage of
agreement form related to mifepristone use. Additionally,
federal highway funds to states that did not change their
this REMS specifies that mifepristone could be dispensed
laws to ban the purchase of alcohol by people under 21
only in person in certain specified health care settings.
years old. If Congress wished to affect state and local laws
However, FDA suspended enforcement of the mifepristone
on abortion (or other reproductive health services) through
in-person dispensing requirements during the declared
the Spending Clause, it could use conditional funding to
public health emergency related to the COVID-19
encourage states to alter their laws to expand or restrict
pandemic. As enforcement remains on hold, FDA
access to reproductive health services. However, states
announced long-term modifications to the REMS. While
must receive clear notice of those spending conditions, and
these REMS modifications have not been finalized, it
the conditions must not be unduly coercive. For example, in
appears FDA’s decision to modify the REMS is intended to
National Federation of Independent Business v. Sebelius,
allow patients to obtain medication abortion drugs from
the Supreme Court held that a provision in the Patient
certified prescribers or retail pharmacies through the mail
Protection and Affordable Care Act withholding all existing
without an in-person visit to a clinician.
Medicaid grants (roughly 10% of most states’ revenue)
from any state that refused to expand its Medicaid program
Several states have enacted laws to restrict access to
was unconstitutionally coercive.
medication abortion drugs. For instance, many states
require a clinician to be in the physical presence of a patient
Dobbs’s holding that abortion rights are not protected by
when prescribing these drugs or place some sort of other
the Fourteenth Amendment largely forecloses Congress’s
restrictions on the use of telehealth. Some states have
ability to directly rely on Section 5 of that amendment to
adopted more stringent requirements on medication
protect or limit access to abortion. Congress could rely on
abortion access, including measures to ban the prescribing
Section 5 to prevent and deter other constitutional
of medication abortion drugs. These types of state
violations related to abortion access, but the Supreme Court
provisions aim, at least in some cases, to restrict the drug’s
has limited the availability of “prophylactic” Section 5
access beyond what federal law would otherwise permit.
legislation in City of Boerne v. Flores and its progeny. To
Questions have arisen about the federal preemption of these
align with the Court’s precedents, Congress would need to
state laws and the extent to which states may set controls on
identify a pattern of state constitutional violations
medication abortion drugs subject to FDA regulation.
associated with abortion and further determine that
increased or decreased access to abortion was necessary to
Legislation introduced in the 117th Congress would clarify
prevent those constitutional violations.
the degree to which federal regulation of medication
abortion preempts inconsistent state or local measures.
Medication Abortion
Other measures introduced in the 117th Congress would
Following Dobbs, questions have been raised about
impose federal restrictions on medication abortion.
continued access to medication abortion, a pregnancy
Continued interest in regulating medication abortion may
termination method involving the use of prescription drugs.
result in similar bills being introduced in the 118th
Recent attention has centered on the availability of these
Congress.
drugs, particularly mifepristone, for those residing in areas
with few or no abortion providers. The Food and Drug
Kevin J. Hickey, Legislative Attorney
Administration (FDA) regulates the distribution of
Jon O. Shimabukuro, Legislative Attorney
mifepristone using its authority under the Federal Food,
Jennifer A. Staman, Legislative Attorney
Drug, and Cosmetic Act (FD&C Act). Some states have
also taken steps to restrict access to medication abortion,
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Regulating Reproductive Health Services After Dobbs v. Jackson Women’s Health Organization


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