Regulating Reproductive Health Services After Dobbs v. Jackson Women’s Health Organization

Regulating Reproductive Health Services After Dobbs v. Jackson Women’s Health Organization

Updated April 17, 2023
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 Supreme Court’s prior
decisions in Roe v. Wade and Planned Parenthood of
In addition to determining that the Constitution does not
Southeastern Pennsylvania v. Casey, holding that the U.S.
confer a right to an abortion, the Court also considered
Constitution does not confer a right to an abortion. By
whether the doctrine of stare decisis should guide it to
overruling Roe and Casey, the Court maintained that it was
uphold Roe and Casey. After evaluating five traditional
returning the regulation of abortion to the people and their
stare decisis factors, including the quality of the Court’s
elected representatives.
reasoning in those decisions, the Court determined that
continued adherence to Roe and Casey was inappropriate.
Following Dobbs, bills that would have established a
statutory right to abortion and protected access to the
In overruling Roe and Casey, the Court not only held that
procedure were passed by the House in the 117th Congress,
the Constitution does not guarantee a right to abortion, it
but were not considered in the Senate. At the same time,
also determined that abortion regulations will no longer be
legislation that would have imposed a gestational age limit
subject to judicial review under the viability and undue
on the procedure’s availability was also introduced in both
burden standards established by those decisions. The Court
chambers. Bills that would promote abortion access, as well
held that, if challenged, abortion regulations will now be
as those that would restrict its availability, have been
evaluated under rational basis review, a judicial review
introduced in the 118th Congress. This In Focus reviews the
standard that is generally deferential to lawmakers. The
Court’s Dobbs decision, discusses Congress’s authority to
Court explained that under rational basis review, a law
regulate reproductive health services, and examines the
regulating abortion “must be sustained if there is a rational
regulation of medication abortion, which represents a
basis on which the legislature could have thought it would
sizable portion of all abortions in the United States.
serve legitimate state interests.” These interests, the Court
continued, may include protecting prenatal life, the
Dobbs v. Jackson Women’s Health
mitigation of fetal pain, and preserving the medical
Organization
profession’s integrity.
In overruling Roe and Casey, the Dobbs Court reconsidered
whether the Constitution guarantees a right to an abortion.
Congress’s Constitutional Authority to
Noting the absence of any reference to abortion in the
Regulate Reproductive Health Services
Constitution, the Court nevertheless acknowledged that the
Dobbs has led to renewed interest in Congress’s authority
Fourteenth Amendment’s Due Process Clause could
to set federal standards to protect or limit access to
guarantee some rights that are not explicitly mentioned. The
abortion. The Constitution establishes a system of dual
Court indicated, however, that substantive due process
sovereignty between the states and the federal government.
rights, such as a right to abortion, may be found only when
The federal government cannot force the states to enact or
they are “deeply rooted in [the] Nation’s history and
enforce federal policies, but under the Supremacy Clause,
tradition” and are “implicit in the concept of ordered
Congress can preempt state laws and thus prevent the states
liberty.” Reviewing common law and statutory restrictions
from undermining federal policy. States generally have
on abortion from before and after the Fourteenth
broad authority to enact legislation on matters related to the
Amendment’s ratification, the Court concluded that “a right
health and welfare of its citizens, while Congress may enact
to abortion is not deeply rooted in the Nation’s history and
legislation only pursuant to specified powers enumerated in
traditions.” The Court emphasized, for example, that
the Constitution. Congress’s powers under the Commerce
abortion was prohibited in three-quarters of the states when
Clause (U.S. Const. art. I, § 8, cl. 3), Spending Clause (U.S.
the Fourteenth Amendment was adopted, and 30 states still
Const. art. I, § 8, cl. 1), and Section 5 of the Fourteenth
prohibited the procedure when Roe was decided in 1973.
Amendment are three potentially relevant enumerated
powers that Congress might rely on should it choose to
Although the Court found no historical support for a right to
legislate on reproductive-health-related matters.
an abortion, it considered whether a right to the procedure
was nevertheless part of a broader entrenched right that was
Under the Commerce Clause, Congress may regulate the
supported by the Court’s other precedents, particularly
channels and instrumentalities of interstate commerce,
those involving the right to privacy. Citing its prior privacy
along with activities that substantially affect interstate
decisions concerning activities such as marriage and
commerce. In determining whether an activity substantially
obtaining contraceptives, the Court distinguished abortion
affects interstate commerce, courts consider factors such as
the economic nature of the regulated activity, whether the
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Regulating Reproductive Health Services After Dobbs v. Jackson Women’s Health Organization
statute contains a jurisdictional element requiring a link to
also taken steps to restrict access to medication abortion,
interstate commerce, and whether congressional findings
including bans on medication abortion drugs under
demonstrate the activity’s effect on interstate commerce.
particular circumstances.
In past legislation, Congress has relied on the Commerce
Like other prescription drugs available on the market, FDA
Clause to enact the Freedom of Access to Clinic Entrances
evaluated and approved medication abortion drugs pursuant
Act of 1994 (which created a federal remedy for certain
to FD&C Act requirements. As a condition of
interferences with people seeking reproductive health
mifepristone’s approval, FDA requires compliance with a
services) and the Partial-Birth Abortion Ban Act of 2003
risk evaluation and mitigation strategy, or REMS. In
(which criminalized performance of partial-birth abortions).
general, a REMS is an FDA-imposed drug safety plan
In upholding these laws, lower courts concluded that
designed to ensure that the benefits of a drug with serious
providing reproductive health services is commercial
potential safety concerns outweigh its risks.
activity that Congress may regulate under the Commerce
Clause. The Supreme Court has not directly ruled on the
While the mifepristone REMS has been modified over time,
issue, although Justice Clarence Thomas’s concurrence in
the recent version requires health care professionals who
Gonzales v. Carhart (which involved the Partial-Birth
prescribe the drug to be certified, meet particular
Abortion Ban Act) questioned whether the Commerce
qualifications, and ensure that patients receive and sign a
Clause could support general federal abortion regulation.
patient agreement form relating to mifepristone use. Earlier
REMS versions also specified that mifepristone had to be
Under the Spending Clause, Congress may influence state
dispensed in-person in certain specified health care settings.
policy by attaching conditions to the receipt of federal
A January 2023 update to the REMS enables patients to
funds. In South Dakota v. Dole, for example, the Supreme
obtain the drug without an in-person visit to a clinician,
Court upheld legislation that denied a percentage of federal
including through the mail from certified prescribers or
highway funds to states that did not change their laws to
pharmacies. In April 2023, two federal district courts issued
ban the purchase of alcohol by people under 21 years old. If
conflicting decisions in litigation over current federal
Congress wished to affect state and local laws on abortion
requirements for mifepristone. In the first suit, a Texas
(or other reproductive health services) through the
district court ordered a stay of FDA’s approval of the drug
Spending Clause, it could use conditional funding to
and its REMS, thus suspending the legal basis for the
encourage states to alter their laws to expand or restrict
drug’s sale and distribution nationwide. The Supreme Court
access to reproductive health services. However, states
is considering whether to stay enforcement of that order
must receive clear notice of those spending conditions, and
pending appeal. In the second case, a Washington district
the conditions must not be unduly coercive. In National
court barred FDA from altering the availability of
Federation of Independent Business v. Sebelius, the
mifepristone in 17 states and the District of Columbia.
Supreme Court held that a provision in the Patient
Litigation in the Washington case also remains ongoing.
Protection and Affordable Care Act withholding all existing
Medicaid grants (roughly 10% of most states’ revenue)
Several states have also enacted laws to restrict access to
from any state that refused to expand its Medicaid program
medication abortion drugs. For instance, many states
was unconstitutionally coercive.
require a clinician to be in the physical presence of a patient
when prescribing these drugs or place other restrictions on
Dobbs’s holding that abortion rights are not protected by
the use of telehealth. Some states have adopted more
the Fourteenth Amendment largely forecloses Congress’s
stringent requirements on medication abortion access,
ability to rely directly on Section 5 of that Amendment to
including measures to ban the prescribing of medication
protect or limit access to abortion. Congress could rely on
abortion drugs except under limited circumstances. These
Section 5 to prevent and deter other constitutional
types of state provisions aim, at least in some cases, to
violations related to abortion access, but the Supreme Court
restrict the drug’s access beyond what federal law would
has limited the availability of “prophylactic” Section 5
otherwise permit. Questions have arisen about the federal
legislation in City of Boerne v. Flores and its progeny. To
preemption of these state laws and the extent to which
align with the Court’s precedents, Congress would need to
states may set controls on medication abortion.
identify a pattern of state constitutional violations
associated with abortion and further determine that
The 118th Congress could choose to consider legislation
increased or decreased access to abortion was necessary to
addressing FDA’s regulation of medication abortion drugs,
prevent those constitutional violations.
including bills that would set federal standards for the
prescribing or dispensing of medication abortion. Congress
Medication Abortion
might also clarify the degree to which federal regulation of
Following Dobbs, questions have been raised about
medication abortion drugs preempts state measures
continued access to medication abortion, a pregnancy
inconsistent with federal policy. Such legislation could
termination method involving the use of prescription drugs.
speak to the extent to which states may set controls on
Recent attention has centered on the availability of these
medication abortion drugs subject to FDA oversight.
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
IF12269
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Regulating Reproductive Health Services After Dobbs v. Jackson Women’s Health Organization

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https://crsreports.congress.gov | IF12269 · VERSION 3 · UPDATED