Amanda Allen
On June 24, 2022, the U.S. Supreme Court overruled a half century of precedent with its decision in Jackson Women’s Health Organization v. Dobbs. The Dobbs ruling eliminated the constitutional right to abortion and has had immediate, devastating impacts on the ground. One of the focuses of The Lawyering Project since Dobbs has been to advise abortion providers, abortion funds, and practical support organizations on the risks involved in continuing to provide care—and support patients accessing care—in this increasingly hostile environment. Our perspective on the catastrophic impacts of this ruling on the ground is based on our partnership with these groups.
Abortion funds and practical-support organizations
One of the most insidious—and intentional—impacts of Dobbs is to sow fear and confusion as to the legal rights of people who support those seeking abortion care. Abortion funds and practical-support organizations are charitable organizations that provide financial assistance to people who cannot afford the cost of their abortion, as well as logistical support, such as helping make travel arrangements, booking hotel rooms, and providing information, referrals and resources. Pre-Dobbs, these groups primarily focused on helping abortion seekers obtain care in their state or region; post-Dobbs, these groups quickly pivoted to become makeshift out-of-state travel agents (in ban states) while weighing the legal risks to their organizations and its staff and volunteers (in all states).
As of now, no state prohibits helping prospective abortion patients get the care they need in a state where abortion is legal. Yet callers to abortion funds are confused, scared, and worried about being thrown in jail. Abortion fund staff and volunteers are afraid, too. Now that abortion is criminalized in many states, they fear baseless prosecution for “aiding and abetting” an abortion by supporting a client traveling to a state where abortion is legal. Compounding matters, the legal landscape shifts on a daily basis in some states, with injunctions against abortion bans being lifted and reinstated at a dizzying pace. For example, Louisiana’s so-called “trigger bans” have taken effect three times only to be blocked in a matter of weeks post-Dobbs.
Some abortion funds immediately ceased operations after Dobbs, deeming these risks too significant to continue providing services. Assistance to people seeking out-of-state abortions is not illegal, but the hostile legal landscape creates a palpable chilling effect. As a representative from a shuttered fund in Texas said, “We need to keep ourselves and our communities safe. It’s painful in so many ways, but we know that our safety comes first.” In making these difficult decisions, abortion funds take into account how their staff and volunteers’ identities, including race, socioeconomic status, gender, sexuality, and immigration status, may also have bearing on the likelihood that they will be reported, charged, and convicted. In describing one abortion fund’s decision-making amidst this very real threat of criminal charges, a representative explained that “we are also aware that we have a very racist criminal justice system [and] we can’t ignore that.”
Again, no state law currently bans providing the kind of support offered by abortion funds and practical support networks. And there are good legal arguments to be made that supporting abortion patients in obtaining care in states where abortion remains legal is a constitutionally protected activity under a variety of legal theories, including the First Amendment, the right to interstate travel, and the dormant commerce clause. Still, it is understandable that abortion fund workers would not want to risk their freedom or financial ruin by having to defend themselves in the same unjust legal system that just took away a constitutional right and abandoned 50 years of precedent.
Abortion seekers
The devastating impacts of the Dobbs ruling on people seeking abortion care, barely more than one month after the decision came down, are already well-documented. People are driving hundreds of miles to obtain care. One abortion fund in Colorado reported helping people from as far as Florida to get care in their state. Thirty percent of one Minnesota abortion clinic’s patients travel from Texas. These days-long trips require not only a reliable car or an expensive flight, but also for people to arrange for time off from work and child care, and to raise the funds needed for the procedure and travel expenses.
Not only will patients in states that have banned abortion face difficulties, but even those in states that protect abortion access will feel the ripple effects of Dobbs. Access state residents, too, are feeling the ripple effects of Dobbs. The New York Times reported a recent study showing that in cities with abortion access near states with abortion bans, wait times have already started to get longer, with nearly a quarter of these clinics booking appointments more than three weeks out. Just days after the decision came down, a New Mexico clinic reported wait times of four weeks; wait times at one Illinois clinic near the Missouri border ballooned from one to two days pre-Dobbs to three weeks post-Dobbs.
One of the most sinister aspects of the Dobbs ruling is that banning abortion forces people to obtain abortion care later in their pregnancies—something abortion opponents have demonized for decades. While abortion care at any gestational age is safer than childbirth, longer delays mean people will obtain abortion care later in their pregnancy, which increases the procedure’s cost, complexity, and health risks. The landmark Turnaway Study also shows that being denied abortion care altogether results in worse financial, health, and family outcomes. These include an increase in household poverty, higher likelihood of life-threatening health complications and exposure to intimate violence, and negative impacts on the children a pregnant person already has.
Abortion providers
A recent study showed that, just one month post-Dobbs, 43 abortion clinics shuttered, causing untold damage to these clinic workers’ careers and livelihoods. But state providers, particularly those located close to ban states, are also hard-hit by Dobbs. Increased volume at these clinics has meant that abortion providers in access states are strained. Staffing shortages and burnout affect clinics’ ability to meet this crushing demand, and clinic staff’s mental health is suffering under the weight of helping patients navigate barriers to care.
What’s clear is the public health crisis created by Dobbs is not just a “red state” problem. Dobbs will not eliminate the need for abortion in the states enforcing abortion bans; rather, millions of people will try to travel to access it. This will only lead to increased delays for people seeking abortion care in both ban states and access states, potential legal risk, and clinics hanging on by a thread. Countless others, including young people and people with low incomes, will be unable to travel, or will decide crossing state lines presents too many legal risks, such as undocumented people. But for those who enabled this unjust system, creating chaos, uncertainty, and hardship for abortion providers, seekers and supporters is not a bug—it’s a feature.
The highest court in our land has eviscerated the rule of law and the concept of fundamental fairness in the judicial system—not just by overturning decades of precedent in Dobbs, but through years of rulings that have steadily gutted protections for criminal defendants, the environment, and voting rights, just to name a few. Those of us who want a legal system that protects the most vulnerable among us have to be in this fight for the long haul.
Social justice lawyers looking to play a role should invest their time and energy in organizations at the state and local level that have been doing this hard work on the ground for years, if not decades; listen and learn from leaders who have lived experiences with the injustices they seek to rectify; and, above all else, never give up. Our opponents have worked for decades to eliminate the right to abortion and to devastate other civil and constitutional rights. Restoring our rights and freedoms will require the same level of tenacity and endurance.
Amanda Allen is the Senior Counsel & Director at The Lawyering Project and an alumna of CUNY Law (’08).