Case Study 2 — Post-*Dobbs* Abortion Regulation: Federalism Without a Federal Floor

Open American Government Project

Case Study 2 — Post-Dobbs Abortion Regulation: Federalism Without a Federal Floor

The constitutional move

On June 24, 2022, the Supreme Court issued Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). The 6–3 decision (Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett in the majority on the constitutional question; Chief Justice Roberts concurring in the judgment but on narrower grounds) overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court held that the Constitution does not protect a right to abortion, and that the question of abortion regulation is "returned to the people and their elected representatives." In doctrinal terms, this was a federalism move: the Court took a question it had nationalized in 1973 and returned it to the states.

The political reaction was the most intense surrounding any Supreme Court decision in a generation. Whether one viewed the Roe-Casey framework as constitutionally sound or as an unwarranted nationalization of an inherently contestable question is precisely the dispute the Dobbs majority and dissents address. This case study will not adjudicate that question. It will trace what happened after Dobbs — how the federalism logic of returning the question to states played out in practice — and use that to illustrate how federalism actually works when a contested question genuinely is sent to the state level.

The patchwork emerges

Within hours of the Dobbs decision, "trigger laws" — pre-existing state statutes designed to take effect upon Roe's overruling — activated in 13 states. Most of these were near-total bans, with narrow exceptions for life of the mother (and in some cases rape and incest). By the end of 2022, additional states had passed new restrictions or enforced previously enjoined statutes. By the end of 2024, the rough national picture was:

13 states with near-total bans. Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia.
6 states with substantial restrictions (e.g., 6-week bans, 12-week bans, 15-week bans, with exceptions varying). Florida (6-week, after 2024 ballot vote that fell short of the 60% threshold to enshrine broader access), Georgia, Iowa, North Carolina (12-week), Nebraska, North Dakota.
The remaining states with broader access, ranging from limited (e.g., Wisconsin pre-2023, North Carolina before its 12-week law) to permissive throughout pregnancy (a small number of states with no gestational-age limit). Several states — California, Michigan, Ohio, Vermont, Kansas, Kentucky (defeated), Montana — had ballot measures between 2022 and 2024 enshrining or rejecting abortion rights, with the constitutional-amendment route generally producing pro-abortion-rights outcomes (Kansas voters rejected an anti-abortion amendment 59-41 in 2022; Ohio voters approved an abortion-rights amendment 57-43 in 2023; Michigan, California, Vermont enshrined rights in their state constitutions).
Wisconsin had a unique situation: an 1849 abortion statute returned to enforceability after Dobbs, but a 2023 state circuit court ruling, upheld by the Wisconsin Supreme Court (whose composition had shifted to a liberal majority in 2023), narrowed that statute to feticide cases, leaving abortion broadly legal in practice.

The aggregate effect: roughly 25 million American women of reproductive age now lived in states with substantial abortion restrictions or near-total bans. The Guttmacher Institute and others tracked the post-Dobbs shift in where abortions occurred — substantial increases in clinic volume in states bordering ban states (Illinois, New Mexico, Colorado, Kansas, Virginia, North Carolina before its 2023 law) as out-of-state patients traveled.

The federalism complications

A "return to the states" sounds clean. In practice, several federalism complications emerged immediately.

1. Interstate travel. Could a state with a near-total ban prohibit its residents from traveling out of state for abortion? The constitutional answer is generally no — the right to interstate travel is a long-recognized federal constitutional right (Edwards v. California, 1941; Saenz v. Roe, 1999). But states can attempt to regulate conduct of their own residents wherever it occurs, and the question of whether ban states can prosecute out-of-state abortions or impose civil liability on those who facilitate them remained legally unsettled. Idaho passed a law in 2023 making it a felony to transport a minor across state lines for abortion without parental consent (an "abortion trafficking" statute); a federal district court enjoined the law; the Ninth Circuit considered the appeal in 2024. Texas's S.B. 8 (2021) created civil liability for "aiding and abetting" abortion, and the question of how that civil liability extends to out-of-state actors was being tested in litigation throughout 2023–2025.

2. Shield laws. States permitting abortion enacted "shield laws" protecting providers, advocates, and patients from out-of-state legal action. As of 2025, roughly 20 states had some form of shield law. Typical provisions: refusing to extradite providers indicted in other states, refusing to enforce out-of-state civil judgments, prohibiting state courts from compelling testimony or evidence sought in connection with out-of-state abortion-related actions, and protecting telehealth prescribers of abortion medication. Whether shield laws will hold up against full faith and credit challenges (Article IV §1 of the Constitution) was an open question. The constitutional structure of cross-state legal cooperation was, post-Dobbs, being tested in ways it had not been tested since the antebellum fugitive-slave laws.

3. Mifepristone and the FDA. Roughly 60% of U.S. abortions in 2023 were medication abortions using mifepristone (FDA-approved since 2000) and misoprostol (approved as an ulcer medication, used off-label). After Dobbs, anti-abortion litigants challenged the FDA's approval of mifepristone in Alliance for Hippocratic Medicine v. FDA. The case raised a sharp federalism question. If the FDA could approve a drug — and federal law preempted state regulation of FDA-approved pharmaceuticals — could states like Texas effectively ban a medication the federal government had approved? Or, conversely, if the FDA's approval was challenged, could anti-abortion states use that ruling as leverage even in pro-choice states? The Supreme Court in FDA v. Alliance for Hippocratic Medicine (June 2024) ruled that the plaintiffs lacked standing to challenge the FDA approval, leaving the underlying federalism questions alive but unresolved. A separate federal-state battle over mifepristone, now centered in district courts in Idaho and Missouri, continues.

4. The federal authority question. Dobbs returned abortion to "the people and their elected representatives" — but did that mean state legislatures or also Congress? Both pro-life and pro-choice advocates concluded, very rapidly after Dobbs, that they did not want to leave the issue at the state level if they could win it federally. Pro-life proposals for a federal abortion ban (the "Life at Conception Act," various heartbeat-bill federal versions) and pro-choice proposals for federal codification of Roe (the Women's Health Protection Act) have been introduced in Congress repeatedly since 2022. Neither has come close to passing — both face filibuster, and on this question both sides currently calculate that returning to a national rule (in either direction) is preferable to a state-by-state patchwork. The constitutional federalism doctrine of Dobbs may have returned the question to the states, but the political dynamic has been to push for renationalization, by either side that thinks it can win.

5. The medical complications. State bans typically include exceptions for "life of the mother," but the legal definition has been contested in dozens of cases. Texas physicians sued Texas in 2023 (Zurawski v. State of Texas) over the legal uncertainty about how sick a pregnant woman must be before a physician can perform an abortion without facing criminal liability. The Texas Supreme Court ruled in 2024 that the existing exception language was sufficient and the petitioners lost, but the medical uncertainty has produced documented cases of physicians declining to treat ectopic pregnancies, miscarriages, and other obstetric emergencies until patients deteriorate sufficiently to clear the legal threshold. Whether these cases reflect the law as written, as interpreted by hospital risk officers, or as overcautiously implemented is itself contested. The federalism dimension: federal authority over medical practice is limited; state law sets the standard of care in obstetrics; and the cross-state variation in standards has measurable effects on maternal health outcomes (data is still emerging).

What this case shows about federalism

A few broader lessons paralleling Case Study 1:

1. Returning a question to the states does not produce stability — it produces a new venue for political conflict. The post-Dobbs political environment around abortion has been more, not less, intense than the pre-Dobbs environment. State-level battles, ballot initiatives, court cases, and proposed federal legislation have all proliferated. The "settlement" of returning the question to states has settled relatively little.

2. State autonomy and individual rights are in genuine tension. When a question is decentralized, individuals' legal entitlements vary by state. For some questions (state minimum wage, state speed limits) this is broadly accepted. For questions that affect bodily autonomy and reproductive control, the variation feels different to many citizens. The federalism question is whether all questions are appropriate for state-level variation or whether some questions involve interests sufficiently fundamental that they require national resolution. Reasonable people across the political spectrum disagree about where the line falls — and the disagreement does not break cleanly along left-right lines (libertarian conservatives have concerns about state coercion; communitarian progressives can see the value of local control on some questions).

3. The cross-state legal architecture is older than current political fights and may not be ready for them. Full faith and credit, extradition, the privileges and immunities of citizens, the right to interstate travel — these are old constitutional doctrines that were largely uncontested for most of American history because state laws on most questions were not radically divergent. Sustained policy divergence is now testing them in real time. Lawyers who specialize in conflicts-of-laws are working overtime.

4. Federalism is morally and politically symmetric. Pro-life advocates praised Dobbs as a victory for democratic federalism. They also support a federal abortion ban, which would erase the federalism. Pro-choice advocates condemned Dobbs as a betrayal of fundamental rights. They also support state shield laws and state ballot measures, which are exercises in the same federalism. Each side supports federalism when it cuts their way and opposes it when it cuts the other way. This is not hypocrisy in any unique sense; it is what political reasoning under federalism looks like. The question is whether anyone has a principled commitment to federalism beyond its instrumental utility, and the honest answer is: a few scholars and a few politicians, but not most.

5. Dobbs will not be the last federalism move of this kind. Several other once-nationalized questions could plausibly be returned to the states by future Court decisions: same-sex marriage (Obergefell, 2015), the right to contraception (Griswold, 1965), gun-control laws under post-Bruen doctrine. Whether any of these returns occurs is a question of Court composition and the cases the Court chooses to take. The pattern of federalism in the next decade — whether Dobbs is a one-off or a template — is one of the most consequential open questions in American constitutional law.

Closing observation

Case Study 1 (California emissions) and Case Study 2 (post-Dobbs abortion) have been paired deliberately. In the first, a blue state pushes against a red federal administration, defending state autonomy. In the second, red and blue states push against each other directly, while both pursue national-level remedies when they think they can win them. The architecture of federalism is the same in both cases. The substantive politics — and the moral stakes — differ enormously. That is the analytical point of putting them side by side. Federalism is a constitutional structure, not a moral position; it cuts whichever way the politics push, and both partisan camps have learned to use it.