In Dobbs v. Jackson, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, the cases that conferred a constitutional right to abortion. Dobbs revolved around the constitutionality of a Mississippi law banning abortion after 15 weeks, which went against Casey’s standard of “fetal viability” for the earliest a state can ban abortion.
The Supreme Court ruled that the Constitution does not confer the right to abortion and that the state governments must decide to make it legal or illegal.
In 2021, Texas passed two laws to prohibit abortion. The first was the Texas Heartbeat Act, allowing Texans to file lawsuits against those who assist or perform abortions except the mother herself. This law, which survived a challenge in the Texas Supreme Court, skirted Roe by using civil rather than criminal courts as the mechanism of enforcement.
The second was the Human Life Protection Act, the so-called “trigger ban” to make abortion a criminal offense if Roe was overturned. The ban will take effect August 25, 30 days after the court issued its judgment.
Describing a “women’s health crisis” following Dobbs, the Biden administration issued the order “to protect access to reproductive healthcare services and defend women’s fundamental rights.” This comes on the heels of the president’s previous order in July to protect abortion, for which Attorney General Ken Paxton sued the Biden administration.
The new order directs the Secretary of Health and Human Services to focus on three priorities for the administration.
The first is to “consider action to advance access” to abortion, “including through Medicaid,” for those who cross state lines to receive the procedure in a state where it is legal.
The second is to “consider all appropriate actions to ensure health care providers comply with Federal non-discrimination laws so that women receive medically necessary care without delay” and help providers who “may be confused or unsure of their obligations” in the wake of Dobbs.
The third is to “evaluate and improve research, data collection, and data analysis efforts at the National Institutes of Health and the Centers for Disease Control and Prevention on maternal health and other health outcomes” to measure the effect of Dobbs on women’s health.
As the deadline to Texas’ trigger ban approaches, Texas Democrats search for “legally viable strategies” to allow access to abortion and Texan Republicans seek to expand lawsuit-based enforcement of abortion restrictions.
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