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Dobbs After Two Years

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By: The Editorial Board – wsj.com – June 24, 2024

Letting voters decide on abortion has energized the democratic process.

The Dobbs decision, which returned abortion policy to the states and the voters, was correct as a matter of constitutional law. It overturned what even liberal jurists in 1973 and since recognized was one of the High Court’s worst decisions.

Justice Alito wrote that he had no idea how the voters would sort out the issue, but two years later it’s clear that Dobbs is letting democracy work. Despite the left’s predictions, the fall of Roe hasn’t ushered in a “Handmaid’s Tale” dystopia. Some conservative states have restricted many or most abortions, while some liberal states have moved to become sanctuaries.

The Guttmacher Institute said this year “that an estimated 1,037,000 abortions occurred in the formal health care system in 2023.” Even after Dobbs, that was up 11% from 2020, and is the highest figure in a decade. More women are traveling across state lines, sometimes with financial help from abortion funds. This activity is likely protected under the constitutional right to travel, as a federal court recently ruled, and as Justice Brett Kavanaugh suggested in his Dobbs concurrence.

Another factor, according to Guttmacher, is “broader availability of telehealth for medication abortion.” This month the Supreme Court unanimously rejected a challenge to the Food and Drug Administration’s regulations on the abortion pill mifepristone. So much for the Supreme Court serving as a rubber stamp for anti-abortion politicians.

The other piece of the story is that the Dobbs ruling energized the democratic process, with results that have sometimes been surprising. Residents of Kansas, Ohio and Michigan voted in referendums to keep or add abortion protections in their constitutions. Those outcomes were driven in part by highly motivated Democrats, but the Ohio initiative won counties that President Trump carried in 2020 with 60% or more, so there were obviously swing voters.

Is Florida next? Florida’s Republican Legislature last year banned most abortions after six weeks. But Democrats have responded by making that vote a centerpiece of their campaign in November.

That includes putting on the ballot a constitutional amendment that goes further than Roe in some ways. “No law,” the text says, “shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”

Amending Florida’s constitution takes 60%, a high bar. A recent Fox News poll said the abortion amendment had 69% support.

Public sentiment on abortion is more complicated than either party likes to admit. To cite the Gallup results from the first Dobbs anniversary, 69% of Americans said abortion should be generally legal during the first three months of pregnancy. But in the second three months, 55% said illegal, including 52% of women.

That’s the reality of American opinion, but for decades after Roe, politicians were free to ignore it. The Supreme Court had made the law on abortion, so elected officials treated it as a political totem.

Now politicians have to take their positions seriously, because they’re actually empowered to make policy. President Biden and Democrats in Congress want to pass a federal law to impose a national abortion policy that would go beyond Roe, but it could prove unpopular, and it can’t get past a Senate filibuster.

Republicans are adjusting, albeit slowly, and Donald Trump is probably right about the politics. “You don’t need a federal ban,” he told Time magazine recently. “I’m leaving everything up to the states. The states are going to be different. Some will say yes. Some will say no. Texas is different than Ohio.”

Two years after Dobbs, abortion policy is being settled by the electorate, and it isn’t always predictable, but that’s democracy.

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Source: The Vindication of Dobbs After Two Years – WSJ