Strategy, Morality, Courage: Bioethics and Health Law after Dobbs

Abstract

Our paper examines what is required to protect and promote effective public discussion and policy development in the current climate of divisive disagreement about many public policy questions. We use abortion as a case example precisely because it is morally fraught. We first consider the changes made by Dobbs, as well as those which led up to the Dobbs decision, accompany it, and follow from it.

Charity Scott’s essay on public health ethics published in the Hastings Center Report in 2008¹ introduced many in bioethics to “belief in a just world.” Those who believe that the world is, by definition, just thereby justify regarding those in need as necessarily blameworthy, responsible for whatever befalls them, and undeserving of help from society. In her short essay, Professor Scott describes an unexpected response to a news story about a family whose children benefited from Georgia’s children’s health insurance program, PeachCare. In numerous letters to the editor, readers angrily condemned the parents for not obtaining employment that paid more than the jobs they held, and for having too many children. They argued that the family did not deserve to receive help from the state to meet their children’s health care needs. However, all maintained that they supported PeachCare for truly deserving families. When the newspaper updated the story with information intended to demonstrate that the family did indeed deserve help from PeachCare — including that jobs available to the parents did not provide health insurance, and that contraceptive failure accounted for their most recent pregnancy — many readers doubled down on their judgments that the family was irresponsible, entitled, and undeserving.

Professor Scott notes that this saga — perhaps somewhat surprising 15 years ago but common today — reflects “centuries-old debates about who the ‘deserving poor’ are.”² She cites research suggesting that changing how the need for public assistance is described can lead many people to broaden their views about deservingness, even though some may continue to believe “that an individual does not deserve public assistance if his or her efforts do not succeed in avoiding the need for public aid.” She notes that much of the time, “need arises from circumstances outside the control of the individual” rather than from individuals’ “irresponsible behavior,” and closes by recommending that public health advocates emphasize structural injustices. This change in focus can undermine the comfortable fiction that the world is always just and that those who fail to protect themselves from misfortune are therefore blameworthy.³ It can also move at least some people to recognize that injustice does exist. And only by acknowledging genuine injustice can we hope to act to make the world more just.

We have previously written about how complex and intertwined matters of race and sex, enslavement, eugenics, and voting rights helped lead to the Dobbs decision overturning Roe v. Wade and have contributed to and complicated post-Dobbs law and policy. Here, we deepen our consideration of more contemporary legal developments, including but not limited to post-Dobbs statutes and case law, to address challenges currently posed to reproductive justice, public health, and even public policymaking and participatory democracy.

It is unfortunately tempting to maintain the belief that the world justly assigns misfortune only to those who behave irresponsibly; this is easier to do when one’s own privilege protects one against experiencing the consequences of accidents, structural barriers, and imperfect choices.⁴ In a post-Dobbs society, it seems clear that the risks of pregnancy are increasingly viewed by many courts and legislatures as resulting from women’s inevitably irresponsible desires to separate sexual activity from reproduction, while men’s behavior is questioned far less often. At the same time, however, the reach of recent court decisions and statutes limiting abortion extends far beyond pregnancy, also affecting many health conditions that have little or nothing to do with reproduction. This means, for example, that patients with conditions treated by drugs that are restricted because they are also used for medication abortions have become victims of collateral damage.

American bioethics began over 50 years ago, at a time when social justice was ascendant, and law, policy, and morality seemed all to be coming together to protect and promote individual and civil rights. As historians have increasingly recognized, however, the legacy of slavery, the persistence of racism, and slow progress toward equal status for women all show that social justice remains a contested goal; indeed, resistance to it has become more overt in the 21st century.⁵

We have previously written about how complex and intertwined matters of race and sex, enslavement, eugenics, and voting rights helped lead to the Dobbs decision overturning Roe v. Wade ⁶ and have contributed to and complicated post-Dobbs law and policy.⁷ Here, we deepen our consideration of contemporary developments, including but not limited to post-Dobbs statutes and case law, to address challenges currently posed to reproductive justice, public health, and even public policymaking and participatory democracy.

Disagreements about abortion policy and practice are morally divisive and emotionally fraught. Those who believe abortion is wrong and also believe in a just world might readily conclude that banning abortion under virtually all circumstances is both appropriate and necessary, and might fail to recognize and appreciate the influences of poverty, social and structural injustice, and medical misfortune on the deservingness and blameworthiness of those who seek abortions. Blaming and refusing to assist others with health needs may also be exacerbated by efforts to distort and suppress the information necessary for effective and fair decisionmaking and public policy.⁸ In recent times, we have seen that those seeking to challenge changes in law and policy, including but not limited to post-Dobbs hostility to abortion, are increasingly at risk of legal and/or professional sanctions, societal disapproval, and even physical danger. Developments like these threaten the capacity of the public to talk together about highly contested matters like abortion. Fair and effective public policymaking, challenging in the best of circumstances, can break down when advocates seek to formulate policy based on only one of two or more strongly opposing views.

Using abortion as a case example precisely because it is so morally problematic, we examine what is required to protect and promote effective public discussion and policy development in the current climate of divisive disagreement, especially about matters of science and ethics like abortion. Attempting to engage in transparent, productive conversation with a constituency resistant to the idea of democratic deliberation or critical reflection about strongly held beliefs can seem doomed from the start. Belief in a just world can lead people to wield all available tools to ensure that the world fits their beliefs. Are there morally responsible ways to effectively counter newly aggressive uses of law, policymaking, and social media that appear specifically designed to attack health justice work on issues like abortion? If we can find ways for health lawyers, bioethics scholars, health care providers, and an engaged public to preserve our collective ability to develop meaningful shared public policy about abortion, what we learn could also have implications for a broader range of health justice questions.

We first consider the changes that have been made by Dobbs, as well as additional changes that either foreshadow or follow from Dobbs.

What Dobbs Has Done

“[T]he Constitution does not confer a right to abortion. Roe and Casey abrogated that authority. We now overrule those decisions and return the authority to the people and their elected [state] representatives. ” ⁹ With this holding, the U.S. Supreme Court overruled fifty years of legal precedent surrounding the abortion issue and changed the landscape of reproductive rights — and arguably the trajectory of public health law.¹⁰

In support of this decision, the Dobbs majority explains: “Our decision returns the issue of abortion to those [state] legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office, Women are not without political power.”¹¹

This reasoning is problematic. While the United States is a representative democracy, the Dobbs majority overlooks the realities of voter suppression and partisan gerrymandering, along with the continuing erosion of regulatory authority.¹² The majority’s reasoning also contains the inaccurate assumption that women alone¹³ are affected and therefore the only individuals who should care about reproductive justice. Nothing could be further from the truth. The consequences of Dobbs are far-reaching — including but not limited to women, families, and physicians. And, Dobbs has a disparate impact on people of color, people with disabilities, and those lacking socioeconomic means and living in rural areas — those who are most vulnerable and therefore, as Professor Scott’s essay points out, are often considered at fault for their choices.

Voting Rights and Gerrymandering

The concept of federalism is at the roots of Dobbs. The Tenth Amendment to the Constitution reserves “police powers” to the states, which includes the power to regulate health.¹⁴ In theory, the Tenth Amendment provides a “laboratories of democracy”¹⁵ system of governance, which, at face value, enables each state to respond to the needs, demographics, and geography of its populace when it comes to health-related matters, from abortion to physician-assisted suicide, and the numerous issues in between.¹⁶ For the “laboratories of democracy” theory to work, however, the appropriate stakeholders must have a voice at the table and the political results at the ballot box must reflect the will of the voters.

In its 2013 decision in Shelby County v. Holder ¹⁷ the Court weakened the Voting Rights Act of 1965.¹⁸ Specifically, the Court ruled that Section 4(b) of the Act, which required states with a history of voting discrimination to obtain “pre-clearance” from judges or the U.S. attorney general before changing their voting rules, was unconstitutional because it imposed an impermissible burden on federalism and equal sovereignty of the states.¹⁹ In 2019, the Court handed down Rucho v. Common Cause,²⁰ ruling that partisan gerrymanding²¹ presents a political question beyond the reach of the federal courts.²² More recently, in 2021, the Court decided Brnovich v. Democratic National Party,²³ which further diminished voting rights protections as they relate to Section 2²⁴ of the Voting Rights Act.²⁵ That case involved laws that made it more difficult to vote — specifically, an Arizona law that allowed only voters to return absentee ballots and allowed ballots mistakenly cast in the wrong precinct to be thrown out.²⁶

Weakening voting rights protections and failing to root out political gerrymandering has led to a series of attempts by states to implement voting restrictions and realign voting districts in ways that directly undermine the presumption that individuals can indeed express their views and concerns at the ballot box. As these districts were redrawn during reapportionment to become more favorable to one political party — most recently conservative Republicans²⁷ — moderates are being replaced by ultra-partisans who take uncompromising positions without facing electoral accountability.²⁸ This has had direct consequences on public health policy generally, and abortion policy specifically.

A recent study examining the effects of partisan gerrymandering on pre-viability abortion bans is particularly compelling. This study found that abortion “remains available in 17 out of 18 states that have a pro-abortion public majority without a pro-Republican gerrymander.” But “in nine out of 10 states that have a pro-abortion public majority with a pro-Republican gerrymander,” legislators have imposed a pre-viability abortion ban.²⁹

Abortion is a moral³⁰ and deeply personal decision. It is also a political lightning rod. The partisan divide, however, diminishes somewhat when considering the issue of abortion within the context of the law — i.e., should the government be involved in limiting or banning the procedure? When considered in this context, an overwhelming majority of Americans, 61%, believe that abortion should be legal in all or most cases, whereas only 37% believe that it should be illegal in all or most cases.³¹ When voters can make their views known at the ballot box, i.e., where there have been state-wide initiatives — voters have consistently supported expansive reproductive rights. For instance, soon after Dobbs was decided, voters in Kansas, a historically “red” state, upheld a constitutional provision supporting abortion rights by a margin of 59% to 41%.³²

The 2022 midterms confirmed the majority view when voters in Michigan, California, and Vermont voted to amend their state constitutions to allow for abortion rights,³³ and voters in Kentucky and Montana rejected constitutional provisions that would have resulted in restrictions on the practice.³⁴ The 2023 midterms showed similar results. For instance, Virginia Governor Glenn Youngkin, a Republican, campaigned in support of a fifteen-week abortion ban by arguing that voters needed to keep the Republican majority in the Virginia House of Representatives to pass the ban. Voters, however, disagreed and flipped the Virginia House in favor of the Democrats.³⁵ Likewise, in Kentucky, historically considered a “red” state, voters supported incumbent Democratic Governor Andy Beshear, who ran against an anti-abortion opponent.³⁶

However, the 2023 Ohio midterm results best illustrate the stark disconnect between the language in the Dobbs majority opinion and the realities on the political ground. In November 2023, Ohio voters passed with a margin of 57% to 43% the Right to Make Reproductive Decisions Including the Abortion Initiative (Issue One) — which provides for a constitutional right to abortion and other reproductive health care in Ohio.³⁷ Despite the large margin by which Issue One passed, some Republican lawmakers in Ohio claimed that there was “foreign election interference” in the vote and proposed legislation to block the ability of courts to interpret the new constitutional amendment.³⁸

Since the Dobbs ruling, fourteen states have banned abortion.³⁹ Eleven states are considered very restrictive or restrictive.⁴⁰ Fifteen states restrict abortion at or near the time of viability,⁴¹ and the remaining states still allow the procedure, with varying restrictions.⁴²

Despite the multiple types of abortion bans passed by the states,⁴³ one year after Dobbs, data reflected an increase in the overall number of abortions nationwide.⁴⁴ At the same time, in states where access was available, providers reported a significant increase in the provision of abortion services to people from out of state,⁴⁵ which may increase waiting times and decrease service availability for all.⁴⁶ As the American Congress of Obstetricians and Gynecologists (ACOG) reports, “delays of weeks or sometimes days [can] increase health risks.”⁴⁷ Increased travel time,⁴⁸ waiting time, and associated costs (child care, lost wages, etc.) make obtaining care less accessible or even completely inaccessible, particularly for individuals without substantial financial means.⁴⁹

As seen in Ohio, anti-abortion legislators are not consistently respecting the voice of the people or the will of the people in sister states.⁵⁰ In addition, reports are emerging that other states concerned about state-wide measures to enshrine reproductive rights have added or are proposing additional obstacles to the public referendum process.⁵¹ And in direct contravention of the reasoning in Dobbs, many anti-abortion legislators and politicians have called for a federal ban.⁵² Such a ban could increase maternal mortality considerably overall, with a disparate impact on pregnant Black Americans, who already suffer from excess maternal mortality.⁵³

Voter suppression laws and partisan gerrymandering tend to target the participation of people of color, who are more likely than white voters to be excluded from and disadvantaged by the legislative and redistricting processes.⁵⁴ Many of the states that made it more difficult to vote and that have engaged in partisan gerrymandering, such as Florida, Georgia, Mississippi, and Texas, are also among the states that have refused to accept Medicaid expansion.⁵⁵ These states are home to a high percentage of people of color and also have high rates of poverty.⁵⁶ Data show that people who fall below the federal poverty level or in the Medicaid coverage gap are likely to experience more chronic health conditions and to have poorer outcomes in disease outbreaks like the Covid-19 pandemic than do people with incomes above the federal poverty level.⁵⁷ Voter suppression, health disparities, and limited access to reproductive health care all seem to come together with a concentrated effect on poor people of color.

Seventy-five percent of people who sought abortion before Dobbs were at or below the federal poverty level and about 60% were people of color.⁵⁸ Poor women, particularly those who live in non-Medicaid-expansion states, face increased barriers to effective reproductive health care, including the sometimes high costs of obtaining effective contraception.⁵⁹ Consequently, they are five times more likely to experience unexpected pregnancy than more financially secure women.⁶⁰

As one commentator wryly observed: “the party that has been promoting the tightening of abortion restrictions has done nothing to make becoming a mother a more attractive choice. Nothing.”⁶¹ In fact, states with the most restrictive laws are also the states that provide the least assistance for children and families.⁶² State legislatures with restrictive abortion bans have ten percent fewer women in the legislature than do state legislatures with permissive policies.⁶³ Thus, women’s views in those jurisdictions are inadequately considered by “legislative bodies that are charged with decisions about reproductive rights, health care, and the social supports necessary for healthy childbirth and child-rearing.”⁶⁴ For a democracy to flourish, election results that reflect the will of the voters concerning reproductive rights should be respected. Instead, in the aftermath of Dobbs, the exact opposite has occurred.

This post-Dobbs legal landscape is consistent with Professor Scott’s case example of just world theory, wherein the structural injustices that we have discussed above are simply not acknowledged to exist as barriers for the vulnerable populations they directly affect. Rather, people “deserve” the outcomes they receive, despite the lack of assistance or resources and the legal barriers raised. Indeed, post-Dobbs legislation in many states appears to reflect the belief that if the women subjected to intersecting punitive laws were in fact worthy, they would have “made better choices” rather than engaging in “irresponsible behavior.” It may also be reasonable to regard post-Dobbs legislation as contributing to misinformation and promoting misunderstanding among the general public, who might determine that irresponsible behavior is the cause of misfortune when structural injustices are denied or downplayed and only imperfect individual choices and outcomes are visible.

Substituting Judgment Without Expert Knowledge

Public health interventions have led to a significant increase in life expectancy in the past century.⁶⁵ Much of this is attributable to the efforts of the Food and Drug Administration (FDA), including recent developments like approval of vaccines and medications for childhood illnesses and for infectious diseases such as Covid-19, increased tobacco regulation, and permitting Narcan to be sold “over the counter” to combat the opioid crisis.⁶⁶

Anti-abortion opponents have challenged FDA authority, particularly as it relates to the abortion medication mifepristone, which is used in conjunction with misoprostol both to treat miscarriages and to terminate early-stage pregnancy. Mifepristone is also approved for the treatment of Cushing’s Disease, diabetes, and high blood sugar,⁶⁷ and has overwhelming data supporting its safety and efficacy.⁶⁸

At the same time, the Supreme Court overturned the long-standing deference afforded by the courts to administrative agencies, and limited agency enforcement tools, along with the ability of agencies to assert statute of limitation defenses for facial challenges to regulations.⁶⁹ The Court has also decided a series of cases that has evolved into the “major questions” doctrine, ⁷⁰ which serves to “limit administrative agency actions that may have major economic or political impact to those with explicit statutory authority.”⁷¹

The FDA — the oldest comprehensive consumer protection agency — is an administrative agency⁷² housed within the Department of Health and Human Services. By the powers granted to it under the Federal Food, Drug and Cosmetic Act,⁷³ FDA provides scientific and medical expertise, ensuring that drugs and therapies marketed in the U.S. are safe and effective for their purpose⁷⁴ and “advancing public health by helping to speed product innovations.”⁷⁵ The Court’s action in reviewing Chevron, and its new emphasis on the “major questions doctrine,” portend a shift that could detrimentally affect public health, as well as many other areas of social concern, including but not limited to governmental ability to address climate change and gun violence.⁷⁶ Specifically, in Alliance for Hippocratic Medicine v. FDA, a group of anti-abortion doctors and medical groups filed a lawsuit in the Northern District in Texas⁷⁷ against the FDA challenging its twenty-year approval of mifepristone, because it is taken in combination with misoprostol to induce abortion.

On April 7, 2023, District Judge Matthew J. Kacsmaryk ruled for the plaintiffs, issuing a nationwide preliminary injunction suspending the use of mifepristone.⁷⁸ The case bounced back between the Fifth Circuit and the Supreme Court.⁷⁹ On June 13, 2024, the Supreme Court unanimously held that Alliance lacked Article III standing to challenge the FDA’s regulatory actions concerning mifepristone.⁸⁰ As of this writing, Alliance is headed back to the Supreme Court.

State laws, particularly in those states that have passed draconian abortion bans, are also integral to the medication abortion issue.⁸¹ Since Dobbs, fourteen states⁸² have enacted near-total abortion bans, including separate laws that prohibit medication abortions. Other states restrict access to medication abortion by requiring that it be provided by a physician, with some requiring in-patient visits or that mifepristone be taken in the presence of a physician.⁸³

Moreover, because Dobbs provides states with the authority to regulate reproductive care without limitation, it essentially removes professional autonomy from doctors to practice medicine.⁸⁴ To practice, doctors are licensed by each state to ensure that they have the requisite education and training and follow the recognized standards of conduct and practice in serving their patients.⁸⁵ Restrictive abortion laws, which are inconsistent with medical standards of care,⁸⁶ have created uncertainty. This uncertainty has caused treatment delays, which have resulted in many instances where pregnant people were required to wait until they nearly died to terminate a pregnancy, and in maternal deaths.⁸⁷ These laws have instilled fear among physicians, as some impose prison sentences that range from ten years to life in prison, criminal fines from $10,000 to $100,000, and the suspension or loss of medical licenses.⁸⁸

Physicians are between a rock and a hard place because if they comply with state abortion bans, they risk civil liability for failing to provide an abortion in situations where it is consistent with the standard of care, such as for ectopic pregnancies.⁸⁹ A recent study in Oklahoma, titled No One Could Say: Accessing Emergency Obstetrics Information as A Prospective Prenatal Patient in Post-Roe Oklahoma,⁹⁰ describes how physicians are subject to three overlapping abortion bans that are inconsistent as to when a “medical emergency” exists, and none of the participating hospitals has a clear policy supporting the physicians’ ability to make clinically based judgments.⁹¹ In attempting to regulate the morals of women, some legislators have failed to recognize that there are many conditions for which abortion may be medically necessary, such as ectopic pregnancy, preterm premature rupture of membranes, pulmonary hypertension, and cancer,⁹² and hospitals, concerned with liability, have failed to provide doctors with clear policies supporting the ability to appropriately treat patients. Recent media reports highlight that physicians, particularly obstetricians, are leaving states with restrictive laws, affecting care for all⁹³ and creating maternity care deserts.⁹⁴ In short, legislators who are not medical experts are passing dangerous laws that detrimentally affect the practice of medicine and patient outcomes.

Here we see a striking parallel: In states with draconian abortion laws, legislators with little or no medical training are substituting their judgment for medical professionals and making it difficult, if not impossible, for physicians to treat patients within the standards of practice. Similarly, in Alliance, plaintiffs asked that judges, who are also not medically trained, substitute their judgment for that of FDA scientists and medical experts concerning the approval and distribution of drugs and related therapies.

Alliance was decided based on lack of standing; thus, its result does not provide for certainty or clarity. The possibility of a future similar attack, along with the diminution of regulatory authority, could create havoc affecting the development and approval of future medications and therapies, and have a chilling effect on pharmaceutical innovation in everything from Alzheimer’s to ALS to diabetes and cancer.⁹⁵ Safety and efficacy are at the core of the FDA approval process.⁹⁶ Although its actions are at times imperfect, FDA has worked to follow the science in making regulatory decisions that balance competing goals of safety and access.⁹⁷ In fact, FDA’s drug approval process is considered the gold standard around the world.⁹⁸ Ironically, this newest attack on FDA for being insufficiently restrictive marks a shift by the political right; for many years conservatives criticized the FDA as excessively restrictive, overly concerned with safety, and too bureaucratic and paternalistic.⁹⁹

We next consider what data, theory, and policymaking tools need to be gathered, strengthened, and used to maintain the capacity for public moral argument and democratic deliberation.

How to Know What’s Right

The Dobbs majority’s claim that voters have the capacity to establish reasonable abortion policy at the state level requires, at the very least, an election framework that provides for well-informed legislation and allows citizens equal opportunities to participate. A Brennan Center for Justice report connects the importance of self-determination in matters of reproductive justice and a functioning democracy:

Abortion enables people to exercise self-determination over their bodies and their family lives so that they are not rendered second-class citizens by the unique burdens of pregnancy and childbearing. A functioning democracy protects these very same values: political self-determination requires voters to be able to effectively choose who governs, and the ballot lets voters defend themselves against policies that threaten their rights.¹⁰⁰

The availability of good information and the ability of voters to use that information are background requirements on which to build understanding and action.

Data

On October 5, 2023, the National Academies of Science, Engineering, and Medicine’s Standing Committee on Reproductive Health, Equity and Society hosted a public workshop entitled Reproductive Health, Equity, and Society — A Workshop to Explore Data Needs in the Wake of the Dobbs v. Jackson Women’s Health Organization Decision. ¹⁰¹ A chief question underlying this workshop was “How is the Supreme Court’s decision in Dobbs changing health and health care in the United States?” To answer such a question, timely, accurate, and comprehensive data on a variety of outcomes are needed.

Gathering data on abortion — both spontaneous and induced — has never been simple in the U.S. due to the shame, stigma, and secrecy that have historically surrounded all types of abortion, but particularly induced abortions. The increase in legal restrictions and the resulting fear and stigma have made data collection from patients and providers even more complex.

In the U.S., The National Center for Health Statistics (NCHS) has legal responsibility and authority for the registration of births, deaths, marriages, divorces, fetal deaths, and induced terminations of pregnancy (abortions) resides individually with the states (as well as cities in the case of New York City and Washington, D.C.) and Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.¹⁰² As a result of this state authority, the collection of registration-based vital statistics at the national level has always relied on cooperative relationships between the states and the federal government. Currently this data collection is limited to data from birth and death records (including fetal deaths).

Fetal deaths of twenty weeks of gestation and greater have been a reportable component of U.S. vital statistics since the 1920s. Following the Supreme Court’s 1973 ruling in Roe, the NCHS recognized a need for a separate reportable component on abortion, and in 1978, introduced the first standard report of induced termination of pregnancy.

Aggregated data on induced abortions have been compiled from the states since 1969 by the federal Centers for Disease Control and Prevention (CDC),¹⁰³ through voluntary partnerships with states. The CDC uses these data to produce an annual Abortion Surveillance report.¹⁰⁴ While states are not required to submit aggregated abortion data to the CDC, the large majority do so. In addition, following FDA’s approval of mifepristone in 2000 and the significant growth of the use of medication abortion, most states adjusted their reporting forms for providers to include questions to patients about medication (nonsurgical) abortion, and such data are now included in the CDC’s Abortion Surveillance report.

According to the Guttmacher Institute, as of September 1, 2023:¹⁰⁵

• • Forty-six states and the District of Columbia require hospitals, facilities, and physicians providing abortions to submit regular and confidential reports to the state;

• • Eight states require providers to indicate the method of payment, such as insurance or self-pay, for the procedure;

• • Sixteen states require providers to give some information about the patient’s reason for seeking the procedure; eleven states ask whether the abortion was performed because of a threat to the patient’s health or life;

• • Eight states ask whether the abortion was performed because of rape or incest;

• • Fifteen states ask whether the abortion was performed because of a diagnosed fetal abnormality; nine states ask whether the abortion was performed for other reasons (e.g. the patient’s economic or familial circumstances);

• • Six states require providers to report whether the fetus was viable;

• • Fourteen states require providers to indicate if state mandates for abortion counseling and parental involvement were satisfied;

• • Nine states require providers to report whether state-mandated counseling was provided; and

• • Fourteen states require providers to report whether state requirements for parental involvement were met.

Concerns over the accuracy of data on abortion have risen as fears of legal retribution and even criminalization have risen among providers about entering “too much” data into electronic medical records on abortion-related care and patients’ abortion-related practices, questions, and concerns. This chilling climate pervades even whole health care systems and Institutional Review Boards in a number of states. Legislators in many states have sought to criminalize the actions of those involved in providing abortions; this new reality has made data collection from providers more challenging.

Not surprisingly, steep declines in surgical abortions have been documented in states where bans and penalties have been enacted.¹⁰⁶ However, it is unknown what proportion of the decline in clinic/surgical abortions is being made up for by self-managed medication abortions at home. Self-managed abortions with medication have occurred around the world for years, particularly in areas where surgical abortion access has been limited. Before the FDA removed the in-person dispensing requirement for mifepristone in December 2021, access to telemedicine abortion care (either through the medical system or self-managed) was extremely limited in the U.S. Interest in self-managed abortion has grown in the United States, particularly since the Dobbs decision. For example, research¹⁰⁷ has documented a sharp increase in requests for abortion pills to the company AidAccess (providing medication abortion pills to the U.S. since 2017) since the Dobbs ruling, rising from an average of 82.6 requests daily before the ruling to 213.7 requests/day after it was issued, with the largest increases in states that have banned abortion.

Safe abortion medications are currently sent through the mail to U.S. women from numerous organizations around the world, a practice that has grown significantly since Dobbs.¹⁰⁸ A chief downside, however, is that the increase in the incidence of at-home medication abortions makes the collection of accurate data on abortion incidence more complicated, and probably makes the data reported by providers less complete.

None of the new statutory abortion bans or restrictions criminalize those who obtain surgical self-managed abortions, yet there have long been documented cases of people facing criminal charges for self-managing an abortion or being suspected of so doing after a miscarriage.¹⁰⁹ Some states also impose criminal penalties on clinicians or others who help an individual obtain abortion services, including medication abortion.¹¹⁰ These policies create a climate of fear related to self-managed abortion for both patients and clinicians; for instance, if a patient were to present to a clinician for a complication or follow-up care after a self-managed abortion, the patient might be reluctant to provide accurate information and the clinician might be reluctant to record accurate information. This reluctance puts both patients and data at risk.

An additional key area in which accurate data and surveillance are urgently needed pertains to cases where a pregnant woman with a wanted pregnancy who encounters serious health complications, or fatal fetal abnormalities that increase the mother’s risk of carrying to term, is denied timely medical care because of physicians’ fears of prosecution when they are uncertain how sick a woman has to be to be legally allowed to have an abortion-related surgical procedure.¹¹¹ Currently, there are only limited data on this issue.¹¹² However, there is no widespread, mandated systematic surveillance of the incidence of physicians’ delaying assistance to severely ill pregnant women and of the outcomes of the women who are managed “expectantly” until their condition becomes life-threatening.

In sum, only with the availability of timely, accurate, and comprehensive data can we build a foundation for well-informed legislation. New barriers to the comprehensive collection of data about pregnancy, reproductive health, and abortion complicate an already fragmented reporting system and make it more difficult to substantiate the harms arising from post-Dobbs restrictions. The need to reassess and strengthen health information privacy, confidentiality, and data security has never been clearer.¹¹³

Theory and Policy

Given the proliferation of contemporary challenges to data gathering, public policy engagement, and public health decisionmaking, it is reasonable to ask whether it is possible to determine what’s right without access to data supporting critical reflection and the development of responsive policy. In our representative democracy, we need to consider how to decide what positions to treat with respect in a pluralistic society. Policymaking has always been challenging in societies characterized by social and political diversity because those societies often give rise to multiple “reasonable, yet incompatible, comprehensive doctrines.” As bioethics scholar Soren Holm observes:¹¹⁴

[L]ike everyone else, I have to recognize that, despite the fact that I think I have good (and to me decisive) arguments against those who disagree with me, their disagreement is often not unreasonable, given that we are unable to agree on some of the basic premisses even after all the arguments have been put on the table. They and I have to live together in the same society, and just as I would not like to have their views imposed as public policy, I should not try to impose my view, either directly or indirectly through the use of questionable rhetorical strategies in the public debate. It is only if we all adhere to the civic virtues of integrity and magnanimity that there is any chance of our finding those areas of practical convergence that allow peaceful public decision-making in a context of fundamental moral disagreement.

It is essential to determine which positions on contested questions should be taken seriously by public policymakers, given that often “there are marked disagreements about moral issues [that] are seen as fundamental” under circumstances of “moral and scientific uncertainty.” Fundamental disagreements have always characterized the abortion issue, and it is even truer since Dobbs that we are “in a situation where each side has arguments that it sees as compelling but which the other side rejects utterly.”¹¹⁵ Even without misinformation, scientific information is rarely unequivocally slam-dunk accurate and precise; medical and scientific information about abortion and the status of the fetus can legitimately be regarded as at least somewhat uncertain. Moreover, “there is no general agreement on what scientific facts are of relevance to ethical analysis”¹¹⁶ and applicable in public policy decisionmaking about abortion, since public policy decisions necessarily implicate both scientific and ethical considerations. Each of two opposing reasonable but incompatible positions will necessarily be supported by a different data set that matches the position’s determination of what is morally relevant, including some assessment of the harms, benefits, and consequences of pursuing policy based on a given position.

Harm-benefit analysis poses its own additional challenge; as Holm notes, one familiar way of testing the acceptability of a policy position is to ask whether its implementation would cause harm to others. This would be unproblematic if there were agreement about how to assess and measure harms. A narrow definition of harm helps to ensure reasonably broad freedom of action. “But it is not self-evident that the politically (or philosophically) relevant conception of harm can be restricted in a way that does, for instance, leave out harm to the reasonable sensibilities of others, or harm to the environment, or harm to social networks and cohesiveness.” A broader conception of harm might certainly make moral sense to liberal policymakers, but it “could lead to rather illiberal conclusions”¹¹⁷ — which is exactly what we have seen happen. When policymakers and plaintiffs oppose the availability of contraception and abortion, arguing that referral and even minimal information provision violates opponents’ freedom of religious expression, this constitutes an extremely broad conception of harm.

One of the broadest conceptions of harm appeared recently in abortion case law. One of the conservative judges in the Alliance decision argued for an expanded view of standing to sue, based on the plaintiffs’ experience of harm. This view of standing, based on “aesthetic injury,” has origins in liberal litigation, where it has been used to establish the standing of plaintiffs who seek to contest federal agency actions alleged to threaten species preservation.¹¹⁸ In the Fifth Circuit’s Alliance decision reversing in part the FDA’s approval of mifepristone, Judge James Ho¹¹⁹ invoked “aesthetic injury” in support of the standing of obstetrician plaintiffs, arguing:

Plaintiffs have demonstrated the aesthetic injury they experience in the course of their work…. Doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted…. Plaintiffs’ declarations illustrate that they experience aesthetic injury from the destruction of unborn life…. The FDA has approved the use of a drug that threatens to destroy the unborn children in whom Plaintiffs have an interest…. I see no basis for allowing Article III standing based on aesthetic injury when it comes to animals and plants — but not unborn human life.

Engaging in reasoned consideration of fundamentally incompatible positions is essential to the work of identifying the scope and limits of reasonable public policy. Determining reasonable public policy about reproduction has, however, been made more difficult for liberal bioethics and health policy scholars because of arguments like Judge Ho’s. When scientific and moral disagreements are so profound, progress is only possible when uncertainty is accepted as inevitable and advocacy is practiced through transparent communication. Yet many women’s experiences post-Dobbs have awakened the recognition that certainty can be elusive, as abortion may be necessary even when a child is desperately wanted. Finally, to get beyond this impasse, we examine and argue for the exercise of moral courage and a reinvigoration of solidarity, so that individual actors can recognize and benefit from collective support for doing what’s right.

How to Do What’s Right

As soon as the adverse effects of Dobbs on pregnancy and reproductive health care began to be felt, advocates began to resist those effects. For example, State of Washington v. FDA was filed to counter the challenge to the use of mifepristone posed by Alliance.¹²⁰ Extreme partisan gerrymandering and voting rights restrictions have similarly been countered, with varying success to date. For example, in Kansas and Ohio, voters passed by wide margins state constitutional provisions enshrining rights to abortion and protecting reproductive health,¹²¹ but challenges have been mounted against that progress.

Advocates have also used the federal preemption doctrine¹²² to challenge new restrictive state laws. For example, in GenBioPro v. Sorsaia,¹²³ a federal district court in West Virginia found that the FDA’s approval of mifepristone for use in medication abortion up to ten weeks of pregnancy preempts the requirement that mifepristone be provided only during an in-patient visit for the small category of abortions that are permitted under West Virginia law.¹²⁴ In addition, the federal government has asserted that the Emergency Medical Treatment and Active Labor Act (EMTALA),¹²⁵ which requires hospitals receiving Medicare funding to stabilize patients with emergency medical conditions, preempts restrictive state abortion laws. However, on June 27, 2024, the Supreme Court dismissed a pair of cases addressing whether EMTALA can coexist with a restrictive abortion ban in Idaho.¹²⁶ Although this action permits emergency abortions to continue in Idaho, the dismissal fails to provide clarity or certainty for patients and health care practitioners in states with restrictive abortion laws.

Clinicians have also increasingly spoken out against new restrictions that put both them and their patients at risk.¹²⁷ Numerous narratives have been published in medical journals and major media outlets. A coalition of patients and physicians has filed a lawsuit challenging the narrow scope of the emergency exception to Texas’s highly restrictive new abortion law.¹²⁸ Clinicians are also developing creative workarounds, including relocating clinics to nearby states where access is still available, and increasing clinic staffing and operating hours, and using telehealth in states that allow access, to meet the increased demand from states with bans.¹²⁹

In late 2022, physician and bioethicist Matt Wynia called for physicians to practice “professional civil disobedience” in response to Dobbs, requesting that professional associations provide legal, financial, and social support for members who disobey unjust laws.¹³⁰ And in 2023, lawyer and bioethicist Katie Watson asked physicians to practice medicine bravely when confronted with criminal law that contradicts medical judgment.¹³¹ All these efforts are vital, and just the beginning of what is needed to restore and preserve health and voice, enhance civic responsibility, and promote reasoned policymaking, not only about abortion but about other health justice issues as well.

It Shouldn’t Take Courage (But It Does)

That moral courage is required of abortion providers has been obvious for years; many wear bullet-proof vests. Similarly, the moral courage of volunteer clinic staff and escorts is obvious. Even providing mifepristone by mail, and helping women travel across state lines for abortions, requires courage in states with highly restrictive laws. Moral courage is needed to speak out in the face of opposition, and it is also needed to ensure that we continue to vote despite legislative attempts at voter suppression. Women who support abortion restrictions and regard themselves as “pro-life,” but would prefer that their own lives be saved if they developed a serious condition that precluded the possibility of a viable healthy birth, need the courage to critically reflect on the challenges posed for their own thinking by this combination of potentially incompatible views. It is far more difficult to recognize flaws and contradictions in our own views than to see them in others’ views — but some of us are gaining practice in this recognition.

Taking responsibility is also a courageous act. It is necessary to advocate for and to practice primary prevention of pregnancy if one wishes to avoid parenthood, through the use of one of the various effective contraceptive options.¹³² As Gabrielle Blair emphasizes in her book Ejaculate Responsibly,¹³³ a key though overlooked aspect of prevention of unwanted pregnancy is male behavior; after all, men are the cause of 100% of undesired pregnancies. Vasectomy is safe and effective and far less invasive than tubal ligation; condoms are also effective contraception, available over the counter for relatively low cost, and have preventive public health benefits that go beyond pregnancy. A “male pill” is also currently being studied.¹³⁴ Making contraception broadly acceptable and available is a public policy responsibility that is also in line with the growing “green bioethics” movement, one of the pillars of which is simplicity.¹³⁵ In this context, simplicity encourages individuals and communities, where possible, to take back some of their own power and to act in ways that decrease their dependence on the high-cost medical system. This is even more important when self-reliance by individuals can also benefit providers, many of whom are experiencing unprecedented legal and social pressures.

Creating fair and reasonable and consensus-based public policy addressing an issue as divisive and morally complex as abortion will remain difficult, but the attempt remains essential. Increasing information transparency can make it possible to engage productively with those potentially open to it, thus enabling support for individuals in need. Seeking productive engagement requires continual confrontation with those who may continue to reject it; it is necessary to face frustration and failure in order to be ready whenever the possibility of engagement presents itself.

Solidarity helps spread the burden of showing up with courage around these issues.¹³⁶ especially because the need for courageous action reaches beyond pregnancy-related concerns and even beyond bioethics. A key issue in the U.S. today is an unprecedented level of concern about whether democracy can survive current assaults on our sociopolitical systems and structures. These assaults range from the incessant promulgation of “alternative facts”¹³⁷ to the portrayal of white heterosexual Christian men as victims in a zero-sum game of access to the benefits of citizenship.¹³⁸ The implications of this extreme weaponization of the First Amendment are profound and have consequences that reach far beyond health justice concerns. Holm’s discussion of public policymaking delineates what is needed to make public policymaking effective. Using Rawls and deliberative democracy and referencing Amy Gutmann’s important work on public moral deliberation and democracy, he posits that reciprocity is essential to public discourse:¹³⁹

Reciprocity has two components; it entails that the principles and standards that are proposed have to be … viewed as reasonable for everyone to accept as fair terms of cooperation, and that there is a willingness to discuss the fair terms that others propose … [T]rue reciprocity can only occur if there is mutual respect, including “consistency of speech in different situations, performative consistency, … and a commitment to “search for significant points of convergence between our own understandings” and those of others, even when we disagree with their overall positions.

Holm then notes that Rawls requires that citizens be able to explain their votes to each other. He argues that in deliberative democracy, the ability and willingness to explain and discuss policies may have to suffice: “it is often impossible to find [the right] solution or to know that it is the right solution in any absolute sense. The best we can do is to outline the area of acceptable policies, and then choose a policy within this area through a deliberative democratic process.”¹⁴⁰

This indeterminacy at the level of public policy is central to the abortion issue. Profound disagreements about both the science and the ethics of medical and personal decisionmaking applicable to abortion make it essentially impossible to craft a public policy that neatly divides legal and illegal choices in a way that is morally acceptable to all and adequately protects those whose health is endangered and whose providers are placed at legal risk by abortion restrictions.¹⁴¹ This difficulty has resulted in a lopsided approach to public policymaking, as some of the most vocal abortion opponents reject public moral deliberation and consistency, and fail to honestly examine their positions or explain their reasoning to others. Legislators in some states have helped disseminate arguments that restrictive abortion laws affect only young, irresponsible people who use abortion as birth control. But as we have noted, medical professionals are increasingly making clear that “there is no way to outlaw abortion without endangering people who never intended to have an abortion.”¹⁴²

Creating fair and reasonable and consensus-based public policy addressing an issue as divisive and morally complex as abortion will remain difficult, but the attempt remains essential. Increasing information transparency can make it possible to engage productively with those potentially open to it, thus enabling support for individuals in need. Seeking productive engagement requires continual confrontation with those who may continue to reject it; it is necessary to face frustration and failure in order to be ready whenever the possibility of engagement presents itself.

Conclusion: Going High

Health justice is ever more necessary today. The barriers to overcome are formidable, starting with profound societal failures to provide civic education and promote civic engagement.¹⁴³ When the concerns and priorities of citizens with different perspectives diverge, we should follow Professor Scott’s advice and seek to change people’s views about deservingness by making extensive efforts to engage and expand the perspectives of those who are open to new information.

Identifying structural inequities in all their complexity and working to overcome the presumption that those caught in the trap of unjust laws are blameworthy are essential first steps. Health lawyers, bioethics scholars, health care providers, and an engaged public therefore have a duty to take appropriate actions to support the right of self-determination and strengthen the representative democracy essential to health justice. We have previously called on physicians and other health care providers to undertake collective action to overcome the injustices inherent in and exposed by the Dobbs decision.¹⁴⁴ We recognize, however, that our call for solidarity and collective action must be broader — health lawyers and bioethics scholars must also work to thoughtfully inform and engage the public to provide a workable blueprint to dismantle structural barriers and promote health justice. What we learn from addressing Dobbs can have broader public health implications.

To engage the public in reasoned policymaking requires reform and reenvisioning at many levels, including an enhanced commitment to public education. It means operating from the best efforts of the broad range of disciplines representing scholarship and practice in bioethics and health justice, and working to promote critical engagement with and reflection about the ethical underpinnings of representative democracy. It means recognizing that advocacy and activism are central not only to health law but also to bioethics. And it means modeling humility and the willingness to talk together in good faith with those with whom we disagree. But it doesn’t mean that each of us must tackle everything on this daunting list; our work must be collaborative. Solidarity is not a solo effort.

In 2016, Michelle Obama famously said “When they go low, we go high.” As she explained to Stephen Colbert in 2022:

For me, going high is not losing the urgency or the passion or the rage, especially when you are justified in it. Going high means finding the purpose in your rage. I’m trying to push us to think about solutions that will actually unite us and get us focused on the real problem. That’s what I mean when I say, ‘go high’. So yes, go high. America, please go high.¹⁴⁵

Going high thus represents another way of capturing the need to work toward solidarity through public policymaking about health and health care. It means seeking solutions at every level of social and structural influence on health and health care. As Professor Scott notes in closing her essay, “what aid one deserves depends on who or what is to blame for creating the need for aid.”¹⁴⁶ When there are multiple potential reasons for the current landscape of abortion restrictions, and multiple potentially responsible actors, responsibly addressing the need for aid is a multilevel and long-term advocacy effort.

That effort is further complicated when some of those who should promote public reason promote instead perceptions, decisions, and policies designed to cement particular conclusions about blameworthiness and desert that support avoidance of any responsibility to help others. Public policymaking requires responsible engagement among parties who reasonably disagree, but there are many structural ways to shape policy unfairly, including voting restrictions, extreme gerrymandering, and criminalization of responsible medical practice. But there are at least as many ways we can counter unjust policies and practices and promote responsible decisionmaking. Not only since Dobbs but also since the Court handed down its many other highly consequential decisions near the end of the 2023-24 term, legal and policy responses to these changes have been proliferating rapidly and continually. Keeping up with developments is difficult but essential to effective action. When those who go low refuse to engage transparently and fairly about the intertwined matters of reproductive justice, health, and voice that concern us here, continuing what feels like a futile effort to promote public reason is profoundly frustrating — yet it is an effort that is profoundly necessary and ongoing, if we hope to shape a world that is sufficiently just to be worthy of our trust.