After Dobbs: How the Supreme Court Ended Roe but Not Abortion

Photo Credit: Martina Šalov

by David S. Cohen and Carole Joffe

A new story of abortion in America is upon us. Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade and rejected a constitutional right to abortion, but so far, because of everything we chronicle in our forthcoming book After Dobbs: How the Supreme Court Ended Roe but Not Abortion (Beacon 2025), abortion has continued to be available for most people. Indeed, much to the surprise of many — including the two of us — the best data we have so far reveals that the number of abortions performed in the United States has increased after the decision.

Dobbs was supposed to dramatically decrease the number of abortions in America, but the hard, nimble, and creative work of the providers where clinics have remained open, the growth and new delivery models of abortion pills, and the never-ending work of those advocates who help with abortion travel and funding refused to let that happen. This continuity of care is a cause for celebration in the face of a devastating blow from the Supreme Court.

The people on the ground responsible for this surprising aftermath of Dobbs, profiled in detail in our book, are staring adversity in the eye and telling it, “Not now, not for the people we serve.” Their resolve is exceeded only by the determination of pregnant people in states where abortion is banned to nonetheless get the care they need and find a way to have an abortion, either by traveling to a legal state or obtaining abortion pills through various channels.

The truth is that this has long been the story of abortion in this country and throughout the world. Even when abortion was illegal in the United States, women still obtained abortions, and doctors and others still provided them. There was a legal and reputational risk for the people providing abortions, and sometimes, there was a safety risk for the people obtaining them in less-than-ideal situations. When Roe made abortion legal throughout the United States, these particular risks largely disappeared, but because of the increase in unnecessary regulations and restrictions around abortion in some states, people still had to push through many obstacles to get an abortion. And they did.

We have seen the same around the world. In countries where abortion is illegal, people still get abortions, through abortion pills and other means. Despite tens of thousands of women dying from illegal abortions worldwide each year, the basic human need to control reproduction has proven time and time again that it can’t and won’t be stopped.

The story since the Supreme Court overturned Roe in 2022 has been much the same. The risks are different, and the exact abortion service delivery mechanisms vary, but the overall point is one that we should have seen coming, even if we didn’t: the resilience of those seeking and providing abortion is unflagging. Combine that resilience with a profound resistance to removing a nationally recognized fundamental right, and we have an explanation of what we are seeing now in the increase in abortion numbers despite what the Supreme Court has done.

But, as much as this is an unexpected and exciting development in the face of a ground-shifting Supreme Court decision, the celebration must be muted, for several reasons. First and foremost, even though abortion has remained more available than originally feared, Dobbs has brought unacceptable changes and disruptions to people’s lives and well-being. Abortion patients should not have to take cross-country flights or drive hundreds of miles and lose much-needed wages to get health care — care that in a just society would be affordable and available in their communities. Doctors and other clinicians who have the skills and experience to care for patients should not have to face the wrenching decision to leave communities to which they are deeply attached. Clinic staff in surge states should not have to work punishing hours to accommodate floods of desperate out-of-towners. Abortion funders and practical support groups should not have to spend valuable resources helping people get care that should be delivered close to home and with government support. As a bottom-line non-negotiable principle, women and other pregnancy-capable people, no matter where they live, should not be prevented from being fully participating citizens in the public sphere — something that is only possible with control of one’s reproduction.

Thinking more broadly, despite the efforts of everyone we profile in our book and those like them, there will be people left out who are unable to obtain an abortion. For those people, the consequences can be severe. Also, in this post-Dobbs landscape, people facing emergency pregnancy conditions — such as preterm premature rupture of membranes or ectopic pregnancy — are suffering in ways that are made even more difficult because of the lack of a national right to abortion. The removal of this national right increases the risk of people seeking abortion being caught up in the criminal justice system, especially those who are usually its target — people of color and low-income people.

There are consequences for the health care system as well. The increase in medication abortion, especially outside the traditional health care system, complicates the narrative that abortion is health care, something that has been at the heart of abortion rights and justice advocacy for decades. Abortion bans also are having a negative impact on the availability of non-abortion obstetric and gynecological care, as a result of doctors and other healthcare professionals fleeing states with bans.

Everything we have written about — here, in our book, and elsewhere — is subject to an uncertain future. The 2024 election, along with ongoing legal battles, could drastically change the existing landscape. So could a drop in funding and other resource support for all the efforts discussed in this book. Since Dobbs, support has been flowing to organizations doing the work, but if that dries up, as numbers in the first half of 2024 seem to be indicating, the future could look very different.

Until then, what we have seen so far is that the loss of a national constitutional right to abortion has been unjustly disruptive to and taxing on so many people’s lives. But because of the incredible work of abortion providers, supporters, funders, helpers, and patients, even though Roe has ended, abortion has not.

David S. Cohen is a professor of law at the Drexel University Thomas R. Kline School of Law. David is the co-author of three books about abortion and represents Pennsylvania’s abortion clinics in various litigation and policy matters. His scholarship also explores the intersection of constitutional law and gender, sex segregation, and voting anomalies in the Supreme Court.

Carole Joffe is a professor in the Department of Obstetrics, Gynecology, and Reproductive Health at the University of California, San Francisco,  and a professor of sociology emerita at the University of California, Davis. Her research focuses on the social dimensions of reproductive health, with a particular interest in abortion provision.  She has written five books dealing with various aspects of abortion and other reproductive health issues