Anti-abortion advocates say their movement has made significant progress in the two years since the Supreme Court overturned Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case in June 2022, but they say their fight is far from over.
“For 50 years under Roe, states have been unable to protect life up until viability, and it was a regime that was more liberal toward abortion or more permissive toward abortion than almost every country in the world,” Erin Hawley, senior counsel at Alliance Defending Freedom, told the Washington Examiner in an exclusive interview. “So this was an extremely permissive regime of abortion, and Dobbs changed all that.”
Hawley, a Yale Law School graduate and former clerk for Chief Justice John Roberts, began working for the conservative legal advocacy organization ADF in 2021, becoming intimately involved in the Dobbs case.
On her podcast with her husband, Sen. Josh Hawley (R-MO), Erin Hawley recounted her experience attending to her crying infant in the middle of her first strategy meeting in the Dobbs case, saying the memory serves as “a tangible reminder of why the Dobbs case might matter so much.”
Since working on the Dobbs case, Erin Hawley argued before the Supreme Court this March in the recent case against the Food and Drug Administration’s approval of the abortion pill mifepristone, which the court dismissed on a technicality earlier this month.
Erin Hawley is also working alongside Idaho Attorney General Raul Labrador to defend his state’s strict anti-abortion statute, which the Biden administration said violates emergency medicine statutes. That case is still awaiting an opinion from the bench following oral arguments in April, but the state law in question is only possible in a post-Roe world.
“Dobbs allowed states to protect lives,” Erin Hawley said. “I think this really is a recognition by pro-life states that laws can be enacted to empower women, to protect them and their unborn children through pregnancy and beyond.”
Since Dobbs, 14 states have enacted near-total abortion bans with narrow exceptions. Three others have enacted laws that prohibit abortion after six weeks’ gestation, the time at which fetal cardiac activity can be detected via an ultrasound.
Jeanne Mancini, the president of March for Life, said the Dobbs case was the “most monumental victory yet in the greatest human rights battle of our time.” Still, she said, there is much work to be done.
“As much as this is a moment to celebrate, the anniversary of Dobbs is also a reminder of the immense work that lies ahead,” Mancini said. “While state protections for the unborn and women have already saved thousands of innocent lives, the nation is facing an unprecedented push from radical activists toward abortion extremism on both the state and the federal level.”
During the election this fall, voters in Colorado, Florida, Maryland, and South Dakota will directly weigh in on whether to enshrine abortion rights into their state constitutions. Five other states, Arkansas, Missouri, Montana, Nebraska, and Nevada, may also have abortion rights on the ballot.
The presidential election has also thrust abortion to the foreground.
President Joe Biden and Vice President Kamala Harris have attempted to appeal to female voters on the basis of “restoring Roe” by codifying in law protections to abortion rights up until fetal viability, typically around 22-24 weeks’ gestation.
Former President Donald Trump has touted his record in appointing the three justices central to the Dobbs case, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, but he has maintained the position that restrictions on abortion should be decided at the state level.
Trump has repeatedly denied support for any federal abortion legislation, including a nationwide abortion ban.
Abortion rights activists, however, have won substantial victories in the two elections since the Dobbs decision.
Last year, the anti-abortion movement lost an abortion rights referendum in Ohio by a significant margin. Anti-abortion candidates also lost symbolic races for a majority in the Virginia state legislature as well as the Kentucky governorship.
Less than six months following the Dobbs decision, an amendment in Kansas that would have removed any implied right to an abortion in the Kansas Constitution failed in the 2022 election.
Since then, abortion rates in the state have climbed 150% from 2021 to 2023. Nearly 69% of all abortions in Kansas are performed on out-of-state residents, mostly from Oklahoma, Missouri, and Texas.
The abortion rights advocate Guttmacher Institute, the research arm of Planned Parenthood, found that the total number of abortions increased 11% from 2020 to 2023, reaching nearly 1,037,000 last year.
According to a May 2024 Pew Research Center poll, 63% of voters say abortion should be legal in all or most cases, an increase of 4 percentage points since 2021.
Certain conservative advocates said they thought that overturning Roe would mean that the judicial branch would no longer be involved in the abortion debate, but this hope failed to materialize.
Kavanaugh, who was part of the majority in the Dobbs decision, said in 2022 that the decision would mean that “difficult moral and policy questions will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.”
But the high court this term heard a major abortion case, in which a group of anti-abortion doctors, represented by Erin Hawley’s firm, challenged the FDA’s abortion pill mifepristone, arguing that results in more emergency room visits for at-home abortion patients. The doctors in the case said their conscience rights had been violated by being forced to care for abortion complications, but the court dismissed the case, saying the doctors lacked standing.
Erin Hawley said the future of the anti-abortion movement in the courts will continue to revolve around mifepristone, the abortion pill responsible for nearly two-thirds of all abortions in the U.S. in 2023.
The first case in question involves three states, Idaho, Missouri, and Kansas, which argue that the increased complications from the FDA’s deregulation of mifepristone has put too great a strain on their respective medical systems.
The second case, from West Virginia and North Carolina, Erin Hawley said, involves whether or not states with anti-abortion statutes can regulate or prohibit the use of mifepristone despite its FDA approval.
In a legal sense, both of these cases have more to do with the authority of the FDA, but their outcomes will have a substantial effect on access to abortion nationwide.
The ethics of in vitro fertilization and surrogacy may become the next frontier in the culture wars, possibly splitting anti-abortion advocates.
IVF rocketed to the spotlight in February when the Alabama Supreme Court ruled that embryos can carry legal personhood rights under state law, following a complicated wrongful death case after a cryogenics laboratory accident.
States across the country, including Alabama, and federal legislators have rushed since then to protect access to IVF and other assisted reproductive technologies.
Because nonviable embryos are often destroyed during the IVF process and viable embryos can be frozen indefinitely, advocates of IVF say that granting embryos legal status would prohibit the procedure.
This poses a unique challenge for advocates of pro-family policies who also believe that life begins at conception.
“Science is pretty clear that life, by definition, does begin at conception,” Erin Hawley said. “So the question then becomes: If life begins a conception, when do we value life?”
Several religious organizations, including the Catholic Church and the Southern Baptist Convention, as well as anti-abortion group Live Action, each recently condemned IVF. Many politicians, however, including Sens. Ted Cruz (R-TX) and Katie Britt (R-AL), have pushed for legislation to tie IVF protections to Medicaid funding.
Erin Hawley said this possible new frontier in the anti-abortion movement will likely be a battle fought in legislatures, not the courts.
“I’m not sure that that will present an avenue for the Supreme Court to weigh in because it does seem like the states are going to robustly protect IVF,” said Erin Hawley, adding that ADF firmly believes in the value of life from the moment of conception.
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Although Mancini did not comment specifically on IVF, she said this moment is a critical time for unity, not division, among the anti-abortion community.
“It is up to the pro-life community now to unite and redouble our efforts in our noble cause so that the torch from the last half-century continues to burn brightly into the post-Dobbs era — as we continue our work to build a culture in which every human life is valued and protected,” Mancini said.