ARTICLE
ABORTION
EDITED BY KIARRA ALLEYNE, EMILY HIRTLE, KATIE MCCLENAHAN,
LAUREN KRAUSKOPF, & RILEY SMITH
I. INTRODUCTION.......................................... 139
II. FEDERAL ABORTION LAWS ................................. 140
III. OVERTURNING ROE V. WADE ................................ 141
A. THE DOBBS V. JACKSON DECISION ........................ 142
B. LEGISLATIVE PROTECTIONS OF ABORTION ................... 144
C. BANS BASED ON FETAL DEVELOPMENT .................... 145
D. MEDICATION ABORTION BANS AND RESTRICTIONS ............. 146
1. FDA Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
2. Comstock Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
E. THE RIGHT TO TRAVEL ............................... 150
F. 13TH AMENDMENT .................................. 152
IV. PUBLIC FUNDING AND ABORTION ............................. 153
A. FEDERAL BANS ON PUBLIC FUNDING FOR ABORTION ........... 153
B. STATE BANS ON PUBLIC FUNDING FOR ABORTION ............. 158
V. FETAL PERSONHOOD...................................... 158
A. FEDERAL AND STATE FETICIDE LAWS...................... 159
1. Federal Feticide Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
2. State Feticide Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
B. FETAL PERSONHOOD, TORT LAW, AND CIVIL CAUSES OF ACTION . . 164
C. FETAL PERSONHOOD UNDER STATE LAW: CONSTITUTIONAL
AMENDMENTS AND LEGISLATION ......................... 167
D. FETAL PERSONHOOD UNDER FEDERAL LAW: CONSTITUTIONAL
AMENDMENTS AND LEGISLATION ......................... 170
VI. CONCLUSION ........................................... 171
APPENDIX ................................................. 174
I. INTRODUCTION
The landmark decision Roe v. Wade, establishing the right to abortion in the
United States,
1
prompted an escalation of the abortion rights dialogue of the
1960s that was propelled on one side by the women’s movement and concerns
about the health implications of illegal abortions and population growth, and on
597 U.S. 215 (2022).
139
the other side by pressure from the Catholic Church and political parties.
2
See Stephanie Schorow, Setting the stage for Roe v. Wade, HARV. GAZETTE (Nov. 5, 2010), https://
perma.cc/T9GG-W27R.
In the
early 1990s, the Supreme Court retreated from the broad protection of access to
abortion within the first trimester under Roe’s framework, establishing an “undue
burden” standard in Planned Parenthood of Southeastern Pennsylvania v. Casey.
3
As lower courts struggled to implement the vague Casey standard, anti-abortion
activists flooded state and federal legislatures with laws to test the constitutional limits
of abortion regulation. Dobbs v. Jackson Women’s Health Organization overturned
both Roe and Casey in 2022.
4
This decision, which was leaked in May 2022 and pub-
lished in June 2022 with minor changes, ended the federal constitutional guarantee of
abortion rights and returned the full power to regulate abortion care to the states.
5
This article examines developments from 1973 to 2024 in abortion law, partic-
ularly the Supreme Court’s reasoning in Dobbs. Part II describes the current land-
scape of constitutional abortion rights, including federal abortion legislation that
and state trigger bans that have come into effect since that decision, bans based
on fetal development, and medication abortion bans and restrictions. Part IV
describes restrictions on the use of federal and state funding for abortion proce-
dures. Finally, Part V discusses legal recognition of fetal personhood.
II. FEDERAL ABORTION LAWS
In Roe, the Supreme Court held that the right to personal privacy, guaranteed by
the Constitution, included the right to choose to terminate a pregnancy via abortion.
6
Roe grounded the right to abortion in the right to privacy found in the penumbra of
the Bill of Rights, as recognized in Griswold v. Connecticut and Eisenstadt v. Baird.
7
However, the Court also recognized that the right to abortion is not an absolute right,
and that certain compelling state interests—primarily protecting a pregnant person’s
health and the potential life of the fetus—justify the regulation of abortion.
8
These
interests influenced the development of the trimester framework, based on the fetal de-
velopmental stages, for determining whether state regulation is permissible.
9
Under
this framework, states gained more regulatory authority as a pregnancy progressed.
10
2.
4. Dobbs, 597 U.S. at 231.
5. Id. at 232.
6. Roe, 410 U.S. at 153.
(1972); Roe, 410 U.S. at 152.
8. Roe, 410 U.S. at 154.
9. Roe held that, during the first trimester, the state could not interfere with a pregnant person’s right
to choose to terminate a pregnancy. Id. at 164. During the second trimester, state regulations “reasonably
related to maternal health” were permissible, but the state still could not prohibit an individual from
obtaining an abortion. Id. Once the fetus reaches viability at the end of the second trimester, the state’s
interest in potential human life permitted outlawing abortions except when the abortion was necessary to
140 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:139
Because the Court’s decision in Dobbs returns the power to regulate abortion
to the states, previous federal cases regarding abortion are no longer good law.
11
However, federal legislation, such as the Hyde Amendment and the Partial Birth
Abortion Ban Act (PBABA), remain in effect.
12
See Alina Salganicoff, Laurie Sobel, & Ivette Gomez, The Hyde Amendment and Coverage for
Abortion Services Under Medicaid in the Post-Roe Era, KFF (Mar. 14, 2024), https://perma.cc/S467-
YGNA; Pub. L. No. 117-103, Div. H, §§ 506-07, 136 Stat. 49 (2022); Partial Birth Abortion Ban Act of
2003, 18 U.S.C. § 1531.
Before Dobbs, one of the greatest legal barriers to abortion access was the
Hyde Amendment, which limits the use of Medicaid funds to reimburse the cost
of abortion care.
13
The Court upheld the constitutionality of the Hyde
Amendment in Harris v. McRae.
14
In 2003, Congress passed the PBABA, which prohibits the intentional perform-
ance of dilation and extraction (D&X), later term abortions that are not necessary
to save the life of the pregnant person.
15
The Supreme Court found the PBABA
constitutional, with Justice Kennedy writing for the majority, in Gonzales v.
Carhart.
16
The Court’s decision focused on the government’s ability to restrict
abortions once the fetus reaches viability, as well as the government’s interest in
the life of the fetus.
17
The government’s “legitimate and substantial interest in
had an interest in distinguishing between the potential undue burden on a preg-
nant person’s ability to have an abortion and the State’s interest in expressing pro-
found respect for the life of the unborn.
18
Today, the PBABA is valid law and
prohibits D&X abortions.
19
As of 2023, abortion is no longer a constitutional right.
20
Since 2022, it has
been up to the states to decide whether to protect the right to abortion.
21
III. OVERTURNING ROE V. WADE
When the Supreme Court overturned Roe, it did not outlaw abortion; instead,
dures.
22
The Dobbs Court upheld a Mississippi law banning abortion after fifteen
weeks of pregnancy.
23
After the Dobbs opinion, certain states outlawed abortion
Kagan, JJ., dissenting).
12.
13. See Pub. L. No. 117-103, Div. H, §§ 506-07, 136 Stat. 49 (2022); Salganicoff, Sobel, & Gomez,
supra note 12.
15. See 18 U.S.C. § 1531(a) (West, Westlaw through Pub. L. No. 119-1).
17. Id. at 145–46 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992)).
18. Id.
19. 18 U.S.C. § 1531(a) (West, Westlaw through Pub. L. No. 119-1).
20. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231(2022).
21. Id. at 232.
22. Id.
23. Id. at 301.
2025] ABORTION 141
