• Show Notes

Dear Reader, 

It has been less than two years since the Supreme Court overturned Roe v. Wade in Dobbs, and we have already seen a sea change in how states have approached questions around reproductive health. Fourteen states have imposed almost complete bans on abortion since Dobbs was decided. They contain only limited exceptions. While they all allow abortions for life-threatening situations or where the mother’s health is at risk, in nine states those are the only exceptions. That means abortions are not permitted even in cases of rape, incest, or severe fetal anomalies. An additional seven states on top of these fourteen have imposed strict limits on when women can get an abortion, with some banning abortions six weeks after the last menstrual period. Almost half of the states have restrictions on the availability of medicated abortions with mifepristone, even though the drug is FDA-approved.

It took only 100 days after the opinion in Dobbs was released for almost one of every three women in America to be “living in states where abortion was unavailable or severely restricted.” Most of these states enforce restrictions by threatening criminal prosecution of anyone who performs an abortion in violation of the law. Idaho has made it a crime for anyone to help a minor obtain an out-of-state abortion. The New York Times recently reported that Donald Trump would back a nationwide ban on abortions after 16 weeks of pregnancy. 

But abortion is only the beginning of the assault on reproductive health. The Alabama Supreme Court issued a decision this month that shows how the availability of fertility treatments might also be under siege in the post-Dobbs era. The Alabama decision arose out of a wrongful death suit brought by three couples who were storing frozen embryos for in vitro fertilization. A patient at an adjoining hospital managed to get access to the embryo storage facility and accidentally dropped them on the floor, destroying them. The lawsuit was brought under Alabama’s Wrongful Death of a Minor Act. The law was passed in 1872 and provides for punitive damages “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person.” There is no definition of “child” in the law itself, but the Alabama Supreme Court ruled in 2011 that even “unborn children” qualify because the Alabama legislature had previously changed the state’s homicide laws to include protection for unborn children in utero, and the court read the statutes in pari materia–that is, together.