When Jennifer Hendricks steps to the front of a classroom, she’s used to being able to answer students’ questions.
Hendricks is a law professor at the University of Colorado, the co-director of the school’s juvenile and family law program. One of her specialities is reproductive rights law, meaning she knows the judicial record around abortion better than most anyone. When a first-year law student asks her a question about abortion law, she should be able to answer it easily.
Except, this year, 10 months after the U.S. Supreme Court’s landmark decision in the Dobbs case, she can’t — not always.
“This year, there has been much more than the usual response of, ‘Pfft, I don’t know,’” Hendricks said.
That someone of Hendricks’ pedigree is uncertain about the state of abortion policy in the U.S. speaks to the chaos around reproductive rights nationwide. The chaos has ensnared even states like Colorado that have attempted to preserve and fortify the status quo that existed under Roe v. Wade.
A Texas judge’s ruling threatens access nationwide to a commonly prescribed drug that can be used for abortions. A federal judge in Denver has — at least through Saturday — partially blocked enforcement of a new Colorado law related to abortion.
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It all raises the question: What exactly can states do now to control abortion policy without threat of judicial intervention?
According to experts, very little.
“Anything that a state does in this domain, it’s going to be challenged in court,” said Joshua Wilson, a professor and chair of the political science department at the University of Denver. “That’s almost guaranteed.”
Returning abortion policy to the states — in theory
When the Supreme Court overturned Roe, it did so with a declaration that sounded simple enough.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Samuel Alito wrote for the majority in the Dobbs decision.
By that, he meant state legislatures.
“Our decision returns the issue of abortion to those 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,” Alito wrote.
But, 10 months on, that’s not how it’s played out. Instead, federal courts continue to set the limits on what is allowed and what is not when it comes to abortion in the U.S.
The most prominent example of this comes from Texas, where a federal judge has overturned the Food and Drug Administration’s long-standing approval for a drug called mifepristone, which can be used in medication abortions and also to treat miscarriages. The Supreme Court has put that ruling on hold while the decision is appealed.
To Wilson, the mifepristone case shows why the vow to leave abortion in the hands of the states was likely never going to happen.
“That’s the importance of the mifepristone case, that it shows there are still ways to reach into abortion-protected states and take away the tools that they are trying to secure,” he said.
But Wilson, who studies abortion politics, said this is not exactly a new dynamic. Instead, he sees it as the revving up of another cycle in a feedback loop that has been turning for some time.
Well before the Dobbs ruling, when Roe was still the law of the land, anti-abortion activists would lobby state legislatures in conservative states to push the boundaries on how much they could restrict abortion, Wilson said. Those policies would, in turn, be challenged in court by supporters of abortion rights, leading to new judicial rulings that churned the cycle over again.
Now, the cycle has gotten more diverse. Anti-abortion groups are just as likely to use the courts to achieve their goals — as they are attempting in the Texas case. Meanwhile, in states like Colorado, abortion rights groups are turning to the legislature to secure protections, leading to court challenges that keep the cycle spinning.
But where that cycle leaves us now is anyone’s guess.
“Dobbs fundamentally restructured — just dramatically restructured — the parameters of abortion politics,” Wilson said.
“You do everything you can.”
Wilson has closely followed the emerging progressive legislative response to attacks on abortion access.
In one study, he found a significant jump in the number of state legislatures enacting policies to protect abortion during the Trump administration. In 2019, for instance, Wilson found that nine states enacted 36 abortion-protection policies, compared to just one state enacting one protection policy in 2015. The large majority of the states enacting new policies in 2019 had Democratic trifecta control, meaning, as in Colorado, Democrats controlled the governor’s mansion and both chambers of the state legislature.
But, with a conservative majority controlling the Supreme Court, it’s unclear how durable those new protections in Democratic-controlled states will be.
So, again, the question: What can states that want to preserve abortion access actually do?
“It’s a political fight, so you do everything you can,” Hendricks, the law professor, said. “And if some judge behaves like that judge did in Texas, you run against them in the next election. You make that the issue.”
Hendricks said there are other strategies states can adopt. In response to the Texas ruling, some states have begun stockpiling mifepristone in order to preserve access in case it is pulled from the market.
A spokesman for Colorado Gov. Jared Polis did not answer whether Colorado has begun stockpiling the drug, but instead released a statement saying in part: “We have been preparing for this cruel ruling, which is why the governor and our team have been working with partners at the legislature and stakeholders to ensure Colorado remains a place where people can access reproductive health care.”
There are also legal counterpunches. On the same day the judge in Texas issued his mifepristone ruling, a federal judge in Washington issued a different ruling forbidding the FDA from making any changes to the drug’s availability in 17 states and the District of Columbia that had sued earlier this year to expand access to the medication. Colorado was among the states that sued, meaning mifepristone access in Colorado is protected by the Washington ruling unless that Supreme Court makes the Texas ruling the law of the land.
The Texas judge was appointed to the bench by former President Donald Trump, while the Washington judge was appointed by former President Barack Obama.
Hendricks said the case in Washington is an example of leaders in states who want to protect abortion access thinking ahead.
“Everyone knew there was going to be all this litigation, so I see that suit in the same line as the stockpiling decision,” she said. “We know we’re in a hostile legal environment, so everything we can do.”
Learning that change is the norm
To Wilson, the current back and forth around abortion policy is certainly tumultuous. But he also points out that U.S. history is filled with similar circumstances where major court rulings have shaken up the status quo, leading to years of topsy-turvy politics and legal challenges.
Think: civil rights law. Think: social policy during the Great Depression. Think: Marbury v. Madison, the first case to establish the principle that courts can review the constitutionality of legislative actions.
“The Supreme Court is not new to major political fights,” he said.
And, to Hendricks, that makes the current moment useful in her classroom — even if it means she can’t always answer her students’ questions with certainty. It helps teach naive future lawyers what to expect.
“They can get the idea that they are going to learn a bunch of stuff that is ‘the rules,’ and it’s not going to change,” she said.
But, of course, no one now thinks that.
“To some extent,” Hendricks said, “it is useful for students to see as it’s happening.”