The Mismeasurement of Dobbs>

There is no doubt that Dobbs v. Jackson Women’s Health Organization, decided four years ago this month, was a legal triumph. In overturning Roe v. Wade, it eliminated the constitutional right to abortion that the Supreme Court curiously discovered hiding in the 14^th Amendment. Authority for regulating abortion thus departed from the judicial branch and returned to the people and their elected representatives.

In subsequent months, many states held ballot referenda and state legislatures passed laws that, depending on the state, either banned abortion outright, limited it within a certain gestational period, or enshrined abortion as a state constitutional right. Four years later, the abortion landscape resembles the U.S. electoral map: some red, some blue, and some purple. The people have spoken.

Or so Dobbs expected. Despite near-total bans on abortion in thirteen states and another six with bans inside of twelve weeks gestation that took effect these past four years, the number of abortions nationwide has risen an astounding 21% since 2020, according to the Alan Guttmacher Institute. One cause of this counterintuitive post-Dobbs rise is that women in the thirteen states with near-total bans—72,000 women in 2024 and 91,000 in 2025—have used telehealth provisions to receive abortion pills prescribed by doctors who reside in blue states and are protected from prosecution by shield laws.

How can the laws of one state, decided according to the legislative process, be so easily trampled? The abortion pill mifepristone, which, again according to Guttmacher, induced 65% of clinician-provided abortions in 2023, is regulated by the Food and Drug Administration (FDA). States cannot outlaw a federally sanctioned drug. Not only does the FDA approve mifepristone, but the Biden administration also removed the physician visit requirement to receive a prescription. By the stroke of a pen, the federal bureaucracy has sidelined Dobbs’s states’ rights provision and rendered state abortion bans almost meaningless.

The Biden administration shifted the primary battlefield for culture war issues from the courts to the federal administrative bureaucracy, and the Trump administration has followed suit. Education, religious freedom, DEI, and transgender concerns all turn on the White House’s preferred views that are imposed by threats of lawsuits or by cuts in federal aid. It should not come as a surprise that abortion, the preeminent culture war issue, would also be subsumed by the federal administrative state once it was severed from Roe’s leash. Dobbs did not anticipate this. Formerly, after Roe, pro-life conservatives complained for decades about the judicial usurpation of politics. Today, after Dobbs, pro-life conservatives are now complaining that their agenda has been usurped by the executive branch’s bureaucracy.

Of course, this bureaucracy operates at the will of the president, who, unlike federal judges, is directly elected by the people. Yet President Donald Trump, the self-proclaimed most pro-life president in history, has repeatedly rebuffed pressure from his pro-life constituency to at least repeal the telemedicine exception for mifepristone, if not remove it from the market entirely. He has grounds for the latter, either by enforcing the Comstock Act that bans the shipping of abortion drugs or by the FDA finding the drug unsafe. He has done neither, and he has shown no interest in taking any such action.

The majority ruling in Dobbs did not foresee that the president, not the states, would set the agenda for subsequent abortion litigation—just as the president does for every other pressing issue. Biden and Trump have now established the post-Dobbs approach for their respective parties. Democratic presidents will utilize the administrative state to keep mifepristone a telehealth appointment away, to undermine state abortion restrictions at every turn, and to limit religious and conscience exemptions for abortion refusers.

Republicans, fearful that a strong stance against abortion will hurt their electoral prospects, will ironically adopt practices once championed and now abandoned by Democrats. They will proclaim that they are “personally opposed to abortion” to attract primary voters but will add that they “will not impose their views on others.” They will declare that abortion should be “safe, legal, and rare.” They will duck controversy by claiming abortion belongs to the states, though they know that is not true. When in office, they will adopt a “don’t ask, don’t tell” policy to cover their functionally pro-choice administrations.

Dobbs could have avoided this situation in two ways. First, it could have stated explicitly that the unborn child is a person and therefore entitled to equal protection under the law. Instead, it imitated Roe by claiming the “Court has neither the authority nor the expertise to adjudicate” disputes “about the status of the fetus.” Legal scholar Gerard Bradley has argued that Dobbs’s proper interpretation assumes the humanity of the unborn child. Even if this were true, because this point is effectively consigned to the decision’s penumbras, the unborn child will continue to lack legal standing indefinitely. If the Roberts court, with its six conservative justices, could not muster the courage to extend equal protection to the unborn explicitly, it’s very difficult to imagine a future court that will.

Second, Dobbs could have ruled that abortion should again be illegal, as it was for most of America’s history, on moral or procedural grounds. Instead, it chose agnosticism, which was best expressed by Justice Kavanaugh in his concurrence: “The Constitution does not take sides on the issue of abortion.”

In this regard, Dobbs, like other Roberts court rulings on culture war issues such as religious freedom and race, suffers from its unwillingness to push too hard in reversing a prior court decision. Though it resoundingly rejects Roe, Dobbs’s circumspection about the unborn child and about abortion itself has nullified its aspirations and left the abortion issue to be swallowed by the federal government.

Had Roe been overturned in 1982, abortion might well have again become a states-only issue. But in 2022, when the executive branch controls so much of American jurisdiction, abortion remains a federal issue. By failing to read the signs of the times, Dobbs has unwittingly maintained the situation it had sought to undo: future abortion policy disputes, as federal issues, will still require the Supreme Court to be resolved.