Abandoning almost 50 years of precedent, the U.S. Supreme Court last week in Dobbs v. Jackson Women’s Health Organization declared that the U.S. Constitution does not confer a right to abortion. In a majority opinion written by Justice Alito, the court upheld the “Gestational Age Act,” a 2018 Mississippi law banning most abortion procedures after fifteen weeks of gestation.

The crux of the majority opinion appears to rest on the nation’s history—holding that no statute or English case provided a right to an abortion, and that having an abortion was in fact unlawful and criminalized. The majority uses this reasoning to declare that matters of abortion should be decided by states.

The Court’s decision puts into doubt substantive due process claims. During the COVID-19 pandemic, hundreds of plaintiffs have challenged public health emergency orders, such as business closures, asserting substantive due process violations. Though most of these claims were dismissed, some courts struck down stay-at-home orders and business closures for violating substantive due process. The Court’s focus in Dobbs on whether the right to an abortion was “deeply rooted” and recognized at the time of the ratification of the 14^th Amendment might cast doubt on such claims.

Justice Alito tried to address the potential of the decision on other substantive due process and right to privacy rights, including rights to contraceptives and same-sex marriage, saying, “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” However, in his concurrence, Justice Thomas suggested that the Court should use the same legal rationale it used in Dobbs to review other cases under the right to privacy. The future of those rights are now uncertain, as are other claims based on those rights.

What the decision does not say is troubling for public health jurisprudence. Instead of discussing the impact of the Mississippi law and the Court's decision on the health of individuals and communities, the Court focused solely on the history of abortion laws.

The Dobbs decision will have a cascading effect for generations to come. Abortion restrictions will not decrease abortion rates, but instead will end safe abortion, risking patient safety and lives. Seventeen states have already banned or will soon ban abortion. Currently, an abortion ban is active in 6 states (Alabama, Arkansas, Missouri, Oklahoma, South Dakota, and Wisconsin). Existing bans have been temporarily blocked by a judge in 4 states (Arizona, Kentucky, Louisiana, and Utah), while an abortion ban is set to take effect in 7 states (Idaho, Mississippi, North Dakota, Tennessee, Texas, West Virginia, and Wyoming). Twenty states and the District of Columbia protect abortion access under state law; however, only 4 states (Colorado, New Jersey, Oregon, and Vermont) and the District of Columbia protect the right to an abortion at any stage of pregnancy.

This decision forces providers, health plans, and employers to immediately reassess their operations and the risks of certain procedures and coverage in certain states. With the increasing use of telehealth, the opportunity to receive abortion counseling online, and the mailing of medication directly to the patient, some states will attempt to regulate the use of telehealth abortion, though policing these regulations will be difficult.