Beyond Dobbs: The Fate of Maternal Reproductive Health Care in U.S. Legislation

Eight months ago, the United States grappled with the long-feared ruling of Dobbs v. Jackson Women’s Health (2022)—an end to a nearly fifty-year legal safeguard for getting an abortion. With Roe v Wade (1973)’s precedent overturned in Dobbs, the right to an abortion was no longer a right nor were its legal foundations of substantive due process left unharmed. The United States was once again left divided over female body autonomy, but also over the usage of substantive due process, which establishes certain non-unenumerated rights as fundamental through the interpretation of “liberty” in the Due Process Clause of the Fourteenth Amendment. This has been the legal framework in Roe to establish the right to privacy and the right to an abortion, along with other critical rights like the right to marry, applied to interracial marriage in Loving v. Virginia (1967) and same-sex marriage in Obergefell v. Hodges (2015).

Beyond this disruption in legal precedent, the Dobbs case already had devastating consequences on maternal reproductive health care nationwide. Dobbs shifted abortion precedent from the federal to state discretion, triggering numerous statewide anti-abortion legislation into effect. Consequently, the decision ultimately changes who has access to abortions and how abortions are done for people that lost immediate access to them due to new restrictive laws. Many health clinics that provide abortions have already disappeared, and with them access to primary health care and preventative screenings. In these regions – primarily in the conservative south and midwest — abortion has once again fallen under the wide net of healthcare services that are inequitably only available to those with the privilege and the means to afford to maneuver around restrictive laws. Meanwhile, women who have historically and continue to experience exclusion in health care and poor maternal health treatment—namely low-income and/or women of color—bear the burden of the Dobbs decision, facing immediate negative health and socioeconomic consequences. These women that need abortions are left with options that are simply not possible. Traveling across state lines means having the means to do it: having a car, enough money to pay for gas, time off work to get there et cetera. These prerequisites for accessing medical treatment are largely unattainable for low-income marginalized women, which pushes the entire community deeper into a corner of limited access to quality healthcare.

While a central consequence of Dobbs jeopardized abortion rights, it additionally called into question the implementation of existing healthcare legislation, namely the Emergency Medical Treatment And Labor Act (EMTALA). This critical law prevents patients from being turned away from emergency room treatment based on their ability to pay by requiring that they be stabilized if they have an “emergency medical condition.” However, the line is blurred as to what constitutes such a condition in abortion cases within states restricting access. Biden’s administration has instructed medical facilities to provide emergency abortion care, but states like Texas view that as an “abortion mandate” preempting their state law restricting abortions. With various legal disputes like this erupting throughout the nation, healthcare providers are left in an ambiguous spot with not knowing the limits to providing material healthcare, which further jeopardizes patients’ lives and exacerbates the very healthcare inequities that laws like EMTALA were created to address.

To capture the full effect of Dobbs on maternal reproductive health care beyond access to abortion, it is critical to understand the underlying factors driving disparities in health outcomes. The maternal mortality rate in the United States has been on the rise since 2000, with the rate being 24 deaths per 100,000 live births in 2020. This is more than three times the rate in most other high-income countries and is consistent with the United States having poor health outcomes despite one of the highest healthcare expenditures on a global scale. Within these high maternal mortality rates, the rate for Black women is more than double the average and nearly three times higher than the rate for White women, and Black women are 1.6 times as likely to live under unfavorable conditions that create problems during and after pregnancy. While a majority of these deaths and conditions are preventable, with causes including hemorrhage, heart disease, and substance use, structural disparities in access to care and a general lack of quality maternal health care policy continue to disproportionately drive the rates up for women of color. 

This racial disparity is rooted in structural racism in the healthcare system, which historically created barriers for racial and ethnic minority populations and still limits access to care, namely with a lack of coverage due to inconsistent Medicaid expansion. The Supreme Court made Medicaid expansion under the Affordable Care Act optional for states in National Federation of Independent Business v. Sebelius (2012). The aftermath is a Medicaid coverage gap for people who cannot afford private insurance but do not meet the eligibility of traditional Medicaid. About 60 percent of those in the coverage gap are people of color, disproportionately living in southern states that chose not to expand. Medicaid is a critical source of health insurance coverage for maternity care, providing prenatal care, labor, and family planning services, but a vast amount of Americans in states that did not expand that need the care do not receive it. The impact is clear: Medicaid expansion resulted in 1.6 fewer maternal deaths per 100,000 women and declined infant mortality rate by more than 50 percent than in non-expansion states.

With access to abortion being jeopardized by various state laws, it is more crucial than ever to fortify general maternal health care coverage and family planning services to combat the rising mortality rate and disparities rampant within that. President Biden passed an executive order following Dobbs to protect access to reproductive health care services, including safeguarding access to services like abortion and contraception, protecting the privacy of patients and their access to accurate information, promoting the safety and security of providers, and coordinating the implementation of other federal efforts to protect reproductive rights. However, these initiatives must be fortified by greater congressional action as executive orders can easily be overturned with a new administration and states are already contesting the order, such as with the aforementioned EMTALA case. 

The Black Maternal Health Caucus introduced the Black Maternal Health Momnibus Act: a profound piece of legislation with transformative policies for maternal health that should be watched. As the most comprehensive and evidence-based legislative approach to addressing maternal health disparities, the act’s objectives include making critical investments in social determinants of health that influence maternal health outcomes, investing in community-based organizations working to promote equity, improving data collection processes and quality measures et cetera. While its fate in Congress is yet to be determined, this bill is a model for the federal policy changes the nation must embrace to counteract the spiraling effect of Dobbs in exacerbating racial disparities in maternal healthcare. There is no coincidence that the same marginalized groups are the worst affected by every law or court decision. Without a conscious objective to center health policy around mitigating racial inequity, rather than merely acknowledging it or turning a color-blind eye, hundreds of thousands of women will be crushed in the corner carved out for their community.

Ashley Ganesh (‘25) is a sophomore at Brown University. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at ashley_ganesh@brown.edu.