One year after the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, in which it overturned Roe v. Wade and Planned Parenthood v. Casey, abortion access across the United States has been decimated. As of publication, 14 states have near-total abortion bans at any point in pregnancy in effect, and six states have implemented abortion bans with limits that range from six to 18 weeks. Overall, 25 million women live in states that have severely restricted care, and these abortion bans contain only the narrowest exceptions, jeopardizing patient health. Additionally, these bans disproportionately affect those who often had limited access to abortion before Dobbs, including low-income communities and many women of color.
While state legislatures across the country have passed bills to improve and expand abortion rights, including laws to codify statutory protections and “shield laws” to protect abortion providers and patients, state attorneys general have also played an important role in protecting abortion access both by helping to enforce these protections as well as taking independent actions.
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Protections from state attorneys general have been especially significant in states where legislatures have implemented abortion restrictions. For example, North Carolina Attorney General Josh Stein (D) has said that he will not defend parts of the state’s law to ban abortion after 12 weeks.
As states continue to pass draconian abortion bans, here are eight things state attorneys general have done—and should continue to do—to protect abortion rights.
1. Establish a reproductive rights task force to coordinate statewide protections
Many state attorneys general have established reproductive rights task forces to coordinate protection across the state, including in Arizona, California, New Jersey, and New York. The responsibilities of these task forces range in scope, but they generally use civil and criminal enforcement powers to prosecute those who threaten or intimidate abortion providers and patients and protect abortion-related health care information from being accessed by third parties. Similarly, Connecticut’s attorney general recently appointed two assistant attorneys general as special counsels for reproductive rights. Massachusetts and New York are expected to do the same.
Already, these task forces have had tangible success in protecting abortion rights. For example, in December 2022, the New Jersey attorney general’s Reproductive Rights Strike Force coordinated the issuance of guidance to health care providers on how to secure patient data as well as a consumer alert to warn the public about the dangers of crisis pregnancy centers (CPCs).
2. Publish a know-your-rights guide or Q&A on abortion access in the state
Over the past year, patients seeking abortion and abortion providers have encountered massive amounts of confusion over the legality of abortion, in part due to conflicting abortion bans and confusion among doctors about how to interpret abortion exceptions. This confusion has been coupled with dangerous misinformation about abortion generally and medication abortion specifically, especially given the current legal challenges to mifepristone. In fact, polling has shown that nearly half of women in states with abortion bans are unsure whether medication abortion is legal in their state.
47%
Percentage of women in states with abortion bans who are unsure whether medication abortion is legal in their state
Because of the confusion and misinformation surrounding abortion access, many state attorneys general offices have published know-your-rights guides and/or Q&As on the status of abortion access in their state, including in California, Connecticut, Delaware, Maine, Minnesota, New Jersey, New York, Oregon, Vermont, and Washington state. These guides make clear when an abortion is legal in the state and what restrictions—if any—are in place. In addition, due to the pending litigation on medication abortion, some states, including Pennsylvania, have issued FAQs on the status of medication abortion.
3. Establish a legal hotline or legal services website for abortion providers and the public
The Dobbs ruling has created significant confusion regarding the legality of abortion across the country for patients and providers alike. For example, when researchers posing as pregnant women called Oklahoma hospitals to ask about emergency abortion care, they found that no hospital was able to explain clear policies regarding what care was available.
As a result, states such as California, Connecticut, Delaware, Massachusetts, New York, and Oregon have partnered with law firms to launch hotlines that offer pro bono legal advice for abortion providers and members of the public who have legal questions about accessing abortion. Similarly, Washington state established a legal services website for providers and the general public that contains legal support and resources for those seeking abortion in the state.
4. Highlight the dangers of crisis pregnancy centers
CPCs are organizations that represent themselves as comprehensive reproductive health facilities but actually aim to dissuade people from considering all of their options, in part by disseminating medically inaccurate information about abortion and other critical health care matters. In the wake of the Dobbs decision, CPCs continue to threaten abortion access even in states where abortion is still legal, as they are often located near comprehensive clinics in an effort to confuse patients who are seeking abortion care—further complicating the confusion on abortion access that has circulated since Roe was overturned.
As a result, attorneys general across the country have taken a number of steps to educate people about the dangers of CPCs. For example, in states such as California, Massachusetts, Minnesota, and New Jersey, attorneys general have issued consumer advisories that detail the threats posed by CPCs and included guidance about how to avoid them. The California attorney general also allows individuals to file a “crisis pregnancy center complaint” if they believe they have been a “victim or target of deceptive, misleading, unfair, or unlawful conduct.” Additionally, last year, the New York attorney general successfully called on Google to adjust its search results to clearly distinguish between abortion providers and CPCs. This is particularly important given that the Center for Countering Digital Hate recently found that Google earned more than $10 million in advertising revenue from CPCs over the past two years.
5. File amicus briefs in federal court to support abortion access
In the past year, federal and state courts have continued to hear cases on abortion access and have considered questions on myriad subjects, including the legality of medication abortion and whether or not individuals can travel out of state to obtain a legal abortion. In response, many state attorneys general have submitted amicus briefs to the courts to support abortion access.
For example, in August 2022, a coalition of 22 attorneys general led by California and New York filed two amicus briefs supporting the federal government’s defense of the Emergency Medical Treatment and Labor Act to preserve abortion access in Idaho and Texas. Similarly, in 2023, more than two dozen state attorneys general filed an amicus brief in Alliance for Hippocratic Medicine v. Food and Drug Administration (FDA), a case challenging the FDA’s approval of mifepristone.
The Fate of Medication Abortion in the Courts
Read more about Alliance for Hippocratic Medicine v. FDA and the fight over medication abortion.
6. Issue legal guidance on the status of abortion
In a post-Dobbs America, patients and providers have faced confusion and mis- and disinformation over the legality of abortion, which has only been exacerbated by ongoing litigation. In states such as Arizona and Utah, at one point after Dobbs, abortion was legal one day and outlawed the next, leading to chaos for providers and patients.
In response, many state attorneys general have issued legal guidance on the status of abortion in their states. While some states, including Connecticut and Pennsylvania, have issued general guidance on the legality of abortion, others such as Arizona, Connecticut, and Pennsylvania have issued legal guidance related to the status of medication abortion specifically. In addition, many states, including California, New Jersey, and New York, have issued legal guidance to law enforcement about actions they can and cannot take against patients, providers, or individuals threatening abortion access.
7. Refuse to enforce pre-Roe bans or directly challenge them
When Roe v. Wade was overturned last year, many states still had pre-Roe bans on abortion in place, including Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin. Some of these pre-Roe bans conflicted with other bans in the state, which led to confusion about whether or not abortion was legal.
In response, some state attorneys general have refused to enforce these pre-Roe bans or directly challenged the pre-Roe bans with a lawsuit. For example, before Roe was even overturned, Michigan Attorney General Dana Nessel (D) said that she would not enforce the state’s 1931 abortion ban. The law has since been repealed by state legislation.
Similarly, Wisconsin Attorney General Josh Kaul (D) said he would not investigate or prosecute anyone who violated the state’s 1849 abortion ban, though more recent legislation that conflicts with the 1849 ban has caused confusion about whether abortion is legal in the state. Four days after the Dobbs decision was announced, Attorney General Kaul and Wisconsin Gov. Tony Evers (D) announced a legal challenge to the state’s 1849 abortion ban. The lawsuit is currently pending in the Dane County Circuit Court.
8. Protect data privacy of patients seeking abortion services
In the wake of the Dobbs decision, there has been concern that personal data collected by apps and websites could be used to target or arrest people seeking abortion services. In response, state attorneys general have taken a number of steps to protect the data privacy of patients seeking abortion services. For example, attorney generals in California, Michigan, New York, and the District of Columbia issued consumer alerts detailing how individuals can protect their personal reproductive health information when signing up for applications that track fertility and menstrual cycles or when seeking abortion care.
Similarly, the New Jersey Division of Consumer Affairs, which is overseen by the state attorney general, issued guidance on how health care providers can best secure patient data and protect the privacy of individuals seeking abortion services. Before the Dobbs decision came down, California’s attorney general also released a set of best practices for health apps to protect the privacy of reproductive health information.
In addition, in 2022, a coalition of nine state attorneys general and the attorney general from the District of Columbia sent a letter to Apple urging the company to protect reproductive health information.
Conclusion
State attorneys general have a unique opportunity to interpret and enforce the law and provide accurate information to residents about what types of abortion care is legal and how to avoid crisis pregnancy centers. As states continue to restrict and criminalize abortion, these state attorneys general must do everything they can to protect the privacy, health, and safety of patients and providers.