“Returning” Abortion to “the People and Their Elected Representatives”: Chaos, Conflict and Access in Wisconsin in the Aftermath of Dobbs v. Jackson Women’s Health Organization

Abstract

On 24 June 2022, the United States Supreme Court overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), putting an end to nearly fifty years of constitutional protection for abortion rights. In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito, who authored the opinion for the Court, claimed that previous rulings on abortion had failed to “bring about the permanent resolution of a rancorous national controversy”, and that the “the authority to regulate abortion” was now “returned to the people and their elected representatives”. One of the central ideas of the ruling was thus that it would appease preexisting tensions and reduce confusion by allowing states and their people to better represent their values in their state laws. This paper will argue that it did no such thing and instead unleashed a wave of confusing cases involving competing and sometimes conflicting sources of power at different levels of government. To do so, it will focus on a specific state—Wisconsin—where abortions were unavailable for fifteen months because different sources of legal authority disagreed on which law should apply