The abortion discussion is far from over, Sherif Girgis, associate professor of law at Notre Dame Law School, said in his speech “Abortion and the Law After Dobbs.” 

On March 23 in Plaster Auditorium, Girgis talked about the future of the pro-life movement in the United States. 

“The question of the next years and decades is whether, in a world where the dominant ethos is not almost uniformly pro-life, our country can find a stable and peaceful equilibrium in which different states take different approaches on the issue,” Girgis said.

The Federalist Society invited Girgis, former law clerk to Associate Justice of the U.S. Supreme Court Samuel Alito, to speak on the future of abortion. Girgis said while Dobbs settled the question of a constitutional right to abortion, it opened the door for federal and state battles in the coming years.Girgis argued unlike most policy issues in the United States, which are often left to the state-level, abortion is an issue both sides feel so passionately about that it cannot be left to local decision-making. Instead, both sides are seeking “the most centralized, nationalized, and permanent solution to the debate,” according to Girgis. 

The potential issues that may arise in the wake of Dobbs include access to contraception, laws which require fetal remains to be buried or cremated, and legal challenges to waiting periods and mandatory counseling before obtaining an abortion, Girgis said. 

The recent Supreme Court decision in Dobbs, which overturned Roe v. Wade, has sparked a flurry of legal and political battles over the issue of abortion. 

Many states are turning to state lawmaking mechanisms and referendums to try and achieve permanent and sweeping change at the state level. 

“People who regret Dobbs will repair to state courts to try to get them to declare a state constitutional right,” Girgis said. “The first instinct is to try to get permanent relief at the state level through the state constitution.” 

Additionally, some states are trying to punish those who assist in the performance of an abortion across state lines. This, however, raises complex constitutional questions about the extent to which states can regulate extraterritorial conduct, Girgis said.

Another option is to pursue action at the federal level. This could involve attempts to pass federal legislation either banning or declaring a statutory right to abortion that would supersede any state attempts to regulate the issue, Girgis said. Given the highly polarized nature of the debate, it is uncertain whether such legislation could garner enough support to pass.

While there are some existing federal laws that could be used to regulate abortion, they are limited and unlikely to be used to nationalize the issue, according to Girgis. State-level battles will likely continue, with pro-choice advocates seeking to protect access to abortion and pro-life advocates seeking to restrict it. 

“It is very hard for Congress to do anything, much less pass a law that nationalizes the abortion issue.” Girgis said. “So even though the impulse on both sides will be to do that on both sides in one way or another, it will unlikely to happen anytime soon.”

Since it is unlikely for new legislation to pass in Congress, both pro-life and pro-choice sides may try to exploit existing laws, Girgis said. 

Pro-lifers could use the Comstock Act, passed in 1873, to make mailing abortion drugs a federal crime. Meanwhile, pro-choicers might argue for equal protection and the 13th Amendment, but the former was already ruled out by Roe, and the latter doesn’t apply since abortion bans were not aimed at slaves or their descendants, according to Girgis.

Finally, pro-choicers may appeal to the free exercise clause and claim religious exemption, but the state must have a compelling interest in enforcing the ban, which brings up the issue of moral status, Girgis said. Thus, the abortion issue remains unresolved at the federal level and is likely to continue in state courts and legislatures.

Even still, the pro-life side does have a way of constitutionalizing their preferred result, Girgis said. 

“There is a strong originalist case for thinking that the 14th amendment is not just that it allows states to ban abortion, but that it requires them to ban abortion to give equal protection to the unborn life,” Girgis said. 

Girgis said there are sociological and legal obstacles to this argument taking hold. 

“Many will want you to clear a very high bar before you use an originalist argument to take a very fraught and political issue out of the people’s hands,” Girgis said.

Sophomore Kody Richards said she has attended previous Girgis lectures and always enjoys hearing from him.

 “Professor Girgis does a really good job of articulating high-level moral and legal issues in a very understandable way,” Richards said. “Listening to him talk about Roe v. Wade last year, I felt like I understood it in a way that I wouldn’t if I had not listened; I feel the same way now listening to him talk about the post Dobbs discussion.” 

Sophomore Toby Klooster said he appreciates Girgis discussing the issue from all angles.

“Every time Professor Girgis comes here, I love it I really enjoy how he lays out every perspective on an issue, especially with the constitutional law, which obviously here at Hillsdale, we are very interested in,”  Klooster said.