A little more than two years ago, the US Supreme Court voted to overturn the landmark ruling Roe v. Wade, in a case known as Dobbs v. Jackson Women’s Health Organization (Dobbs). This effectively removed the federal guarantee of the right to abortion and allowed each state to decide for themselves whether to allow abortion to remain legal. Many progressives feared the overturning to be a sign of a greater wave of backsliding with regard to women’s rights, and to date, it looks to be the case, albeit slower than expected. Besides the near total abortion bans in various states, freedoms around other reproductive matters such as contraceptives and in vitro fertilization (IVF) have been jeopardized.
Image Credits: Hilary Fung/NPR.
To date, near-total abortion bans have been imposed in 14 out of the 50 states in the US, many of which do not even provide exceptions for rape and incest. Another 7 states have implemented bans that prevent abortions after 6-18 weeks of gestation. For states that have imposed a 6 week gestational limit, this severely impedes access to abortion, since 1 in 3 people only discover their pregnancies after 6 weeks of gestation.
In the wake of this wave of abortion restrictions, maternal and infant death rates have been on the rise. According to a report published by Gender Equity Policy Institute (GEPI), mothers living in states that banned abortion after the Dobbs were three times more likely to die during pregnancy, childbirth or soon after giving birth.
Why is this happening? States that ban or restrict access to abortion have begun to see a maternal care ‘desert’, as maternal care providers, including ob/gyn clinics, birth centres or professional midwives, cease providing their services. This is because, medically speaking, the differences between an abortion and a miscarriage are murky. Many doctors consider any termination of a pregnancy to be an abortion, whether it is through a spontaneous miscarriage or a voluntary action like ingesting pills that induce an abortion. Thus, imposed or impending restrictions on abortion have spooked such maternal care services due to concerns over legal liability. Even if such clinics still operate, the medical professionals who work there may be hesitant to carry about procedures that could constitute a legal grey area. In Ohio, amidst a bitter debate over abortion rights in the state legislature, 33 year-old pregnant woman Brittany Watts started passing thick blood clots. Upon visiting a clinic, she was informed that, while a fetal heartbeat remained, her water had broken prematurely and the fetus would not survive. The doctor advised having her labor induced, in a procedure that would have amounted to an abortion, to deliver the non viable fetus and save Watts’ life. However, at the time of her miscarriage, abortion was legal in Ohio only until 21 weeks, 6 days of pregnancy. Because Watts’ pregnancy was close to that mark, officials at the hospital she visited were deliberating over the legalities. As Watts’ lawyer, Tracy Timko said, “It was the fear of, is this going to constitute an abortion and are we able to do that.”
Such legal grey areas mean that people seeking abortions are not the only ones affected by the Supreme Court ruling. In states that criminalize abortion, people who miscarry would find themselves facing prosecution, or having to travel across state lines to seek miscarriage care.
Furthermore, people of color are disproportionately affected. According to the same GEPI study, Black women were three times more likely to die in pregnancy, childbirth, or right after giving birth than White women. This could be because, in the US, race remains closely correlated to socio-economic status. According to a 2020 census done by the US government, Black people had the highest poverty rate (19.5%), while Asians (8.1%) and non-Hispanic White people (8.2%) had the lowest poverty rates. Hence, Black people would be less able to afford the rising prices of increasingly scarce maternal care services, as well as transportation and accommodation to seek abortions in states where it remains legalized.
Dobbs has also led to concerns over greater restrictions ahead on women’s bodily rights in the United States. This is because the Dobbs ruling rejects the idea of a right to choose abortion by stressing that it should not be covered under the Fourteenth Amendment's Due Process Clause, which states that “...nor shall any State deprive any person of life, liberty or property, without due process of law.” In Dobbs, the majority opinion of the Supreme Court stated that abortion was not deeply rooted in the US’ history and tradition, since it was criminalized in three-quarters of the States when the Fourteenth Amendment was adopted.
Thus, abortion would not constitute a fundamental right or “liberty” under the aforementioned Due Process clause. The repercussions of this precedent are worrying, since this “history and tradition” argument could apply even to drugs that abortion opponents concede are contraceptives and do not amount to abortion methods. Around the time when the Fourteenth Amendment came into effect (in the late 19th century), many states had begun criminalizing contraception, and the federal government had criminalized the mailing of contraceptives. Such a background would make it possible for the Supreme Court to accept that the “history and tradition” argument can be applied to remove federal protection of access to contraceptives too.
Furthermore, some states have passed increasingly conservative definitions around reproductive issues, such as Alabama’s Supreme Court ruling that its existing law on the wrongful death of a minor covers not just fetuses in the womb, but embryos held in a lab or storage facility, leading to uncertainty over access to IVF procedures. This is because IVF works by fertilizing an egg with a sperm to create an embryo, and as part of the IVF process, embryos are often frozen or eventually destroyed. This scared three of the state’s limited pool of IVF providers to immediately stop services. Though Alabama’s governor eventually signed a bill into law to exempt IVF patients and providers from this ruling, the new law failed to address the heart of the matter, which was the issue of personhood of an embryo. It did not “nullify the [Alabama] Supreme Court’s analysis that the law ought to treat embryos just like people,” said Kathreine Kraschel, an assistant professor at Northeastern University School of Law. As Alabama state Representative Terri Collins and Senator Tim Melson reflected, it was only intended to provide immediate relief for families who are already in the midst of IVF procedures. Republican officials pledged to revisit the issue later on to find a long-term fix, but they never did and instead, the immunity law is now facing a constitutional challenge by some of the plaintiffs in the original Alabama Supreme Court case. Additionally, the immunity law could impede access to quality IVF services in a completely separate way, since it potentially protects IVF providers from malpractice claims. Thus, it seems to be that access to safe IVF treatment is still uncertain in Alabama.
As the election looms ahead in November, abortion is certainly an issue that will feature prominently on the minds of many swing voters in particular. It will be on the ballot in 5 states as of Jun 2024 (Colorado, Florida, Maryland, New York and South Dakota) as part of the citizen initiative process to preserve abortion access. All 5 seek to provide a constitutional right to abortion in some form after abortion-rights supporters gathered sufficient signatures for the issues to appear on the statewide ballot. Of the 5, Florida and South Dakota have some of the strictest abortion laws with the former’s 6-week ban taking effect since May 1 and the latter enforcing a near-total prohibition on abortion access. There is still room for hope, as historically voters have always opted for improved abortion access when given the opportunity, passing all pro-choice measures and defeating pro-life measures presented in 2022 and 2023 even in deep-red states. Credited with handing the Democrats victory after victory in the 2022 midterms and special elections, abortion has proven to be a nightmare issue for many Republicans who face a tough choice balancing between the hardline anti-abortion stances of their Evangelical Christian supporters and courting other moderate voters.
In conclusion, reproductive freedoms and other attending issues are more endangered than they were when Roe v. Wade was overturned, but Roe is definitely neither the start nor end of such threats.
References
Advancing New Standards in Reproductive Health (ANSIRH). (n.d.). One in three people learn they're pregnant past six weeks gestation. ANSIRH. Retrieved from https://www.ansirh.org/research/research/one-three-people-learn-theyre-pregnant-past-six-weeks-gestation
Associated Press. (2023, January 24). Ohio miscarriage prosecution: Brittany Watts case. AP News. Retrieved from https://apnews.com/article/ohio-miscarriage-prosecution-brittany-watts-b8090abfb5994b8a23457b80cf3f27ce
BBC News. (2023, July 13). US abortion law: State-by-state guide. BBC. Retrieved from https://www.bbc.com/news/world-us-canada-68396485
CNN. (n.d.). Following the US Supreme Court's decision. CNN. Retrieved from https://edition.cnn.com/us/abortion-access-restrictions-bans-us-dg/index.html#:~:text=Following%20the%20US%20Supreme%20Court's,limited%20access%20to%20the%20procedure.
CNN. (2024, March 6). Alabama IVF fertility protection. CNN. Retrieved from https://edition.cnn.com/2024/03/06/us/alabama-ivf-fertility-protection/index.html
Legal Information Institute, Cornell Law School. (n.d.). Dobbs v. Jackson Women's Health Organization (2022). Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/dobbs_v._jackson_women%27s_health_organization_%282022%29
Steyer, R. (2024, March 6). Alabama Republicans propose long-term fix for IVF. NBC News. Retrieved from https://www.nbcnews.com/politics/alabama-republicans-ivf-long-term-fix-rcna152834
Topping, A. (2022, September 24). Abortion, miscarriage, and the quest for clear health care. The Guardian. Retrieved from https://www.theguardian.com/world/2022/sep/24/abortion-miscarriage-healthcare-pregnancy
U.S. Census Bureau. (2021). Income and poverty in the United States: 2020. U.S. Department of Commerce. Retrieved from https://www.census.gov/library/publications/2021/demo/p60-273.html
NPR. (2024, May 23). Abortion law legal challenges in Florida and Arizona. NPR. Retrieved from https://www.npr.org/2024/05/23/nx-s1-4977323/abortion-law-legal-florida-arizona-amendment
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