The US Supreme Court has voted to overturn the federal constitutional right to abortion, which will now leave the issue to be decided on a state-by-state basis.
According to some estimates, some 25 million women of reproductive age will now live in states that ban or severely restrict abortion. Twenty-six states are “certain or likely” to ban abortion, according to the Guttmacher Institute, which supports abortion rights.
Thirteen states have so-called trigger laws that will ban abortion almost immediately, while another nine states are likely to now try and enforce near-total bans or severe restrictions that have been blocked by courts pending the outcome of the just-issued decision in Dobbs v. Jackson Women’s Health Organization. Four states also have a history or have shown a recent inclination to prohibit abortion, according to the Guttmacher Institute.
Doctors and others who provide abortion services, or in some states, “aid or abet” an abortion, could be fined thousands of dollars or sent to prison.
The court 6-3 voted in favor of Mississippi and its 2018 law that outlawed abortion after 15 weeks. Jackson Women’s Health, the state’s sole remaining abortion provider, sued to block the law soon after it passed.
The Supreme Court decision is not a surprise, as the justices indicated they were leaning that way during oral argument in December. The majority’s thoughts were further revealed when a draft of the opinion was leaked to the news outlet Politico on May 2.
In the final opinion, Justice Samuel Alito, writing for the majority, stated: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Four other justices joined Alito in the majority: Brett Kavanaugh, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett. Chief Justice John Roberts, in a separate opinion, said he would vote to uphold the Mississippi law, but for different reasons.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined in a dissent that said, in part, “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”
The decision strikes down both precedent-setting rulings that established a right to abortion until the point of viability, long considered to be 24 weeks: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
Twenty-five medical professional societies — representing Ob/Gyns, family medicine doctors, fertility specialists, geneticists, hospitalists, internists, pediatricians, psychiatrists, nurses, nurse practitioners, and midwives — had urged the court to throw out the Mississippi law. And more than 2500 medical professionals signed a petition in June urging the court to uphold the right to abortion.
The number of abortions has recently increased from what had been a long decline. The Guttmacher Institute estimates that there were 930,160 abortion procedures in 2020 (compared to 3.6 million births), an 8% increase from 2017. The number does not include self-managed abortions. The organization said the increase was potentially due to expanded Medicaid coverage and reduced access to contraception due to Trump administration policies.
Trigger Laws and Bans
When trigger laws and new restrictions go into effect, women in the South, Midwest, and Inter-Mountain West will likely have to drive hundreds of miles for an abortion, according to Guttmacher. Women in Louisiana, for instance, would have to drive 660 miles to get to the nearest provider in Illinois.
University of Utah researchers estimate that almost half of women will see a big increase in the distance to abortion care, from a median distance of 39 miles to 113 miles. State bans will disproportionately impact women of color, those living in poverty, and people with less education, they said.
The Centers for Disease Control and Prevention has reported that Black women are three times more likely to die from a pregnancy-related cause than White women.
Doctors and other abortion providers could face serious penalties. The maximum penalty in Texas is life in prison, and the sentence could be 10 to 15 years in 11 other states, according to an article in the medical journal JAMA
by attorneys Rebecca B. Reingold and Lawrence O. Gostin.
“Threats of prosecution undermine clinicians’ ability to provide safe, evidence-based care and to counsel patients honestly, impeding the patient-physician relationship,” they write. “Given harsh penalties, physicians may cease treating pregnancy loss, with no clear line between treating miscarriages and abortions.”
In preparing for these attacks on patients and physicians, New York Gov. Kathy Hochul (D) on June 13 signed a bill that immediately protects anyone who has an abortion and medical professionals in the state who provide them from legal retaliation by states that restrict or prohibit abortion.
Even while Roe was still the law, Mississippi had banned most abortions after 20 weeks, and 16 states prohibited abortion after 22 weeks. A Texas ban on abortion after 6 weeks — which also allows private citizens to sue abortion providers — was allowed to stay in place while it was being challenged.
On May 26, Oklahoma Gov. Kevin Stitt (R) signed a ban on abortion from the moment of conception. Just as in Texas, the Oklahoma law allows what critics have called “bounty hunting” of abortion providers.
Four states have a constitutional amendment declaring that the state constitution does not secure or protect the right to abortion or allow use of public funds for abortion: Alabama, Louisiana, Tennessee, and West Virginia.
Some States Protecting Rights
At least 16 states have proactively protected a right to an abortion, according to Guttmacher, while
The New York Times
reports that 20 states and Washington, DC, have laws that protect abortion: Alaska, Colorado, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Hampshire, New Mexico, Rhode Island, California, Connecticut, Delaware, Hawaii, Maryland, New Jersey, New York, Oregon, Vermont, and Washington.
Some of these states are gearing up for a potential influx of patients. Washington Gov. Jay Inslee (D) signed a law that authorizes physician assistants, advanced registered nurse practitioners, and other providers acting within their scope of practice to perform abortions. And the Maryland legislature overrode a veto by Gov. Larry Hogan (R) of a law that expands who can perform abortions.
Wisconsin Gov. Tony Evers (D) in early June called a special legislative session to repeal the state’s 173-year-old dormant ban on abortion. But the majority Republican legislature vowed to take no action.
B. Jessie Hill, associate dean for academic affairs and a professor at the Case Western Reserve University School of Law in Cleveland, Ohio, said she expects anti-abortion groups to challenge these protective laws “by saying that fetuses are persons under the Constitution with a right to life and therefore that the state has to protect them.”
But, she said, “There’s going to be big, big challenges with those lawsuits,” adding that they will not be “winners off the bat.”
Medication Abortions, Travel Next Battle
Some states are also attempting to outlaw or severely restrict the use of RU-486, the abortion pill. A Tennessee law that goes into effect in 2023 would ban delivery of pills by mail and require a patient to have two doctor’s visits — one consultation and one to pick up the pills.
Mississippi has also enacted restrictions including the requirement that women meet with a doctor first — and is being sued by pill maker GenBioPro.
Guttmacher estimates that medication abortion accounted for 39% of all abortions in the United States in 2017 and 60% of all abortions that occurred before 10 weeks’ gestation.
Some states have floated the idea of prohibiting anyone from traveling to another state for an abortion.
George Mason University law professor Ilya Somin has written that such a law would likely violate the Dormant Commerce Clause, “which forbids state regulations that specifically restrict interstate commerce or discriminate against it.”
He also wrote that states lack the authority to regulate activity that takes place beyond their borders and that such bans “are open to challenge because they violate the constitutional right to travel.”
Hill also said a travel ban would be problematic, noting that it might be difficult to prosecute someone for “something you did completely in another state.”
The New York Times: “How State Abortion Laws Could Change if Roe Is Overturned.”
Guttmacher Institute: “26 States Are Certain or Likely to Ban Abortion Without Roe: Here’s Which Ones and Why,” “If Roe v. Wade Falls: Travel Distance for People Seeking Abortion,” “State Abortion Policy Landscape: From Hostile to Supportive.”
Committee to Protect Health Care: “Medical Professionals Urge Supreme Court to Uphold Roe v. Wade, Protect Abortion Access.”
Dobbs v. Jackson Women’s Health Organization.
Utah Women’s Health Review: “Disparities in Distance to Abortion Care Under Reversal of Roe v. Wade.”
JAMA: “The Leaked Supreme Court Ruling Opinion.”
Reuters: “The next U.S. abortion battle is over pills, and it’s already begun.”
Reason: “Can States Ban Residents From Getting Abortions in Other States, if Roe v. Wade is Overturned?”
Alicia Ault is a Lutherville, Maryland-based freelance journalist whose work has appeared in publications including JAMA and Smithsonian.com. You can find her on Twitter @aliciaault.