Is abortion legal? What the overturning of Roe v. Wade means

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Is abortion legal? What the Supreme Court overturning of Roe v. Wade means

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health on Friday will seismically change abortion access across the country and raise questions big and small about what access to abortion will look like state-by-state.

The court struck down the national right to an abortion, opening the door for states to ban them. Currently, 26 states are expected to start enforcing bans on abortion, either immediately or in the coming weeks, including 12 states with laws banning abortion after six weeks of pregnancy. Other states are looking to make abortion access more robust in response.

The results “might really surprise us,” said Rachel Rebouché, interim dean at the Temple University School of Law. “Some strategies are going to backfire, and some people will be incentivized and disincentivized by forces we can’t see yet.”

The public health changes will collide with many other areas of life, and some of them will trigger further legal debates, including from questions about the right to travel, privacy and commerce.

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Though we can’t predict every outcome, there are some things we do know about what the ruling will mean for patients, doctors and others involved in abortion policy.

Is abortion legal now in America?

Before Friday, there was a national right to abortion in America established by the Supreme Court that couldn’t be taken away by states. The Dobbs decision removes this national right. States can now decide whether or not to make abortion legal or illegal.

It is now illegal — or will be illegal soon — in 13 states that have passed so-called trigger bans designed to go into effect after the Supreme Court overturned the Roe v. Wade decision, according to tracking from the Guttmacher Institute.

Trigger laws can take several forms. Kentucky, Louisiana and South Dakota have passed “trigger laws” that went into place automatically after the Dobbs decision without any further action required by the state. Ten other states have laws in place that will go into effect quickly, either 30 days after the decision overturning Roe or after some government action.

Nine other states have laws on their books banning abortion that were unenforceable under Roe. Abortion bans in states like Arizona and West Virginia have been previously blocked in court, but state attorneys general could take action to make the laws enforceable, or the state could pass new laws.

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Wisconsin illustrates how complicated it can be to revisit a long-dormant abortion ban. A law that bans most abortions from 1849 is still on the books, punishing anyone who performs an abortion with up to six years in prison and a $10,000 fine. But Attorney General Josh Kaul has said the law may not be enforceable because of the legal principle of desuetude, which renders a law that hasn’t been enforced in a long time invalid. Kaul has said he does not plan to enforce the law if Roe falls.

Other states have enacted six-week abortion bans similar to the ban in Texas. Lawsuits are challenging those cases, but the state attorneys general can ask for the lawsuits to be dismissed in light of the new Supreme Court decision.

Some states have enacted multiple abortion bans: Oklahoma has passed four different laws banning abortion, for example, including a trigger ban, a six-week ban similar to the law in Texas and a ban on abortion that existed before the original Roe v. Wade decision. The trigger ban will go into effect, but it’s unclear what the state will decide to enforce about the other bans. “It’s not entirely clear cut” what will happen in these areas, said Elizabeth Nash, principal policy associate at Guttmacher Institute.

And four other states — Florida, Indiana, Montana and Nebraska — have not banned abortion but are expected to soon, based on their actions to limit access to abortion in recent years. Nebraska, for example, has already banned abortion after 22 weeks of pregnancy and put restrictions on abortions after 15 weeks of pregnancy, but is expected to pass a more comprehensive ban.

Is getting an abortion a crime?

Historically, state laws banning abortion hold healthcare providers responsible, but states are now adopting laws that could expand who is legally responsible for an abortion.

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Typically, states make it a crime to perform abortions, not to get one. The act is punished with fines, sometimes as high as $100,000, and can include years of jail time.

A new type of law has also begun to crop up nationwide that could change who is held legally responsible for an abortion. Texas’ S.B. 8 law, which has been copied and passed in other states, allows anyone to file a lawsuit against a person who “aids or abets” an abortion. This broad definition could mean not just the doctor, but friends and family, a driver or, some legal analysts say, a person who donated to a fund for abortion patients.

Successful lawsuits under S.B. 8 carry a minimum penalty of $10,000, which is collected by the person who brought the suit.

Other states have considered going further. Missouri has debated legislation that would criminalize anyone who helps a patient get an abortion.

Some abortion rights advocates fear that a recent case is a harbinger of what could come post-Roe. Earlier this year in Texas, a 26-year-old woman was arrested, charged with homicide and held in jail over what prosecutors called a “self-induced abortion” after six weeks of pregnancy. Activists on both sides of the abortion debate decried the decision. The woman was released and charges were dropped.


Many state medical boards are allowed to censure or revoke the licenses of doctors who perform abortions. Medical boards don’t adhere to the same legal standards as a courtroom, so a medical board could opt to revoke a doctor’s license even if the doctor is not found guilty of performing an abortion in court.

People found guilty of aiding abortions could face a range of consequences to their employment or family life, said New York University Law Professor Melissa Murray. Employees could also be at risk of losing their jobs if employers found out they’d broken the law.

“This could have enormous repercussions in lots of different areas,” Murray said. “Imagine if you are in a custodial fight with an ex-partner and your ex-partner discovered you’d had an abortion? Violating a law is a salient issue in a custody fight.”

What will qualify as exceptions to abortion laws? And who decides what qualifies as an exception?

The 13 states with abortion ban laws make exceptions for the life of the mother. These are typically cases of ectopic pregnancies, fallopian tube abscesses and ovarian abnormalities. Five of the states also allow abortions where pregnancy threatens a serious risk of substantial and irreversible injury. Utah is the only state that permits abortions in the case of a fatal fetal abnormality, which develops in about 3 of every 1,000 pregnancies.

In Oklahoma, the state with the strongest current prohibition on abortion, doctors decide whether a pregnant patient faces a “medical emergency” that qualifies for an exception to the ban. However, the state has also approved a law, modeled after a Texas one, which allows any private citizen to sue anyone who “aids or abets” an abortion for $10,000, potentially throwing those medical decisions into the courtroom.

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The two laws establishing Oklahoma’s ban make exceptions only for “physical” threats to life or of injuries, not psychiatric. Prior to Roe v. Wade, psychiatrists increasingly declared “medical emergencies” in cases where pregnant people expressed suicidal convictions over their condition.

Sally Satel, a psychiatrist with the American Enterprise Institute, recently wrote in the New York Times that the repeal of Roe v. Wade might mean a return to that era, in states that classify mental illness as medical emergencies.

Only five of the states with trigger laws include an exception for rape or incest in their bans: Wyoming, Utah, North Dakota, Idaho and Mississippi. The last three require the incident to have been reported to law enforcement. The Justice Department has found that less than a third of rapes and sexual assaults are reported to police.

Is the abortion pill still legal?

In states that ban abortion, the procedure is illegal by any means, including by taking abortion pills. But the rise of medication abortion, and moves by the Food and Drug Administration to make the drugs easier to prescribe and distribute, could complicate anti-abortion states’ efforts to prevent their use.

Medication abortion usually involves taking two drugs. The first, mifepristone, blocks progesterone, a hormone necessary for the pregnancy to continue. A second drug, misoprostol, taken up to 48 hours after mifepristone, triggers cramping and bleeding, causing the uterus to empty. The FDA has approved of the use of medication abortion drugs up to 10 weeks of pregnancy. Last December, it relaxed long-standing restrictions on prescribing mifepristone via telehealth and sending it through the mail.

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Before Roe fell, many state laws restricted access to medication abortions by requiring the pills to be picked up or taken in person. Medical providers in those states won’t be able to provide medication abortions at all. But people seeking abortion could still access the drugs through other means.

In theory, healthcare providers in states where abortion is legal could prescribe pills via telehealth to people in states where terminating a pregnancy is illegal, and then send the pills through the mail. Whether providers will do that is unclear, since the laws of some anti-abortion states, like Texas, could allow those providers to be prosecuted — even if they are based in a state where abortion is legal. People seeking medication abortions could also travel to less restrictive states to get the pills there.

And there also organizations that operate extralegally to supply pills for medication abortion. Aid Access, an Austria-based group, will send pills anywhere in the U.S. to people who are less than 10 weeks pregnant. Policing the mail for a few pills will be difficult for states, especially because the federal government has control of the Postal Service.

Whether states can ban a federally approved drug is a question that is likely to play out in U.S. courts for years to come. If courts find that states cannot ban or restrict access to a drug approved by the FDA, medication abortion would be protected, even in anti-abortion states. But such an outcome seems unlikely to many experts with a 6-3 conservative court skeptical of regulatory power.

Is in vitro fertilization still legal?

In vitro fertilization (IVF) treatment is still legal. But many of the states that have now banned most abortions are considering legislation that would define life as beginning at conception or fertilization; at least one, in Oklahoma, has made it into law. If policies are interpreted as granting fertilized human eggs legal rights and protections, parts of the IVF process could be considered illegal.

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Many state abortion bans are worded to exempt IVF, by defining abortion as something that happens in the womb. But some states use murkier language — such as specifying that life begins at conception, when an egg is fertilized — that could technically apply to IVF, where embryos are created in a petri dish.

IVF is a last resort for many people trying to become pregnant. To maximize chances that an embryo created this way will successfully implant in a mother’s uterus, doctors produce more embryos than can be used. The extras can be frozen for later use. Doctors can also screen frozen embryos for genetic or cellular abnormalities that could complicate the pregnancy. Unused embryos often end up getting destroyed.

Those standard practices could be banned if abortion laws define life as beginning at fertilization, which would grant a fertilized egg the same rights as a 2-year-old, said Sean Tipton, chief advocacy, policy and development officer at the American Society for Reproductive Medicine. “You can say that an in vitro fertilized egg and a 2-year-old child are legally equivalent,” he said. “But they are decidedly not biologically equivalent.”

Many experts expect that intense lobbying by the fertility industry will protect IVF in most states. Others argue the religious right may continue to push for fetal personhood laws that extend to fertilized embryos. In such states, the fertility treatment’s ultimate fate will likely be hashed out in the courts.

The cloud of uncertainty kicked up by the fall of Roe is already impacting patients, some of whom are accelerating plans. Fertility clinics have begun moving frozen embryos out of more restrictive states, for fear they might lose access. “Going through IVF is often a traumatic and uncertain time,” said Stephanie Boys, an associate professor of social work at Indiana University. “Laws like this just add to the stress around fertility issues.”

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What about contraception, including emergency contraception like Plan B?

Contraception is still legal, including emergency contraception like the one commonly known as Plan B.

In the Dobbs opinion, Justice Samuel Alito takes pains to explain that the high court has no intention of overturning past precedents like Obergefell v. Hodges, which legalized same-sex marriage nationwide, and Griswold v. Connecticut, which legalized the use of contraception.

The court has “stated unequivocally that ‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he wrote.

But in a concurring opinion, Justice Clarence Thomas proposed that the court do just that: reexamine “substantive due process precedents” like Obergefell and Griswold that use Roe as a legal framework, since he believed that Roe was wrongly decided.

Reproductive rights advocates worry that contraception could face similar legal challenges to abortion.

A poll from the National Survey of Family Growth found that of the 46 million women between of reproductive age who are sexually active, 65 percent of them used contraception in 2018; 99 percent of them have used some form of contraception since 2008.

What effect might this ruling have on the U.S. birth rate or the maternal mortality rate?

There are more than 600,000 abortions performed annually, according to the Centers for Disease Control and Prevention. That’s down significantly from the 1980s, when the number of abortions performed each year peaked at about 1.4 million per year.

But whether the overturning of Roe v. Wade will translate into more births in the U.S., which is at about 3.6 million each year, is still unclear.

However, there are some indications from the past: The best estimate comes from a 1999 American Journal of Public Health report, a time of higher U.S. fertility than today, which found that the legalization of abortion led to a 4 percent drop in the fertility rate of states that saw their bans ended. If Roe were overturned, the authors estimated that birth rates in states where bans could immediately return would increase by about 4.5 percent, an increase of 135,000 births per year.

Travel would be major factor allowing access to abortion, the authors concluded, potentially lowering that number. Additionally, the wide availability of medication abortion could mean that number could be lower now.

“We are already seeing women from Texas travel 18 hours by bus to come to Denver,” said Emily Schneider, an obstetrician-gynecologist fellow of the American College of Obstetricians and Gynecologists. “They end up at the hospital after they go to a clinic, which sees they are in an emergency situation and refers them here.”

“We are already crushed, and it looks like it is only going to get worse,” she added, with more nearby states erecting bans on abortion.

But more births also come with more risks. Maternal mortality caused more than 800 deaths nationwide in 2020, and U.S. rates have steadily risen for three decades. The trend was driven in part by already reduced access to abortion in many states for low-income Black and Hispanic women most at risk, even prior to Friday’s Dobbs decision.

Experts believe the fall of Roe will worsen the situation, with one estimate from a 2020 American Journal of Preventive Medicine study finding that states’ abortion bans from the sixth to 12th week of a pregnancy see a 38 percent increase in their maternal mortality rates, a figure that could increase with a total ban.

However, the increase in mortality and injuries to women will rebound far outside those numbers, said Schneider. Medical residents in states that ban abortion will not learn the procedures for emergency cases they inevitably encounter later in their careers. Obstetricians in states dealing with emergency cases from other states will have less time to perform wellness checks with pregnant patients. “I already have to consult with patients while I am driving,” she said. “You can only see so many patients in a day.”

Emergency cases of sepsis from home abortion attempts could return medicine to the pre-Roe era, Schneider fears. “We had entire hospital wards full of women with sepsis, it was horrible.”

Correction

An earlier version of a graphic in this article highlighted Florida, Indiana, Montana and Nebraska among the states that have bans on the books. They do not have any laws in place to do so immediately. This version has been corrected.

This article has been updated. Thanks to Lillian Barkley for copy editing.

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