The decision of the Supreme Court in Dobbs v. Jackson Women’s Health Organization drastically and rapidly alters the picture of access to abortion in the U.S. The court on June 24 ruled 6-3 to maintain a Mississippi law that would ban abortion after 15 weeks of pregnancy, but also to nullify the nearly half-century precedent set in Roe v. Wade who guaranteed the constitutional right to abortion. With Dobbs ’decision, states have the ability to set their own restrictions, so the place where people live will determine their level of access to abortion.
The majority opinion, written by Judge Samuel Alito, stated that “the Constitution does not confer a right to abortion; Roe and Casey [Planned Parenthood v. Casey, 1992] they are annulled; and the authority to regulate abortion is returned to the people and their elected representatives. “
Almost immediately after the publication of the decision, protests and celebrations began outside the court and across the country, highlighting the mosaic of laws and restrictions that will now come into force. State officials in conservative states said they would act quickly to restrict abortion, while in other states, some officials pledged to maintain the right of access.
These are five key points that will affect access to abortion.
1. Where is abortion still legal?
The Supreme Court ruling means that access to abortion will soon be very uneven.
Sixteen states plus the District of Columbia have laws that protect the right to abortion. In two other states, the courts have ruled that the state constitution establishes this right. These states are concentrated on the east and west coasts.
At the other end of the spectrum, 13 states have “activating” laws that would quickly ban almost all abortions, and at least half a dozen moved Friday to implement them, including Arkansas, Kentucky, Missouri and South Dakota. Four more have pre-Roe bans that would be in effect again. Three other states have books laws that will ban abortion after about six weeks of pregnancy.
Access to abortion is likely to evolve in other states as well. Kansas and Montana, which are among the states that have the right to abortion enshrined in their constitutions, could see setbacks in these protections through an election measure in Kansas and a legal challenge by the Montana Attorney General. In at least eight states, the right to abortion is not explicitly protected or prohibited by state law.
And in Michigan, a 1931 state law bans almost all abortions, but its application was temporarily suspended by a May court ruling. Michigan Attorney General Dana Nessel, a Democrat, has said she will not enforce the law, but questions remain about whether that would also be the case for local prosecutors.
As was the case before the Roe decision of the 1973 Supreme Court, people seeking care for abortion will also be subject to various restrictions even in states where the procedure is still legal. They include pregnancy limits that describe the maximum point of pregnancy at which someone can get an abortion, requirements for patients to receive prior counseling, waiting periods, and parental notification rules for minors.
2. What can the Biden administration do?
President Joe Biden has said his administration is investigating executive actions to counter the impact of the ruling. Speaking after the decision, Biden said it was a “sad day” and that without Roe, “the health and lives of the women of this nation are now at risk.”
But ultimately, without a new congressional law, he has limited options.
Biden vows to protect abortion rights after Supreme Court ruling 1:27
Proponents of abortion rights and Democratic lawmakers in Congress have pushed the administration to make it easier for women to get medicated abortion, which is available until 10 weeks of pregnancy and involves taking two pills. , assessing whether services could be offered on federal property even in states that prohibit the procedure and strengthen digital privacy to protect patients.
Drug abortions have become an increasing proportion of all abortions performed in the US. According to the Guttmacher Institute, a research organization that supports abortion rights, pills accounted for more than half of all abortions in 2020, the first year the medication provided the most.
Under the Biden administration, the Food and Drug Administration has already lifted a major restriction. Now, patients can receive by email mifepristone, the first drug used in the series. Mary Ziegler, a professor at the University of California at the Davis School of Law and legal historian of abortion, said that even when conservative states move to restrict access to medical abortion, the Biden’s administration could argue that the FDA’s rules and guidelines on mifepristone prevent. any state law criminalizing this method. Attorney General Merrick Garland took that position in a statement issued shortly after the decision was announced: “The FDA has approved the use of the drug Mifepristone. States cannot ban Mifepristone for disagreeing with the expert judgment of the FDA on its safety and effectiveness. ”Biden reinforced this message in his statements.
In comments before the judges’ decision was announced, Zeigler said arguing that this position is “the biggest thing they could do.” Still, the FDA’s approach is uncertain, both legally and because a future Republican administration could easily reverse any action taken by Biden officials. “If it worked, it wouldn’t be permanent and it might not work,” he added. Biden administration could also expand the number of pharmacies that can dispense the drug.
3. Will people in states where abortion is illegal be able to access medical abortion?
For now, as a result of Dobbs ’decision, he states that banning abortions is likely to also impose restrictions or bans on abortion pills. But some advocates point out that people in these states can still get abortion pills and perform a “self-managed” abortion at home, which carries an additional risk if the woman has a complication (although complications are very rare). And abortion pills will still be accessible in states where abortion is allowed.
Packages of medications used to end an early pregnancy sit at a table inside a Planned Parenthood clinic on October 29, 2021 in Fairview Heights, Illinois. Jeff Roberson / AP
Before Roe was repealed, many states had already enacted restrictions on obtaining abortion pills, including a ban on sending pills by mail and not allowing patients to receive medication via a telemedicine appointment. But people found alternative solutions, a practice that is likely to continue. Such actions, such as traveling to neighboring states to secure the drug or sending it to a friend’s house or to a mailbox elsewhere, could carry the risk of criminal charges, again depending on the specifics of the state laws.
There is also concern among abortion rights activists that states banning abortion could go even further and criminalize travel to another state to have an abortion, even though it is a legal frontier not to proven and would probably be tied to the courts.
In his statements, Biden took a hard line on the issue, saying that nothing in the court’s decision prevents a woman living in a state that prohibits abortion from traveling to a state that allows it. Women “must remain free to travel safely to another state to seek the care they need,” she said, adding that her administration “will uphold this fundamental right.” He also noted that doctors in states that continue to allow abortion may offer abortions to women in other jurisdictions.
4. How will this affect the ability of physicians to care?
In many states that prohibit abortion, obstetricians, gynecologists, emergency physicians, and any type of doctor who cares for pregnant people are likely to be targeted by the law and could face criminal charges if they offer nursing services. abortion.
This will have a serious effect on reproductive health care, Dr. Nikki Zite, an obstetrician-gynecologist in Knoxville, Tennessee, recently told KHN. The Tennessee Trigger Act says abortions are only allowed to prevent death or “to prevent a serious risk of substantial and irreversible deterioration of a significant bodily function of the pregnant woman.”
“But exactly how much risk there must be is not clear,” Zite said. “Different doctors practicing in different institutions will have different interpretations of this law.”
There are also gray areas that the law does not address. In some very early pregnancies, the fertilized egg lodges outside the uterus, most often in a fallopian tube, a life-threatening condition called an ectopic pregnancy. If this type of pregnancy continues, the woman may die of blood.
Patients who have a miscarriage also sometimes need to take abortion medications or have a dilation and curettage surgery, known as D&C, to remove the tissue that stays inside the uterus.
“The challenge is that the treatment for an abortion and the treatment for a miscarriage are exactly the same,” Dr. Sarah Prager recently told KHN. Prager is a professor of obstetrics and gynecology at the University of Washington in Seattle and an expert on early pregnancy loss.
Doctors may hesitate to perform D&C to treat miscarriages for fear that someone will accuse them of performing a covert abortion.
“Doctors should not be afraid of being criminalized for caring for patients,” Zite said. “I think there will be a myriad of unintended consequences. I think people will lose their lives. I also think there will be people in a horrible situation …