5 Issues to Know Now That the Supreme Courtroom Has Overturned Roe v. Wade
The Supreme Court’s decision in Dobbs v. Jackson Health dramatically and rapidly alters the landscape of abortion access in the U.S. The court on June 24 ruled 6-3 to uphold a Mississippi law that would ban abortion after 15 weeks of pregnancy, but also to overturn the nearly half-century precedent set in Roe v. Wade that guaranteed the constitutional right to an abortion. With the Dobbs decision, states have the ability to set their own restrictions, so where people live will determine their level of access to abortion.
The majority opinion, written by Justice Samuel Alito, stated that “the Constitution does not confer a right to abortion; Roe and Casey [Planned Parenthood v. Casey, 1992] are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
Almost immediately after the decision was released, protests and celebrations outside the court and across the country began — highlighting the patchwork of laws and restrictions that now will take effect. State officials from conservative states said they would move quickly to restrict abortion, while in other states, some officials pledged to keep the right to access.
Here are five key points that will affect access to abortion.
1. Where is abortion still legal?
The Supreme Court ruling means access to abortion will, very shortly, be highly uneven.
Sixteen states plus the District of Columbia have laws that protect the right to abortion. In two other states, courts have ruled that the state constitution establishes that right. Those states are concentrated on the East and West coasts.
On the other end of the spectrum, 13 states have “trigger” laws that would quickly ban nearly all abortions, and at least a half-dozen moved Friday to implement them, including Arkansas, Kentucky, Missouri, and South Dakota. Four more have pre-Roe bans that would again be in effect. Three other states have laws on the books that will ban abortion after about six weeks of pregnancy.
Access to abortion is likely to evolve in other states, too. Kansas and Montana, which are among the states that have abortion rights enshrined in their constitutions, could see rollbacks in those protections due to various efforts by state lawmakers or through ballot measures. In at least eight states, the right to abortion isn’t explicitly protected or prohibited by state law.
And in Michigan, a 1931 state law bans nearly all abortions, but its enforcement was temporarily suspended by a May court decision. 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 Supreme Court’s 1973 Roe decision, people seeking abortion care will also be subject to a variety of restrictions even in states where the procedure is still legal. They include gestational limits outlining the maximum point in pregnancy that someone can obtain an abortion, requirements that patients receive counseling beforehand, waiting periods, and parental notification rules for minors.
2. What can the Biden administration do?
President Joe Biden has said his administration is looking into executive actions to counteract the impact of the ruling. In remarks after the decision, Biden said that it was a “sad day” and that, without Roe, “the health and life of women in this nation is now at risk.”
But in short, without a new law from Congress, he has limited options.
Supporters of abortion rights and Democratic lawmakers in Congress have pushed the administration to make it easier for women to obtain medication abortion, which is available up to 10 weeks of pregnancy and involves taking two pills, assessing whether services could be provided on federal property even in states that ban the procedure, and bolstering digital privacy to protect patients.
Medication abortion has become an increasingly large share of total abortions provided in the U.S. According to the Guttmacher Institute, a research organization that supports abortion rights, the pills accounted for more than half of all abortions in 2020, the first year medication provided the majority.
Under the Biden administration, the Food and Drug Administration has already lifted one major restriction. Now, patients can receive mifepristone, the first drug used in the series, by mail. Mary Ziegler, a professor at the University of California at Davis School of Law and an abortion legal historian, said that, even as conservative states move to curtail access to medication abortion, the Biden administration could argue that the FDA’s rules and guidelines on mifepristone preempt any state laws that criminalize that method. Attorney General Merrick Garland took this position in a statement he released shortly after the decision was announced: “The FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” Biden reinforced that message in his remarks.
In comments before the justices’ decision was announced, Zeigler said arguing this position is “the biggest thing they could do.” Still, the FDA approach is uncertain, both legally and because a future Republican administration could easily reverse any action that Biden officials take. “If it worked it wouldn’t be permanent, and it may not work,” she added. The Biden administration could also expand the number of pharmacies that can dispense the medication.
3. Will people in states where abortion is illegal be able to access medication abortion?
For now, as a result of the Dobbs decision, states that ban abortions are likely to set limitations or bans on abortion pills as well. But some advocates note that people in those states still may be able to obtain abortion pills and perform a “self-managed” abortion at home, which carries some additional risk if the woman has a complication (though complications are very rare). And abortion pills will still be accessible in states where abortion is allowed.
Before Roe was overturned, many states had already enacted restrictions on obtaining abortion pills, including prohibiting the pills from being sent through the mail and not allowing patients to be prescribed the medication via a telemedicine appointment. But people found workarounds — a practice that’s likely to continue. These actions — such as traveling to neighboring states to secure the medication or having it sent to a friend’s house or a post office box in another location — could carry the risk of criminal charges, again depending on the specifics of state laws.
There is also concern among abortion rights activists that the states that outlaw abortion could go even further and criminalize traveling to another state to get an abortion, though this is an untested legal frontier and likely would be tied up in courts.
In his remarks, Biden took a hard-line stance on this question, saying that nothing in the court’s decision prevents a woman who lives in a state that bans 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,” he said, adding that his administration “will defend that bedrock right.” He also noted that doctors in the states that continue to allow abortions can provide abortions to women from other jurisdictions.
4. How will this affect doctors’ ability to provide care?
In many states that ban abortions, obstetricians, gynecologists, emergency room doctors, and any type of physician that takes care of pregnant people will likely be targeted by law and could face criminal charges if they provide abortion services.
This will have a severe effect on reproductive health care, Dr. Nikki Zite, an OB-GYN in Knoxville, Tenn., recently told KHN. Tennessee’s trigger law says abortions are permissible only to prevent a death or “to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”
“But exactly how much risk there needs to be is not clear,” Zite said. “Different physicians practicing at different institutions will have different interpretations of that law.”
There are also gray areas the law doesn’t address. In some very early pregnancies, the fertilized egg lodges outside the uterus — most commonly in a fallopian tube — a potentially life-threatening situation called an ectopic pregnancy. If that type of pregnancy proceeds, the woman can bleed to death.
“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&Cs to treat miscarriages for fear someone will accuse them of performing a covert abortion.
“Physicians shouldn’t be fearful for being criminalized for taking care of patients,” said Zite. “I think there’s going to be a myriad of unintended consequences. I think that people will lose their lives. I also think there will be people in horrible situations, like those that strongly desire to be pregnant but have a complication of the pregnancy, that will not be able to make decisions on how that pregnancy ends, and that will be a different kind of devastation.”
5. Could this ruling affect more than just abortion?
Absolutely, according to reproductive health experts. Depending on what is determined to be an “abortion,” states could end up criminalizing — on purpose or by accident — in vitro fertilization and certain forms of birth control, and limiting the training and availability of doctors and other health care providers.
At stake is what is determined to be an abortion. Medically, abortion is the early termination of a pregnancy, by natural means — spontaneous abortion, or miscarriage — or by human intervention with medication or a surgical procedure. But when does a pregnancy begin? Doctors say pregnancy begins when a fertilized egg implants in a woman’s uterus. But many anti-abortion activists say it begins when a sperm and egg unite to form a zygote, which can happen several days earlier. That earlier time frame would mean that anything that interferes with the implantation of that fertilized egg, such as an IUD (intrauterine device), a common form of birth control, could be defined as an abortion. Similarly, in vitro fertilization, which involves removing a woman’s eggs, fertilizing them, and then implanting them back into the woman, could also be construed to involve abortion unless every fertilized egg was implanted.
An opinion by Justice Clarence Thomas that concurred with the decision to overturn Roe raised other questions. He suggested that the court could use the same arguments in the Dobbs case to overturn other key rulings, including those that established the rights to birth control and same-sex marriage. It was not clear that the other justices agreed, and Justice Samuel Alito, who wrote the main opinion, said he did not believe the abortion decision affected other issues.
The American Association of Pro-Life Obstetricians & Gynecologists applauded the decision, terming it “momentous.” But others worry that the ruling could have a negative impact on women’s access to care in places that have or enact strict abortion laws. Specifically, doctors and other health professionals may not want to train or practice in areas where they could be prosecuted for delivering medical care.
And this is not just theoretical. In Texas, where abortion after six weeks’ gestation has been effectively banned since September, according to a report in The New England Journal of Medicine, the law “has taken a toll on clinicians’ mental health; some physicians report feeling like ‘worse doctors,’ and some are leaving the state. As a result, clinicians worry that pregnant Texans are being left without options for care and without doctors capable of providing it.”