by Elizabeth Nash, NEJM
This year, 2019, has become a critical time for abortion rights, with an unprecedented surge of abortion bans sweeping across the United States. Through June 1, some 26 abortion bans have been enacted in 12 states, and many more have been introduced by state legislators.
Yet state efforts to undermine abortion rights and access have been under way since the 1973 decisions in Roe v. Wade and Doe v. Bolton affirmed the constitutional right to abortion. During that time, the U.S. Supreme Court has repeatedly affirmed the right to abortion while also modifying the legal framework that shapes access to care. The Court has held that a state cannot ban abortion outright before fetal viability, and if restrictions are placed on postviability abortion, there must be exceptions to protect the patient’s life and health.1 Most recently, the Court upheld these principles in the 2016 decision in Whole Woman’s Health v. Hellerstedt, which also clarified that when considering the constitutionality of abortion restrictions, courts must examine the evidence and balance any alleged benefits of a given restriction against the real-world burdens it imposes.
Despite this constitutional right to abortion, states have enacted more than 1200 abortion restrictions in the past 46 years.2 Although some of these have been struck down by the courts, the vast majority are in effect and require patients and providers to navigate a byzantine patchwork of laws, regulations, and court decisions. Nearly every state has at least one abortion restriction. States have limited the portion of a pregnancy during which an abortion can be provided, restricted both public and private insurance coverage of abortion, required the provision of inaccurate and misleading information as part of abortion counseling, mandated waiting periods before a pregnant person obtains an abortion, and required abortion clinics to meet intentionally burdensome and unnecessary standards for their physical facilities, equipment, and staffing. And because these regulations vary from state to state and region to region, access looks very different if you live in the South or the West, in North Dakota or Massachusetts.
Moreover, many people confronting this patchwork of abortion laws and restrictions live in states where family-planning services are not fully accessible. States such as Arizona, Indiana, Texas, and Wisconsin have cut funding for family-planning services and limited the organizations that can receive such funds. And throughout the country, crisis pregnancy centers are providing misleading and false information about abortion as they attempt to steer people toward continuing their pregnancies.
State Policies Regarding Abortion Rights.
Currently, there are 64 million women of reproductive age (15 to 44 years) in the United States. Of these, 43% (29 million) live in states with a high number of abortion restrictions — so restrictive that the Guttmacher Institute (where I work) classifies them as hostile or very hostile to abortion rights (see map).3 In contrast, only 22% of women of reproductive age (15 million) live in states considered supportive or very supportive of abortion rights. Moreover, access to abortion varies within states, since clinics are more often found in cities, and people in rural areas may have to travel long distances to obtain care.
Financial and logistic hurdles add another layer of difficulty on top of the legal and geographic ones: for example, a typical abortion at 10 weeks of gestation costs about $500, and — for various reasons, including lack of public or private insurance coverage for abortion and concerns about confidentiality — most people pay out of pocket for their care. In addition, patients face the extra burdens and costs of taking time away from work, arranging for child care (60% of patients undergoing abortion are parents), and traveling to service sites.4 All these burdens may be greater for people with low incomes, people of color, and young people.
Until recently, opponents of abortion rights usually pursued restrictions designed to make it difficult to obtain an abortion and to keep clinic doors open, rather than instigating litigation that would directly challenge Roe v. Wade. With the October 2018 confirmation of Justice Brett Kavanaugh, however, the Supreme Court moved further to the right and is now generally regarded as hostile to abortion rights. As a result, in 2019, conservative state legislators have ramped up efforts that directly challenge Roe, including passing total and near-total abortion bans intended to give the Court the opportunity to overturn or at least drastically undermine abortion rights.
An unprecedented number of unconstitutional abortion bans based on gestational age have been signed into law this year, including a ban on all abortions in Alabama and bans at 6 weeks of gestation in Louisiana, Georgia, Kentucky, Mississippi, and Ohio; at 8 weeks in Missouri; and at 18 weeks in Arkansas and Utah. None of these bans are currently in effect; courts have prevented some from taking effect, and legal challenges are expected for the others before they are scheduled to take effect. Additional bans on specific abortion methods (such as dilation and evacuation, the primary method of abortion used after 14 weeks) or abortions performed for certain reasons (such as the sex of the fetus or a genetic anomaly) were enacted in Arkansas, Indiana, Kentucky, Missouri, and Utah. And trigger laws (which would ban abortion in the event that Roe is overturned) have been enacted in Arkansas, Kentucky, Missouri, and Tennessee. In total, 32 states had introduced some type of abortion ban in the first 5 months of 2019.
Despite all these efforts, however, abortion currently remains legal in all 50 states. And a few states have taken action this year to protect abortion rights going forward. Most notably, Illinois enacted a law in June that protects abortion rights as well as the right to pregnancy care, contraception, and sterilization. In January, New York enacted a law protecting the right to abortion up to the point of fetal viability and at any time during pregnancy if the patient’s life or health is at risk. Vermont’s legislature enacted similar legislation that protects abortion rights as well as the right to obtain or decline sterilization or contraception; there is also an effort to enshrine these rights in the Vermont Constitution. In June, Maine enacted legislation that will require Medicaid and private health plans to cover abortion services and allow physician assistants and advance practice nurses to provide abortion care. Nevada enacted a new law at the end of May that repeals the state’s criminal abortion law. These efforts are in line with trends throughout the world. In the past 2 years, Ireland, Chile, and South Korea have all legalized abortion. And they are not alone: between 2000 and 2017, a total of 27 countries broadened legal access to abortion. The United States is clearly moving backward.
Ultimately, the way all these efforts play out will have dramatic effects on patients and patient care. In keeping with some of the core values that undergird medical care — beneficence, justice, respect for autonomy — clinicians have a role to play in ensuring that their patients have the information they need in order to obtain comprehensive reproductive health care, including abortion.5
If abortion opponents succeed in undermining or overturning Roe, we will see a further geographic divide in access along the country’s political fault lines. Many states, primarily in the South, the Midwest, and the Plains, will continue to restrict abortion access, and other states, primarily in the West and the Northeast, will continue to expand and protect it. But the impact will be felt throughout the country, as people in restrictive states seek services in other states or regions — or find themselves unable to get the abortion they need. By stepping in, medical professionals can mitigate the harm.
As I see it, believing in your patients’ rights to maintain their bodily autonomy and dignity and to determine their own lives and futures requires supporting the right to abortion. Clinicians’ support is essential if pregnant people are to have access to the care they need when they need it.
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