Zoe L. Tongue, PhD candidate in Durham CELLS (Centre for Ethics and Law in the Life Sciences)
On June 24, in the case of Dobbs v. Jackson Women’s Health (2022), the US Supreme Court overturned the constitutional protection for pre-viability abortion confirmed in Roe v. Wade (1973) and the ‘undue burden’ threshold for restrictions on abortion established in Planned Parenthood v. Casey (1992). Dobbs concerned Mississippi’s Gestational Age Act, which prohibited abortion beyond 15 weeks gestation in contravention of Roe v. Wade’s limitation on pre-viability abortion restrictions. In his majority opinion, which was leaked in early May, Justice Alito rejected the view that the Constitution conferred a right to abortion, overruling Roe and Casey in order to permit individual States to regulate abortion how they wish. Mississippi’s 15-week limit on abortion stands – but Jackson Women’s Health, the State’s last abortion clinic, has now closed and moved to New Mexico after losing the case (Mccullough 2022). In other States, abortion is likely to be almost entirely prohibited. 13 States had ‘trigger laws’ in place, which were to come into effect as soon as Roe was overturned (Guttmacher 2022a). Texas made abortion illegal once the foetal heartbeat is detected (S.B. 8) and Louisiana’s trigger law prohibited abortion except to save the pregnant person’s life (R.S. 40: 1061). The Guttmacher Institute estimated that 26 States in total will quickly move to ban abortion in the aftermath of Roe being overturned (Guttmacher 2021).
There are a number of other States which have laws in place to protect access to abortion either throughout pregnancy or prior to viability (Guttmacher 2022b). Maine, for example, passed legislation in 1993 to affirm the right to an abortion pre-viability (although after this point, abortion is restricted except where it is necessary to preserve the pregnant person’s health or life) (Title 22, §1598). Pregnant people living in States where abortion has been restricted may be forced to travel to one of these States in order to access abortion services, which was already the case prior to Dobbs for those living in States with no or very few abortion clinics (Bearak, Burke, and Jones 2017). Travelling for an abortion is financially and emotionally burdensome, and may simply not be an option for poorer people, adolescents, and those without access to transport. Even for pregnant people financially and physically able to travel for an abortion, this will invariably cause delays and distress. In addition, concerns over the legality of pregnant people accessing abortion services out-of-state is likely to cause further issues. For example, in Montana, which is now bordered by four states with abortion prohibitions, Planned Parenthood will be limiting out-of-state patients from receiving abortion pills (Houghton and Zionts 2022). Accessing abortion services is thus difficult even in States without significant restrictions on abortion.
Perhaps understandably, then, responses to Dobbs have included fears that the US will return to a 1960s-esque era of dangerous ‘backstreet’ abortions with ‘butcher’ doctors and the use of coat hangers as abortion instruments. Rishita Nandagiri (2022) has critiqued the use of this imagery given that we now have access to the abortion medications misoprostol and mifepristone. To move away from notions of unsafe abortion in this context, scholars and abortion activists are increasingly referring to ‘self-managed abortion’ as an alternative and often preferable pathway for safe abortion care (Pizzarossa and Nandagiri 2021). The use of misoprostol, a drug primarily developed to treat gastric ulcers, as an abortion medication was discovered by feminists in Brazil in the 1990’s, where abortion was and still remains prohibited (Costa and Vessey 1993). As this knowledge spread across Latin America, maternal mortality associated with unsafe abortion was reduced (Jelinska and Yanow 2018: 86). The safety of self-managed abortion is further guaranteed where it is supported by feminist collectives and hotlines to provide information on safe abortion practices, stigma-free support, and accompaniment through an abortion (Pizzarossa and Nandagiri 2021).
Of course, there are limitations to self-managed abortion. An abortion by medication is recommended for the early stages of pregnancy (WHO 2022), and Women on Web, an online provider of abortion pills to people living in countries where abortion is illegal or inaccessible, only distributes abortion medication to people who are up to 10 weeks pregnant. For people needing an abortion in the later stages of pregnancy, which involves surgical methods, accessing safe abortion services is significantly harder. In addition, safely self-managing an abortion requires prior knowledge of how to obtain and take the abortion pills, or access to this information via the internet or through a phone line. Unsafe abortion is likely in these contexts; a 2017 study of the barriers to abortion in Michigan and New Mexico highlighted attempts by pregnant people to end their own pregnancies through home remedies or physical trauma, as well as medication (Jerman et al 2017). Further, concerns have been raised over the sharing of misinformation on social media platforms such as Tik Tok, where users have been promoting the use of toxic herbs to self-induce an abortion following the Dobbs decision (Ceron 2022). As abortion is prohibited across more and more States, attempts to self-induce an abortion using unsafe methods are likely to increase – and this increase in unsafe abortion resulting from the Dobbs decision must not be trivialised.
These issues, however, are not new. The US Supreme Court had already whittled away protections for abortion in Casey – the ‘undue burden’ threshold for restrictions led to the passing of Targeted Restrictions on Abortion Providers (TRAP laws) in numerous States, resulting in the closure of many abortion clinics (Greenhouse and Siegel 2016). Prior to Dobbs, pregnant people were already having to travel long distances within and across States, self-manage their abortions, or were left without access to abortion. Michele Goodwin (2020), in her book Policing the Womb, highlights how poor and Black women have been disproportionately affected by restrictions on abortion and are more likely to be targeted by criminal abortion and foetal protection laws. This disproportionate impact will only be exacerbated following Dobbs. More Black women live in the States likely to prohibit abortion than those with protections for abortion (Bose 2022), and a recent study highlighted that existing racialised disparities in maternal mortality rates mean that there would be a 33% increase in pregnancy-related deaths for Black women following a total abortion ban (Stevenson 2021). As Goodwin’s work highlights, the number of Black women criminalised for self-managed abortion is thus also likely to increase.
Reproductive Justice networks and abortion clinics have already been working hard to provide access to pregnant people living significant distances from a provider and to share information on self-managed abortion. Organisations for Reproductive Justice, a framework which was developed to centre the reproductive health needs of Women of Color and people from other marginalised groups (SisterSong), have long been leading efforts to ensure access and work around racialised and class-based barriers. These organisations are now expanding their efforts to help those left without legal access to abortion, and in providing information, access to abortion pills, support (financial and otherwise), will resist this attack on abortion rights. Yet, until abortion is decriminalised and easily accessible to everyone, people capable of becoming pregnant will continue to be hurt by these laws. In addition to travelling for abortion services, unsafe abortion, and criminal punishment, many people will also be forced to continue their unwanted pregnancies to term and parent children in difficult circumstances. As Reproductive Justice collective SisterSong highlights, the right to bodily autonomy, have or not have children, and safely parent one’s children is a human right that must be guaranteed for all; Reproductive Justice activists in countries across the world fight for a future where this is realised.
Note 1 I use the terms ‘pregnant person’ (or ‘pregnant people’) and ‘people capable of becoming pregnant’ in order to be inclusive of the trans men, non-binary, and gender expansive people who also require access to abortion services, in addition to cisgender women.
Note 2 A recent news article followed an 18-year-old who gave birth to twins after being unable to access an abortion, following Texas’ abortion ban post-foetal heartbeat which led to the halting of abortion service provision last September. See Kitchener 2022.
Bearak, Jonathan M., Kristen Lagasse Burke, and Rachel K. Jones (2017) ‘Disparities and change over time in distance women would need to travel to have an abortion in the USA: a spatial analysis.’ The Lancet Public Health, 2(11): E493-E500.
Bose, Nandita (2022) ‘Roe v Wade ruling disproportionately hurts Black women, experts say.’ Reuters, 27 June. https://www.reuters.com/world/us/roe-v-wade-ruling-disproportionately-hurts-black-women-experts-say-2022-06-27/
Ceron, Ella (2022) ‘Deadly Abortion Misinformation Rings Alarm Bells for Doctors.’ Bloomberg, 1 July. https://www.bloomberg.com/news/articles/2022-07-01/deadly-abortion-misinformation-rings-alarm-bells-for-doctors-tiktok
Costa, Sarah H. and Martin P. Vessey (1993) ‘Misoprostol and illegal abortion in Rio de Janeiro, Brazil.’ The Lancet, 241(8855): 1258-1261.
Goodwin, Michele (2020) Policing the Womb. Cambridge: Cambridge University Press.
Greenhouse, Linda and Reva B. Siegel (2016) ‘Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice.’ The Yale Law Journal 125: 1428-1480.
Guttmacher Institute (2021) ’26 States Are Certain or Likely to Ban Abortion Without Roe: Here’s Which Ones and Why.’ 28 October. https://www.guttmacher.org/article/2021/10/26-states-are-certain-or-likely-ban-abortion-without-roe-heres-which-ones-and-why
Guttmacher Institute (2022a) ’13 States Have Abortion Trigger Bans – Here’s What Happens When Roe is Overturned.’ 6 June. https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned
Guttmacher Institute (2022b) ‘Abortion Policy in the Absence of Roe.’ 1 July. https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe
Houghton, Katheryn and Arielle Zionts (2022) ‘Montana clinics preemptively restrict out-of-state patients’ access to abortion pills.’ NPR, 7 July. https://www.npr.org/sections/health-shots/2022/07/07/1110078914/montana-abortion-pills?t=1657536364709
Jelinska, Kinga and Susan Yanow (2018) ‘Putting abortion pills into women’s hands: realizing the full potential of medical abortion.’ Contraception, 97(2): 86-89.
Jerman, Jenna, Lori Frohwirth, Megan L. Kavanaugh, and Nakeisha Blades (2017) ‘Barriers to Abortion Care and Their Consequences For Patients Traveling for Services: Qualitative Findings from Two States.’ Perspectives on Sexual and Reproductive Health, 49(2): 95-102.
Kitchener, Caroline (2022) ‘This Texas teen wanted an abortion. She now has twins.’ The Washington Post, 20 June. https://www.washingtonpost.com/politics/2022/06/20/texas-abortion-law-teen-mom/
Mccullough, Jolie (2022) ‘After losing battle to preserve Roe v. Wade, Mississippi’s last abortion clinic is moving to New Mexico.’ The Texas Tribune, 29 June. https://www.texastribune.org/2022/06/29/mississippi-abortion-new-mexico/amp/
Nandagiri, Rishita (2022) ‘Abortion Safety: No Longer Coat Hangers and Backstreets, but Pills, Hotlines, and Collectives?’ SRHM Blog, 8 July. http://www.srhm.org/news/abortion-safety-no-longer-coat-hangers-and-backstreets-but-pills-hotlines-and-collectives/
Pizzarossa, Lucía Berro and Rishita Nandagiri (2021) ‘Self-managed abortion: a constellation of actors, a cacophony of laws?’ Sexual and Reproductive Health Matters, 29(1): 23-30.
SisterSong ‘What is Reproductive Justice?’ https://www.sistersong.net/reproductive-justice
Stevenson, Amanda Jean (2021) ‘The Pregnancy-Related Mortality Impact of a Total Abortion Ban in the United States: A Research Note on Increased Deaths Due to Remaining Pregnant.’ Demography 58(6): 2019-2028.
Women on Web ‘I need an abortion.’ https://www.womenonweb.org/en/i-need-an-abortion
World Health Organization (2022) ‘Abortion Care Guideline.’ 8 March. https://www.who.int/publications/i/item/9789240039483
Dobbs v. Jackson Women’s Health 597 U.S. ___ (2022)
Planned Parenthood v. Casey 505 U.S. 833 (1992)
Roe v. Wade 410 U.S. 113 (1973)
R.S. 40: 1061 (Louisiana)
S.B. 8 (Texas)
Title 22, §1598 (Maine)