This year, MedPage Today reported on the state of abortion rights following the Supreme Court’s decision to overturn Roe v. Wade, covering the fluctuation of state restrictions, legal ramifications for abortion providers, and impacts on abortion access. In this report, we follow up on the impact abortion restrictions have had and what to expect in the coming year.
On June 24, the Supreme Court overturned the federal right to abortion in Dobbs v. Jackson Women’s Health Organization, reversing the landmark decision of Roe v. Wade that protected abortion rights in the U.S. for nearly 50 years.
Since Dobbs, abortion access in the U.S. has been a scattershot landscape, full of varying state-by-state regulations, bans, and penalties. Nearly a third of states have already prohibited most abortions since the decision, but experts said new restrictions, and new court battles, are on the docket for 2023.
Now, 6 months after the Dobbs decision, a dozen states have near-total abortion bans on the books, according to a Guttmacher Institute report: Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia. The majority of these states passed trigger laws that took effect as soon as Roe was overturned.
Abortion services have become virtually unavailable in North Dakota and Wisconsin. North Dakota has a trigger ban that is not yet in effect due to pending litigation, but the state’s only abortion clinic relocated to Minnesota because of the legal ambiguity. Clinics in Wisconsin have stopped providing abortions because it’s unclear whether its pre-Roe ban went into effect when the Dobbs decision was finalized.
Three states — Georgia, Ohio, and South Carolina — have imposed 6-week gestational age bans, making abortion nearly inaccessible.
The constant legal turmoil associated with abortion restrictions has created a complicated legal landscape. As of mid-December, 19 states have legal challenges against near-total and gestational-age bans, the Guttmacher report stated.
“It’s just created a lot of confusion and havoc for patients, and for people who provide care,” said Daniel Grossman, MD, director of the Advancing New Standards in Reproductive Health program at the University of California San Francisco. “It’s also created confusion for clinicians about what they can and can’t say, and how much they can potentially help patients who are seeking abortion care.”
According to the Guttmacher report, in the 14 states where abortion is virtually banned, 17.8 million reproductive-age women have lost access to the procedure.
In the 2 months following the Dobbs decision, there were 10,600 fewer abortions in the U.S., according to the #WeCount initiative of the Society of Family Planning. The number of patients who have to travel more than an hour to obtain an abortion has also doubled since the Supreme Court ruling, a 2022 study found.
Notable Provider Penalties
Following the Dobbs decision, doctors faced unprecedented legal risks — and penalties — due to continually fluctuating laws around abortion. For instance, clinicians in states with a ban must wrangle with questions about what constituted a medical emergency that permitted abortion, and whether they could counsel patients on self-managed methods.
Some physicians have already contended with direct legal action. Caitlin Bernard, MD, an Indiana ob/gyn, made headlines when she performed an abortion after 6 weeks on a 10-year-old girl from Ohio who became pregnant after she was raped.
Although abortion is still legal in Indiana, Attorney General Todd Rokita issued an investigation against Bernard, probing whether or not she appropriately reported the abortion and child abuse. Bernard and her medical partner responded by suing the attorney general, stating that he launched “over-broad” investigations into physicians who provide abortion care.
A judge denied Bernard’s request for an emergency motion earlier this month, and the physician subsequently dropped her lawsuit against Rokita.
More Battles To Come
Post-Dobbs decision, the Biden administration issued executive orders aimed at preserving access to reproductive healthcare. The administration directed federal agencies to push back on abortion restrictions, and protect the right of patients living in ban states to travel across state lines to access abortion care.
Biden’s executive orders also called for increased access to contraceptives, expanded protection of medication abortion, and development of public information campaigns to ensure people seeking reproductive health services had access to accurate information about how to find care.
But it’s not enough, according to reproductive health advocates who have urged the government to protect abortion under federal law. Biden has pressed Congress to pass a law codifying the right to abortion, and even promised to do so if the Democrats won the House and the Senate in the midterms. However, Democrats did not obtain enough votes to pass this legislation in the House.
The feds have also supported relaxing FDA restrictions on mifepristone (Mifeprex) — one of the drugs used for medication abortion — even more and allow it to be dispensed in brick-and-mortar pharmacies versus only via pharmacies with special certification. The FDA has yet to lift all of the protocols on mifepristone, but more action is expected in the coming year.
In the meantime, the battle rages on. “We’re anticipating state legislatures to continue to adopt bans and restrictions, but we’re not entirely sure what the restrictions will look like,” said Elizabeth Nash, JD, principal policy associate of state issues at the Guttmacher Institute.
Nash told MedPage Today that she expects states to attempt to limit access to abortion through pathways such as expanding refusal clauses, targeting online abortion pill providers, or placing bans on mailing abortion medications.
Additionally, abortion opponents may back legislation that targets abortion funds, which have attempted to provide financial assistance to patients who must travel to obtain care, she noted.
“There’s going to be a lot happening in 2023,” Nash said. “It’s abortion, it’s contraception, it’s pregnancy care, it’s going to be a lot.”