A year in the post-Roe era

A year ago, on June 24th, in Dobbs v. Jackson's Women Health Organization, the Supreme Court of the United States revoked the constitutional right to abortion it had affirmed 49 years earlier in Roe v. Wade. The Court’s ruling in Dobbs made it possible for individual US states to adopt abortion restrictions that would have been unconstitutional under Roe. I don’t like to say the Court “returned” the question of abortion to the states, because it suggests that US states were justified in restricting abortion before the Supreme Court decided Roe in 1973. Fundamental human rights should not be left to the states (or any other jurisdiction) to criminalize or violate them as they please; they should enjoy the protection of the US Constitution. That, a year ago, the Supreme Court stripped tens of millions of people of the fundamental right to control their body and fertility is a travesty, not a return to any kind of norm.

The US Supreme Court on December 1, 2021, the day it heard the arguments in Dobbs, the case that would overturn Roe v Wade

The devastation and harm the Dobbs decision has unleashed are hard to overstate. A year ago, abortion rights activists predicted that over twenty US states could eventually ban abortion for all intents and purposes. I’m angry to report we are well on our way to that disastrous number. In addition to causing unspeakable suffering and anguish to anyone who wants and needs an abortion, these bans have had major repercussions on other aspects of reproductive health, and on health providers.

In the immediate aftermath of Dobbs, thirteen states (Oklahoma, Alabama, Louisiana, Mississippi, Arkansas, Tennessee, Kentucky, Missouri, West Virginia, South Dakota, Idaho, Wisconsin and Georgia) immediately or very quickly banned abortion, either completely or with such severe restrictions as to make it inaccessible. Georgia, for example, now has a six-week abortion ban, which makes it nearly impossible for pregnant persons to access the service. Texas had already banned abortion in 2021, and the Supreme Court, in an infamous 2021 decision that foreshadowed its intentions, refused to block enforcement of that law (known as SB 8) even though Roe was still in force at the time.

Over the following months, Ohio, Wyoming, Utah, Arizona, Indiana and South Carolina followed suit with bans that, for the moment, are blocked by state courts but could ultimately be reinstated. North Dakota’s latest ban (an older one had been blocked by a state court) took effect in April 2023. Florida recently passed a six-week ban that will only come into effect when a court ruling comes down on its other, 15-week ban. North Carolina and Nevada have passed 12-week bans.

This frenzy of restrictive state laws has been hugely damaging and has caused massive confusion as ordinary people try to understand whether or not they can access abortion in their state. In the states where abortion is banned, abortion clinics have closed, and individual providers have stopped or curtailed the services they offer. Surveys by the Society for Family Planning estimate that, in the states that initially banned or severely restricted abortion after Dobbs, about 43,000 fewer abortions took place between July and December 2022, as compared to a year earlier. In the period between July 2022 and March 2023, as more states moved to ban abortion, that figure went up to approximately 94,000 abortions.

Legal abortions in states where abortion is available rose by nearly 70,000 in the same period, signaling that many people in restrictive states successfully obtained an abortion by travelling to another state. But these trips take their toll: from states like Texas, we could be talking about 4,000 km (2500 miles) journeys by car or air to Colorado or New Mexico, with days off work and the costs of childcare, lodging and transportation. More than half of those who obtain an abortion every year in the US live below the poverty line. They can hardly afford these extraordinary expenses.

And what happened to the 24,000 other pregnant persons? Some probably obtained abortion pills directly from non-US sources such as Aid Access, bypassing the statistics, but others were no doubt forced to carry unwanted pregnancies to term. We don’t know yet. What is well known are the consequences of unwanted childbirth. Research by The Turnaway Study has shown that families with an unwanted child suffer long-lasting financial hardship, which is especially harmful to the other children in those families. The poor get poorer.

This huge shift in abortion services from one group of US states to another has particularly impacted certain states where abortion is relatively accessible. Florida (where until the courts rule otherwise, abortions until 15 weeks of pregnancy are available), Illinois and North Carolina—all of whom border the group of restrictive states located in the South and Midwest—have provided most of these additional services. Interestingly, the shift has not been felt particularly acutely in New York or Connecticut, two states that strengthened their laws to protect abortion access in the last year. New Jersey even saw a decrease in the number of abortions reported. I’m curious to understand what is going on.

Shifts in the number of abortions performed between July 2022 and March 2023, the first nine months post-Roe. Florida, Illinois and North Carolina have seen the number of abortions within their borders go up significantly, while other states have been much less affected Credit: FiveThirtyEight

Some of the abortion clinics that have absorbed this additional demand report week-long waits for appointments, pushing clients further into pregnancy and adding costs to the procedures. Many abortion funds (groups that provide financial aid to those who need abortions) are flooded with—often—desperate calls for financial help. The resulting anxiety and chaos are simply awful, both on the patient and health provider side.

But abortion restrictions don’t only affect those who want to end an unwanted pregnancy. Women who experience pregnancy complications when they very much wanted to have a child now find they are denied care that would have been routine before Dobbs. In Texas, several women who had a miscarriage at 17 or 18 weeks of pregnancy were told their non-viable but not yet dead fetus could not be removed from their uterus. In those cases, abortion is only allowed when a woman experiences a “life-threatening physical condition” or “a serious risk of substantial impairment of a major bodily function.” It’s important to understand that, once the membranes (or “water”) break during pregnancy, bacteria can quickly travel up the vagina and infect the uterus and other organs. That is why, in cases of miscarriage, obstetricians normally evacuate the content of the uterus without delay.

Instead, these pregnant Texans were told to go home and wait until they were sick enough to be allowed an abortion. Some of them experienced septicemia, a systemic infection that is a significant cause of maternal death. Fifteen women are now suing Texas for endangering their lives and damaging their health as they faced these medical emergencies.

One of them, 35-year-old Amanda Zurawski, gave harrowing testimony to the US Senate in April 2023 about her near-death experience when she miscarried at 18 weeks: “My healthcare team was anguished as they explained there was nothing they could do because of Texas’ anti-abortion laws, the latest of which had taken effect two days before my waters broke. It meant that even though we would with complete certainty lose Willow [their baby’s name], my doctors didn’t feel safe enough to intervene as long as her heart was beating or until I was sick enough for the ethics board at the hospital to consider my life at risk.”

Amanda Zurawski, 35, testifying before the US Senate in April 2023 about her near-death experience caused by Texas’ anti-abortion laws

Anticipating questions about why she had not then chosen to travel to access abortion care, Zurawski underscored: “We live in the middle of Texas and the nearest sanctuary state is at least an eight-hour drive. Developing sepsis, a condition that can kill in under an hour, in a car in the middle of the West Texas desert, or on an airplane, is a death sentence. And it’s not a choice I should even have had to consider. So all we could do was wait. I cannot adequately put into words the trauma and despair that comes with waiting to lose your own life, your child’s, or both. Would Willow’s heart stop, or would I deteriorate to the brink of death?”

Three days later, Zurawski had her answer: “In a matter of minutes, I went from being physically healthy to developing a raging fever and dangerously low blood pressure. My husband rushed me to the hospital where we soon learned I was in septic shock, made evident by my violently chattering teeth and my incapacity to respond to questions.” Zurawski barely made it after three days in the ICU and is now experiencing further health problems and possible infertility as a result of this barbaric episode. Watch her speak in righteous anger about what it was like to be the first at death’s door in the post-Roe era in Texas, “but certainly not the last.”

Women from Ohio to Oklahoma have reported similar horrific events, with an Oklahoma woman told by health personnel to wait in the parking lot of the hospital until she was “crashing” or her “blood pressure [went] so high that [she was] fixing to have a heart attack.” These stories make me weep with rage. Based on experience in other restrictive contexts, feminists know that exceptions in abortion laws for “life of the woman” put women's lives at grave risk, but we are now seeing this play out in the US in real time, on real women’s bodies.

This wave of US abortion bans criminalizes health providers and those who help pregnant women obtain abortions, rather than the pregnant women themselves—at least for now. Anti-abortion legislators in the US know that imprisoning pregnant women is not a good look. Yet that has never stopped zealot prosecutors from bringing murder charges against women who had a miscarriage—particularly women of color and poor women—if they were also found to have used illegal drugs in pregnancy. So we should expect more prosecutions of women.

Health providers in states that have banned abortion face the threat of substantial fines, the loss of their medical/nursing licenses, or prison time. They now report speaking “in code” to their patients about their options, and feeling trapped between their ethical obligations to provide comprehensive care and the hospital risk committees that must grant them permission to provide any abortion. It’s harrowing and demoralizing.

The repercussions on overall reproductive healthcare have been dire. Medical students are now avoiding obstetrics-gynecology residencies in states that ban abortions. Those who continue with a residency in a restrictive state have to go out of state for training on abortion. To become an ob-gyn under the Accreditation Council for Graduate Medical Education (AGCME), a resident is routinely trained to perform abortion. “You really can’t separate out abortion from obstetrics and gynecology. It is basic essential healthcare,” said Alyssa Colwill, Assistant Professor of obstetrics and gynecology in the Oregon Health & Science University (OHSU) School of Medicine, in a recent Guardian interview. “And if you restrict a portion of it, it means that every other aspect of pregnancy is going to be a higher risk.” In other words, denying or delaying an abortion can cause a patient long-term health complications and even make them unable to become pregnant again or carry a future pregnancy to term.

Since doctors often end up practicing in the states where they trained, this trend is likely to reduce overall access to all ob-gyn care in restrictive states, making healthcare less accessible for everyone. To make matters worse, ob-gyns, primary care physicians, nurses and other health providers are increasingly leaving or refusing to move to restrictive states, and hospitals in states with abortion bans are closing maternity wards because of staffing shortages.

This is going to kill pregnant persons, whether they need an abortion or not. The United States is already the rich country with the worst maternal mortality ratios, and the only rich country where maternal deaths are on the rise. In 2019, there were 20.1 maternal deaths for every 100,000 live births; in 2021, that figure had climbed to 32.9 overall! Maternal deaths of Black women in the US stood at 70 per 100,000 live births in 2021, a catastrophic reflection of racism in US healthcare. By comparison, Canada reported 8.4 maternal deaths for every 100,000 live births in 2021, and Germany 3.6. Making abortions less accessible and forcing pregnant persons to access the procedure later in pregnancy, if at all, will only worsen these dismal statistics. That’s the “pro-life” movement in a nutshell: making healthcare worse for everyone, and especially those who are systemically marginalized.

As discussed in the April 2023 FMUS Newsletter, far-right religious groups have also sought to take abortion pills off the market, and/or to make their sale and distribution illegal. Contrary to their rhetoric, their true concern was never for abortions later in pregnancy, since abortion pills are typically used early in pregnancy. No, they want to end ALL abortions. Never mind that abortion pills are also used for miscarriage and childbirth management, and even for health problems such as gastric ulcers and Cushing syndrome (a hormonal condition unrelated to pregnancy). They don't care.

On a brighter side, some US states have finally responded to feminist activist pressure and have moved, after years of inertia and complacency, to protect access to abortion. Recognizing that their health personnel is providing abortion services and pills to out-of-state patients, fifteen states, including Illinois, California, Colorado, New Mexico, Nevada, New York, New Jersey, Massachusetts and Connecticut, as well as Washington, DC, have enacted an “interstate abortion shield” to protect these providers from lawsuits and extradition requests by restrictive states. Some of these shields (e.g., Massachusetts) even cover providers when they provide abortion pills via telemedicine to patients in other states, no travel required. It’s still a nascent and evolving field and requires a certain degree of bravery on the part of the health providers willing to test this out, but it’s promising.

Linda Prine, MD, 71, one of the brave doctors based in New York State who are openly prescribing abortion pills to patients in restrictive states using telemedicine. She is prepared to lose her medical license if it comes to that. “Doctors like me who are at the end of our careers, we should be the ones to step up.”

Access to abortion and contraception has been strengthened by lawmakers from New York to Michigan, and eleven state governors have signed executive orders to protect abortion access. It’s heartening to finally see so much explicit, unapologetic commitment. We wish it had come much sooner, but we'll take it!

Lawsuits by progressive groups have also resulted in a number of state courts recognizing that the right to privacy or liberty listed in their state Constitutions protects the right to abortion. These include courts in conservative, Republican-majority states or “purple states” (states that swing between Republicans and Democrats) such as Florida, Kansas and South Carolina. These decisions have made it possible to challenge the successive abortion bans passed by state lawmakers. It's a constant but not hopeless battle.

Meanwhile, ballot measures or referenda in the last two years have all reaffirmed the public’s support for abortion rights in states as varied as Kentucky, Montana, California, Kansas, Vermont and Michigan; unsurprisingly, Republican lawmakers are now trying to make it harder to pass ballot measures. If you can't beat 'em, cheat 'em!

Abortion funds continue to help as many people as they can with expenses and logistics. If you want to contribute, check out the National Network of Abortion Funds. I also admire and donate to Whole Woman’s Health, which has abortion clinics in New Mexico, Illinois, Virginia and Minnesota ( i.e., close to restrictive states). And if Democrats take back the full US Congress, they could pass the Women’s Health Protection Act to once again protect abortion rights across the country. So, be sure to vote! Every seat, at all levels, counts.

One year in, what I can say is that, despite and because of this litany of horrors, we, feminists working in the US, will never give up on the basic dignity and control of everyone's bodies. We are committed to abortion justice, not simply the freedom to choose; we refuse to abandon those most in need, as US community organizers and authors Kelly Hayes and Mariame Kaba instruct us to.

In solidarity and radical hope rather than despair,