Codify Abortion Rights and Access by Way of State Legislatures

On June 24, 2022, the US Supreme Court overturned Roe v Wade. The ruling in Dobbs v Jackson Women’s Health Organization (Dobbs) essentially left decisions on the legality and accessibility of abortion care in the United States to state legislatures. Furthermore, the holding left to the discretion of states the permissibility of terminating an unintended pregnancy in instances of rape or incest.¹

Although Roe v Wade was often lauded as having legalized abortion, disparities based on race and socioeconomic status have been prevalent since it was passed in 1973. Shortly after the ruling, in 1977, antichoice senator Henry J. Hyde (R, IL) proposed that no federal funds go toward supporting abortion access. The Hyde Amendment barred the use of federal Medicaid funds for abortion except when the life of the person would be endangered by carrying the pregnancy to term. This began the long fight to upend abortion access.

Ironically, states that criminalize and surveil abortion the most stringently, primarily the most religious states, are among the worst states for maternal and infant health outcomes²; they often fail to implement adequate and sustainable Medicaid and children’s health insurance programs to support the births that have been forced on the pregnant people of these states. People of color, especially Black women, have been disparately affected by this rollback of bodily autonomy couched in the notion of care and concern for the unborn.

CONSEQUENCES

Strains on abortion care facilities were seen almost immediately in states that abut states with some of the most restrictive abortion laws. An influx of women seeking services from neighboring communities increased wait times and put additional pressure on services that were often already sparse. Heartbeat laws, which prohibit an abortion after cardiac activity is detected (which anti-abortion advocates describe as a heartbeat), have complicated medical care, as doctors now hesitate to provide care that was at one time routine and at their medical discretion.

Representative Neal Collins (R, SC), during a public hearing on legislation to ban most abortions, decided not to vote.³ His concern was prompted by the case of a 19-year-old woman who was 15 weeks pregnant when her water broke. A doctor could not legally extract the fetus because South Carolina had enacted the Fetal Heartbeat Bill (which Representative Collins had voted for). Representative Collins was worried because the doctor told him the young woman had a “50 percent chance of losing her uterus, and there was a 10 percent chance she would develop sepsis and die.”³

The ramifications of abortion restrictions are particularly problematic in the South, where many states with the most restrictive laws are located and border each other. These facts make it difficult to obtain abortion care because an individual has to travel through more than one state to reach a medical facility. This is particularly a hardship for Black women, as 56% of Black people live in the South.⁴ Furthermore, Black women are disparately affected by wage and economic inequality, which impedes access to child care, transportation, leave from work, and out-of-town accommodations. Discussions about self-managed abortions have become more prevalent and are a realistic option when reproductive rights have been inhibited.

Financial constraints account for most decisions to terminate a pregnancy.⁵ In an amicus brief filed on behalf of the respondents in Dobbs, 154 economists said, “A substantial body of well-developed and credible research” shows that abortion legalization and access has had a significant impact on women’s educational attainment and wages, “with impacts most strongly felt by Black women.”⁶ Restrictions on bodily autonomy subjugate women and solidify them as a permanent economic underclass. Although this may align with the religious sensibilities of those in power in our country, it does not support the desires of women to be full citizens experiencing full bodily autonomy.

The legal inconsistencies from making abortion a state issue have made it more cumbersome to educate constituents on accessibility options. Navigating this rollback of individual rights requires advocates to simultaneously know about developing solutions that are actionable, such as the creation of mobile abortion clinics on state borders and fundraising for abortions services; facilitate outreach; and demand statutes that are auxiliaries to abortion, such as telemedicine options (which are particularly beneficial in rural communities), and the revocation of laws that encourage medical surveillance and mandates for physicians to report legally obtained abortions.

STRATEGIES TO PROTECT WOMEN AND CHILDREN

On January 5, 2023, the South Carolina Supreme Court held that the state constitution provides the right to privacy, which includes the right to obtain an abortion.⁴ There have been approximately 19 lawsuits that have been filed in other states to codify the right to abortion care. Given this intrusion and revocation of rights, the most optimal strategic plan is for state legislatures to codify abortion rights and access. The laws’ language should be clear and concise to ensure that it is interpreted to protect bodily autonomy without overreach and interruption from the government. Concurrently, stakeholders should continue to work toward policies that support access to the full range of reproductive care for all people with the capacity to become pregnant, including broadband accessibility; workplace protections for leave, pay equity, and suitable medical benefits; and regulations that support equitable maternal health and education.