Dobbs, v. Jackson Women’s Health Organization is a dramatic and rapid change in the U.S. abortion access landscape. On June 24, the court ruled 6-3 in favor of a Mississippi law banning abortion after 15 weeks. It also overturned the almost 50-year-old precedent established by Roe v. Wade, which guaranteed the constitutional right for abortion. The Dobbs decision gives states the power to set their own restrictions. This means that people will be able to access abortion regardless of where they live.
Justice Samuel Alito wrote the majority opinion. He stated that the Constitution did not grant a right to abort, Roe [Planned Parenthood, v. Casey], 1992] were overruled, and the power to regulate abortion is given back to the people and their elected officials.
Protests and celebrations began almost immediately after the decision was made. They highlighted the multitude of laws and restrictions that will now be in effect. Officials from conservative states pledged that they would quickly restrict abortion while officials in other states promised to preserve the right to access.
These are five important points that will impact access to abortion.
Supreme Court’s ruling will mean that access to abortion will be very uneven in the near future.
16 states and the District of Columbia have laws protecting the right to choose. Two other states have courts that have ruled that the state constitution provides that right. These states are concentrated along the East and West coasts.
At the opposite end of the spectrum are 13 states with “trigger” laws which would ban almost all abortions. At least half-dozen people moved Friday to implement them. These include Arkansas, Kentucky and Missouri. Four other states have pre-Roe laws that would be reinstated. The laws of three other states prohibit abortion after six weeks of gestation.
Other states are likely to see changes in access to abortion. Kansas and Montana are two states that have courts ruled that state constitutions guarantee the right to abortion. A ballot measure in Kansas could rollback those protections, as well as a challenge by the Montana attorney General. At least eight states don’t explicitly protect or prohibit abortion.
Michigan’s 1931 state law prohibits almost all abortions. However, it was temporarily suspended in May by a court decision. Michigan Attorney General Dana Nessel (a Democrat) has stated that she will not enforce this law. However, questions remain as to whether that would be true for local prosecutors.
People seeking abortion care, as was the case prior to the Supreme Court’s 1973 Roe decision will be subject to various restrictions in states that allow the procedure. These restrictions include the following: gestational limits that define when an abortion can be performed, counseling requirements, waiting periods, parental notification rules, and waiting periods.
Biden, President of the United States, has stated that his administration is investigating executive actions to mitigate the effects of the ruling. Biden stated that the decision was a “sad” day and that Roe would have put “the health and lives of women in this country at risk.”
He is limited to his options if he doesn’t have a new law from Congress.
Democratic legislators in Congress and supporters of abortion rights have pressured the administration to make it easier to obtain medication abortion. This is possible up to 10 weeks after the pregnancy. It involves two pills and includes assessing whether federal property could be used to provide services even in states that prohibit the procedure.
The U.S. has seen an increasing number of medication abortions. The Guttmacher Institute, an organization that supports abortion rights, reports that pills accounted more than half of all abortions performed in 2020. This was the second year of medication.
One restriction has been lifted by the Food and Drug Administration under the Biden administration. Patients can now receive mifepristone by mail, which is the first drug in the series. Mary Ziegler, an abortion legal historian and professor at the University of California at Davis School of Law, stated that even though conservative states are trying to restrict access to abortion medication, the Biden administration could claim that the FDA’s guidelines and rules on mifepristone override any state laws. In a statement released shortly after the announcement, Attorney General Merrick Garland stated that the FDA had approved Mifepristone’s use. Mifepristone may not be banned by states if they disagree with the FDA’s expert judgement about its safety or efficacy. In his remarks, Biden reiterated that message.
Zeigler stated that arguing for this position was “the greatest thing they could do” in comments made before the decision by the justices. The FDA approach is still uncertain legally, and because any future Republican administration could easily reverse any actions taken by Biden officials, it remains insecure. She added that “if it worked, it wouldn’t last forever and it could fail.” Biden’s administration could expand the number pharmacies that can dispense the medication.
As a result, the Dobbs decision means that states that ban abortions will likely place restrictions or bans on abortion pill use. Advocates note that those in these states may still be able to get abortion pills and do a “self-managed abortion at home”, which can carry some risk if the woman suffers from a complication. However, complications are rare. Abortion pills will still be available in those states that allow abortion.
Many states had already put restrictions in place to prevent abortion pills being sent by mail. They also prohibited patients from receiving the medication via telemedicine appointments. People found ways to work around the restrictions, a practice that is likely to continue. These actions, such as sending medication to friends or to neighboring states in order to get it or having it delivered to their house or to another postal address, could lead to criminal charges depending on state laws.
Abortion rights activists are also concerned that states that outlaw abortion might go further and criminalize travel to another state for an abortion. However, this is a new legal frontier that is unlikely to be ruled out by the courts.
Biden’s remarks were a tough stance on the question. He stated that nothing in the court decision prevented a woman living in a state that prohibits abortion from travelling to a state which allows it. Biden stated that women “must be able to travel safely to another country to receive the care they require,” and that his administration would “protect that fundamental right.” He noted that abortion can be provided to women by doctors in states that allow it.
Many states ban abortions. Obstetricians, Gynecologists, Emergency Room Doctors and any other type of doctor who cares for pregnant women will be subject to criminal prosecution if they offer abortion services.
KHN recently heard Dr. Nikki Zite from Knoxville, Tenn., that this will have a serious effect on reproductive health care. Tennessee’s trigger law states that abortions are only permissible to prevent death or “to avoid serious risk of substantial, irreversible impairments of a major bodily function” of the pregnant woman.
Zite stated that it was not clear how much risk is needed. Different physicians will interpret the law differently at different institutions.
There are gray areas that the law does not address. Some pregnancies are so early that the fertilized egg can lodge outside the uterus, most often in a fallopian tube. This is known as an ectopic pregnancy. The woman could die if this type of pregnancy continues.
A miscarriage can also require patients to be on abortion medication or undergo dilation and curettage surgery (also known as D&C) to remove any tissue left in the uterus.
KHN was recently informed by Dr. Sarah Prager that there is no difference between the treatment of an abortion and a miscarriage. Prager is an expert in early pregnancy loss and professor of obstetrics at the University of Washington.
For miscarriages, doctors may be reluctant to perform D&Cs for fear of being accused of performing an abortion covertly.
Zite stated that doctors shouldn’t be afraid of being charged with taking care patients. “I believe there will be many unintended consequences. People will die. People in terrible situations like those who want to get pregnant, but are unable to do so due to complications, will also be affected. This will cause a lot of destruction.
Reproductive health experts say that it is possible. State could criminalize in vitro fertilization or other forms of birth control depending on the definition of “abortion”. This could lead to the limitation of training and availability for doctors.
What is deemed to be an abortion is at stake. Abortion is medically defined as the termination of a pregnancy before it occurs. It can be done by natural means, such as spontaneous or induced abortions, or by human intervention using medication or other invasive procedures. When does a pregnancy start? According to doctors, pregnancy starts when fertilized eggs implant in the uterus of a woman. Many anti-abortion activists believe it starts when a fertilized egg and sperm combine to form a embryo. This can occur several days before. This would indicate that any device that is believed to interfere with the implantation (e.g. an intrauterine device) could be considered an abortion. In vitro fertilization is also a method of removing eggs from a woman and fertilizing them. Then again, not every fertilized egg has been implanted.
Justice Clarence Thomas’ opinion, which concurred in Roe’s decision to reverse it, raised questions. He suggested that the court could use similar arguments in the Dobbs Case to overturn key rulings such as those that established rights to birth control or same-sex marriage. Justice Samuel Alito, the main opinion writer, stated that he didn’t believe the abortion decision had any effect on other issues.
American Association of Pro-Life Obstetricians & Gynecologists praised the decision and called it “momentous.” Others worry that the decision could impact women’s access and care in areas that have strict abortion laws. Doctors and other health professionals might not want to practice or train in areas where they may be charged with providing medical care.
This is more than a theoretical idea. According to The New England Journal of Medicine report, Texas has banned abortion after six weeks of gestation since September. Some doctors feel worse and are leaving Texas. Clinicians worry that pregnant Texans will be left without care options and doctors who can provide it.
Editor’s Note: This story was updated to clarify that the state attorney general is challenging Montana’s constitutional protection against abortion. Not lawmakers. It has also been updated to clarify the mention of an IUD’s impact on pregnancy.
KHN (Kaiser Health News), a national newsroom, produces in-depth journalism on health issues. KHN, along with Policy Analysis and Polling are the three main operating programs of KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization that provides information to the nation on health issues.