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One year after Roe v Wade fell, anti-abortion laws threaten millions. The battle for access is far from over

The future of abortion care in America hinges on a radically reshaped political and legal landscape one year after the Supreme Court revoked a constitutional right, Alex Woodward reports

Friday 23 June 2023 16:06 BST
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Abortion rights supporters demonstrate outside the US Supreme Court in April 2023.
Abortion rights supporters demonstrate outside the US Supreme Court in April 2023. (AFP via Getty Images)

On 24 June, 2022, for the first time in half a century, abortion access in America was no longer a constitutional guarantee.

A decision from the US Supreme Court’s conservative majority – in a case involving a Mississippi clinic, the state’s anti-abortion policymakers, and a right-wing legal campaign that has spent years working towards its goal to end legal abortion in America – overturned a ruling in Roe v Wade, the 1973 case that defined the battle for abortion rights in the decades that followed.

The decision in Dobbs v Jackson Women’s Health Organization revoked a constitutional right to abortion care that was affirmed 50 years earlier, sparking a wave of anti-abortion laws in more than a dozen states impacting millions of Americans, and exposing the dangerous legal and medical minefields that health providers and their patients must navigate.

It has also opened new legal challenges, ones that could once again reshape the future of abortion access in America, while anti-abortion lawmakers and Republican candidates face a public that is overwhelmingly against their vision for political control of its bodies and healthcare.

In interviews with The Independent over the last year, abortion rights advocates, legal experts and providers have warned how abortion bans imperil pregnant patients thrust into new legally confusing critical medical decisions, while championing the battles for abortion rights to come.

Thousands of abortion rights advocates and their elected officials are mobilising across the country to mark the anniversary of the decision and to renew support for abortion rights nationwide.

“The politics around abortion have been animating American politics for 50 years, and I don’t see that stopping in 2023,” Women’s March executive director Rachel O’Leary Carmona told The Independent.

“I don’t want to sugarcoat and say that it’s going to be easy, because it’s not, and I know there’s more troubled waters ahead,” she said. “We live in treacherous times, and I think that what we do in the next four to five years, this new era of American politics, and for the next 50 years – we’ve seen a number of these kinds of turning moments in American history, and I think we’re in one.”

The state of abortion access one year later

Despite historically low support for abortion restrictions, and a string of victories for abortion rights in elections in the months after the Dobbs decision, Republican lawmakers – once championing the end of Roe v Wade as a victory for “states’ rights” – have pushed through dozens of new restrictions, including plans for a national abortion ban, and have swatted down measures that would allow voters to weigh directly on the future of their right to an abortion.

More than 60 per cent of Americans disagree with the decision in Dobbs, according to polling from NBC News. That figure includes nearly 80 per cent of women between ages 18 and 49, two-thirds of women who live in US suburbs, 60 per cent of independent voters, and one-third of all Republican voters.

A record-high 69 per cent of Americans believe abortion should be legal within the first three months of pregnancy, marking an increase of at least two per cent over the last year in the wake of the leak of a draft of the Dobbs opinion, according to a recent Gallup poll. More than half of Americans believe abortion is morally acceptable – a 10 per cent increase from 2001.

A separate poll from USA Today/Suffolk University found that one in four Americans say state efforts to restrict abortion access have made them more supportive of abortion rights.

One year after the end of Roe, 14 states – mostly across the entire US South – effectively outlawed most or all abortions. Eleven states make no exceptions for pregnancies from rape or incest. Six states ban abortions after a specific gestational period, from roughly six weeks of pregnancy to 20 weeks.

South Carolina remains the only state south of Virginia without severe restrictions or outright bans on abortion care past the 12th week of pregnancy. Most of those states have moved to ban abortion in nearly all cases with limited or no exceptions, making abortion care out of reach entirely for millions of Americans who are forced to travel hundreds or thousands of miles for access to legal care.

In May, abortion rights demonstrators protested inside South Carolina’s capitol as lawmakers passed a six-week abortion ban later struck down in court. (Getty Images)

Penalties for seeking or performing an abortion in those states could include severe fines, the suspension of medical licenses, or prison.

South Carolina’s law, which is currently blocked by the courts, could impose a two-year prison sentence and up to $10,000 in fines against abortion patients. Texas law could sentence providers with life in prison and a $10,000 fine for circumstances in which “an unborn child dies as a result of the offense.”

Advocates have repeatedly warned that anti-abortion laws will not stop people from seeking abortions; they stop safe ones.

Since the Dobbs ruling, there have been more than 25,000 fewer abortions under restrictions in the South and Midwest, according to the Society of Family Planning.

From July through December 2022, in the months after the Dobbs decision, at least 66,510 people were unable to receive a legal abortion in their home state, according to reporting from FiveThirtyEight. More than 35,330 people traveled to a different state for abortion care.

Roughly 40 per cent of providers who practice in states where abortion is banned faced dangerous constraints providing care for patients experiencing miscarriages and other complications, according to reporting from KFF.

A first-of-its-kind report from the University of California in San Francisco reveals how doctors have been unable to provide standard medical care in states where abortion is effectively outlawed, leading to potentially life-threatening delays and worsening and dangerous health outcomes for patients.

Within the 20 years before constitutional protections for abortion care were overturned, there were at least 61 cases in which people were criminalised for self-managed abortion, and hundreds of people were arrested for their pregnancy outcomes, according to If/When/How.

The consequences from a growing lack of legal access to abortion – compounded by inadequate maternal healthcare across the country – are starkly disproportionate. Black women are five more times likely to have an abortion than white women, in large part because of worsening maternal health outcomes during and after pregnancies, according to the US Centers for Disease Control and Prevention.

Pregnant Black people are three to four times more likely to die from pregnancy-related causes, compared to white patients, though 80 per cent of maternal deaths are preventable, according to the CDC’s Maternal Mortality Review Committee.

“The impacts of the Dobbs ruling run from forcing pregnant people to travel out-of-state to get care, to carrying pregnancies to term that threaten their health and well-being, to denying life-saving abortion care in obstetric emergencies until patients are at death’s door,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which has been at the centre of national litigation to overturn abortion restrictions.

“These realities make one thing clear: It is dangerous today to be pregnant in any state that has banned abortion,” she added.

After Dobbs, ‘Republicans are like the dog who caught the car’

Republicans have repeatedly stated that the Supreme Court’s decision merely left abortion restrictions up to the states. But anti-abortion lawmakers continue to push for a national abortion ban that would also strike down state laws that protect and expand abortion access.

Congressional Republicans have already passed several anti-abortion measures with national implications, and third-ranking House Republican Elise Stefanik has signalled that her party is preparing to introduce a ban on abortion at 15 weeks of pregnancy.

That persistent threat to abortion rights, and Republicans’ ongoing attempts to block access to legal abortion care, will be “clearer than ever” in 2024 and is likely to cost House Republicans their current majority, according to US Rep Suzan DelBene, chair of the Democratic Congressional Campaign Committee.

President Joe Biden and Democratic candidates are expected to make abortion rights a central part of 2024 campaigns, in contrast with Republican plans to restrict access. (AP)

Abortion rights have been a dominant force in American politics for decades. But leading candidates vying for the Republican nomination for president in 2024 appear to be struggling to say exactly what their anti-abortion vision looks like.

In 1999, Donald Trump called himself “very pro-choice.” In his 2016 presidential campaign, he suggested that people who have abortions should face “some sort of punishment.” Today, he repeatedly takes credit for the Supreme Court decision to end Roe v Wade, thanks to his appointment of three conservative justices who were primed to do so after their vetting by right-wing special interest groups, completing a decades-long plan to strip abortion rights.

Now, Mr Trump suggests that his rival Ron DeSantis has gone too far by implementing a six-week abortion ban in Florida, where the governor’s latest abortion ban came just one year after he signed a 15-week ban into law. Mr Trump also blamed Republicans’ poor outcomes in the 2022 midterm elections because of their anti-abortion platforms.

“Republicans are like the dog who caught the car,” Ms O’Leary Carmona told The Independent. “This is not an electoral winner for them. So I think that they’re gonna have a real problem. They are not in lockstep with their base. And they have already paid electoral consequences for this, and I think that that will certainly continue in 2024 and forward.”

Democratic members of Congress have reintroduced a series of doomed-to-fail abortion rights measures to underscore the crisis for abortion access and highlight Republicans’ ongoing objections to measures that most Americans support.

Democratic lawmakers have floated proposals to codify Roe protections into law, enshrine access to contraception into federal law, and shield patients and providers in states where abortion is legal from prosecution elsewhere.

“If you take even a larger step back, what we’re talking about here is a country that is increasingly not in lockstep and moving in the opposite direction from where the rest of the world is going,” Ms O’Leary Carmona said. “It is out of step with the opinion of Americans themselves.”

The issue of abortion rights is likely going to return to the Supreme Court in the coming months and years, as anti-abortion activists challenge the government’s approval of a widely used abortion drug.

Attorneys from President Joe Biden’s administration are defending the drug in court, while the White House repeatedly urges Congress to codify a right to abortion to stem the tide of anti-abortion laws consuming state capitols across the country.

Mr Biden and Democratic candidates are expected to make abortion rights a centerpiece of their 2024 agendas, as Republicans fail to coalesce around an issue that defined their platforms for decades.

Democratic senators mark the one-year anniversary of the Dobbs decision with a slate of abortion rights proposals. (Getty Images)

Meanwhile, abortion rights advocates have seen political victories for reproductive healthcare and bodily autonomy in several states.

In Kansas, voters rejected a Republican-drafted amendment that would strip abortion rights from the state’s constitution. During a historic sweep of abortion rights referendums across the US in midterm elections, voters in Michigan approved a hard-fought state constitutional amendment the right to abortion access. And in a closely watched election with abortion rights on the line in Wisconsin, voters flipped the state’s conservative majority Supreme Court by electing a liberal justice.

An anti-abortion activist group’s legal challenge to the widely used abortion drug mifepristone could send another high-profile case to the Supreme Court. (AP)

It was the Supreme Court’s conservative majority opinion in the Dobbs case that revoked a constitutional right to abortion.

But it was the concurring opinion from Justice Clarence Thomas that confirmed the worst fears among abortion rights advocates and civil rights groups that have closely watched the federal judiciary and anti-abortion officials chip away at Americans’ fundamental right to privacy and constitutional rights to due process and equal protection under the law.

Justice Thomas suggested that the court should “revisit” landmark cases involving the right to contraception, same-sex relationships and marriage equality.

More than a dozen states and Washington DC have protected rights to contraception, but attempts to bolster that right in Congress and other states have faced resistance from anti-abortion officials, including a recent decision from the Republican governor of Nevada to veto a bill that would guarantee contraceptive access for Nevada residents.

The overlapping fights for abortion rights and trans rights

Advocates also argue that the right for abortion rights, and broadly a right to privacy at the centre of abortion rights litigation, is inextricably tied to a broader threat to democracy, as far-right activists galvanise a base around Republican candidates who will advance their agenda.

After the 2020 presidential election, Republican candidates turned to threatening voting rights and pushing conspiracy theory-fuelled attempts to change how America’s elections are run, relying on voter outrage with Mr Trump’s loss that resulted in a violent attack on the US Capitol to overturn the results.

In 2021, Republican state lawmakers passed at least 32 new laws in 17 states to change the rules of election administration and strip oversight from election officials to put it into the hands of GOP-controlled legislatures. The following year, so-called election deniers who pushed those laws overwhelmingly failed to win their elections.

After the Dobbs decision, emboldened by their decades-in-the-making Supreme Court victory, Republicans introduced a wave of bills to outlaw abortion. Polling radically shifted in the other direction.

And over the last year, Republicans and their allies in far-right media have relentlessly turned against LGBT+ people, particularly transgender children, with an avalanche of legislation to restrict access to their healthcare and rights in public.

“The connection between these far-right extremist groups who are driving anti-abortion, anti-democracy, anti-trans and also white supremacist ideologies are our near perfect overlaps,” Ms O’Leary Carmona told The Independent.

“The attacks on trans people are the same as the attack on women, rooted in sexism and misogyny and craven attempts to throw red meat to the base so that they can whip up … to get their votes,” she added. “We are very clear that both of those attacks are a part of a larger attack on democracy … Attacks on abortion, attacks on trans people and people of colour also make it harder for us to go and vote and participate fully in the civic sphere. It is also part of a broader tactic to whip up an extremist sentiment against a vague, shadowy ‘they’ who is coming for you.”

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