Federal Abortion Law: Who Decides?

The topic of abortion laws in the United States is a highly contested issue, with ongoing efforts to restrict or ban abortions at the state level. The Supreme Court's overturning of Roe v. Wade in 2022 ended the federal constitutional right to abortion, giving states the power to restrict or prohibit it. This has resulted in a divide between “abortion desert” and “abortion haven” states, impacting the lives of millions of people, particularly those from marginalized communities. While some politicians aim to restrict access to abortion, organizations like Planned Parenthood, ACLU, and abortion rights advocates are working to protect abortion access and a person's right to make their own healthcare decisions.

Roe v. Wade

The lawsuit challenged a Texas law that prohibited abortions except when necessary to save the life of the mother. On June 17, 1970, the three judges unanimously ruled in favour of McCorvey, declaring the Texas law unconstitutional as it violated the right to privacy found in the Ninth Amendment. However, the court declined to grant an injunction against enforcing the law, and McCorvey was unable to obtain an abortion.

The case then reached the Supreme Court in 1970 when both sides appealed. On January 22, 1973, the Supreme Court issued its ruling in Roe v. Wade, recognising that the decision to continue or end a pregnancy belongs to the individual, not the government. The Court held that the liberty clause in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability. The majority opinion, authored by Justice Harry Blackmun, described the right of personal privacy as fundamental and concluded that it encompassed a woman's decision to terminate her pregnancy.

The Roe v. Wade decision had significant legal and social implications. It guaranteed the right to make decisions during pregnancy, advancing gender equality in various spheres. The ruling also set a precedent for recognising a right to privacy in intimate and personal decisions, including those affecting child-rearing, marriage, procreation, and contraception. Prior to Roe, nearly all states banned abortion except in limited circumstances, and criminal abortion bans led to unsafe and illegal abortions. Roe v. Wade made abortion legal, more accessible, and safer nationwide. However, it did not ensure equal access for all, and low-income individuals, people of colour, and young people still faced barriers.

In 2022, the Supreme Court overturned Roe v. Wade in the case Dobbs v. Jackson Women's Health Organization, marking the first time in history that the Court took away a fundamental right. This decision abandoned nearly 50 years of precedent and returned the power to regulate abortion to the states. As a result, more than a dozen states have banned abortion outright, severely limiting access to abortion care and violating the human rights of individuals seeking abortions.

State abortion bans

The issue of abortion has been a highly contested topic in the United States for decades. The Supreme Court's recent overturning of Roe v. Wade in June 2022 has had a significant impact on abortion laws across the country. This decision eliminated the federal constitutional right to abortion, giving states the power to restrict or ban abortion altogether. As a result, there has been a rapid shift in the landscape of abortion access, with many states enacting new abortion restrictions and bans.

In addition to gestational duration, state abortion bans may include restrictions on specific methods of abortion care, such as dilation and extraction (D&X) or dilation and evacuation (D&E) procedures. Some states also have laws that prohibit abortion for particular reasons, such as sex, race, or genetic anomalies. It is important to note that there is no evidence that pregnant people seek abortion care due to the sex or race of the fetus.

The role of the federal government in making laws on abortion has been a subject of debate. While the federal government has not directly imposed abortion bans, it has influenced abortion access through funding restrictions. For example, the Hyde Amendment, introduced in 1976, prohibits federal funding for abortion and has been renewed annually by Congress. The Supreme Court's decision to overturn Roe v. Wade has shifted the power to the states, allowing them to determine their own abortion policies and creating a varied landscape of abortion laws across the nation.

Unconstitutional laws

The topic of abortion laws in the US is a highly contested issue, with no federal law explicitly permitting or prohibiting abortion. The Supreme Court's recent overturning of Roe v. Wade has given states the power to restrict or ban abortion, leading to a patchwork of varying abortion laws across the nation.

While the Fourteenth Amendment states that "nor shall any State deprive any person of life, liberty, or property, without due process of law", the interpretation of "any person" is a subject of debate. Some argue that this includes the unborn, thus making abortion unconstitutional as it deprives the unborn of life without due process. However, others disagree, stating that the Fourteenth Amendment does not support a nationwide ban on abortion and that the decision to have an abortion lies with the pregnant woman.

Unconstitutional abortion laws refer to those that violate the US Constitution or infringe upon protected rights. Prior to the overturning of Roe v. Wade, which protected the federal constitutional right to abortion, certain state laws prohibiting abortion were considered unconstitutional. These included laws that prohibited abortion before foetal viability, as well as bans on specific abortion methods such as dilation and extraction (D&X) and dilation and evacuation (D&E) procedures.

Additionally, Targeted Regulation of Abortion Providers (TRAP) laws have been deemed unconstitutional by some sources. These laws impose burdensome legal requirements on physicians providing abortion care, often without increasing patient safety or following evidence-based clinical guidelines. Furthermore, laws requiring biased counseling, mandatory ultrasounds, and waiting periods before abortion care may also be considered unconstitutional as they infringe on an individual's right to make personal medical decisions and seek safe, legal abortion services.

The interpretation of the constitutionality of abortion laws can vary, and the ongoing legal and philosophical debates surrounding this topic shape the landscape of abortion access across the United States.

Telehealth for abortion

In the United States, abortion laws vary from state to state, with some states imposing restrictions or bans on abortion access. In 2022, the Supreme Court overturned Roe v. Wade, which had protected the federal constitutional right to abortion for nearly 50 years. This ruling gave states the power to restrict or prohibit abortion.

In this context, telehealth for abortion has become a critical solution for addressing surges in demand in states where abortion remains legal. Telehealth abortion involves providing medication abortion services remotely through virtual clinics, removing the need for in-person consultations and reducing barriers related to travel, cost, and stigma.

One of the first virtual abortion clinics in the US, Hey Jane, offers a safe and legal abortion care service through telemedicine. They provide FDA-approved abortion pills, along with on-demand support from their clinical team. Hey Jane serves individuals regardless of their immigration status or identity, prioritising reproductive and sexual healthcare access for all.

Planned Parenthood of Metropolitan Washington, DC, also offers medication abortion at home via telehealth video appointments in specific counties in Maryland and Washington, DC. This service is available to those who meet certain medical criteria, such as being within the first 10 weeks and 4 days of pregnancy and having regular menstrual periods. The cost of their at-home abortion pill appointment, including medications and follow-up, is $578, with financial assistance available.

A study published in Nature Medicine in 2024 examined the effectiveness and safety of telehealth medication abortion in the US. It found that among 6,034 abortions, 97.7% were complete without subsequent intervention or ongoing pregnancy after initial treatment, and 99.8% were not followed by serious adverse events. These results indicate that telehealth medication abortion is a safe and effective option, comparable to in-person medication abortion.

Criminal penalties for physicians

The issue of abortion laws in the United States has been a highly contested topic for decades, with ongoing efforts to restrict or ban abortions at the state level. While the Supreme Court's Roe v. Wade ruling in 1973 protected the federal constitutional right to abortion, the Court's recent overturning of this decision has given states the power to impose their own restrictions or prohibitions. This shift has resulted in varying abortion laws across the nation, with some states enacting stringent abortion bans and penalties for physicians who perform abortions.

In addition to prison sentences, physicians who perform abortions may face other consequences. License revocation is a significant penalty, as it not only affects a physician's livelihood but also their ability to practice medicine in other states. Fines may also be imposed, adding to the financial burden and deterring physicians from providing abortion services.

The threat of criminal prosecution has had a tangible impact on physicians' practices. Studies have found that physicians may delay or deny health- or life-preserving care due to the fear of legal repercussions. This results in patients with pregnancy complications, underlying medical conditions, or obstetric emergencies being denied abortion care that meets clinical standards in states where abortion is banned or restricted.

While the debate over abortion laws continues, the focus on criminalizing physicians has created a challenging environment for medical professionals. The varying state laws and potential penalties further complicate the situation, making it difficult for physicians to navigate the legal landscape and provide care without fear of prosecution.

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