Abortion Laws: A Battle For Women's Rights And Choices

Abortion laws in the United States have been a divisive issue in politics and culture for decades. In 2022, the Supreme Court overturned Roe v. Wade, a 1973 ruling that had made pregnancy terminations legal nationwide. Since then, more than a dozen states have banned abortion, with varying exceptions and penalties. However, many of these new state bans have faced legal challenges, and some have been blocked.

The availability of abortion pills by mail has also changed the post-Roe landscape, allowing thousands of women in states with abortion bans to discreetly access medication abortions.

The upcoming 2024 election has brought abortion to the forefront of political campaigns, with Democratic candidate Kamala Harris advocating for federal abortion protections, while Republican rival Donald Trump supports state-level laws.

The Supreme Court's overturning of Roe v. Wade in 2022

On June 24, 2022, the U.S. Supreme Court ruled to overturn Roe v. Wade, a landmark 1973 decision that had guaranteed a federal constitutional right to abortion. The 2022 ruling ended nearly 50 years of federal protection for abortion rights and gave individual states the authority to set their own abortion policies.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization held that the right to abortion was not "deeply rooted in this Nation's history or tradition", nor was it considered a right when the Due Process Clause was ratified in 1868. The ruling argued that abortion was unknown in U.S. law until Roe and that the right to privacy, from which the right to abortion was derived, was not explicitly guaranteed in the Constitution.

The overturning of Roe v. Wade has had significant implications for abortion access and reproductive rights across the U.S. As of October 2024, 14 states have made abortion illegal, with more expected to follow. The impact of these abortion bans is felt most acutely by those from marginalised communities, who already face barriers to accessing healthcare.

The lack of clarity around what constitutes a life-threatening situation has also put doctors in a difficult position, as they must navigate the legal risk of providing abortions in states where it is now illegal. The threat of lawsuits and criminal prosecution has led to concerns about a chilling effect on doctors, with some ceasing to provide abortions altogether.

Public reaction to the Supreme Court's decision has been mixed. A majority of Americans (62%) disapprove of the ruling and continue to support legal abortion, with little change in public opinion since before the decision. However, the partisan divide on the issue has widened, with sharp differences in views between Republicans and Democrats.

The impact of abortion bans in the US

In June 2022, the US Supreme Court overturned Roe v. Wade, the 1973 ruling that had established abortion as a federal constitutional right. This decision has had a profound impact on abortion access and reproductive rights across the country, with many states moving to restrict or ban abortion altogether. As of October 2024, 14 states have made abortion illegal, and three states have enacted six-week bans. These numbers are expected to grow, as more states work to pass bans or further restrictions.

The impact of these abortion bans has been significant, particularly for communities of colour, where systemic racism has long blocked access to healthcare and opportunity. Black, Latino, Indigenous, and other marginalized groups have been disproportionately affected by the loss of legal abortion access. Furthermore, abortion bans have been linked to a rise in maternal mortality. In Texas, for example, the rate of maternal deaths increased by 56% from 2019 to 2022, compared to an 11% increase nationwide. This has been attributed to a lack of access to safe abortion care, with women being forced to carry pregnancies to term or seek dangerous alternatives.

The restrictions have also led to an increase in pregnancy-related crimes, with women being charged and prosecuted for seeking illegal abortions or experiencing pregnancy losses. Doctors have also faced legal repercussions for providing abortion care, even in medical emergencies. The criminalization of abortion has created a climate of fear and uncertainty, with patients feeling backed into a corner and losing their right to make private medical decisions.

In addition to the direct impact on abortion access, the bans have had broader consequences for healthcare and freedom. States with strict abortion laws have seen a decline in prenatal care and a decrease in women's access to OB-GYN appointments. The bans have also limited the ability of doctors to provide care, as they navigate uncertain legal terrain and fear liability. As a result, patients' health and lives are at risk, and the principle of bodily autonomy has been eroded.

The role of abortion pills in a post-Roe world

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, the 1973 case that had protected a federal right to abortion. Since then, 14 states have made abortion illegal, and abortion policies and reproductive rights are now in the hands of each state. This has led to a rise in abortion pills, which are now used in the majority of abortions in America. Every month, thousands of women in states where abortion is banned have been able to discreetly order the pills by mail and take them at home.

The abortion pill is, in fact, two different drugs: mifepristone and misoprostol. In 2021, the FDA made these pills significantly easier to obtain by nixing a long-standing requirement to prescribe mifepristone in person. The FDA cited COVID-related risks for this decision, but anti-abortion advocates immediately decried the move, and the policy has remained in place beyond the pandemic.

Since Roe was overturned, an average of 6,000 to 7,000 people a month living in states with complete or six-week abortion bans have been able to get abortion pills via telehealth. This number does not include people who had an abortion outside the formal health-care system, for instance by using pills ordered from overseas. In states where abortion remains legal, the number of abortions—and the proportion involving abortion pills—also rose from 2020 to 2023.

Anti-abortion groups are devising ways to restrict abortion pills through state governments, too. For example, in Texas, pro-abortion groups have put up billboards advertising abortion pills, to which anti-abortion groups have responded by suggesting that those involved in putting up the billboard can be prosecuted for "aiding and abetting". Anti-abortion groups are also trying creative approaches to regulating abortion pills, such as through environmental regulations.

The new prevalence of abortion pills has opened up a new frontier, and the political and legal fights ahead may look quite different from those in the past.

State abortion laws and their enforcement

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, a 1973 ruling that had protected the federal constitutional right to abortion. This decision opened the door for states to ban abortion outright, and 14 states have since made abortion illegal.

The current legal status of abortion varies considerably from state to state. Some states prohibit abortion at all stages of pregnancy, while others permit it up to a certain point, and some allow abortion throughout pregnancy. In states where abortion is legal, several classes of restrictions on the procedure may exist, such as parental consent or notification laws, mandatory waiting periods, and counselling requirements.

Some states have passed laws that ban abortion after a fetal heartbeat is detected, usually around six weeks following the last menstrual period. Other states have passed laws banning abortion after 15 weeks of pregnancy. Texas has banned abortion after six weeks, with no exceptions for rape, incest, or fatal fetal abnormalities. Arizona has a similar ban, but it was briefly superseded by an older total abortion ban from 1864. However, the Arizona Legislature repealed this law, leaving the 15-week ban in place.

The Supreme Court's decision to overturn Roe v. Wade has had a significant impact on abortion access in the United States. One analysis found that the number of women in Texas who died while pregnant, during labor, or soon after childbirth increased by 56% from 2019 to 2022, compared to an 11% increase nationwide during the same period. This has been attributed to the state's restrictive abortion laws.

In addition to state laws, federal regulations also impact abortion access. The FDA's Mifepristone Risk Evaluation and Mitigation Strategy program requires that every provider and pharmacy be certified by one of the two pill manufacturers. This regulation applies even in states where abortion is legal, and it can make it more difficult for people to access abortion care.

The future of abortion rights in the US

Currently, abortion is banned in 14 states, with more expected to follow suit. These bans often include exceptions to prevent the death of the pregnant person and, in some cases, to address risks to their health, instances of rape or incest, and lethal fetal anomalies. However, in practice, these exceptions have proven challenging to apply, and physicians face legal ambiguity when attempting to provide evidence-based care. The lack of clear guidelines puts doctors at risk of prosecution, leading some to stop providing abortions altogether.

The impact of these changing abortion laws is expected to fall disproportionately on poor women and those from ethnic minorities, who may need to travel long distances to access abortion services. Additionally, the criminalisation of abortion and the associated stigma create barriers for people seeking abortions, particularly those from marginalised communities. Social stigma, in conjunction with restrictive laws, further complicates access to abortion services.

Amidst this challenging landscape, there are efforts to protect and expand abortion rights. Twenty-one states and the District of Columbia have laws protecting the right to abortion, with some states also enhancing access through measures such as public funding and insurance coverage. Interstate shield laws also play a crucial role in safeguarding abortion providers and helpers in states where abortion is protected, shielding them from civil and criminal consequences.

The polarisation of abortion laws across the US underscores the ongoing debate surrounding reproductive rights and the autonomy of individuals to make decisions about their bodies and futures. As the situation evolves, it remains crucial to address the legal ambiguities and ensure access to safe and legal abortions, respecting the rights and well-being of those seeking reproductive healthcare.

Frequently asked questions