The Abortion Law Reversal: Why Did It Happen?

Abortion laws have been a topic of debate and controversy for decades, with a history that dates back to the 19th century. The issue of abortion is deeply divisive, with varying opinions and beliefs surrounding it. In recent times, there has been a push for the decriminalization of abortion, recognizing it as a human right and an essential component of reproductive justice.

Abortion was criminalized in the late 1800s, marking the beginning of a century of criminalization. This period was characterized by restrictive laws and social stigma surrounding abortion. However, it is important to note that abortion was not always a controversial issue and was legal prior to quickening, which refers to the moment when a pregnant woman first feels the fetus move. The criminalization of abortion was driven by various factors, including advancements in medical knowledge and the efforts of physicians and the American Medical Association.

In 1973, the landmark case of Roe v. Wade legalized abortion in the United States, establishing a federally mandated framework for state legislation. This decision was a significant turning point, protecting the right to privacy and recognizing a woman's right to make decisions regarding her body and reproductive life. However, abortion remained a contentious issue, with ongoing efforts to restrict access and ongoing debates surrounding fetal rights and personhood.

The debate surrounding abortion continues to evolve, with recent developments such as the Dobbs v. Jackson Women's Health Organization case in 2022, which overturned Roe v. Wade and ended the federal constitutional right to abortion. This decision has had a profound impact on abortion access, with states now having the power to regulate abortion. As a result, abortion laws vary widely across the United States, with some states banning abortion entirely while others protect abortion rights.

The topic of abortion remains a highly contested issue, with ongoing legal battles, political debates, and social movements surrounding it. The debate centers around questions of bodily autonomy, reproductive rights, and the complex interplay between federal and state laws.

The criminalisation of abortion

Abortion is a medical procedure that ends a pregnancy and is considered basic healthcare for millions of women, girls and people who can get pregnant. It is estimated that one in four pregnancies ends in abortion every year. In places where abortion is legal, safe and accessible, people can obtain abortions without risk. However, in places where abortion is stigmatised, criminalised or restricted, people are forced to resort to unsafe abortions, which can lead to fatal consequences such as maternal deaths and disabilities.

The World Health Organization and numerous human rights bodies support the full decriminalisation of abortion, recognising that it is necessary to ensure availability, accessibility and quality of abortion care. Decriminalisation involves removing abortion from penal/criminal laws, ensuring no criminal penalties are imposed for having, assisting with, or providing information about abortion. It is important to note that decriminalisation does not make individuals vulnerable to forced or coerced abortion, as these non-consensual interventions would constitute serious assault.

The road to law reform and decriminalisation of abortion is long and challenging. Advocates must study the political, health system, legal, juridical, and socio-cultural realities of their countries and build a critical mass of support from various stakeholders to effect change. While it is a complex process, successful law reform in countries like Canada, Ethiopia, and Latin America demonstrates that it is achievable and can significantly improve access to safe abortion.

The social stigma of abortion

Abortion stigma is the set of attitudes and beliefs that abortion is "bad, shameful, or wrong". It is a powerful force that creates discomfort around the topic, leading to misinformation and a lack of knowledge. This stigma is particularly harmful to those who have had abortions or provide abortions, causing shame, silence, and isolation. It also makes it more difficult for people to access care or support when they need an abortion.

Abortion stigma is about the "transgression of a gendered norm", with gendered norms being the social expectations imposed on women, people assigned female at birth, and people with feminine gender expressions. These norms include the expectation of sexual purity and the expectation of motherhood and nurturing. Having an abortion goes against these norms as it shows that someone has had sex and chosen not to become a parent.

Anti-abortion messages and advocates contribute to abortion stigma, and it is common, even among abortion supporters, to feel uncomfortable or uncertain about when, why, and how late in a pregnancy it is okay to have an abortion. This discomfort is internalised abortion stigma.

Abortion stigma operates in several ways to inhibit quality abortion care:

• Poor treatment and repercussions: Negative engagement with providers and health care personnel when seeking abortion services, perceived or real consequences of accessing abortion, and resorting to clandestine abortion.
• Gatekeeping and obstructing access: Not providing women with information, tools, resources, or referrals to access abortion, or discouraging them from requesting services. Preventing or limiting training and access to equipment.
• Tactics for avoiding disclosure: Actions taken to prevent abortion from becoming known, such as misclassifying abortions in medical registries or using "medical records that were not official".
• Arduous/unnecessary requirements: Unnecessary delays, tests, or treatments, and unreasonable costs.
• Poor infrastructure and lack of resources: Failure to fully implement standards and protocols, and perceived or real consequences associated with performing abortion.
• Punishment and threats: Penalty or retribution inflicted on a person for their involvement in abortion care, such as criminal liability or fines.
• No designated place for abortion services: Lack of defined areas for women seeking abortion services, which can lead to individuals leaving the hospital and seeking clandestine services.

Abortion stigma has important implications for quality abortion care and can lead to unsafe abortions, particularly in developing countries, which can have fatal consequences such as maternal deaths and disabilities. It is a significant moderator of quality in abortion care and should be addressed through interventions to improve quality.

The role of the Supreme Court

However, the Roe decision did not ensure equal access to abortion services. Many states passed laws that made abortions difficult to obtain, and the Hyde Amendment, which restricted federal funding for abortions, further limited access. Despite these challenges, the Supreme Court continued to uphold the core principle of Roe in subsequent cases, such as Planned Parenthood of Southeastern Pennsylvania v. Casey and Whole Woman's Health v. Hellerstedt.

In 2022, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, ending the federal constitutional right to abortion. This ruling had a significant impact on abortion access, with many states passing laws to restrict or ban abortions. The Supreme Court's role in shaping abortion law has been complex, with its decisions both expanding and restricting abortion rights over time.

The Supreme Court's rulings on abortion have had far-reaching consequences. On the one hand, the Roe v. Wade decision decriminalized abortion and protected the right to privacy in reproductive decisions. On the other hand, the Dobbs v. Jackson Women's Health Organization decision removed federal protections for abortion access and allowed states to impose restrictions or bans. The Supreme Court's role has been critical in shaping the legal landscape for abortion, and its decisions have had a direct impact on the lives of people across the United States.

The impact of abortion restrictions

Abortion restrictions have a wide range of impacts on individuals and society. These impacts are felt most acutely by those from marginalised communities, including people of colour, those on low incomes, refugees and migrants, LGBTI+ people, and racialised and Indigenous people.

Health Risks

Health risks are one of the most significant impacts of abortion restrictions. Outlawing abortion does not stop people from seeking abortions but instead pushes the practice underground, where it is less safe. In the US, the criminalisation of abortion in the early 20th century led to an increase in unsafe abortions, which carry a high risk of complications and even death. In the countries where abortion is still stigmatised, criminalised or restricted, it is estimated that 25 million unsafe abortions take place every year, leading to maternal deaths and disabilities.

Financial Hardship

Abortion restrictions can also lead to financial hardship, particularly for those who are already financially vulnerable. In the US, the out-of-pocket cost of an abortion can range from $0 to $3,700, depending on factors like insurance status and geography. For those who have to travel to another state to access abortion services, the financial burden is even greater. Research shows that women who are denied abortions are more likely to experience long-term economic hardship and insecurity.

Social Stigma

Abortion restrictions also contribute to social stigma, making it difficult for people to exercise their reproductive rights without fear of judgement or discrimination. This stigma can be religiously reinforced and lead to medical staff refusing to provide abortions. Even in countries where abortion is legal, social stigma can be a significant barrier to accessing services.

Limited Access to Healthcare

Abortion restrictions can also result in limited access to healthcare more broadly. For example, in the US, many states have banned abortion with no exceptions, including for rape or incest, leading to the closure of clinics that provide a range of reproductive care services. This has a disproportionate impact on low-income women who rely on these clinics for their healthcare needs.

Political Interference

Finally, abortion restrictions represent political interference in individuals' private medical decisions. As seen in the US, abortion restrictions can be imposed or lifted according to the political leanings of those in power, rather than based on scientific evidence or the needs of the population. This can result in frequent changes in the law, creating uncertainty and further barriers to accessing abortion services.

The future of abortion rights

The impact of Dobbs v. Jackson Women's Health Organization

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization has had a profound impact on the landscape of abortion rights in America. The ruling overturned Roe v. Wade and Planned Parenthood v. Casey, eliminating the federal constitutional right to abortion and allowing states to regulate abortion as they see fit. This has led to a patchwork of laws and restrictions that vary widely from state to state, with some states protecting abortion access while others have implemented near-total bans.

State-level dynamics

In the wake of Dobbs, several states have taken steps to protect abortion access. For example, Minnesota passed a bill guaranteeing women's rights to abortion and other reproductive medicine, while California, Michigan, Illinois, and other states have enshrined the right to abortion in their state constitutions. However, many other states have moved in the opposite direction, with Texas and Missouri banning abortions except in cases where the pregnancy poses a significant threat to the mother's life. Iowa has also joined the list of states with restrictive abortion laws, banning abortions after six weeks of gestation, except in cases of rape, incest, foetal abnormalities, or the mother's life.

Push for further restrictions

The Supreme Court's decision in Dobbs has emboldened anti-abortion activists and legislators, who continue to push for further restrictions and bans. For example, Republican senator Lindsey Graham introduced legislation that would ban abortion nationwide after 15 weeks of pregnancy, with limited exceptions. Additionally, the Alliance Defending Freedom, an anti-abortion group, successfully sued to overturn the FDA's approval of mifepristone, a medication used for medical abortions. This has further restricted access to abortion, particularly in states with trigger laws or near-total bans.

International implications

The dynamics surrounding abortion rights in the United States have also had international implications, with Americans seeking abortions travelling to Mexico, where abortion is gradually being legalized at the state level. This trend is likely to continue as long as restrictive laws and bans remain in place in the United States.

Ongoing legal battles

The legal battles surrounding abortion rights are far from over. Abortion rights advocates continue to challenge restrictive laws and bans in court, with some success. For example, a North Dakota judge struck down the state's abortion ban in response to a lawsuit filed by Red River Women's Clinic. However, the clinic's owner and director, Tammi Kromenaker, has no plans to return to providing abortions in the state, citing the difficulties and risks involved.

The way forward

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