The US Supreme Court has overturned the 1973 Roe v Wade decision, ending women’s 50 year old constitutional right to abortion and leaving the issue for individual states to decide.
The decision on 24 June in the Mississippi case, Dobbs v Jackson Women’s Health Organization, closely followed the draft written by associate justice Samuel Alito that was leaked in May.
Alito was joined in the decision to overturn Roe v Wade and the related decision known as Casey by four associate justices: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The last three justices were appointed by former president Donald Trump, who promised to appoint justices who would overturn Roe v Wade.
Chief justice John Roberts voted only to uphold Mississippi’s ban on abortions after 15 weeks. The three liberal justices—Stephen Breyer, Elena Kagan, and Sonia Sotomayor—disagreed with the majority on several grounds.
Thomas, in his opinion, called for the court in future to reconsider other rights that are based on the same reasoning as Roe v Wade: the right to use contraception, the right to same sex sexual relations, and same sex marriage. Roe v Wade was based on the 14th amendment to the US Constitution, which says that people may not be deprived of “life, liberty, or property without due process of law.” Since 1956 the Supreme Court has interpreted “liberty” to include the right to privacy in intimate matters.
The Supreme Court issued its decision just after 10 am, and by the end of the day nine of the 50 states had prohibited abortions. Another 12 states will soon ban or severely limit them, and in nine others the status of abortion rights is uncertain. Nearly 27 million women of reproductive age live in the states that prohibit or severely limit abortions. Most do not allow abortions in cases of rape or incest.
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The west coast states of California, Oregon, and Washington joined to ensure women’s right to abortion. The nearby state of Nevada and the island state of Hawaii also protect abortion rights. On the east coast, 10 states (Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, and Maryland) and the District of Columbia have laws protecting the right to abortion.
In the vast area in between, only Colorado and Illinois protect abortion rights. In much of the nation abortion will be unavailable unless a woman has the money and time to travel.
President Joe Biden called the decision the “realisation of extreme ideology and a tragic error by the Supreme Court” that would have “devastating consequences in the lives of women around the country.” He said the only way to secure a woman’s right to choose was for Congress to enshrine in national law the abortion protections in Roe v Wade.4 Given the current partisan divisions in Congress, that is unlikely.
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Biden said that the attorney general, Merrick Garland, had made it clear that women must remain free to travel across state lines for abortion or for any other reason. He said that if a state or local official tried to prevent a woman from travelling the Biden administration would fight “that deeply un-American attack.”
The president directed Xavier Becerra, secretary of health and human services, “to protect women’s access to critical medications for reproductive health care that are approved by the Food and Drug Administration—including essential preventive health care like contraception and medication abortion.”
Nancy Pelosi, speaker of the House of Representatives, said, “I am personally overwhelmed by this decision” but said she would not give up. Pelosi said, “Clearly, we hope that the Supreme Court would open its eyes.”
Both Pelosi and Biden emphasised that reproductive rights would be on the ballot in the November midterm elections. Most Democrats favour abortion rights; most Republicans do not.
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Marjorie Danielsen, head of Susan B Anthony Pro-Life America, a leader in the effort to overturn Roe v Wade, called the Supreme Court decision the “culmination of almost 50 years of work.” She said the next step would be working with governors and state legislatures to ban abortion more widely and finally to ban it nationwide.
Herminia Palacio, head of the pro-choice Guttmacher Institute, said, “Abortion bans and restrictions . . . impose significant hurdles to obtaining care, causing stress for people in need of abortion and leading some to experience forced pregnancy and all its troubling consequences.” She said that bans disproportionately affected “people who are already marginalised and oppressed—including black and brown communities, other people of colour, people with low incomes, young people, LGBTQ communities, immigrants, and people with disabilities.”
The Supreme Court’s decision to revoke a constitutional right by overturning Roe v Wade is rare, because the court often relies on “stare decisis” or letting a previous decision stand. Alito argued that the right to abortion was not mentioned in the Constitution (adopted in 1788), nor was it deeply rooted in US history and tradition.
Peggy Cooper Davis, a professor at New York University Law School, told the Economist, “It is nearly impossible to find any right of personal or family freedom guaranteed by the original constitution.” She said this is explained in part by the founders’ choice to protect slavery, as they could not have protected personal and familial freedoms while preserving the rights of some to ownership of the lives and labour of others. This lack of personal freedoms, Davis said, was rectified with constitutional amendments passed after the US civil war ended in 1865.
Meanwhile, hours after the Supreme Court released its decision overturning the legal right to abortion in the United States, nearly 100 requests for appointments flowed into Just the Pill, a nonprofit organisation that arranges for patients to obtain abortion pills in several states.
That was about four times the usual daily number of appointment requests for the organization, and many came from patients in Texas and other states that quickly halted abortions after the court ruling.
Abortion pills, already used in more than half of recent abortions in the US, are becoming even more sought-after in the aftermath of Roe vs Wade being overturned, and they will likely be at the center of the legal battles that are expected to unfold as about half the states ban abortion and others take steps to increase access.
The method, known as medication abortion, is authorised by the Food and Drug Administration for use in the first 10 weeks of pregnancy. It involves taking two different drugs, 24 to 48 hours apart, to stop the development of a pregnancy and then to cause contractions similar to a miscarriage to expel the fetus, a process that usually causes bleeding similar to a heavy period.
Many patients choose medication abortion because it is less expensive, less invasive and affords more privacy than surgical abortions — the pills can be received by mail and taken at home, or anywhere, after an initial consultation with a doctor by video, phone, in person or even just by filling out an online form.
The patient must participate in the consultation from a state that allows abortion, even if it simply involves being on the phone in a car just over the border. The IP address of the computer or phone they use allows the clinic to identify where they are.
For states that ban all forms of abortion, medication abortion is likely to provide significant enforcement challenges. It is one thing to shut down a clinic; it is much harder to police activities like sending or receiving pills through the mail or traveling to a state where pills are legal to have a consultation and pick them up, legal experts say.
“When people say we’re going back to the days before Roe, there’s no such thing as a time machine — we have a very different pharmaceutical landscape,” said Katie Watson, a constitutional scholar and medical ethicist at the Feinberg School of Medicine at Northwestern University.
The abortion laws beginning to take effect in numerous conservative states ban all forms of abortion, including medication abortion. In addition, 19 states already had laws barring using telemedicine for abortion. Texas recently enacted a law prohibiting sending abortion pills through the mail.
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A growing number of large US companies have said they will cover travel costs for employees who must leave their home states to get abortions, but these new policies could expose businesses to lawsuits and even potential criminal liability, legal experts said.
Amazon.com, Apple, Lyft, Microsoft and JPMorgan Chase were among companies that announced plans to provide those benefits through their health insurance plans in anticipation of Friday’s US Supreme Court decision.
Since October 2020, Just the Pill has provided more than 2,500 telemedicine consultations with doctors to supply abortion pills by mail to patients in Colorado, Minnesota, Montana and Wyoming. Within a few days, it plans to deploy in Colorado the first of what will become “a fleet of mobile clinics” to park along state borders, providing consultations for medication abortions and dispensing pills, said Dr. Julie Amaon, the organization’s medical director.
Called “Abortion Delivered,” the clinic-on-wheels program, which will also provide surgical abortions for patients who prefer it or are too far along in pregnancy for a medication abortion, is designed to reach patients from nearby states like Texas, Oklahoma and South Dakota that quickly outlawed abortion after the court decision, as well as other states like Utah that are expected to ban or sharply restrict abortion.
“By operating on state borders, we will reduce travel burdens for patients in states with bans or severe limits,” Dr. Amaon said. “And by moving beyond a traditional brick-and-mortar clinic, our mobile clinics can quickly adapt to the courts, state legislatures, and the markets, going wherever the need is.”
Similar medication abortion providers are also planning for an influx. Hey Jane, an organization that has served nearly 10,000 patients in California, Colorado, Illinois, New Mexico, New York and Washington, plans to expand to more states. “We’ve ramped up our team to accommodate this significant increase in demand,” said its chief executive, Kiki Freedman.
Anti-abortion groups are trying to counter the rise in interest in medication abortion by claiming it is unsafe, calling it “chemical abortion.” James Studnicki, vice president of data analytics at Charlotte Lozier Institute, an arm of Susan B. Anthony Pro-Life America, said on Friday that “the safety of the abortion pill is greatly exaggerated,” and called the rise in medication abortion “a serious public health threat.”
Much remains unknown about how states that ban all or most abortions will try to enforce their laws in cases of medication abortion. But as the Biden administration scrambled to react to the court ruling, two cabinet members swiftly released statements vowing to protect the right to take medicines that had been approved by the federal government.
“We stand unwavering in our commitment to ensure every American has access to health care and the ability to make decisions about health care — including the right to safe and legal abortion, such as medication abortion that has been approved by the F.D.A. for over 20 years,” Xavier Becerra, the secretary of Health and Human Services, said in his statement.
In another statement, Merrick B. Garland, the attorney general, referred specifically to the first drug in the medication abortion regimen, mifepristone. In December, the F.D.A. made access to it significantly easier by permanently lifting the requirement that patients obtain mifepristone by visiting an authorized clinic or doctor in person.
“We stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care,” Mr. Garland said. “In particular, the F.D.A. has approved the use of the medication mifepristone. States may not ban mifepristone based on disagreement with the F.D.A.’s expert judgment about its safety and efficacy.”
But it is unclear what the Justice Department can do. Some legal scholars have argued that federal drug approval pre-empts state actions to restrict a drug’s use. Others say that has only applied to cases where a state claims that safety or efficacy is an issue.
“Today, the Supreme Court said abortion, it can only be regulated in sort of a health and safety way when it’s permitted, but it can be completely banned,” Professor Watson said.
As a result, she said, the ability of the federal government to assert that the F.D.A.’s approval takes precedence over state laws “is limited, given, traditionally, states get to regulate the practice of medicine.”
Legal experts said there might be other ways for the Justice Department to become involved in fighting medication abortion restrictions, such as contesting laws that bar mailing pills, since the mail is under federal oversight.
On Friday, the F.D.A. took a cautious stance, saying in a statement, “We have not had an opportunity to review the opinion, but we do note that F.D.A.’s independent and regulatory decisions are based on science and facts.”
The agency added that “patients should have access to medications that are safe and effective for their F.D.A.-approved use.”
Medication abortion became legal in the United States in 2000, when mifepristone was approved by the F.D.A. The agency imposed tight restrictions on the drug, many of which remain in place. But access to the method increased in 2016, when the F.D.A. expanded the time frame within which the drug could be taken — from seven weeks to 10 weeks into a pregnancy.
Major medical groups cite years of data showing that medication abortion is safe. For example, a research program that the F.D.A. allowed to provide telemedicine consultations and send pills by mail reported that 95 percent of the 1,157 abortions that occurred through the program between May 2016 and September 2020 were completed without requiring any follow-up procedure. Patients made 70 visits to emergency rooms or urgent care centers, with 10 instances of serious complications, the study reported.
As conservative states began passing more laws restricting access to surgical abortions, more patients opted for pills, especially because they could be taken in the privacy of one’s home.
The Covid pandemic fueled that trend. The Guttmacher Institute, a research organization that supports abortion rights, reported that in 2020, medication abortion accounted for 54 percent of all abortions.
As patients look for ways to obtain the pills, some are expected to turn to international websites like Aid Access, a European organization that the F.D.A. has tried — so far unsuccessfully — to stop from mailing pills to the United States, further complicating enforcement efforts.
Mary Ziegler, a law professor at the University of California, Davis, who has written widely on abortion, said in an interview last month that there might be attempts by states that ban abortion to prosecute doctors and other health providers in other states who provide abortion services like consultations and pills to their residents, or to try to block organizations or funds that give financial help to patients to travel to other states.
States where abortion remains legal are mobilizing to increase access stifle legal assaults from other states. Connecticut passed a bill that would prevent abortion providers from being extradited to other states, bar Connecticut authorities from cooperating with abortion investigations from a patient’s home state and allow Connecticut residents who are sued under another state’s abortion provision to countersue. Legislation in California would provide financial assistance to patients traveling from other states to obtain abortions and increase the number of abortion providers.
Justice Brett Kavanaugh, in an opinion concurring with the Supreme Court decision, suggested that patients who traveled to other states to receive an abortion would be protected by the constitutional right to interstate travel.
So far, most states that restrict abortion have long adhered to a principle of targeting providers and others who help patients, but not the patients themselves. Professor Ziegler said it was possible that could also change because, in circumstances where the abortion takes place outside state boundaries, “there may be absolutely no one else in that state to go after but the patient.”
[The BMJ/Business Standard]