What If Roe Fell?
States and territories passed these abortion bans before Roe was decided, but the landmark decision made them unenforceable. If Roe is overturned, these laws could be revived in one of two ways. In some states, a ban was never declared unconstitutional or blocked by the courts, and therefore if Roe is limited or overturned, state officials could seek to enforce it. In other states, where courts have blocked or limited a pre-Roe ban based on the decision, officials could file court actions asking courts to activate the ban if Roe fell.
Abortion bans passed since Roe that could become effective if the Supreme Court limited or overturned Roe. None of these bans is enforced.
Pre-viability gestational bans
Laws that prohibit abortion before a fetus is viable; these laws are unconstitutional under Roe. Gestational age is counted in weeks either from the last menstrual cycle (LMP) or from fertilization. Some of these bans are not enforced.
Laws that prohibit a specific method of abortion care, most commonly dilation and extraction (D&X) procedures and dilation and evacuation (D&E) procedures. Some of these bans are not enforced.
Laws that prohibit abortion if sought or potentially sought for a particular reason. These bans name sex, race, and genetic anomaly as prohibited reasons. However, there is no evidence that pregnant people are seeking abortion care because of the sex or race of their fetus.Bonnie Steinbock, Preventing Sex-Selective Abortions in America: A Solution in Search of a Problem, The Hasting Center (2017) Some of these bans are not enforced.
Criminalization of self-managed abortion (SMA)
Some states criminalize people who self-manage their abortion, i.e., perform it outside of a clinical setting.
Targeted regulation of abortion providers laws single out physicians who provide abortion care and impose various legal requirements that are different from and more burdensome than those imposed on physicians who provide comparable types of care. These laws do not increase patient safety and are counter to evidence-based clinical guidelines. See, e.g., ACOG, Increasing Access to Abortion (Nov. 2014, reaffirmed 2019); National Abortion Federation, Clinical Policy Guidelines for Abortion Care (2018)
TRAP laws fall into several categories, including regulation of locations where abortion is provided and/or facility specifications, provider qualifications, and reporting requirements. Compliance is often costly and can require unnecessary facility modifications. (Some of these laws are not enforced.)
Laws that require providers or clinics to notify parents or legal guardians of minors seeking abortion prior to an abortion (parental notification) or document parents’ or legal guardians’ consent to a minor’s abortion (parental consent). In order to be constitutional, parental involvement laws must include a process whereby a judge can approve a minor’s petition without parental involvement. See Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 94, 96 S. Ct. 2831, 2852, 49 L. Ed. 2d 788 (1976) (“the State does not have the constitutional authority to give a third party an … Continue reading (Some of these laws are not enforced.)
Laws that require pregnant people to receive biased and often inaccurate counseling or an ultrasound prior to receiving abortion care, and, in some instances, to wait a specified amount of time between the counseling and/or ultrasound and the abortion care. These laws serve no medical purpose but, instead, seek to dissuade pregnant people from exercising their fundamental right. (Some of these laws are not enforced.)
In 1976, Rep. Henry Hyde (R-IL) successfully introduced a budget rider, known as the Hyde Amendment, that prohibits federal funding for abortion. Congress has renewed the Hyde Amendment every year since its introduction.
Statutory protections for abortion
Laws passed by states that protect the right to abortion.
State constitutional protection
A declaration from the state’s highest court affirming that the state constitution protects the right to abortion, separately and apart from the existence of any federal constitutional right.
States are required to provide public funding through the state Medicaid program for abortion care necessitated by life endangerment, rape, or incest. States can also dedicate state-only funding to cover all or most medically necessary abortion care for Medicaid recipients.
Private insurance requirements
States can require private health-insurance plans that are regulated by the state to contain specific benefits, including abortion coverage.
Clinic safety and access
Laws that prohibit, for example, the physical obstruction of clinics, threats to providers or patients, trespassing, and telephone harassment of the clinic, and/or create a protected zone around the clinic.
Abortion Provider Qualifications
Scope of practice for health-care practitioners is regulated by state legislatures and licensing boards. Generally, state legislation does not outline specific medical care that is within or beyond a practitioner’s scope of practice. However, many states have treated abortion differently by restricting the provision of abortion to physicians. Other states have taken proactive measures to expand the types of clinicians who may lawfully provide abortion care by repealing physician-only laws or expressly authorizing physician assistants, certified nurse midwives, nurse practitioners, and other qualified medical professionals to provide abortion care through legislation, regulations, or attorney general opinions.See, e.g., Me. Rev. Stat. Ann. tit. 22, § 1598(1). Law was amended to allow physician assistants and advanced practice nurses to also perform abortions. See H.P. 922, 129th Leg., 1st Reg. Sess. … Continue reading
Repeal by implication
When a law is expressly repealed, the legislature passes a new law that explicitly states that the old law is repealed.See, e.g., Mass. Gen. Laws ch. 272, § 19, repealed by S.B. 784, 190th Gen. Assemb., Reg. Sess. (Ma 2018). Under the doctrine of implied repeal, if a new statute is enacted that conflicts with an older statute, the older statute is said to have been “repealed by implication” and can no longer be enforced.
In order to argue successfully that an abortion ban has been repealed by implication and is therefore no longer enforceable, it is usually necessary to show that the state has subsequently enacted laws regulating abortion that cannot be reconciled with the ban. For example, after Roe was decided, the Louisiana State Legislature passed several statutes regulating abortion and setting forth the circumstances under which abortions would be permitted, without explicitly repealing its pre-Roe ban. A federal district court reviewing the laws found that an irreconcilable conflict existed between the statutes stating when abortion would be legal and the pre-Roe ban making abortion illegal. Therefore, the ban was repealed by implication. Planned Parenthood of Nashville v. McWherter, 817 S.W.2d 13, 16 (1991); see also McCorvey v. Hill, No. 03-10711 (5th Cir. Sept. 14, 2004) (Texas’s pre-Roe statute repealed by implication).
However, this determination is often not so clear-cut. For example, many states have enacted restrictions on the abortions that are permitted in the state—such as a requirement that pregnant people wait twenty-four hours after receiving certain state-scripted and biased information before obtaining an abortion (“mandatory-delay/biased-counseling” laws)—rather than passing a statute affirmatively setting forth the conditions under which abortions are permitted. In this situation, a court could decide that these later enacted statutes were not irreconcilable with an earlier ban statute by interpreting the mandatory-delay/biased-counseling law as a regulation on the few abortions that might be allowed under the ban statute. To further complicate things, although most states recognize the doctrine of implied repeal, courts in many states are reluctant to find implied repeal. Thus, while repeal by implication may be the best legal argument available against immediate enforcement of a pre-Roe ban, abortion rights advocates should consider other strategies as well.
The state cannot enforce a law that would otherwise be effective because of the decision by a court to temporarily or permanently enjoin its enforcement.
What If Roe Fell provides an overview of what could happen to abortion rights in the fifty states, the District of Columbia, and the five most populous U.S. territories if the U.S. Supreme Court were to limit or overturn Roe v. Wade, the landmark Supreme Court ruling from 1973 that established abortion as a fundamental right. Understanding the abortion policy of a state, the District of Columbia, or a U.S. territory requires careful legal analysis of constitutions, laws, regulations, and court decisions, as well as legislative and access considerations. This report provides a snapshot of that analysis and anticipates how these governments would respond to a limitation or reversal of Roe and the likelihood that abortion rights would remain secure in some places and prohibited in others.
In order to contextualize laws and policies on abortion, this report provides an overview of international human rights standards and the right to abortion, as well as the U.S. legal landscape, including current constitutional protections for abortion and the types of cases making their way to the Supreme Court. Even while Roe remains the law of the land, this report acknowledges that because of federal, state, and territory abortion restrictions, too many people currently are unable to access abortion care and are living in what we describe as a “No-Roe” reality. Finally, this report offers some potential solutions, including federal and state legislation, and highlights the importance of civic engagement and funding abortion care, all of which could move a state, district, or territory along the spectrum from “Hostile” to “Expanded Access.” All terms used in this report are defined in a glossary. All laws included in this report are in effect, unless otherwise noted, including legislation enacted in 2019.
Between January 1, 2019, and November 15, 2019, eighteen states have enacted forty-six laws that prohibit or restrict abortion. Nine states enacted unconstitutional pre-viability bans in 2019, including Alabama’s total ban; the six-week bans enacted in Georgia, Kentucky, Louisiana, Mississippi, and Ohio; Missouri’s eight-week ban; and the eighteen-week bans enacted in Arkansas and Utah. On the other hand, states such as Illinois, Maine, Nevada, New York, Rhode Island, and Vermont have enacted laws that create a state right to abortion.
To determine how a limitation or reversal of Roe could affect abortion rights, we first examined whether the right to abortion is protected under state, territory, or D.C. law (“Protected”); if it is, we looked to see whether the state, territory, or District of Columbia enacted laws or policies that enhanced access to abortion care (“Enhanced Access”). If abortion is not protected by state, territory, or D.C. law
(“Not Protected”), we then looked to see if the government enacted laws or policies to restrict or prohibit access to abortion care (“Hostile”). Based on our analysis, we then placed each state, territory, and the District of Columbia into one of these four categories, which exist along a spectrum
from “Expanded Access” to “Protected” to “Not Protected” and, finally, to “Hostile.” The laws and policies identified as creating enhanced access to abortion include public funding and the requirement that abortion be included in private insurance coverage, unrestricted access for minors, the breadth of health-care practitioners who provide abortion care, and protections for clinic safety and access. We assessed hostility based on abortion bans (pre-Roe, trigger, gestational, reason, and method) and abortion restrictions (TRAP, parental involvement, consent, and physician-only laws). While these bans and restrictions generally have exceptions, this report does not list them in detail because those exceptions do not provide meaningful access and usually are difficult to utilize. Unless otherwise noted, all bans and restrictions discussed are in effect.
Based on our analysis described above, if the Supreme Court were to limit or overturn Roe, abortion would remain legal in twenty-one states and likely would be prohibited in twenty-four states and three territories.
There are eight states in the “Expanded Access” category. In these states, the right to abortion is protected by state statutes or state constitutions, and other laws and policies have created additional access to abortion care.
- California, Connecticut, Hawaii, New Jersey, New York, Oregon, Vermont, and Washington
Moving across the spectrum, there are fourteen states and the District of Columbia in the “Protected” category, meaning that the right to abortion is protected by state law but there are limitations on access to care.
- Alaska, Colorado, Delaware, the District of Columbia, Florida, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, and Rhode Island
There are three states and two territories in the “Not Protected” category. In these places, abortion may continue to be accessible but would be unprotected by state and district law. In some of these states, it is unclear whether the legislature would enact a ban if Roe is limited or reversed, but concern is warranted.
- New Hampshire, New Mexico, Puerto Rico, U.S. Virgin Islands, and Virginia
Finally, there are twenty-five states—nearly all of which are situated in the central and southern parts of the country—and three territories that we characterize as “Hostile,” meaning they could immediately prohibit abortion entirely. These states and territories are extremely vulnerable to the revival of old abortion bans or the enactment of new ones, and none of them has legal protections for abortion.
- Alabama, American Samoa, Arizona, Arkansas, Georgia, Guam, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, the Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming
If the Supreme Court gives states more leeway to restrict abortion or prohibit it all together, almost half the states would likely enact new laws as restrictive as possible or seek to enforce current, unconstitutional laws prohibiting abortion. States would then be divided into abortion deserts, where it would be illegal to access care, and abortion havens, where care would continue to be available. Millions of people living in abortion deserts, mainly in the South and Midwest, would be forced to travel to receive legal care, which would result in many people simply being unable to access abortion for a variety of financial and logistical reasons. However, the Supreme Court does not need to overturn Roe for the twenty-four “Hostile” states to act. Allowing states to increase enforcement of abortion restrictions that have no proven medical benefits will result in access being further decreased or essentially prohibited. It is critical that the five “Not Protected” states and the District of Columbia create a state right to abortion, and that the fourteen “Protected” states enact laws and policies that move them into “Expanded Access.” States would then be divided into abortion deserts, where it would be illegal to access care, and abortion havens, where care would continue to be available.
The Legal Landscape
This section details international human rights standards and the right to abortion and the right to abortion under the U.S. Constitution.
International Human Rights Standards & the Right to Abortion
International human rights law recognizes and protects access to safe and legal abortion as essential to guaranteeing the full range of human rights, including the rights to life, health, equality and non-discrimination, privacy, bodily autonomy, and freedom from cruel, inhuman, and degrading treatment. Efforts to ban abortion in the United States run directly counter to these human rights protections.
In recent years, UN human rights mechanisms have expressed concern about the impact of severe legal restrictions, barriers, and stigma on abortion access. They have called on governments to amend legislation to legalize abortion, lift barriers, remove criminal penalties, and prevent stigmatization of women and girls seeking abortion, so as to ensure effective access to safe, legal abortion services.See Breaking Ground: Treaty Monitoring Bodies on Reproductive Rights, Ctr. for Reprod. Rights (2018)
UN human rights treaty monitoring bodies have clearly established that when abortion is legal under domestic law, it must be available, accessible (including affordable), acceptable, and of good quality.See Committee on Economic, Social and Cultural Rights (CESCR), Gen. Comment No. 22: on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and … Continue reading In doing so, they have specified that states are obliged to abolish procedural barriers to abortion services, including third-party authorization requirements, mandatory waiting periods, and biased counseling.See, e.g., HRC, Concluding Observations: The Former Yugoslav Republic of Macedonia, para. 11, U.N. Doc. CCPR/C/MKD/CO/3 (2015) (advance unedited version) Committee on the Rights of the Child (CRC), … Continue reading They have also urged countries to provide financial support for those who cannot afford abortion services and to guarantee the availability of skilled health-care providers who can offer safe abortion services and ensure that provider refusals on the grounds of religion or conscience do not interfere with women’s access to services.See CEDAW Committee, Concluding Observations on Austria, para. 38-39, U.N. Doc. CEDAW/C/AUT/CO/7-8. 2013 (2013); CEDAW Committee, Concluding Observations on Kuwait, para. 43(a), U.N. Doc. … Continue reading
Importantly, they have recognized that laws that prohibit abortion and thereby force women to choose between continuing a pregnancy and traveling to another country to access legal abortion services can cause anguish and suffering, noting the financial, social, and health-related burdens and hardships that are placed on women in such situations.See Siobhán Whelan v. Ireland, Human Rights Committee, Commc’n No. 2425/2014, para.7.5-7.9, U.N. Doc. CCPR/C/119/D/2425/2014 (2017); Amanda Jane Mellet v. Ireland, Human Rights Committee, … Continue reading They have repeatedly found that denials of access to abortion services can amount to violations of the rights to life, health, privacy, non-discrimination, and freedom from cruel, inhuman, and degrading treatment. K.L. v. Peru, Human Rights Committee, Commc’n No. 1153/2003, para. 7, U.N. Doc. CCPR/C/85/D/1153/2003 (2005); HRC, Gen. Comment No. 36 (2018) on article 6 of the International Covenant on … Continue reading
The committee overseeing implementation of the UN Convention on the Elimination of Discrimination Against Women (CEDAW) has framed the right to abortion as an aspect of women’s autonomy,See, e.g., CEDAW Committee, Concluding Observations on New Zealand, para. 35(a), U.N. Doc. CEDAW/C/NZL/CO/7 (2012); CEDAW Committee, Concluding Observations on Sierra Leone, para. 32, U.N. Doc. … Continue reading and it has emphasized that a state’s failure or refusal to provide reproductive health services constitutes gender discrimination.CEDAW Committee, Gen. Recommendation No. 24: Article 12 of the Convention (women and health), at 360, para. 11 U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008); see e.g., L.C. v. Peru, CEDAW Committee, … Continue reading
In 2018, the UN Human Rights Committee, which oversees implementation of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States, made clear that the right to life includes the right to access safe and legal abortion.HRC, Gen. Comment 36 on the Right to Life, para. 8, U.N. Doc. CCPR/C/GC/36 (Oct. 31, 2018). The committee stated that the right to life requires states to provide safe, legal, and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or when carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering.Id. States may not introduce new barriers to abortion and should remove existing barriers that deny effective access by women and girls to safe and legal abortion.Id. States should likewise prevent the stigmatization of women and girls seeking abortion.Id.
The World Health Organization recognizes that in countries with restrictive abortion laws induced abortion rates are high, the majority of abortions are unsafe, and women’s health and lives are frequently put at risk. Legal restrictions on abortion do not result in fewer abortions. Instead, they compel women to risk their lives and health by seeking out unsafe abortion services. According to the World Health Organization’s safe abortion guidelines, in countries where induced abortion is highly restricted or unavailable, “safe abortion has frequently become a privilege of the rich, while poor women have little choice but to resort to unsafe providers.”World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 23 (2012). Conversely, the removal of legal restrictions on abortion has shifted clandestine, unsafe procedures to legal and safe ones, resulting in significantly reduced rates of maternal mortality and morbidity.
The UN human rights treaty bodies have made clear that countries cannot roll back rights once they have been established. A core human rights principle prohibits retrogression, which is a backward step in law or policy that impedes or restricts the enjoyment of a right. The Committee on Economic, Social and Cultural Rights has particularly noted the importance of avoiding retrogressive measures in the area of sexual and reproductive health and rights, such as the imposition of barriers to sexual and reproductive health information, goods, and services.CESCR, Gen. Comment No. 22: on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), para. 38, U.N. Doc. E/C.12/GC/22 … Continue reading
In recent years, UN human rights experts have issued numerous findings and recommendations with respect to the right to abortion access in the United States, in particular. For example, the UN Working Group on Discrimination Against Women in Law and Practice has recommended that the United States ensure that women be able to exercise their existing constitutional right under Roe v. Wade, repeal the Hyde Amendment, and combat the stigma attached to reproductive and sexual health care.U.N. Working Group on Discrimination Against Women in Law and Practice, Report of the Mission to the United States of America, para. 90(vii; x; xvi), U.N. Doc. A/HRC/32/44/Add.2 (June 7, 2016). The UN Special Rapporteur on Extreme Poverty has noted that low-income women face legal and practical obstacles to exercising their constitutional, privacy-derived right to access abortion services in the United States, and this lack of access to abortion services traps many women in cycles of poverty.Special Rapporteur on extreme poverty and human rights, Report of the Mission to the United States of America, para. 56, U.N. Doc. A/HRC/38/33/Add.1 (May 4, 2018) (by Philip Alston).
More recently, a group of UN human rights experts, including the Working Group on Discrimination Against Women and Girls, expressed concern over efforts by some state governments to restrict abortion access during the COVID-19 pandemic. The Working Group emphasized that restrictions on access to comprehensive reproductive health information and services, including abortion, “constitute human rights violations and can cause irreversible harm, in particular to low-income women and those belonging to racial minorities and immigrant communities.”UN Office of the High Commissioner for Human Rights, “United States: Authorities manipulating COVID-19 crisis to restrict access to abortion, say UN experts” May 27, 2020 The experts noted that these restrictions were the latest example illustrating a pattern of restrictions and retrogressions in access to legal abortion care across the country.Id.
U.S. Constitutional Right to Abortion
Overview of Supreme Court Decisions on Abortion and the Right to Liberty
Three major abortion cases—Roe v. Wade (1973), Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), and Whole Woman’s Health v. Hellerstedt (2016)—have defined the contours of the right to abortion. In its landmark ruling in Roe, the Supreme Court recognized that the specific protection for “liberty” in the Fourteenth Amendment of the U.S. Constitution includes the right to decide whether to continue or end a pregnancy. Since Roe and, most important, in Casey, the Court has reaffirmed the Constitution’s protection for this essential liberty, which guarantees each individual the right to make personal decisions about family, relationships, and bodily autonomy. Over the decades since the Court first held that the Constitution encompasses protection for the right to abortion, most recently in Whole Woman’s Health, it has also recognized that the right is meaningless if restrictions are allowed to dismantle actual access to abortion services.
The Landmark Ruling in Roe v. Wade
On January 22, 1973, the Supreme Court struck down Texas’s criminal ban on abortion and held that the right to abortion is a “fundamental right.”410 U.S. at 155, 164. In a 7–2 opinion, the Court held that, along with decisions relating to marriage, contraception, education, and family relationships, the decision about whether to continue or end a pregnancy is fundamental to “personal liberty.”See id. at 153 In doing so, the Court recognized the great “detriment that the State would impose upon the pregnant woman by denying this choice,” including forcing her to endure health risks associated with pregnancy and the costs of bringing a child into a family not prepared for one.Id.
Roe had two key parts: First, the Court ruled that, before viability, it is a pregnant person’s decision—and not the government’s—whether to continue a pregnancy. Accordingly, the government cannot ban abortion for any reason prior to viability. Roe, 410 U.S. at 163.
Second, Roe held that, as with other fundamental rights, restrictions on the right to abortion were subject to strict scrutiny—the most stringent level of constitutional review. This legal standard required that infringements on the right be narrowly tailored to serve a compelling government interest and used the trimester system to determine when each of these state interests was compelling.See id. at 164-65. Roe permitted more regulation as pregnancy advanced but only when that regulation was evidence-based and consistent with how other similar medical procedures were treated; crucially, under Roe, the government was not permitted to put its thumb on the scale to pressure pregnant people about their decision whether to continue or end a pregnancy.Id.
At the time Roe was decided, nearly all states banned abortion, except in certain limited circumstances. Under Roe, these bans were unconstitutional, making abortion legal, more accessible, and safer for many pregnant people throughout the country.
The erosion of Roe’s protections began immediately. Well-funded abortion opponents pressed state and federal lawmakers to enact a wide range of restrictive abortion laws attempting to reverse, directly or indirectly, Roe’s guarantee of reproductive freedom. Many states enacted barriers to abortion, such as requirements that married women involve their spouses and that young people involve their parents in their abortion decisions, restrictions on abortion coverage in state Medicaid programs and state employee health plans, bans on the performance of abortions in public hospitals, requirements that pregnant people delay their abortion for a certain period of time—usually twenty-four hours—after receiving certain state-scripted and biased information before obtaining an abortion (“mandatory delay/biased counseling” laws), and bans on abortion procedures.
Post-Roe and Pre-Casey: Chipping Away at the Right to Abortion
As lawsuits against these restrictions multiplied and some reached the Supreme Court, a changing Court issued a series of decisions diluting Roe.
In 1980, the Court held in Harris v. McRae that the federal government could prohibit poor people who rely on Medicaid for their insurance coverage from using that coverage to pay for medical care to end a pregnancy. The Court concluded that a federal ban on Medicaid coverage for abortion did not “interfere” with a woman’s right to make reproductive decisions, and that the government could “favor childbirth over abortion” through discriminatory funding. Harris v. McRae, 448 U.S. 297 (1980).
Since Harris, the annual federal budget rider known as the Hyde Amendment has continued to restrict the decisions of millions of low-income pregnant people—who are disproportionately women of color—about whether to continue a pregnancy.
The Court also upheld restrictions on a young person’s right to abortion. In a handful of cases, the Court upheld parental notice and consent requirements so long as they included a provision permitting a young person to obtain a judge’s permission to bypass the parental involvement requirement (“judicial bypass”). See Ohio v. Akron Ctr for Reprod. Health, 97 U.S. 502 (1990); Hodgson v. Minnesota, 497 U.S. 417 (1990); Belloti v. Baird, 443 U.S. 622 (1979).
Today, more than thirty-five states require either parental notice or consent for a young person seeking an abortion.
The Court, however, continued to invalidate restrictions on the rights of adult, non-indigent pregnant people to end a pregnancy, such as twenty-four-hour mandatory delay laws, biased counseling, and other medically unnecessary requirements. See Thornburgh v. Amer. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986); City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416 (1983); Colautti v. Franklin, 439 U.S. 379 … Continue reading
In 1988, President Reagan appointed a new justice (and the first woman) to the Supreme Court: Sandra Day O’Connor. The new composition of the Court led many to believe that Roe would be overturned. Yet, in Webster v. Reproductive Health Services (1989), a majority of the Court declined to overrule Roe, finding that the question of Roe’s validity was not properly before them.492 U.S. 490 (1989). Soon after, the territory of Guam and two states—Louisiana and Utah—enacted bans criminalizing virtually all abortions, providing the direct challenge to Roe that Webster lacked, which federal courts blocked. See Jane L. v. Bangerter, 102 F.3d 1112, 1113-1114 (10th Cir. 1996); Sojourner T v. Edwards, 974 F.2d 27 (5th Cir. 1992); Guam Soc. of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th … Continue reading
In the early 1990s, the fate of Roe was again in question. Anti-abortion state legislatures continued to enact restrictions on abortion that had previously been declared unconstitutional. For example, Mississippi, North Dakota, and Pennsylvania enacted twenty-four-hour mandatory delay and biased counseling requirements, and Pennsylvania went beyond other states by imposing a spousal notice requirement.
Casey: Reaffirming Roe’s Central Holding but Allowing More Restrictions to Stand
In 1991, the Supreme Court granted review of a challenge to several Pennsylvania abortion restrictions in Planned Parenthood of Southeastern Pennsylvania v. Casey. Casey squarely presented the question to the Court of whether to overturn or reaffirm Roe. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
In Casey, a majority of the Court voted to reaffirm Roe. Justices O’Connor, Souter, and Kennedy issued a controlling joint opinion stating that for decades “people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”Id. at 856. The Court could not dismiss “the certain cost of overruling Roe for people who have ordered their thinking and living around that case.”Id.
Casey therefore reaffirmed Roe’s central holding: that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”Id. at 879 The Court elaborated that abortion “involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” and is “central to the liberty protected by the Fourteenth Amendment.”Id. at 851. It emphasized the fundamental values of dignity and equality that the abortion right reflects, observing that a woman’s experience is “too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of a woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Id. at 852.
Although the Court affirmed Roe’s holding that states cannot ban abortion prior to viability, the joint opinion departed from strict scrutiny and adopted the “undue burden” standard to determine which restrictions were unconstitutional.See id. at 877. This less protective standard displaced strict scrutiny to recognize more fully the state’s interest throughout pregnancy in promoting potential life.See id. at 876-78. The undue burden standard aimed to give “real substance” to “the urgent claims of the woman to retain the ultimate control over her destiny and her body”Id. at 869. while permitting laws that are designed to persuade pregnant people to carry to term.Id. at 877. It explained that “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”Id. at 878.
The Casey Court applied this standard to the challenged Pennsylvania restrictions: a twenty-four-hour mandatory delay on pregnant people seeking abortion; state-mandated information (biased counseling) intended to persuade pregnant people to choose childbirth over abortion; and parental consent and spousal notice mandates, among other requirements. Although in earlier cases the Court had struck down biased counseling and mandatory delay laws because they failed strict scrutiny, a plurality of the Court upheld all the challenged restrictions except the spousal notice requirement under the undue burden standard.
After Casey: State Legislatures Enact Hundreds of Abortion Restrictions
Following Casey, states passed hundreds of incremental restrictions on abortion and courts evaluating the constitutionality of these laws struggled to apply key features of the undue burden test. Some held that an abortion regulation is constitutional only when it actually promotes the interest the state claims it does and advances the interest to an extent that outweighs the burdens the law imposes on abortion access. See, e.g., Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908, 919 (7th Cir. 2015), cert. denied, 136 S. Ct. 2545 (June 28, 2016).
Other courts conducted no such inquiry, maintaining that an abortion regulation is constitutional if “any conceivable rationale” exists for its enactment. Whole Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir.), modified, 790 F.3d 598 (5th Cir. 2015), rev’d and remanded sub nom. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
Between Casey and Whole Woman’s Health, the Supreme Court heard just four cases challenging abortion restrictions. Those cases included challenges to state and federal bans on a rarely used abortion procedure—dilation and extraction (D&X). In Stenberg v. Carhart (2000), the Court struck down Nebraska’s ban, finding that it imposed an undue burden because it did not include a health exception and it was written so broadly that it also banned the safest abortion procedure after fourteen or fifteen weeks.530 U.S. 914 (2000). By 2007, when a challenge to the federal ban reached the Court in Gonzales v. Carhart, Justice Samuel Alito had replaced Justice Sandra Day O’Connor. The Court upheld the federal ban, finding that it did not impose an undue burden, in part because the federal law’s textual differences from the Nebraska law the Court had previously considered led the Court to conclude that the federal ban did not affect the most commonly used second-trimester abortion procedure.550 U.S. 124 (2007). These cases, however, did not resolve disagreements in the lower courts about how to apply the undue burden standard.
Whole Woman’s Health: Reaffirming Roe and Clarifying the Undue Burden Test Requires Meaningful Court Review of Abortion Restrictions
One of the Court’s most recent major abortion decisions, Whole Woman’s Health v. Hellerstedt (2016) resolved this disagreement and supplied the missing guidance. Whole Woman’s Health clarified that the undue burden test is a form of heightened scrutiny that requires courts to undertake a meaningful review of abortion restrictions, and again reaffirmed Roe.136 S. Ct. 2292, 2309-10. More specifically, it made clear that the undue burden standard is a robust check on legislatures that requires courts to examine closely whether abortion restrictions have real-world benefits that outweigh the real-world burdens they impose on pregnant people, and strike the restrictions if they fall short.
To apply the test, courts must evaluate whether an abortion restriction actually furthers a valid state interest.Id. at 2310. In making this determination, courts cannot defer to a legislature’s claims about how the law does or might further its interests; they must conduct their own independent inquiry based on the evidence presented in the case.Id. Courts must then determine if the law confers benefits that outweigh the burdens it imposes on pregnant people and declare the law unconstitutional if the burdens outweigh the benefits.Id. at 2309. When engaging in this balancing, courts must take into account whether the evidence is based on scientifically reliable methodology.See id. at 2309-10.
Applying this standard, Whole Woman’s Health struck down the two parts of a Texas law challenged in that case: an admitting privileges provision requiring all abortion providers to obtain local hospital admitting privileges, and an ambulatory surgical center provision requiring every licensed abortion facility to meet hospital-like building standards.Id. at 2313, 2318. Although the State of Texas claimed that it enacted these laws to advance women’s health by making abortion safer, trial evidence showed that neither requirement offered any health or safety benefits. At the same time, evidence showed that they would cause most of Texas’s clinics to close, leaving the state with just a few clinics clustered in urban areas and thousands of people without adequate access. Because the burdens outweighed the benefits, the Court struck down both parts of the Texas law.
Whole Woman’s Health preserved abortion access for thousands of Texans. It also made clear that abortion restrictions are subject to rigorous review under the undue burden standard and that laws that could not withstand that scrutiny were unconstitutional.
Just four years later, the Supreme Court was again asked to review the constitutionality of an admitting privileges law. In light of Whole Woman’s Health, a Louisiana district court had struck down that state’s admitting privileges law as unconstitutional under the undue burden standard. The Louisiana law was identical to the Texas law and, had it taken effect, could have left Louisiana with one abortion provider. Louisiana appealed the decision to the Fifth Circuit, which reversed the district court and upheld the law. Abortion providers asked the Supreme Court to review the Fifth Circuit’s decision, arguing that the appellate court failed to apply the undue burden standard Whole Woman’s Health had just clarified. In a 5-4 victory in June Medical Services v. Russo (2020), the Court struck down the Louisiana law as unconstitutional under the undue burden standard. June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103 (2020).
June Medical was the first major abortion rights case decided by the Court since President Trump appointed Justices Gorsuch and Kavanaugh to the Court. Both justices would have upheld the law, despite it being identical to the law the Court had found unconstitutional four years earlier. Accordingly, while preserving abortion access in Louisiana, June Medical demonstrated how challenging it can be simply to maintain the status quo of limited access in front of this newly composed Court.
At a Crossroads
The stakes for the right to abortion are high. President Trump stated repeatedly that he would nominate only Supreme Court justices who were opposed to Roe, and three of his nominees are now members of the Court—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
As they have in the past, anti-abortion politicians are enacting increasingly extreme and blatantly unconstitutional abortion bans in a competition to ask the Supreme Court to overturn Roe. See, e.g., Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. 2019) (preliminarily enjoining Mississippi 6-week ban), appeal filed 19-60455 (5th Cir. June 24, 2019); Jackson … Continue reading
Over nearly fifty years, different compositions of the Supreme Court have not wavered on Roe’s central holding: that it is for individuals—and not the government—to decide whether to continue or end their pregnancy.
But the Supreme Court does not have to overturn Roe to undermine the right to abortion. The rejection of medically unnecessary and unduly burdensome abortion restrictions in Whole Woman’s Health did not stop anti-abortion politicians from enacting them or some lower courts from upholding them. See, e.g., June Med. Servs. v. Gee, 905 F.3d 787 (5th Cir. 2018), stay granted by 139 S Ct. 663 (2019) and petition for cert. filed No. 18-1323 (U.S. Apr. 17, 2019).
There are now dozens of cases challenging abortion restrictions, from outright abortion bans to various laws imposing barriers to access, making their way through the federal courts. These cases could give the Court the opportunity to reaffirm that the Constitution guarantees pregnant people meaningful access to abortion or depart from precedent that millions have come to rely upon.
Current No-Roe Reality
Current abortion bans and restrictions already place abortion out of reach for many people. Contemplating possible action by the Supreme Court to limit or overturn Roe requires an acknowledgement that there are people today who cannot access abortion care because of factors that include structural and interpersonal discrimination on the basis of poverty, race, gender identity, and disability. For example, throughout the United States, areas with high poverty rates often lack resources such as hospitals, health-care providers, and accessible public transportation. Poverty occurs in both urban and rural locations, and the South has the highest poverty rates of all.Semega, Income and Poverty in the United States: 2016. Poverty has a disproportionate impact on marginalized individuals and their communities, including women and girls, people of color, noncitizens, and people with disabilities.Jessica L. Semega, Kayla R. Fontenot, & Melissa A. Kollar, Income and Poverty in the United States: 2016, 13 U.S. Census Bureau (Sept. 2017) Nearly a third of all transgender individuals live in poverty. S.E. James, J.L. Herman, S. Rankin, M. Keisling, L. Mottet, and M. Anafi, The Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality 140 (2016). Almost one in five Hispanic people and almost a quarter of black people live in poverty, while people with disabilities are more than twice as likely to be poor as those without disabilities.Semega, Income and Poverty in the United States: 2016. Moreover, many people experience multiple, intersecting forms of discrimination (for instance, low-income people of color who are also transgender or disabled) that compound and intensify barriers to accessing abortion care. When pregnant people are unable to access abortion care, the consequences can be far-reaching and can affect their own well-being and economic security and that of their families.Diana Greene Foster et al., Socioeconomic consequences of abortion compared to unwanted birth, American Public Health Association (Oct. 30, 2012)
At the federal level, the Hyde Amendment has systematically denied abortion coverage to millions of low-income people and people of color for decades, curtailing their constitutional right to abortion. Since 1976, abortion rights opponents in Congress have used the Hyde Amendment to prohibit abortion coverage for Medicaid, Medicare, and the Children’s Health Insurance Program (CHIP); federal employees and their dependents; Peace Corps volunteers; Native Americans; and people in federal prison and immigration detention centers. The Hyde Amendment has a disproportionate impact on women of color, who make up just over half of the 7.5 million women potentially affected by it.Megan K. Donovan, In Real Life: Federal Restrictions on Abortion Coverage and the Women They Impact, 20 Guttmacher Policy Review 1, 2 (2017)
In addition to facing the barriers imposed by the Hyde Amendment, people with low incomes and those living in states that are hostile to abortion rights currently face numerous obstacles to abortion access. These barriers to care can include a small number of abortion providers who practice in different cities a significant distance away; going to a clinic twice, for state-mandated biased counseling twenty-four, forty-eight, or seventy-two hours before receiving abortion care, which requires time off from work or school; asking family, friends, and/or an abortion fund for help with paying for the abortion because public funding isn’t available; organizing and funding transportation, hotel stays, and child care; listening to state-mandated biased counseling that might emphasize the risk of abortion while omitting the risks of pregnancy; walking through protestors outside the clinic; facing stigma from family, friends, employers, or other community members; striving to get everything in place before twenty or twenty-two weeks’ gestation because care is not available in the state after that point; and knowing that the procedure costs more the longer it takes to figure out how to jump over these hurdles.
If the Supreme Court limits or overturns Roe, real and devastating access barriers will become a reality for even more people. Lawmakers and advocates who support abortion rights should work to prevent future access barriers while also working to tear down existing barriers.
The 2019 legislative sessions demonstrated that abortion opponents believe that their decades-long goal to prohibit abortion entirely will soon be possible: states hostile to abortion enacted total and near-total abortion bans, and legislators spoke openly of their goal to criminalize pregnant people and abortion providers. However, abortion rights supporters achieved critical victories this session: after more than seven years of hard work, New York enacted the Reproductive Health Act, which regulates abortion as health care instead of a crime; Illinois passed its Reproductive Health Act; Vermont and Rhode Island codified a right to abortion in state law; Maine authorized advance practice clinicians to provide abortion care; Nevada repealed long-standing abortion restrictions; and Hawaii prohibited discrimination based on reproductive health-care decisions. The Center for Reproductive Rights will work to ensure that abortion remains legal and accessible throughout the United States and its territories. The following suggestions are ways that we can work together to protect abortion rights.
Federal and state legislation protecting the right to abortion is critical in ensuring access to abortion care regardless of whether the Supreme Court acts to limit Roe. Supporters of abortion rights should work to build coalitions across issue areas, seed public and elected support for abortion rights, and work to codify abortion protections. As indicated in the state-by-state legal analysis that follows, the strategy in any state depends on the legal, legislative, and access realities.
Whatever the local reality, there are a number of broad legislative strategies that advocates should immediately consider in order to protect access to abortion. In some states, only defensive strategies are realistic; in others, advocates should consider a proactive strategy to protect the right to abortion or to create enhanced access. The following are legislative proposals to protect reproductive rights.
1. Federal legislation
The federal government has the power to enact laws and policies that protect or restrict abortion rights and abortion access throughout the United States. Below is current legislation that would protect abortion access at the federal level.
The Women’s Health Protection Act
The Women’s Health Protection Act (WHPA) was first introduced in 2013 and has been reintroduced in each subsequent Congress. It was introduced in the 116th Congress on May 23, 2019, with 173 original cosponsors in the House and forty-two original cosponsors in the Senate. Led by Senators Blumenthal and Baldwin in the Senate, and Representatives Chu, Frankel, and Fudge in the U.S. House of Representatives, WHPA would create a federal safeguard against restrictions and bans on abortion that single out abortion like no other health care and impede access to services. The bill creates a statutory right for providers to provide, and for their patients to receive, abortion services free from these medically unnecessary restrictions and bans. In essence, it would ensure that the right to abortion first recognized in Roe is a reality for people across the country, regardless of the state in which they live.
EACH Woman Act
Congress should repeal the Hyde Amendment, in part by passing the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act, which was first introduced in July 2015. The EACH Woman Act was reintroduced in the 116th Congress on March 12, 2019, by Representatives Lee, Schakowsky, and Degette in the House, and Senators Duckworth, Harris, Hirono, and Murray in the Senate.
The EACH Woman Act eliminates federal coverage restrictions on abortion services, such as the Hyde Amendment’s ban on coverage for Medicaid enrollees, and protects insurance providers from interference in their decision to cover abortion. Discriminatory restrictions on insurance coverage do not belong in our public policy.
2. State legislation
Individual states, territories, and the District of Columbia have the power to enact laws and policies that protect or restrict abortion rights and abortion access. Below are proactive approaches for protecting abortion access at the state, territory, or district level.
Abortion rights legislation
Supportive lawmakers, in coordination with their local coalitions, should consider introducing and/or supporting legislation that protects the right to abortion or enhances access to abortion. A series of factors can be weighed in assessing whether a strategy is appropriate for your state. For instance:
- Does the state constitution already provide protection for the right to abortion?
- If not, how likely is abortion rights legislation to be enacted in the state?
- Will a compromise have to be reached to achieve success? Is the price of such a compromise too steep?
- What is the possibility of a legislative backlash, which could leave the state with a legal framework worse than it already has? For example, would a preemptive approach to abortion rights provoke abortion ban legislation or an anti-choice ballot initiative process?
- Is the governor likely to veto or sign abortion rights legislation?
After considering these factors, lawmakers and advocates may wish to introduce various types of supportive legislation, including statutory protections for abortion, authorization for advance practice clinicians to provide abortion care, repeal of physician-only laws, or clinic safety and access protections. Members of the State Policy & Advocacy team at the Center for Reproductive Rights are available for consultation on how best to tailor legislative proposals for a given state. Abortion rights advocates may consider other strategies that will send a strong message and strengthen the legal and policy framework to protect abortion.
Fund abortion care
Lawmakers and advocates in states or territories that do not provide public funding for all medically necessary abortions should consider how such funding could be achieved. While coverage campaigns take time, supportive coalitions, and capacity, public funding can ultimately be the deciding factor in whether pregnant people can access abortion care. All* Above All, a campaign working to restore public insurance coverage, provides ideas, strategy, and support for coverage campaigns. Further, lawmakers and advocates in states that reported to the Government Accountability Office that their state does not cover Mifeprex should work to ensure that medication abortion is available in their state. A person’s income should not stand in the way of access to abortion care.
Repeal abortion bans & restrictions
Abortion rights supporters should work to repeal abortion bans and restrictions. In states with pre-Roe laws criminalizing abortion, it is critical to expressly repeal those statutes so that states do not criminalize abortion if the Supreme Court limits Roe. Likewise, in the eight states with trigger bans that would go into effect if the Court limits or overturns Roe, lawmakers and advocates should work to build support for repeal. In fact, all of the abortion bans and restrictions detailed in this report negatively affect abortion access and should be the focus of repeal campaigns. In states that are considered supportive of abortion rights, it is critical to repeal restrictions that limit access to abortion rights.
For example, TRAP laws serve no medical purpose and do not result in increased safety for patients; they should be repealed, and clinic guidelines supported by the American College of Gynecology and Obstetrics (ACOG) and the National Abortion Federation (NAF) should be enacted in their place. Most states require parental involvement in a minor’s abortion, yet research demonstrates that a majority of minors voluntarily involve their parents or trusted adults in their decision to have an abortion. States should not jeopardize the safety of minors who decide not to involve their parents. Repealing abortion bans and restrictions will ensure that pregnant people can access abortion care.
Protect state constitutions
In states where abortion rights may be protected under the state constitution, advocates should work to ensure that their highest state court judges—whether elected or appointed—are supportive of privacy and abortion rights. In the states facing hostile 2020 ballot initiatives, it is critical that abortion rights supporters—lawmakers, advocates, members of the general public—come together to defeat those initiatives. It is also wise to monitor legal challenges involving the right to privacy—even those that are not explicitly related to abortion rights—which could provide an early warning that protections for reproductive rights are at risk of being undermined.
Block new restrictive legislation
Lawmakers and advocates must prepare to block the passage of new bans and restrictions. The 2019 legislative sessions demonstrated that abortion rights opponents believe that a Roe limitation or reversal is possible. Therefore, advocates should build strong cross-issue coalitions and gather data to demonstrate how truly harmful an abortion ban would be for people in their state. While in many cases it will not be ultimately possible to block passage of these bans, advocates may be successful in reducing the severity of the language of the ban by, for example, attaching amendments with broad exceptions.
Educating voters about the importance of engaging in local, state, and federal elections is critical to protecting abortion rights. Holding lawmakers accountable for their voting records on abortion rights and their adherence, or lack thereof, to campaign promises can make the difference in protecting or restricting abortion rights. At each level of government, elected officials are enacting laws and policies that help determine whether pregnant people can access abortion care. The outcome of presidential and senatorial elections will determine who will be nominated for Supreme Court vacancies and whether abortion rights supporters will be confirmed by the Senate. Congressional elections will determine whether abortion rights will be codified in federal law. State gubernatorial and legislative elections determine whether abortion protections or restrictions are enacted. Local elections can determine whether cities will adopt policies that enhance access to abortion care. Local, state, and federal elected officials share the ability to determine the condition of abortion rights and access for their constituencies.
Judicial elections are critically important as well because elected state court judges and justices may be called upon to determine whether state constitutions protect the right to abortion. In hostile states, state supreme court decisions can preserve the right to abortion for millions of pregnant people. While the Iowa and Kansas legislatures are hostile to abortion rights and have passed numerous abortion bans and restrictions, the Iowa and Kansas Supreme Courts recently issued opinions concluding that those states’ constitutions protect the right to abortion. Unless those constitutions are amended, unconstitutional abortion restrictions will be struck down under the state constitutions, ensuring that abortion remains legal in Iowa and Kansas even if the United States Supreme Court limits or reverses Roe.
Finally, ballot initiatives can either limit or expand state protections of abortion rights. Restrictive ballot initiatives that seek to amend state constitutions in states where there is a state right to abortion place abortion rights at risk. Supportive ballot initiatives provide another method to ensure that abortion is protected by state law. Voters need to understand how civic engagement can directly affect abortion rights.
Funding Abortion Care
Funding is a crucial component of access because abortion has been, and will always be, available to people who have the ability to finance their care. Without adequate public funding for abortion, abortion providers have worked tirelessly to keep costs low, and abortion funds have worked tirelessly to provide financial and logistical support to as many people as possible. However, the need continues to exceed these resources, and governments can fund abortion care.
For low-income people, public funding is critical to ensuring that they can access their right to abortion. Federal, state, and local governments have a role to play in funding abortion care. After Roe, federal Medicaid funds were available for medically necessary abortions, and Medicaid covered almost one-third of all abortions. However, since 1976, the budget rider known as the Hyde Amendment has prohibited federal coverage for abortion through the Medicaid program, the Indian Health Service, and numerous other federal programs. In 1977, Rosie Jimenez died in Texas, becoming the first woman known to have died from an illegal abortion since the passage of Hyde. In 1980, the U.S. Supreme Court found that the Hyde Amendment did not violate the U.S. Constitution. Through the Hyde Amendment, Congress bans the use of federal funds to pay for abortion except when necessary to save a pregnant person’s life or if the pregnancy resulted from rape or incest. The amendment has been renewed by Congress, with some variations in its scope, every year since 1976, preventing millions of pregnant people from exercising their legal right to abortion. Hyde should not be reauthorized, and the federal government should return to covering all medically necessary abortions for people enrolled in Medicaid.
States can augment federal Medicaid funding in order to provide additional abortion coverage. In 2018, the Government Accountability Office (GAO) asked states to respond to a survey about Medicaid coverage of abortion care. One state, South Dakota, reported that its Medicaid program only covers abortion care when the pregnant person’s life is endangered, a violation of federal law. More concerning, GAO found that fourteen states are not covering Mifeprex, forcing pregnant people on Medicaid to either find other funding or undergo an aspiration abortion. GAO called on the Centers for Medicare and Medicaid Services to take action to ensure that states are complying with federal Medicaid requirements on abortion coverage. More states should cover all medically necessary abortion care; states voluntarily providing public funding should enact laws or rules to ensure that funding remains in place.
In June 2019, after a successful campaign led by the National Institute for Reproductive Health, New York City announced that it will fund abortion coverage in its fiscal year 2020 budget through a grant to the New York Abortion Access Fund. The $250,000 grant will be administered by the fund and help low-income people in New York City can access abortion. More cities should follow New York’s example and provide public funding for abortion care.
Abortions funds across the United States help pregnant people access abortion care by removing financial and logistical barriers. Funds provide resources to pay for medical care and sometimes assist with other expenses like transportation, childcare, translation, and travel costs. The National Network of Abortion Funds (NNAF) is the membership organization for over seventy abortion funds and provides comprehensive support to its members. Staff and board members at abortion funds often advocate at the local and state level for the people they serve and, until more public funding is available for abortion care, the funds fill a crucial hole wrenched open by the Hyde Amendment. A comprehensive list of abortion funds is available on NNAF’s website.
Direct support for clinics
Abortion providers play a vital role in ensuring access to abortion care. However, their job is complicated by TRAP laws, gaps in public funding, and the stigma perpetuated by abortion opponents. Abortion providers have been murdered and targeted with other acts of violence. Capacity is also an issue—today there are six states in which there is only one remaining abortion clinic. And, in addition, abortion providers serve as plaintiffs in most lawsuits challenging abortion restrictions. Without abortion providers’ leadership in the courts, many restrictions would go unchallenged, as the burden would fall on the pregnant people seeking abortion to challenge these laws on their own behalf. Cognizant of these challenges, abortion clinics have worked to keep costs low while generating enough revenue to sustain clinic operations. A list of independent abortion clinics is available on the Abortion Care Network website.
International human rights law recognizes access to safe and legal abortion as essential to guaranteeing the full range of human rights. Efforts to ban abortion in the United States run directly counter to these human rights protections. Over the decades since the Supreme Court first held that the U.S. Constitution protects the right to abortion, the Court has recognized that the right is meaningless if restrictions dismantle access. However, abortion opponents continue to attack abortion access and rights in their quest to overturn precedent and harm millions of people. Yet, the Constitution has not changed, and abortion’s significance for equality, dignity, and personal decision-making has not changed. The only things that may have changed are the views of those who are confirmed to sit on the federal courts.
If the Supreme Court limits or overturns Roe, real and devastating access barriers will become a reality for even more people. Almost half of the states likely would enact new laws that are as restrictive as possible or seek to enforce current, unconstitutional laws prohibiting abortion. States would then be divided into abortion deserts, where it would be illegal to access care, and abortion havens, where carewould continue to be available. Millions of people living in abortion deserts, mainly in the South and Midwest, would be forced to travel to receive legal care, which would result in many more people being unable to access abortion for a variety of financial and logistical reasons. However, the Supreme Court does not need to overturn Roe for the twenty-four “Hostile” states to act. Allowing states to increase enforcement of abortion restrictions that have no proven medical benefits will result in access being further decreased or essentially prohibited. It is critical that the five “Not Protected” states and the District of Columbia create a state right to abortion, and that the fourteen “Protected” states enact laws and policies that move them into “Enhanced Access.”
The 2019 state legislative sessions demonstrated that abortion opponents believe that their decades-long quest to prohibit abortion can be achieved. However, abortion rights supporters attained critical victories in 2019. The Center for Reproductive Rights will work to ensure that abortion remains legal and accessible throughout the United States and its territories. Together, we can enact legislation at the federal, state, and territory level to repeal abortion bans and restrictions and provide protection, funding, and enhanced access. We can demonstrate our support for abortion rights through civic engagement and by supporting abortion funds and providers. Together, we can ensure that abortion remains legal and becomes accessible for all.
|↑1||Bonnie Steinbock, Preventing Sex-Selective Abortions in America: A Solution in Search of a Problem, The Hasting Center (2017)|
|↑2||See, e.g., ACOG, Increasing Access to Abortion (Nov. 2014, reaffirmed 2019); National Abortion Federation, Clinical Policy Guidelines for Abortion Care (2018)|
|↑3||See Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 94, 96 S. Ct. 2831, 2852, 49 L. Ed. 2d 788 (1976) (“the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy”).|
|↑4||See, e.g., Me. Rev. Stat. Ann. tit. 22, § 1598(1). Law was amended to allow physician assistants and advanced practice nurses to also perform abortions. See H.P. 922, 129th Leg., 1st Reg. Sess. (Me. 2019); Wash. Rev. Code § 9.02.110; Wash. Att’y Gen. Op 2004 No. 1 (2004); Wash. Att’y Gen. Op 2019 No. 1 (2019).|
|↑5||See, e.g., Mass. Gen. Laws ch. 272, § 19, repealed by S.B. 784, 190th Gen. Assemb., Reg. Sess. (Ma 2018).|
|↑6||Planned Parenthood of Nashville v. McWherter, 817 S.W.2d 13, 16 (1991); see also McCorvey v. Hill, No. 03-10711 (5th Cir. Sept. 14, 2004) (Texas’s pre-Roe statute repealed by implication).|
|↑7||See Breaking Ground: Treaty Monitoring Bodies on Reproductive Rights, Ctr. for Reprod. Rights (2018)|
|↑8||See Committee on Economic, Social and Cultural Rights (CESCR), Gen. Comment No. 22: on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), para. 11-21, U.N. Doc. E/C.12/GC/22 (2016); CESCR, Gen. Comment No. 14 (2000) The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), para. 12, U.N. Doc. E/C.12/2000/4 (2000); Human Rights Committee (HRC), General Comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, para. 8, U.N. Doc. CCPR/C/GC/36 (2018).|
|↑9||See, e.g., HRC, Concluding Observations: The Former Yugoslav Republic of Macedonia, para. 11, U.N. Doc. CCPR/C/MKD/CO/3 (2015) (advance unedited version) Committee on the Rights of the Child (CRC), Gen. Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), para. 31, U.N. Doc. CRC/C/GC/15 (2013); Convention on the Elimination of Discrimination Against Women (CEDAW) Committee, Concluding Observations: Hungary, para. 31(c), U.N. Doc. CEDAW/C/HUN/CO/7-8 (2013); CESCR, Gen. Comment 14: The Right to the Highest Attainable Standard of Health (Art. 12), (22nd Sess., 2000), para. 12(d), 21, 34, U.N. Doc. E/C.12/2000/4 (2000); CEDAW Committee, Gen. recommendation No. 24: Article 12 of the Convention (women and health), (20th Sess. 1999), para. 22, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008).|
|↑10||See CEDAW Committee, Concluding Observations on Austria, para. 38-39, U.N. Doc. CEDAW/C/AUT/CO/7-8. 2013 (2013); CEDAW Committee, Concluding Observations on Kuwait, para. 43(a), U.N. Doc. CEDAW/C/KWT/CO/3-4 (2011); HRC, Concluding Observations: Poland, para. 23-24, U.N. Doc. CCPR/C/POL/CO/7 (Nov. 23, 2016); Italy, para. 16-17, U.N. Doc. CCPR/C/ITA/CO/6 (May 1, 2017); Colombia, para. 20-21, U.N. Doc. CCPR/C/COL/CO/7 (Nov. 17, 2016); Poland, para. 12, U.N. Doc. CCPR/C/POL/CO/6 (2010); Poland, para. 8, U.N. Doc. CCPR/CO/82/POL (2004).|
|↑11||See Siobhán Whelan v. Ireland, Human Rights Committee, Commc’n No. 2425/2014, para.7.5-7.9, U.N. Doc. CCPR/C/119/D/2425/2014 (2017); Amanda Jane Mellet v. Ireland, Human Rights Committee, Commc’n No. 2324/2013, para. 7.8, 7.10-7.11, 8, U.N. Doc. CCPR/C/116/D/2324/2013 (2016)|
|↑12||K.L. v. Peru, Human Rights Committee, Commc’n No. 1153/2003, para. 7, U.N. Doc. CCPR/C/85/D/1153/2003 (2005); HRC, Gen. Comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, para. 8, U.N. Doc. CCPR/C/GC/36 (Oct. 31, 2018); CEDAW Committee, Gen. recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, para. 18, U.N. Doc. CEDAW/C/GC/35 (2017); CESCR, Gen. Comment No. 14. The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on Economic, Social and Cultural Rights), para 8, 21, UN Doc. E/C.12/2000/4 (2000).|
|↑13||See, e.g., CEDAW Committee, Concluding Observations on New Zealand, para. 35(a), U.N. Doc. CEDAW/C/NZL/CO/7 (2012); CEDAW Committee, Concluding Observations on Sierra Leone, para. 32, U.N. Doc. CEDAW/C/SLE/CO/6 (2014).|
|↑14||CEDAW Committee, Gen. Recommendation No. 24: Article 12 of the Convention (women and health), at 360, para. 11 U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008); see e.g., L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, para. 8.17, 9, 12(iii), U.N. Doc. CEDAW/C/50/D/22/2009 (2011).|
|↑15||HRC, Gen. Comment 36 on the Right to Life, para. 8, U.N. Doc. CCPR/C/GC/36 (Oct. 31, 2018).|
|↑19||World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 23 (2012).|
|↑20||CESCR, Gen. Comment No. 22: on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), para. 38, U.N. Doc. E/C.12/GC/22 (2016).|
|↑21||U.N. Working Group on Discrimination Against Women in Law and Practice, Report of the Mission to the United States of America, para. 90(vii; x; xvi), U.N. Doc. A/HRC/32/44/Add.2 (June 7, 2016).|
|↑22||Special Rapporteur on extreme poverty and human rights, Report of the Mission to the United States of America, para. 56, U.N. Doc. A/HRC/38/33/Add.1 (May 4, 2018) (by Philip Alston).|
|↑23||UN Office of the High Commissioner for Human Rights, “United States: Authorities manipulating COVID-19 crisis to restrict access to abortion, say UN experts” May 27, 2020|
|↑25||410 U.S. at 155, 164.|
|↑26||See id. at 153|
|↑28||Roe, 410 U.S. at 163.|
|↑29||See id. at 164-65.|
|↑31||Harris v. McRae, 448 U.S. 297 (1980).|
|↑32||See Ohio v. Akron Ctr for Reprod. Health, 97 U.S. 502 (1990); Hodgson v. Minnesota, 497 U.S. 417 (1990); Belloti v. Baird, 443 U.S. 622 (1979).|
|↑33||See Thornburgh v. Amer. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986); City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416 (1983); Colautti v. Franklin, 439 U.S. 379 (1979).|
|↑34||492 U.S. 490 (1989).|
|↑35||See Jane L. v. Bangerter, 102 F.3d 1112, 1113-1114 (10th Cir. 1996); Sojourner T v. Edwards, 974 F.2d 27 (5th Cir. 1992); Guam Soc. of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366 (9th Cir. 1992).|
|↑36||Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).|
|↑37||Id. at 856.|
|↑39||Id. at 879|
|↑40||Id. at 851.|
|↑41||Id. at 852.|
|↑42||See id. at 877.|
|↑43||See id. at 876-78.|
|↑44||Id. at 869.|
|↑45||Id. at 877.|
|↑46||Id. at 878.|
|↑47||See, e.g., Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908, 919 (7th Cir. 2015), cert. denied, 136 S. Ct. 2545 (June 28, 2016).|
|↑48||Whole Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir.), modified, 790 F.3d 598 (5th Cir. 2015), rev’d and remanded sub nom. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).|
|↑49||530 U.S. 914 (2000).|
|↑50||550 U.S. 124 (2007).|
|↑51||136 S. Ct. 2292, 2309-10.|
|↑52||Id. at 2310.|
|↑54||Id. at 2309.|
|↑55||See id. at 2309-10.|
|↑56||Id. at 2313, 2318.|
|↑57||June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103 (2020).|
|↑58||See, e.g., Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. 2019) (preliminarily enjoining Mississippi 6-week ban), appeal filed 19-60455 (5th Cir. June 24, 2019); Jackson Women’s Health Org. v. Currier, 349 F.Supp.3d 536 (S.D. Miss. 2018) (permanently enjoining Mississippi 15-week abortion ban), appeal filed No. 18-60868 (5th Cir. Dec. 17, 2018).|
|↑59||See, e.g., June Med. Servs. v. Gee, 905 F.3d 787 (5th Cir. 2018), stay granted by 139 S Ct. 663 (2019) and petition for cert. filed No. 18-1323 (U.S. Apr. 17, 2019).|
|↑60||Semega, Income and Poverty in the United States: 2016.|
|↑61||Jessica L. Semega, Kayla R. Fontenot, & Melissa A. Kollar, Income and Poverty in the United States: 2016, 13 U.S. Census Bureau (Sept. 2017)|
|↑62||S.E. James, J.L. Herman, S. Rankin, M. Keisling, L. Mottet, and M. Anafi, The Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality 140 (2016).|
|↑63||Semega, Income and Poverty in the United States: 2016.|
|↑64||Diana Greene Foster et al., Socioeconomic consequences of abortion compared to unwanted birth, American Public Health Association (Oct. 30, 2012)|
|↑65||Megan K. Donovan, In Real Life: Federal Restrictions on Abortion Coverage and the Women They Impact, 20 Guttmacher Policy Review 1, 2 (2017)|