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June 28, 2022

What will post-Roe reproductive care look like?

Daily Briefing

    Following the Supreme Court's decision to overturn the 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions, states across the country are moving to ban abortions. Some health care experts say the moves create confusing and uncertain implications for reproductive care and could create legal risks for providers.

    Check out our new resource page for post-Roe implications for health care

    Where abortion stands across the country

    The Supreme Court last week voted 6-3 in the case of Dobbs v. Jackson Women's Health Organization, overturning the 1973 Roe v. Wade decision and the 1992 Planned Parenthood v. Casey and eliminating the constitutional right to an abortion. Under this ruling, the legality of abortion returned to the purview of individual states.

    According to The Hill, thirteen states had "trigger laws" that would enact bans on abortion in the event of Roe being overturned. Since the ruling, four of these thirteen states, including Kentucky, Louisiana, Missouri, and South Dakota, have restricted abortion access.

    Six other states with trigger laws, including Arkansas, Mississippi, North Dakota, Oklahoma, Utah, and Wyoming, will soon follow suit with bans after Roe's overturn is certified by their state attorney general. In addition, Idaho, Tennessee, and Texas will see their trigger bans on abortion go into effect 30 days after the Court's ruling.

    Aside from these states with trigger laws, five U.S. states, including Arizona and Michigan, have pre-Roe abortion laws that could go into effect depending on each state's legislative action or judicial enforcement, NPR reports. Overall, the Guttmacher Institute estimates that abortion is likely or certain to be banned in 26 U.S. states in the near future.

    Currently, 16 states and the District of Columbia have laws protecting the right to abortion. In addition, courts in Kansas and Montana have ruled their state constitutions establish the right to abortion—although ballot measures and legal challenges may impact this protection.

    According to Greer Donley, an assistant professor of law at University of Pittsburgh, the next few months are going to be "total chaos" as different states implement new laws regarding abortion. "Patients are going to be totally confused trying to figure out where to go," she said. "Clinics will be inundated by out of state travelers. It's going to be a total, total mess."

    So far, there are no laws that will prosecute someone who travels across state lines to get an abortion, but legal experts say that it could be a possibility in the future.

    "There is no guarantee that an aggressive prosecutor might try to stretch the law as much as they can." David Cohen, a law professor at Drexel University.

    However, in a concurring Dobbs opinion, Supreme Court Justice Brett Kavanaugh said states outlawing abortion could not bar residents from traveling to other states to receive the procedure.

    "May a state bar a resident of that state from traveling to another state to obtain an abortion?" he wrote. "In my view, the answer is no based on the constitutional right to interstate travel."

    Providers face difficulties with abortion care moving forward

    In a statement, Jack Resneck Jr., president of the American Medical Association (AMA), condemned the Supreme Court's ruling and said the decision is "a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients' rights to evidence-based reproductive health services."

    In an amicus brief from two dozen medical groups, including AMA and the American College of Obstetricians, the groups said bans on abortion will force "clinicians to make an impossible choice between upholding their ethical obligations and following the law."

    Some abortion laws do not explicitly cover gray areas like ectopic pregnancies, miscarriages, or the impact of other health conditions like cancer on pregnancy. Providers have expressed concerns about whether the care they provide to terminate pregnancies in these instances will also be criminalized.

    "It's very frightening and confusing for physicians and the whole team that cares for patients to know, what can we do, what is OK and what's not OK?" said Lisa Harris, an OB-GYN and professor at the University of Michigan. "… Nobody has the answers right now, and my fear is that the fear that doctors and nurses and health care administrators and leaders will feel – their fear of intervening – will mean that some patients will die when they didn't need to."

    "From a medical malpractice and legal standpoint, I think a lot of health care systems, and even individuals, are going to be very risk averse," said Amy Addante, an OB-GYN and fellow with Physicians for Reproductive Health.

    In addition, telehealth providers who provide abortion services across multiple states are also likely to see their ability to offer care to those who need it restricted in certain areas. Currently, 19 states have banned the use of telehealth for abortions, and 19 others require more than two in-person visits for abortion care.

    "Restrictions affect us all," said Cindy Adam, co-founder and CEO of Choix, a digital health care provider that operates in California, Colorado, and Illinois. "Abortion care via telehealth is [still] abortion care. So, at least in the way that Choix operates, we would not be able to provide care in states where specific trigger bans go into place or where states outright [ban] abortion care."

    Some health experts have also said that medical students and residents in states where abortion is banned will not receive training on care related to terminating pregnancies, which could have implications for patient care.

    "Let's assume that you're in Texas. Your OB-GYN was born, raised and trained in Texas, and they've never done an abortion," said Theresa Rohr-Kirchgraber, president of the American Medical Women's Association. "You come in with preeclampsia at 25 weeks, and they can't take that child out of your womb. It's so scary."

    Biden vows to protect abortion pills, travel

    On Friday, President Joe Biden said Roe's overturn was a "tragic error" and vowed that his administration would work to expand protections for abortion medications and contraceptives.

    "My administration will also protect a woman's access to medications that are approved by the Food and Drug Administration, the FDA," Biden said. "Like contraception which is essential for preventative health care [and] mifepristone, which the FDA approved 20 years ago to safely end early pregnancies and is commonly used to treat miscarriages."

    "Some states are saying that they'll try to ban or severely restrict access to these medications. But extremist governors and state legislatures are looking to block the mail or search a person's medicine cabinet or control a woman's actions by tracking data on her apps she uses," he added. "[They] are wrong and extreme and out-of-touch of the majority of Americans.”

    In addition, Biden said he would defend the "bedrock right" of individuals living in areas where abortions are now banned to travel to another state to terminate their pregnancies.

    "If any state or local official, high or low, tries to interfere with a woman exercising her basic right to travel, I will do everything in my power to fight that deeply un-American attack," Biden said. (Sullivan, The Hill, 6/24; Knight et al., Kaiser Health News, 6/24; Sullivan/Gourlay, "Shots", NPR, 6/24; Bogage/Rowland, Washington Post, 6/25; Sasani, New York Times, 6/24; Simmons-Duffin, "Shots", NPR, 6/24; Carbajal, Becker's Hospital Review, 6/24; Turner, Modern Healthcare, 6/21; Devereaux, Modern Healthcare, 6/24; Choi, The Hill, 6/24; Stohr, Bloomberg, 6/24)

    The business implications of overturning Roe v. Wade

    Access our new resource library

    physiciansThe recent Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization has triggered a cascade of uncertain consequences for health care leaders and the patients they serve.

    Going forward, our research teams will be updating this new resource page with helpful analysis and deep dives, including: 

    Access now

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