Intended for healthcare professionals

Editorials

The US turns its back on women’s reproductive rights

BMJ 2022; 377 doi: https://doi.org/10.1136/bmj.o1206 (Published 17 May 2022) Cite this as: BMJ 2022;377:o1206
  1. Lawrence O Gostin, director
  1. 1O’Neill Institute for National and Global Health Law, Georgetown Law, Washington, DC, USA
  1. gostin{at}georgetown.edu

Sweeping restrictions criminalise women and health workers, widen inequality, and increase deaths

On 2 May 2022, Politico published a leaked draft of a US Supreme Court opinion overturning the 1973 landmark case establishing a woman’s constitutional right to abortion before fetal viability (Roe v Wade).1 The leaked opinion concerned a current case, Dobbs v Jackson Women’s Health, challenging a Mississippi law that bans abortion after 15 weeks’ gestation, except in medical emergencies or the case of severe fetal abnormality.2 In it, the highly conservative Justice Samuel Alito said, “the Constitution makes no reference to abortion.”

If it holds, the Supreme Court opinion would reverse half a century of settled precedent, including a high profile judgment in 1992 ruling that states cannot impose an “undue burden” on a woman’s right to choose.3 Nearly 60% of Americans support legal abortion, but we now face the possibility of two alternative Americas—one in which abortion is safe and lawful, and one where it is criminalised.4

If Roe v Wade is overturned, 26 states are certain or likely to ban abortions, including 13 with “trigger” laws that will ban abortions immediately.5 This would deny reproductive rights to 40 million women of reproductive age in the US. Some states offer no exception for rape, incest, or non-fatal health risks to the woman. States that do not completely ban abortions could impose harsh restrictions, making it difficult to access abortions. Many low income and rural women will have to travel hundreds of miles for abortion services.

For health workers, restrictive laws will prevent open and honest counselling of patients and force decision making under threat of prosecution. In Oklahoma, for example, anyone performing an abortion faces to up to 10 years’ imprisonment. Criminal penalties also often apply to individuals aiding and abetting abortions, including family members.

Inequity

While abortion bans violate autonomy and bodily integrity, they also have deeply inequitable effects. Black women are three times more likely than white women to die from pregnancy related causes.6 Abortion restrictions fall disproportionately on women of colour, young women, those on low incomes or living in rural areas, and those in abusive relationships. Women with means can travel to states that permit abortions, but those without cannot take time off from work, pay for childcare, or afford to travel.

The inequity is more acute because the US does not guarantee health services and Medicaid, the government fundedhealth coverage programme for people on low incomes, is prohibited from paying for abortion services. Without the constitutional protection of Roe v Wade, many disadvantaged women will be forced into unwanted pregnancies, and pregnancy related deaths are expected to rise by 20% or more.7

Self-managed abortions have become safer thanks to abortion medication (a combination of mifepristone and misoprostol), distributed through clinics and abortion support networks. The Food and Drug Administration loosened restrictions on abortion pills, allowing access through telehealth with pills posted to patients to take at home through 10 weeks’ gestation.8 Yet many states are now criminalising distribution of abortion pills or clarifying that bans also apply to medical abortions. Although women could order abortion medications from foreign providers, the FDA has said it is generally unlawful to import prescription medications.

The repercussions would not end there. Louisiana may classify abortion from the moment of conception as homicide.9 Women who miscarry would face greater risks too, as it can be clinically difficult to distinguish pregnancy loss from attempted abortion. Providers could be required to report suspected abortions to law enforcement agencies, deterring women from seeking much needed care.

The leaked Supreme Court opinion rejects Roe and Casey’s affirmation of a broad right to privacy, which could erode key human rights such as same sex marriage (Obergefell v Hodges, 2015), contraception (Griswold v Connecticut, 1965; Eisenstadt v Baird, 1972), and consensual same sex intimacy (Lawrence v Texas, 2003). A post-Roe America may be inhospitable to many rights held by marginalised communities.

Human rights

Since Roe v Wade, the overwhelming global trend has been towards expanding access to abortion, buoyed by international human rights law. Reforms protecting reproductive rights have swept Latin America (Argentina, Colombia, Mexico). Ireland, with a Catholic tradition, legalised abortion in 2018.

International human rights law prohibits governments from impeding access to abortion services. Sexual and reproductive health are integral parts of the right to health.10 Human rights law guarantees freedom from coercion and discrimination regarding a person’s body and sexual and reproductive health, anchored in bodily autonomy and self-determination.11 The Human Rights Committee ruled that abortion restrictions violate the right to equal protection by subjecting women to harmful gender stereotypes.12 Denial of abortion may even constitute cruel, inhuman, or degrading treatment, as the Committee against Torture concluded.13 Likewise, the Committee on the Elimination of Discrimination against Women found that denial or delay of safe abortion and forced continuation of pregnancy are forms of gender based violence.14

The Supreme Court’s final ruling on the Mississippi case is expected in June and, if the leak is correct, is likely to trigger a swath of punitive abortion restrictions. While 16 states and DC have passed laws to codify legal abortion, including for women travelling from other states, conservative states are closing all avenues for safe and legal abortion, and they have a new ally in the Supreme Court. The US is rapidly becoming an outlier in the trend towards advancing women’s reproductive rights and the right to health.

Footnotes

  • Competing interests: I have read and understood BMJ policy on declaration of interests and have no relevant interests to declare.

  • Provenance and peer review: Commissioned; not externally peer reviewed.

References