What overturning Roe v. Wade means for the United StatesBMJ 2022; 377 doi: https://doi.org/10.1136/bmj.o1255 (Published 19 May 2022) Cite this as: BMJ 2022;377:o1255
For decades, the abortion battle in the United States has had a curious combination of peril and inertia. Reproductive rights advocates have rightly said that the right to abortion is in peril, and Donald Trump's accession to the presidency made the abolition of the federal right to abortion a certainty.1 It was, in many ways, a key reason so many social conservatives supported Trump. But at the same time, nothing seemed to happen. The effects of the anti-abortion movement's salami-slicing tactics were limited by increasing access to medication abortion. The gradual erosion to abortion rights was mostly felt by people who were already poor, victimized by racism, or otherwise disempowered in the American political system, and so the response was muted.
The leak of the draft majority opinion in the Dobbs decision, discussing a Mississippi law that effectively banned abortion, changes everything. it is unequivocal. It holds that Roe v. Wade, the 1973 decision establishing a federal right to a first-trimester abortion, was wrongly decided. If that is the final decision, then the day after the decision comes down will be the day that 22 state bans on abortion come into effect—some of them almost completely comprehensive.2
But that is not all. The draft is far more radical, in every sense, than it needed to be if the only goal were to eliminate the federal right to abortion.3 It holds that Roe was “egregiously wrong from the start” because it was part of a wrongly decided chain of decisions on the right to privacy, dating to 1965's Griswold v. Connecticut, grounded in the Constitution’s Fourteenth amendment. These decisions and principles also established the right to privacy in all senses including the right to sexual privacy, same sex marriage, and contraception. Essentially, the decision argues that rights not familiar to late nineteenth century white men are not protected in the Constitution. Republican politicians who see advantage in pursuing any of these issues have essentially been invited to do so.
Public health implications of banning abortion
The vast majority of abortions in the United States occur in the first trimester and the procedure is safe and effective.4 In fact, at all gestational ages, abortion is much safer than carrying a pregnancy to term. In a country with a maternal mortality rate that is outrageously high compared with peer nations, and especially high among Black women, we will see these deaths, and disparities increase if Roe vs Wade is overturned. It has been estimated that maternal mortality will increase by over 20% once bans on abortion are in place.5 While legislators could invest energy into reducing the United States’ disgraceful maternal mortality rate, or improving policies and programmes that would make raising children in this country easier, instead, they are enacting legislation that will do neither.
Abortion is a common medical procedure, sought by all kinds of women, due to all sorts of circumstances. However, abortion is not evenly distributed among the population. According to data from the Centers for Disease Control and Prevention (CDC), Black women are five times more likely to have an abortion than white women, and Latinx women are twice as likely as whites.6 Seventy five percent of people who have abortions have low incomes or live in poverty.7 More than 60 percent have other children. Given the lack of pregnancy and parental support in the US (i.e. no paid parental leave, limited choices for healthcare coverage, no support for childcare), forcing those on low incomes to choose between paying to travel to get an abortion (which would include missing work and finding childcare) versus adding another child to their lives will doom many families to worsening poverty. It is not only women whose health is negatively impacted by abortion regulations; states with more restrictive abortion laws also see higher levels of neonatal deaths.8
Due to medical advances, especially medication abortion, we most likely will not see a return to 1960s levels of abortion related deaths in this country, when “back alley” abortions killed hundreds of women per year. It will probably be possible for many people to order abortion medication online to be delivered to their homes. The legality of this is not clear, and legislators will likely try to stop this practice. While these medications work in the large majority of early abortions, they sometimes require medical treatment if there are complications, and making abortion illegal may prevent women who need care form accessing hospitals, as is the case in other places around the world.
Even worse than it looks
If abortion is restricted in some or many places in the United States, there will be negative health outcomes and the legislators who craft these policies, and the Supreme Court who allows them to go into practice, need to be held responsible.
The particular route that the Court is taking—should the leaked draft be the final decision—will have effects even beyond the specific case. “Returning” abortion to the states is nobody's end goal. Abortion is a much more powerful motivator than any theory of federalism can be. It is likely that Republicans in the legislative branch will pass a nationwide abortion ban if they can. We can see what state politicians can and will try.9 State legislators committed to banning abortion are already experimenting with extraterritorial measures to criminalize people who cross into other states to receive abortions.10 An example is Texas' notorious bounty hunter law, which creates a financial incentive to turn in people who assist or have an abortion, in or out of the state.11 This law is being used as a model for legislation elsewhere.12 The wording of the decision seems clearly intended to pave the way for the Court to rule that there is a fetal right to life should it be legislated. Again, prosecutors and state governments around the country are already experimenting with such measures.
This is the goal that a social movement, and over time almost the entire Republican party, has pursued with passion over decades. The anti-abortion movement is arguably the most effective social movement in recent American history, and while it has won its main battle, neither the politics nor the text of the decision suggest that the war is over.
Competing interests: none declared.
Provenance and peer review: commissioned, not peer reviewed.