Intended for healthcare professionals

Opinion

Overturning Roe v Wade has had an immediate chilling effect on reproductive healthcare

BMJ 2022; 377 doi: https://doi.org/10.1136/bmj.o1622 (Published 30 June 2022) Cite this as: BMJ 2022;377:o1622
  1. Terry McGovern, Harriet and Robert H. Heilbrunn professor and chair
  1. Heilbrunn Department of Population and Family Health, Columbia University Mailman School of Public Health

The capacity for resistance of those who believe health is a human right should not be underestimated, writes Terry McGovern

Last week, the Supreme Court of the United States unleashed an unprecedented attack on women, girls, and people of reproductive capacity. In a chilling reversal of 50 years of established constitutional protection for abortion, the Court overturned Roe v Wade. While advocates and providers continue to fight abortion bans in state courts, this decision has severely curtailed access to abortion in the US. Worse, in many states, pregnancy related conditions such as ectopic pregnancies and miscarriage may be construed as abortion related.

Since the decision was released, eight states—Alabama, Arkansas, Louisiana, Kentucky, Missouri, Oklahoma, South Dakota, and Utah—have implemented laws and trigger bans that make abortion illegal, with few exceptions. Of those states, only Utah has an exception for cases of rape and incest. In three other states—Arizona, West Virginia, and Wisconsin—confusion about the enforceability of pre-Roe bans has led all abortions to cease. While judges in Louisiana, Texas, and Utah temporarily blocked their bans, allowing some abortions to resume, in nine states abortions have ceased completely.123 More bans will soon follow. Trigger bans (laws set to take effect if Roe were overruled) in Texas, Tennessee, Mississippi, Idaho, North Dakota, and Wyoming will take effect in the coming weeks, eliminating abortion access in those states as well.

Georgia is in the process of overturning injunctions against fetal heartbeat bills, and will join Tennessee, Ohio, and South Carolina in eliminating abortions after six weeks of pregnancy, before most people know they are pregnant. Several more state governments are working to ban or severely restrict access to abortion.

Eighteen states have laws in place that open the door to the prosecution of pregnant women and providers who attempt abortions under a range of provisions including homicide, feticide, assault, and child abuse.4 Thirteen states have introduced or passed legislation allowing private citizens to sue people who aid or abet abortion for financial renumeration.5 As a result, the Supreme Court has unleashed large scale terror on the provision of reproductive healthcare.

In the US, the Health Insurance Portability and Accountability Act (HIPAA) restricts the disclosure of private medical information without consent.6 The law covers healthcare providers and pre-empts state laws regarding the disclosure of medical information. States can provide more protection than HIPAA, but not less. Questions abound regarding privacy protection and under what circumstances private medical information is shared with law enforcement. There is widespread fear about seeking medical care for miscarriage or other pregnancy complications that could be misconstrued and reported. HIPAA does allow a covered entity to be compelled to release private medical information in response to judicial or administrative proceedings, but a court order, subpoena, summons, or a discovery request must be present in court proceedings. In some states providers are required to report injuries that may be related to a criminal offence, like a self-managed abortion. The confusion and lack of awareness about how these provisions will be applied have had an immediate chilling effect on reproductive healthcare. Providers and citizens must carefully consider the risk of seeking or providing routine medical care related to pregnancy. In addition, anti-abortion forces run “crisis pregnancy centers” throughout the country, which advertise “free pregnancy testing” but in fact are designed to entrap pregnant people and convince them not to have an abortion. These entities do not provide healthcare and are not regulated under HIPAA.7 We can assume these entities will routinely report to law enforcement anyone seeking a free pregnancy test and who mentions wanting an abortion.

Much confusion exists about self-managed abortion as well. Despite the US Food and Drug Administration’s decision to allow abortion pills to be distributed by mail, 117 restrictions on medical abortion have been introduced in 22 states this year.89 Various states are seeking to ban abortion pills completely. Many unsolved legal contradictions will add to the chaos.

These restrictions will harm those with the least economic resources or those facing racism in everyday medical care. In Florida, Black women account for 15% of the population, but 75% of arrests related to pregnancy.4 We know from global trends that making abortion illegal and criminal will only increase maternal mortality.10 The US already has the highest maternal mortality rate in the developed world, with Black women facing disproportionately high maternal mortality rates.11 We can expect these trends to worsen. The economic, physical, and mental health consequences of forced pregnancy, unsafe abortion, forced travel, and criminal prosecution are hard to comprehend.

It is a sad moment for the US, but the resilience and capacity for resistance in those who believe health is a human right should not be underestimated. Providers, advocates, and activists across the country are working to protect women with unintended pregnancies and to strengthen protections in states where abortion remains legal. There are many battles to fight, and fight we will.

Footnotes

  • Competing interests: none declared.

  • Provenance and peer review: commissioned, not peer reviewed.

References