Louisiana, Kentucky and South Dakota have laws that immediately ban most abortions. Another 13 states have so-called trigger laws, meaning abortions could be limited or banned within a month, some through certificates from attorneys general who have signaled they plan to sign. Only five of those include exceptions for rape and incest.
Other states still have pre-Roe laws on the books that could be resurrected with court action or ongoing legal battles that could result in abortion restrictions within months. Within the next few months, nearly half of states could see new abortion restrictions. And questions remain even among the 27 states with legal abortion.
“It’s going to be a real nightmare,” said Greer Donley, an assistant professor specializing in reproductive health care at the University of Pittsburgh Law School. “Literally, all I do all day is think about abortion law. It’s my only job. And there’s questions that I can’t answer.”
Providers in states with fast-coming abortion bans are grappling with what to do without running afoul of the law.
“I don’t want to go to jail. I don’t want to break the law,” Giovannina Anthony, one of two abortion providers in Wyoming, told our Megan Messerly. “But I also can’t imagine a patient who has been raped or assaulted and is pregnant and calling for help and, as a gynecologist, to say to her, ‘Sorry, you’re on your own.’ It’s just horrific.”
The next battle
President Joe Biden, Attorney General Merrick Garland and Health and Human Services Secretary Xavier Becerra quickly name checked another option — mifepristone, the abortion pill — in the wake of the news. Biden said he’d order HHS to increase availability of the Food and Drug Administration-approved drug, while Garland said states can’t ban it because of the FDA’s approval.
But it may not be that easy. It’s already difficult for people to get the pills, which are authorized for the first 10 weeks of pregnancy. Even before the Roe upheaval, 19 states had banned the use of telehealth for abortion, an avenue that will be key for people in restrictive states.
And as we’ve seen before, access to an FDA-approved substance can be restricted in many ways without outright banning it — a move that would surely land in court. The Trump administration required people to pick up the drugs in person, a rule Biden’s HHS rolled back last year. States could also criminalize possession or receipt of the drug, though that could also run into legal challenges, said an FDA expert who requested anonymity to speak freely.
“Roe v. Wade was also precedent yesterday but isn’t today,” the expert said. “How secure is precedent on any principle if someone can find a court to say differently?”
And then the battles after that
Justice Clarence Thomas argued in a concurring opinion released Friday that the court “should reconsider” its past rulings on rights to contraception,same-sex relationships and same-sex marriage, POLITICO’s Quint Forgey and Josh Gerstein report.
The court’s majority ppinion, written by Justice Samuel Alito, repeatedly says the decision to abandon Roe poses no threat to other precedents, but Democratic politicians have warned for weeks that the new conservative majority is not likely to stop here.
The court’s liberal minority agrees. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in a dissenting opinion that the constitutional right to abortion “does not stand alone … To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation.”
‘A step backward’
That’s what more than half of Americans called the Supreme Court ruling in CBS polling published over the weekend — 20 percent more than those who called it a step forward.
That’s a problem for the GOP, which has fought for decades for this moment and now must face the inconvenient reality of it arriving months before a critical election.
Strategists on both sides of the aisle say the court’s move doesn’t change the likelihood of Republicans taking back the House. But the silence of some of the House’s most endangered Republicans speaks volumes, report POLITICO’s Sarah Ferris and Ally Mutnick. Even though House Republicans in battleground states embrace the party’s anti-abortion stance, several weren’t immediately keen to talk about their historic win.
Democrats say that’s because they know they’re poised to lose ground with women and moderates in the suburbs and purple states. Ds, of course, now have a wave of outrage to ride into an election that otherwise will be a slog for them.
As one former Republican congressman familiar with the party’s campaign operation told our David Siders: “Everything was going our way. Gas is above $5. Inflation is a giant problem.”
And maybe two steps backward for people of color
Black individuals seek abortion at a higher rate than other races or ethnicities in the U.S., according to CDC data. Alito noted as much in his opinion last week.
As Keisha Blain writes in POLITICO Magazine, losing access to safe and legal abortions in many states is likely to exacerbate America’s high maternal rate and the disproportionately high maternal mortality rate among Black women particularly that’s the result of decade-long racist and discriminatory practices in healthcare.
Those denied access to abortions are not only more likely to be in poor health, Blain writes, but are also more likely to live in poverty, deepening the social and health inequities in the nation.